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Home My WebLink About00-08861 . " ~.~ ~,~ --Jt;;" h "';-. ,- M Icl>l,ii,G l J. C 115Sl0Y {'>.rv I; ---------------------------------------------- _~~~_t_~__~_:S::.A_5_~ P-1.-t-lfl;':- P~..0 -rrllt..~ s -tfJ!b!A {,fl, C AS56C1A\l:=S) , VI. p/rA,'I1-tA">+ 6'14 I rC)()1'\ S f\t. L '\ _____________________________________________ __~____~~__L_Jl..__::rg_:.5.,..j-~..:.-r---- [t VI/...- 14 <.. T I D tJ _tiJ]_~~J>___~sLl~_ ~ ~J:~~__c=~n4P~~- _________________ ,____________________________ f'iNI) ARc. 5J-~IP(l€NJg'_1P, G ttMITfD PARTNE!<.';;'/.J/p ---------------------...----.. ---------------i5-~1;;;;J~-v..n_----~ -j ------------------------ -~-1r~~~;t0~~~19~;jth~~~~~;:.:;~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ .________,____L(lb~~T-l;f..0..L-A-.l:Y..t!t-~.f--nt~~J!.~LJ~VJ--iA!___3.!..~!!_~=~______ __C!.I:~~~d___0.5:f!_~!1:___{ !..~!__!idJ.t~j'L__o..!.__f~€!KL1~.::d._ _H!1-f".J)'Y_c..:.__1L___ ..ll~ct__~~~t~ bq~--~~~::-t,~{tlLf.{f;r!:~--!-:~!:~:---------.-----~-----_________________ [n the COUft oE Common. P1e:as oE Cumberland ColD1ty, Pmnsyh':mia. O-O,!?3'l./ .' ,1-60 ,) tlo. __________________________ Civil. ~______ ..------------------------- -.. --.--------------------------- ..-----...-----.....----. -- .--------------- 1:0 _____~~~1-J:~____~~_~_1------------ Prothonotary \) e c.. 'el'lt\ ~ -e r ~ q 2-d e> d -------------------------------------------- ~---- y~).:.~-~~---------- Attcmey for Plaintiff. ~. 'ii'i~~~ej~-i!;~{,''-''-_ j t~ ~ ~ , 0 {" Go "'I "i.' ~' " " ",i~~LN "';,,-~ ---,-,\"--,,1,..,,, _",,~,;!, ",~S . - /~,"".~';'C. '"'"S;,;(!.":';:'-i,~.!!'~'t.,,:jj;;)P.!l'__"""~~"'~'Tlfl~M~~..;&-,,-~~~~)J.,,,-W,.k;""'t1';,4};Wh1,~~,""~""'~;'~#Iia~IkMj~jj'il'11illl'llllM~i ....... ( No. _____________________ Tenn, 19______ VI, --------..-------------.------.---------- PRAEC:IPE FUed ________________..__________ 19____ __________________________________, Alty, @ ~ ~, ~""_ "C,'~ ,.," ~_~ _. ~, ~". r '''f.' ,-~ ",' .., ,<, ,<"''''','' ~ --':_ ,F_- "'~,<_ ,_ '" ~ ] ,{; ~ -t; ~~C (;I~~ ~ 'r- (') C -n~~ d:'"ttt, ~,~ ~j~ pl-l c: Z --j ~, CJ Ct r:-:1 ....-1 '..J [....) tD ~ , , .. ~:...:~: ':::' L~~" ~ S::! -< {51 CP -. - = - 'i .ii. ";"'1 '-, ,-, , - Commonwealth of Pennsylvania County of Cumberland Michael J. Cassidy and Julie A. Cassidy, Co-Partners t/d/b/a G & C Associates VB Court of Common Pleas Giant Food Stores, Inc., 1149 Harrisburg Pike Carlisle, Pa. 17013 Ahold Real Estate Canpany and ARC Shippensburg Limited Partnership No, 'O'Q::8!3.P_LCbdl_T.emL___uu______ 19u_.. In _ CJxU_A<;;t;LPJLLi:lR__ u__u_..___________u ,. To _G!?pJ.J:9gU2,:tQ.~E.i'!?J__Im~_._'__~hQ!(.:L.RegJ._J:state Canpariy and ARC Shippensburg Limited Partnership You are hereby notified that . ____l:1i!;:meLJ.~ _C=k1~uIDd..J:uli.e...A._.cf""" ; n),l ._ili"Pa:r::toeJ:S._tl.d.Lb/a.__ _ _____ u__ _ _ ____., ARC Shippensburg Limited Partnership the Plaintiff ha S commenced an action in u______..______ctYjJ"-_Lfl~'Lu___h_____U_______u_u__., against you which you are required to defend or a default judgment may be entered against you, (SEAL) " ._ _ ___~lJIt.i!l. _F -,_J"g[lg u____u _ ___ _.. _.. __ _ _____.. , Prothonotary I>ate __J)ecEDllJeI:.~._~QO_______ 19____ /1 a ' By __~----~-----------__-----., I>eputy :< iiiil'jr~-' .-do,],..'" rl:,l,*im~!~~fil~'i?g;i!i;,&;,,;nJ>~~_RtM~~1i\iJr-il,'-:i,ii[,;',_, ~,j,J"er"~"h<,:',i,""'!!!li1li~~.~ -,'_" 1. -, ;'~~"'-'- ~,. ,,-', ->l~"ill"" .';""=r1':~"""';~~~- '_ti~iiIIi'" ~J :"" ,./ - , -J CJl-JCJl I ~ .... ;:rOO> I :I:>:I:>Q 03: I -J 1-'.1-' l--' I ~::;1 \-I. 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SHERIFF'S RETURN - REGULAR CASE NO: 2000-08861 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CASSIDY MICHAEL J ET AL VS GIANT FOOD STORES INC ET AL JASON VIORAL , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon GIANT FOOD STORES INC the DEFENDANT , at 0015:21 HOURS, on the 3rd day of January ,2001 at 1149 HARRISBURG PIKE CARLISLE, PA 17013 by handing to HAVEN FISH (LEGAL ADMIN.) a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof, Sheriff's Costs: Docketing Service Affidavit Surcharge So ;:;~~l 18.00 3.10 .00 10.00 .00 31. 10 R, Thomas Kline 01/04/2001 SALLY WINDER Sworn and Subscribed to before me this /0 1':': day of ~A'/ ~/ A.D. 0.t~ fl. 'J1A,U.I,J,Arzt r thonotary By: " {/~ eputy Sheriff ';-~-.;.,,-,iO; <. , ~ : ,;;:: '- '-'<:'-, ~;~~'.' -- [--"., - MICHAEL 1. CASSIDY and JULIE A. CASSIDY, CO-PARTNERS, t/dIb/a G & C ASSOCIATES, Plaintiff v. GIANT FOOD STORES, INC., AHOLD REAL ESTATE COMPANY and ARC SHIPPENSBURG LIMITED PARTNERSHIP, Defendants '" ,----- -"-,,' ,-,"(-,C - - ~,' " >' -- -- ---' -".,""__.-'e,'-"""'-;',c-b'C< - ,-,-- -,---,,---., '-C_>-"";:;__:'<'___ ~ ~'>,"I ~'" I . >,,_ L". , , : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 00-8861 : CIVIL ACTION - LAW RULE YOU ARE DIRECTED, pursuant to Pa.R.Civ,P, No, 1037(a), to file a complaint against the Defendants in the above-captioned action within twenty (20) days from the date of service of this Rule. fYI.:a y / ~ :.L0:5} (Z-t-1~j ~ ~ Protlionot MICHAEL J. CASSIDY and JULIE A. CASSIDY, CO-PARTNERS, tld/b/a G & C ASSOCIATES, Plaintiff v. GIANT FOOD STORES, INC" AHOLD REAL ESTATE COMPANY and ARC SHIPPENSBURG LIMITED PARTNERSHIP, Defendants ",1:-, - <> , _ ,'~H_ "-" , -- ,-v - ~ - ,- ~ , .' ,. e_". u';-:i'"i ! , , : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA : NO. 00-8861 : CIVIL ACTION - LAW PRAECIPE FOR RULE TO FILE COMPLAINT TO: Prothonotary Issue a Rule upon Plaintiffto file a complaint against the Defendants within twenty (20) days from service hereof. Date: May 10,2001 McNEES, WALLACE & NURlCK By HAl Yt#t Helen L. Gemmill Atty I.D. No. 60661 100 Pine Street P.O, Box 1166 Harrisburg, P A 17108 (717)232-8000 Attorneys for Defendants ~ .,-' ,. ~ > ' ,',,-J~- >._ - ,," -","-'-, -,.-,-' --.,-' ,,' .- '.. ,',' ""<',<'-- . " "'~";' i~,", ,- - - ~' --'_c.c.-.'_'" '~, ..Yo. ' , , CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing Praecipe was served by regular, first-class U.S, Mail, postage prepaid, upon the following: Sally J. Winder, Esquire 701 East King Street Shippensburg, P A 17257 :II:;L.t::1f l;tf!t Date: May 10 ,2001 4it ".., ~-.J........~ =11 4; . -.,'"" -, ,j' '" ....- ., -', '~1,:1 " MICHAEL J. CASSIDY and JULIE A. CASSIDY, CO-PARTNERS, tldlb/a G & C ASSOCIATES, Plaintiffs :IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNA. v. :NO 00-8861 GIANT FOOD STORES, INC., AHOLD REAL ESTATE COMPANY, and ARC SHIPPENSBURG LIMITED PARTNERSHIP, Defendants :CIVIL ACTION LAW NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within TWENTY (20) DAYS after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses. or objections to the claims set forth against you, You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE TIDS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Pennsylvania Bar Association Lawyer Referral Service 100 Sonth Street POBox 186 Harrisbnrg PA 17108 Telephone: 1-800-692-7375 or (717) 238-6715 By: ~~i d- 1;J~~ Sally J. Wi der Attorney for Plaintiff 701 E. King Street Shippensbnrg, PA 17257 '" ., ,.. ..", "N,,_~1, ~L" ,~, - 1"-1'}' -' MICHAEL J. CASSIDY and JULIE A. CASSIDY, CO-PARTNERS, t/dlb/a G & C ASSOCIATES, Plaintiffs :IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNA. v. :NO 00-8861 GIANT FOOD STORE, INC., AHOLD REAL ESTATE COMPANY, and ARC SHIPPENSBURG LIMITED PARTNERSHIP, . . Defendants :CIVlL ACTION LAW COMPLAINT 1. The plaintiffs are Michael 1. Cassidy and Julie E. Cassidy, general partners engaged in the business of real estate development an<l residential construction, and trading and doing business as G & C Associates, with a place of business located at 9974 Molly Pitcher Highway, Shippensburg, P A 17257. 2, Defendant, Giant Food Stores, Inc., is a corporation which operates a number of grocery stores in Cumberland County, Pennsylvania, and maintains a business office at 1149 Harrisburg Pike, Carlisle, Pennsylvania 17013. 3. Defendant, Ahold Real Estate Company, is a Connecticut general partnership, engaged in the business of grocery store site acquisitions for defendant, Giant Food Store, Inc., with a place of business at One Atlantic Plaza, 950 Paces Ferry Road, Suite 2575, Atlanta, Georgia 30326, 4. Defendant, ARC Shippensburg Limited Partnership, is a Connecticut limited partnership, formed for the sole purpose of taking title to real estate in Shippensburg Township, Cumberland County, upon which a grocery store and other businesses would be developed, with a place of business at One Atlantic Plaza, 950 Paces Ferry Road, Suite 2575, Atlanta, Georgia 30326. 5, On or about April 30, 1997, plaintiffs and defendant Ahold Real Estate Company entered into an written agreement whereby plaintiff agreed to sell and defendant Ahold Real Estate Company agreed to buy approximately 10 acres of land zoned commercial and situate in Shippensburg Township, Cumberland County, Pennsylvania. A copy of the written agreement is attached hereto, marked Exhibit "A" and incorporated by reference, ,< .' 6. By written assign document dated April 16, 1998, defendant Ahold Real Estate Company assigned all of its right, title and interest in the agreement of sale described in paragraph 5 of the complaint to defendant ARC Shippensburg Limited Partnership, A copy of the written assignment document is attached hereto, marked Exhibit "B", and incorporated by reference, 7. On or about April 16, 1998, closing and transfer of title of the real estate which was the subject of the agreement of sale dated April 30, 1998, took place. On that date, plaintiffs conveyed the subject real estate to defendant ARC Shippensburg Limited Partnership by special warranty deed, and defendant ARC Shippensburg Limited Partnership paid plaintiffs the agreed upon purchase price of$450.000.00. The deed of conveyance has been filed of record in the Cumberland County Recorder of Deeds Office in Deed Book 175, Page 606.. 8. Paragraph 8 of the agreement of sale between plaintiffs ("Seller") and defendant Ahold Real Estate Company ("Buyer") provided as follows: "All covenants, conditions and representations contained in this Agreement shall survive Closing." 9. Paragraph 30(a) of the agreement stated that at closing Seller would grant an appropriate easement over property located to the rear of the real estate conveyed, to Buyer for the placement of storm water management structures/areas, and Buyer would design, construct and maintain said storm water management structures/areas on the said easement property. Said storm water management structures/areas were to be designed and constructed to include storm water runoff from other residential lands owned by Seller and from other commercial lands owned by Seller, and located next to the Buyer's lot. 10, Paragraph 30(b) of the agreement stated that Buyer would install at a minimum an eight (8") inch sanitary sewer line and an eight (8") inch water line to service the grocery store building to be constructed on the lot purchased by Buyer, beginning at the currently existing public utility sewer and water lines located in or near the public road right-of-way to the front of Buyer's lot, with the water line running approximately 780 feet and the sewer line running approximately 1735 feet to a terminus near the rear of Buyer's lot, and Seller would be permitted to utilize said water and sewer lines in the development of other residential lands owned by Seller and other commercial lands owned by Seller, and located next to the Buyer's lot. 11, The defendants to date have made no effort to design and construct the storm water management structures/areas and the sanitary sewer line and water line which were agreed to be built by Buyer in the written agreement between the parties. 12. On a number of occasions, the defendants have stated to plaintiffs that they have no intentions of ever designing or constructing the storm water management structures/area and the sanitary sewer line and water line ("specified improvements") which were agreed to be built by Buyer in the written agreement between the parties. - e_, ,- ,-" lltkl " ~- ~- -~ " ~"M"- j ,,_I."" ~.';,-" ,'" i"l'_,u, ~""';, 13. By failing to design and build the specified improvements and by stating to plaintiffs that they have no intentions of ever designing and building the specified improvements, the defendants have breached their written agreement between themselves and plaintiffs, 14. Having the defendants agree to design and build the specified improvements was a substantial part of the total consideration promised to plaintiffs to induce plaintiffs to transfer and convey the commercial lot to Buyer at closing, 15. The total costs of designing and building the specified improvements are in excess of $462, 155,00, A copy of the proposal and estimate of David H, Martin Excavating, Inc., dated August 7, 2000, stating total costs as of the date of the proposal and estimate is attached hereto, marked Exhibit "C", and incorporated by reference. 16. The total costs of designing and building the specified improvements will have escalated between Augnst 7,2000, and the date of filing this complaint, due to increased costs of labor and materials necessary for construction of said specified improvements, and will continue to escalate until they are designed and constructed. 17. The desigu and construction of the specified improvements is required to be done for the development of other residential lands and other commercial lands owned by plaintiffs and located next to Buyer's lot. 18. By their breach of the written agreement between the parties, defendants have damaged plaintiffs in the amount of $462, 155.00 plus whatever increased costs of constructing the specified improvements are caused by the passage of time, plus the financing costs to plaintiffs of borrowing money to themselves design and build the specified improvements, 19, The defendants in producing the breach of their written agreement with plaintiffs acted jointly; therefore, the liability of the defendants for the damages suffered by plaintiffs should be joint and several liability. WHEREFORE, plaintiffs request this Court to enter judgment in favor of plaintiffs and against all defendants, jointly and severally, in an amount in excess of $462, 155,00, plus interest, costs of suit, and any other sums deemed by this Court to be appropriate. The amount claimed is in excess of the claim for relief requiring compulsory submission to arbitration, d. iN ~ Sally J, Witt r, Attorney for Plaintiffs, Michael 1. Cassidy and Julie A. Cassidy, co-partners, tldIb/a G & C Associates 701 East King Street Shippensburg, P A. 17257 tel. (717)532-9476 ,~ " '1 , "_f_' C_ "--~ ,.',,'.';1-....:''''-;,'<'01-. '~M1iiM'!ljIM;., VERIFICATION I verifY that the statements made in this complaint are true and correct to the best of my personal knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa, C,S. section 4904, relating to unsworn falsification to authorities, Date: r; 1'3; I /($ I '12: ;,-.~Id~~l<'j~~""~~-~ .~." """'.." I ''''"''~O, ~ "'...J;,,~i,_i,,________ - '""~~""""~"'iI<~fujj;\ AGRREMENT OF PURCHASE AND SALE THIS AGREEMENT ("Agreement") is made this 7,014 day nf ~"I . 1997, by and between Michael Cassidy, Julie A. Cassidy and Barbara L. Garling, d/b/a G Associates, with an address of 9974 Molly Pitcher Higbway, Shippensburg, Pennsylvania 17257 (hereinafter referred to as "Sellerll), and Abold Real Estate Company, a Connecticut general partnership with an address of One Atlanta Plaza, 950 East Paees Ferry Road, Suite 1575, Atlanta, Georgia 30316, Attention: Edward J. Pabicb, Exetutive Vice President, or its nominee (bereinafter referred to as "Buyer"). WITNESSETH Seller is tbe owner in fee simple of a certain piece or parcel of land located on the east side of Baltimore Road (alk/a Queen_itreet) in the Township of Shippensburg, Pennsylvania, containing approximately ten (10) acres, more or less, as is more fully described on Exhibit "A", which is attached hereto and hereby made a part hereof(hereinafter, together with all improvements located thereon and all appurtenances related thereto, the "Premises") and as will be more fully determined upon a survey oftbe Premises as set forth hereinafter. Subject to the terms and conditions of this Agreement, Buyer desires to purchase the Premises from Seller, and Seller desires to sell the Premises to Buyer. NOW, THEREFORE, in consideration of the mutual promises-herein contained and of other good and va.uable consideration, the parties hereto hereby agree as tollows: I. PURCHASE AND SAI,E, Upon and subject to the terms and conditions oftbis Agreement, Seller shall sell and convey tbe Prem:ises to Buyer, and Buyer shall purchase the Premises from Seller. 2. ' TIME AND PLACE OF CLOSING. The closing and trapsfer of title (hereinafter the "Closing") shall take place at (or through the escrow services of) the 8ffices 8fthe title insurance company of Buyer's ch8ice, or itS agent (the "Title Company") on 8r before the date which is ninety (90) days after the eXJliration 8f the Feasibility Peri8d, as tbe same may be extended in accordance with Paragraph 5 (the "Closing Datell), or at such 8ther place and on such 8ther earlier date as tbe parties may hereafter mutually agree upon in writing. N8twitbstanding tbe foregoing, Buyer may elect to. h81d the Closing on any earlier date by providing Seller with written notice specifYing such earlier qpsing Date~ which notice shall be mailed or delivered to Seller not less than ten (10) days pri8r to the Closing D'ate spumed in such notice. 3. PIJRCHASR PRICE. Subject to adjustments as hereinafter set (orth, tbe purchase price to be paid for the Premises shall be Forty~f!.ve Th8usand ($ 45,000.00) Dollars per acre (tbe "Purchase Price"). The Purchase Price sball be paid a.nd received as follows: . (a) Fifty Thousand (S 50,000.00) Dollars paid by Buyer to an account administered by tbe Title Company_upon execution of this Agreement (the "Deposit"); The Title Company shall hold the Deposit in an interest bearing escr8w account at the state or federally chartered bank of its choice, and sball disburse the Dep8sit in accordance with the terms contained herein. At the Closing, the Deposit and all interest accrued thereon shaD be deJjvered to Seller, and the Purchase Price shall be credited for sucb sum. In the event this Agreement is terminated as set fortb herein or either Buyer or Seller defaulHn their respective obligati8ns hereunder and no Closing takes place, the Title Company shall deliver "the Deposit and accrued interest there8n, in accordance witb tbe terms hereof. (b) Tbe balance oftbe Purchase Price (subject to adjustments identified bereinafter) not paid in acc8rdance with this Agreement pri8r to the Closing, as bereinafter defined, shall be paid at Closing in cash or by certified, cashier's or treasurer's check or wire transfer 8f immediately available funds by Buyer to SeUer, or to the Title C8mpany pursuant to an escrow cl8sing. 4. DISBURSEMENT OF DRPOSIT TO SELLER. If Closing is completed bereunder 8r if Buyer, witbout the right to do so and in default 8f its obligations hereunder, fails to complete Closing, the Title Company shall pay the Deposit, and all interest accrued thereon, to. Sellerj in the event of Buyer's default the right 8f Seller to obtain such money fr8m the Title C8mpany shall be Seller's exclusive and s81e remedy, and sball be deemed liquidated damages. S. FEASIBILITY PERIOD. Buyer may c8nduct a devel8pment feasibility study of the Premises and Buyer shall have the rigbt to terminate this Agreement if Buyer is n8t satisfied for any reason whatsoever until midnight of the day one (1) year,after the date of full execution and delivery of this Agreement to Buyer (the "Feasibility Peri8d"). If Buyer is not satisfied witb the property 8r for any qther reaS8n whatsoever at any time during said period, Buyer may terminate this Agreement by written notice to. Seller, whereupon the Title COJlJpany shall return the Deposit (except for 8ne hundred (S1'00.00) dollars, which shall be paid over to the Seller as part considerati8n for this Agreement) to Buyer, t8gether with all accrued interest thereon, 8r so much thereof as may remain after the advaoces previously made to Seller in accordance witb the preceding sentence, to. Buyer, and this Agreement will cease, terminate and come to an end, and neither party shall have any further rights against or obligati8ns to the other lJy virlu~ ofthis Agrce~~!'t. N9~itbstanding anything to the contrary contained herein, the Feasibility Period shall terminate 8n the thirtieth (30th) day f8110wing the final unappealable issuance 8f all permits, approvals, permits and certificates, including. without Iimitati8n, any zone <fA ,) Exr. it) /.(: ~ J""'~H - ~,~. - .~, _L-.: Ii;I'- .'~,;... _>I~",., ~. ~ ~,~ .." .- changes or permits, special permits or exceptions, site plan, wetlands approvals, water diversion, discharge and other environmental permits. state or local traffic commission certificates permits or approvals, and all other approvals ("Final Approvals"), from aU applicable federal, state, regional and municipal authorities n"essary tll authorize the Buyer's construction and development proposed for the Premises. Within the first three months (3) of the Feasibility Period Buyer will obtain a Phase I Environmental Report and a Title Insurance Report or Commitment which it deems satisfactory. 6. CONDITION OF TITLE. Title to the Premises shall be given to Buyer (or its nominee) at the Closing by delivery of Seller's special warranty deed, in proper recordab.le form, duly executed and acknowledged by Seller, and, if applicable, Seller's spouse. Buyer must be able to obtain from the Title Company an ALTA fono Owner's Policy insuring good and marketable fee simple title to tbe Premises free and clear of all liens, restrictions, easements, eDcumbrances, leases, tenancies and otber title objections, with standard exceptions deleted and such endorsements as Buyer may require, all at ordinary rates. If Buyer causes a survey to be made, the description in the deed shall, at Buyer's option, be based upon tbat survey. If Seller in unable to convey _ title to the Premises to Buyer at Closing in accordance with tbe requirements of this Agreement, Buyer shall have the option (a) of taking such title as Seller is able to convey with abatement of price .in the amount (fixed or ascertainable) of any lien on the Premises, or (b) of terminating Buyer's obligations u~der tbis Agreement and being repaid all monies paid by Buyer on account of tbe Purcbase Price; in either event Buyer shall also have the rigbt to pursue such other remedies as may be available to Buyer at law or in equity. 7. POSSEs..'nON. Possession of the Premises shall be given to Buyer at the time of Closing ulloccupied and free of any leases, claims to or rights of possession: Any billboards and advertising signs on the Premises shall be removed by Seller prior to Closing 8. TAXES;. APPORTIONMENTS Taxes, both real and personal; utility cbarges; water and sewer rents and ~harges; and all otber cbarges customarily adjusted for in- the jurisdiction in wbicb tbe Premises ar'e located shall be apportioned on a per diem basis as of the date of Closing. Buyer and Seller agree to cooperate with each other in all reasonable ways and in good faitb, both prior to and following tbe Closing, to equifably adjust all adjustments applicable to the Premises as ofthe Closing Date. All realty transfer, recording or' conveyance taxes irnposed on or in connection with this transaction shall be shared equally by Seller and Bpyer. Seller shall pay any applicable fees or taxes payable as a result of any previous agricultural tax status 01' relief that may have ~een applicable to th~ Premises. 9. EMINENT DOMAIN. In tbe eveDt oftbe taking of aU or any part of the Premises by eminent domain proceedings or tbe commencement Qf any, sucb proceedings, Buyer shall have tbe right, at Buyer's OptiOD, to terminate tbis Agreement by' giving written notice to Seller on or before the Closing I;)ate. If Buyer does not so terminate this Agreement, the Purchase Price for the Premises shall be reduced by the total of any awards or otber proceeds received by Seller with respect to any taking, and at Closing Seller shall assign to BlIyer all rigbts of Seller in and to any awards or other proceeds payable by reason of any taking. Seller represents tbat the Premises is not currently subject to any such proceedings and Seller agrees to notify Buyer of the commencement of any eminent domain proceedings affecting the Premises witbin five days after Seller lellrns of any such proceedings. Buyer shall have tbe sole rigbt (in tbe name of Buyer or Seller or both) to negotiate for, to agree to and to contest all existing or future offers and awards. 10. VIOLATIONS. Seller represents and warrants to Buyer that as of the date bereofthe Premises is not in violation of any law, ordinance, rule, regulation or requirement,_ including, without limitation, those pertaining to subdivision, zoning, building, bealth, safety or environmental matters, of the municipal, state or federal governments, and no notice bas been issued or served by any governmental authority requiring or calling attention to any violation or the need .for any work on or with respect to the Premises or any roads, highways, streets, avenues or alleys abutting the same, and Seller has no knowledge of any conditions which would constitute such a violation or warrant the issuance of any such notice. All notes or notices of violations of law or municipal or other governmental ordinances, regulation, orders or requirements noted in or issued by any governmental authority against or affecting the Premises on or before the time of Closing sball be complied with by Seller and the Premises shall be conveyed free of tbe same. 11. REPRESENTATIONS. WARRANTIES AND COVENANT,l;; OF SELI,ER. Seller, as an inducement to Buyer to execute this Agreement of Sale, represents, warrants and covenants to Buyer that: (a) The Premises is not tbe subject of any outstanding agreements,witb any party pursuant to which any sucb party may acquire any io.terest in the Premises, there are no other claims of ownership, title or interest in tbe Premises and there are no other contracts, right of first refusals or agreements of sale affecting the Premises. There are 0.0 agreements with any. party to provide services to the Premises which would continue afJer tbe Closing. (b) No tenancy agreements of any nature exist relating to the Premises, and tbere are no parties in possession of any portion of tbe Premises. -2- ~.~ "",,,<._-~~_._'" ~" .--..NH. L , "'; , ~~l>lot.";,,,~..J~'-b _~~,"_~i. ,_jJ ,~ I'",~,,,,,, (c) The Premises have never been used as a dump site, hazardous waste disposal site or Cor any other storage oC any other hazardous, toxic or polluting or contaminating substance, nor as a cemetery or otber burial ground. (d) There are no pending or tbreatened actions, suits or pro<:eedings oC any nature wbatsoever relating to or affecting any portion of the Premises, or relating to or arising out oC the ownership of all or any portion of tbe Premises, any lease, or tbis Agreement or the:transactions contemplated bereby, or insol'Yency or bankruptey prouetUnp involving Seller, in any court or by any federal, state, county or municipal department, commission, board, agency or other governmental instrumentality, whether or not covered by insuraIDce. (e) To the best of Seller's knowledge, there bas been no spill, leaking leaching or other introduction of any lJftzardous Material, as hereinafter defined, upon or from tbe Premises or upon or from real estate contiguous to the Premises, nor are there now, or have tbere ever been, any underground oil or other tanks, asbestos, or any other Hazardous Material at, in, under or on tbe Premises. A "Hazardous Material", as defined herein, shall refer to any substance regulated by, or subject to, any federal, state or other governmental authority, oversight, law, statute, rule (or ruIing), ordinance, or regulation, including any potentially hazardous or toxic substances or waste. Seller agrees to provide tbe firm conducting such environmental site assessments with' such inCormation as is witbin Seller's knowledge eoncernillg the past and present uses oC an4 conditions at the Premises. (f) No portion oC tbe Premises is subject to back taxes, roll-back taxes or any additional tax or tax penalty iC the zone or use oC the Premises should change: (g) All matters known to Seller whicb migbt bave a material adverse effect on the ownership, maintenance, or operation or development of tbe Premises as contemplated herein have been disdo_ed to Buyer. (h) ,.' Seller is not married, is tbe only owner oCthe Premises and Seller bas sole right, power and alrthority to enter in~o tbis Agreement and consummate the transactions contemplated berein. (i) ~o municipal or other governmental improvements affecting tbe Premises are, as of the date hereof, in the course oC construction Qf fnst"lIatio:n, an4 to tbe best of Seller's knowledge no such impro't'ement bas been ordered to be made; all street paving, curbing, sanitary sewers, storm sewers and otber municipal or other governmental improvements wbich have been constructed or installed benefiting the PremiSes bave been paid for and will not hereafter be assessed, and all assessments heretofore made have been paid in fuU; and there are DO private contractual obligations relating to the installation oC or connection to any sanitary sewers or storm sewers. All of the representations and warranties set Cortb in tbis Agreement shall be true and correct on the date he:reof and shall be and remain in Cull force and effect on the Closing Date, and upon request Seller shall confi~ the same at the Closing. 12. . DOCUMENTS TO BE FURNISHED TO HilYER. Within ten (10) days after the execution oC tbis Agreement, Seller shall deliver the -Collowing to Buyer: (a) Any surveys of the Premises, iCany, tbat Seller bM.~n its possession or under its control; (b) Copies of all soils, environmental and/or engineering tests, reports or data relating to the Pri!mises, if any, tbat Seller bas in its possession or under its controlj and (e) Tbe most recent title report or policy oCtitle insurance, if any, that Seller has in its possession or under its control. 13. COOPERATION OF SELLER. ~lIer agrees, provided that Buyer sball be responsible for all costs tllereoC, to cooperate with Buyer in applying- for and obtaining all Final Approvals, as bereinafter defined, aod to join in any application where necessary. Further, Buyer is hereby authorized to proceed in Buyer's own name or in Seller's name(s), as tbe case may be, as is necessary in connection with any Final Approvals. Final Appro't'als, as used berein, shall mean all permits, approvals and certificates (including, witbout limitation, any zoning cbanges o~ permits; special permits or exceptions; site plan; wetlands; water diversion or discharge; any other environmental permits; state or local traffic commission permits or certificates; lot split or lot combination approvals and aU other approvals) Crom all applicable federal, state, regional, municipal and other governmental authorities necessary to authorize tbe construction and development proposed by Buyer for the Premises, with all rigbts of appeal therefrom having expired. Notwithstanding tbe foregoing, nothing in this Agreement shall be deemed to obligate Buyer to apply for or obtain any Final Approvals, it being expressly understood and agreed opon between the parties that i'-shall be within Buyer's sole, absolute, and uneontroUed discredon whethC'r or not to do so. No cooperation by Seller as set forth herein shall (a) be deemed to create any partnership or joint venture between Seller and Buyer, or (b) oblige Seller to payor incur any out-oC-pocket costs. -3- ~! ,,~'".....,,~."'~ - iIIIO. ~ft~~ -."--JICI~-~~" , , ' . .........,,""""'l~i....-d_~ .",.'."">~"" :.; ,- ,........; 14. ACCIi;SS. Seller agrees to permit Buyer and Buyer's designees access to the Premises from time to time for the purpose of making such measurements, surveys, examinations, iospections, tests and analyses as Buyer shall deem Qe~ary or desirable, and for the purpose of showing the Premises to prospective lenders, investors, tenants or purchasers. All examioations, inspections, studies and tests made by Buyer pursuant to this Agreement shall be at the sole cost, risk, and expense of Buyer and Buyer releases Seller from, holds Seller harmless from and indemnifies Seller agains~ any damages or injuries to any property nr pennn, any losses, costs (including reasonable attorney's fees), damages or expenses, and all claims by anyone arising from injury or damage as a result of such activity, excluding, however, from such indemnity any consequential or speculative damages and any claim, Uability, loss or damage that may accrue to Seller as a result of Buyer, or its agents or contractors, discovering any soil or water contamioation or other environmental or geotechnical problem relating to the Premises and not caused by Buyer. Further, Buyer shall indemnify and hold Seller harmless from any liens asserted or elaimed against any part of the Premises as the result of Buyer's activities. Buyer shall restore the Premise&t9 substantially the same condition existing prior to such activity. The foregoing indemnity sball survive any termination of this Agreement. J5. s..IGliS, Seller hereby consents to the placing oesigns upon the Premises by Buyer, provided, however, that if Closing is Dot made hereunder, Buyer shalllremove sucb signs, at Buyer's expense. 16. PROPRRTV INCLlIDRD The sale of the Premises includes all improvements located tbereon; all appurtenances of every nature relating to, the Premises; ..II strips and gores and all right, title and interest, if any, of Seller in and to any land lying in the bed or any street. road, highway, avenue or alley (opened or unopened, existing or proposed, now vacated or hereafter to be vacated) in front of or adjoining the Premises, to the center line thereof, and all right, title and interest of Seller in'and to any award made or to be made in lieu thereof and in and to any unpaid award for damage to the Premises by reason of change of grade of any street, road, highway, avenue or alley; and Seller agrees to execute:and deliver to Buyer, at Closing, or tbereafter, on demand, all proper instruments for the conveyance of sucb title and tbe assignment and collection of any such Award. 17. ASSESSMENTS PAYABLE IN INSTALLMENTS If, at or prior to the time of Closing hereunder, the Premises or any part thereof shall be or shall'have been affected by an assessment or assessments which are or may become payable in installments, of Which the first installment is then a charge or lien, or has been paid, then for the purposes of this Agreement all unpaid installments of any such assessment, including those whicb are to become due and payable a~r the delivery of tbe deed, shall be deemed to be due and payable tmd to be liens upon the Premises affected thereby and shall be paid and discharged by Seller, upnn the delivery or the deed. 18. NOTICES. All notices to be given by eitber party to the other hereunder shall be in writing I1nd shall be delivered in person, by private, nationally recognized carrier guaranteeing next day delivery or a;::iven by United States registered or certified mail, postage prepaid, return receipt requested, addressed to the party for whom intended at tbe address of such party appearing after such party's name at the beginning of this Agreement,or at such other address as the party in question may specify in a written notice to the party giving 110tice. All notices shall be deemed given on the date sent. Notices by the parties may be given on their behalf ny or to their respective attorneys. 19. BINDING EFFECf. Tbis Agreement shall be binding upon and inure to the benefit of Seller and Buyer and their respective beirs, executors, administrators, successors and assigns. Iftbere shall be more than one Seller,_they an sball be bound jointly and severally by the covenants, conditions and agreements herein contained, aod the word "Seller" shaD be deemed and taken to mean each and every person or party mentioned as a Seller herein, be the same one or more. 20. ENTIRE AGRERMENT. This is the entire Agreement between the parties and there are no other terms, obligations, coven,llnts, representations, statements or conditions, oral or otberwise, of any kind whatsoever. Any agreement hereaCter made sball be ineffective to change, modify, discharge or effect an aabandonment ofthis.Agreement in whole or in part unless such agreement is in writing and signed by the party against wbom enforcement of the change, modification, discharge or abandonment is sougbt. 21. SIJRVIV AI. OF CLOSING. All covenants, conditions and representations contained in this Agreement shall survive Closing. 22. HRADINGS The beadings incorporated in this Agreement are for convenience in reference only and are not a part ofthis Agreement and do not in any way limit or add to tbe terms and provisions hereor. 23. SEVERABILITY. It is understood and agreed by the parties th~t ifany part, term or provision of tbis Agreement is held by any court to be invalid, illegal or in conOict with a~y applicable law, th~ validity of the remaining portions or provisions of this Agreement shall not be affected, and the rights and obligations aftke parties sball be construed and enforced as if this Agreement did not contain tbe particular part, term or provision held to be invalid, illegal, or in conflict with any applicable law.. 24. FORCR MAJEURE. In the event either Seller or Buyer shall be delayed or hindered in or prevented from the performance of any a~t r~qll~red hereunder by ~~~ (}f a Datural disaster, str~kes, lockouts, -4- ~~~ ~ ' "~"t""".'K1>llit",.,-;;::;" rr "'"" ".,,-~. -~ ~ ~,~~ ~. L. _~",i,""".~.".........J""'~I." ""'.."',tiJ'M '" '~~~!'t~t;,-",.ill'i,__,":_ '~.,,=, ~JI~~,~ - " labor trouble, governmental authority, riots, insurrections, war, appeal of the issuance of permits or other causes which are not in tbe reasonable control of the party obliged to perform and not a,"oidable by all due diligellu, the party delayed shall promptly give notice to the other party, specifying the cause for the delay and thereupon performance olsuck act shall be excused for such period of delay, and the Closing postponed accordingly. 25. DEFAULT. In the event that for any reason whatsoever Seller shall fail to perform its obligations hereunder, then, unless Buyer elects a course of conduct as the result of a default by Seller which is sp"ifically set forth herein, Buyer shall have any and all remedies available to it at law or in equity, including, without limitation, the right to damages, the remedy of sp"ific performance or other injunctive relief. 26. IJNDERTAKrNGS BY SELLER AND BlJYRR In addition to the obligatiollS required to he performed hereunder by Seller and Buyer, Seller and Buyer each agree to perlorm such other acts, and to execute, acknowledge and deliver, prior to, at or subsequent to the Closing, sucb other instruments, documents and otber materials as the other may reasonably request and as shall be necessary in order to effect the consummation of the transactions contemplated hereby, to vest title to the Premises in Buyer or Buyer's nominee, and to secure any and aU permits, approvals and other grants of authority desired by Buyer. 27. COIINTERPARTS Tbis Agreement may by simultaneously exC(uted in two (2) or more counterparts, eacb of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 28. GOVRRNrNG LAWS This Agreement shall .be governed by the laws of the State of Pennsylvania. 29. BROKERAGE. Seller agrees,to iDd.emnify Buyer and hold Buyer barmless from and against the claims of any and all brokers and other intermediaries employed by Seller in connC(tion with the sale of the Premises. 30. POST-CLOSING OBLIGATIONS. (a) ~ Seller shall provide a permanent, perpetual, non-exclusive easement over an area to the rear of the Premises which is reasonably satisfactory to Buyer upon whicb storm water management structures/areas sball be 4esigoed, construc<<:4 f)n.~ maintained ~y Buyer. Said easement sball be granted at Closing, either in the deed or in a separate instrument, at Buyer's option. Said storm water management structuresJareas shall also be designed to accommodate the storm water runoff from the entire 27 acre+/- commercially zoned site owned by Seller ("Seller's Commercial Lands"), i_ncluding the Premises. Upon the utilization of said structures/areas by portions of Seller's Commercial Lands other than the P-:emises, spch portions of Seller's Commercial Lands will be obligated to contribute to the maintenance costs of said storm water management structures/areas pro-rata, b..,ed upon tbe area of all propertY then utilizing the storm water management structures/areas. The storm water milDagement structures/areas shall be designed to include storm water runoff from any residential development by Seller, its successon or assigns ("Seller's Residential Lands") locate4 in the watershed area shown on ,Exhibit "B", attached hereto aod made a part bereof. The owners of Seller's Residential Lands sball not be responsible for any maintenance or construction costs for said structures/areas. (b) Buyer shall provide a permanent, perpetual, non-exclusive easement over an area beginning at the rear of the Premises and running to tbe currently existing public utility water and sanitary sewer lines. Said easement shall coincide with the location 01 Buyer's,leeds lor sucb services for its development, and Buyer shall install at a minimum an eight (8") inch sanitary sewer line and an eight (8") ioch water line to service the buildings in its development of the Premises. Said easement shall be created at closing, either as a reservation in the deed or in a separate instrument, at Buyer's option. Seller's use of such easements shall not in any way materially, negatively affec.t the capacity of sueb utilities to serviee Buyer's Premises. I{SeDer desires to increase the capacity of said utility lines prior to their installation, Seller shall so notify Buyer prior to the issuance of building permits therefor and shall pay to Buyer, in advance, the incremental costs oftbe design and installation ofsuch lines of increased capacity. Upon tbe utilization ofsaid utility lines by Seller, Seller wiU be obligated to contribute to the maintenance costs of said utility Jines, pro-rata, based upon the capacity utilized by each property then connected to such lines. II Buyer should dedicate such lines to a public utility or agency, then the private easement sball expire, along with the obligation fo_r contribution (or maintenance. In any and all cases, if Seller shall elect to connect to such utility lines, it shall do so at its sole cost, including any so-called tie-in or tapping lees created by Seller's connections. (e) Ripht of First Refusal. If Buyer has failed to conl!truct a retail development containing an ancbor tenant of at least 37,500 squa,re feet (Anchor Tenant), and Buyer wishes to sell the Premises, then, upon the receipt by Buyer of a bona fide offer for all of the Premises or for any portiQ~ 01 the Premises other than an offer which is for a so-called "outlot" (the "First Right Property"), which Buyer desires to accept, Buyer shall provide, and bereby grants, to Seller, a right of refusal with respect to such an offer to purchase the First Right Property. Seller shall be notified in wrtting of any sucb bone fide proposal to Buyer, and SeUer shall have ten (to) days to decline or to accept the terms and conditions ofsuch proposal by written notice to Buyer. In the event Seiler fails to accept sucb proposal in writing within ten (10) days, Buyer may sell the First Right Property to a .tbird party witbin one (1) year oft~~ 9li\te Pll which Buyer provided notiee to Seller of the receipt of sueb -5- _<,.,~~~._b. .. ~'_.......,. . =1.- - I, ~ ~,-- ""...~~....l ~-=" -~~ ~ '0 proposaL In the event SeDer accepts the terms and,conditions ofsuch proposal, Buyer and Seller shaD enter into a Purchase ~nd Sale Agreement with respect to such First Right Property containing terms and conditions identical to those of such proposal, provided that Seller can supply Buyer with reasonably satisfactory evidence of financial ability to perform. This right of first refusal inures only to the benefit of SeDer, or any entity in control of, controlled by or under common control with Seller. This right of first refusal shall expire upon the earlier to occur of the following: (i) Buyer commencing construction of a retail development containing an anchor tenant of at least 37,500 square feet, or (il) the date which is sixty (60) months after the Closing. (d) Ootion to Buv Rack. UBuyer bas failed to construct a retail development containing an Anchor Tenant (the "Required RetaiJ") within thirty-six (36) months, and Seller wishes to purcbase the Premises back from Buyer, then, upon the receipt by Buyer of a written notice of SeDer's intention to re-purchase so much oftbe Premises as Buyer shall own at such time, Buyer shall have ninety (90) days (the "Cure Period") in which to commence construction of the Required RetaiL If Buyer does not commence to construct the Required Retail within the Cure Period, then Buyer shaD reconvey the Premises to Seller upon Seller paying Buyer the Purchase Price, as set forth above, as adjusted at the Closing, plus the costs incurred by Buyer for improvements to the Premises or design of improvements to the Premises which are applicable for development at the Premises generally, as opposed to sucb improvements or designs which are only applicable for the huildings proposed by Buyer, but which applicable features shall include, without limitation, storm water and other utility designs and improvements, soil and erosion and other site designs and improvements and any traffic improvements or designs. The closing for such transfer shall occur at a mutually agreeable place and time within thirty (30) days of the end of the Cure Period. This option to buy back the Premises inures only to the benefit of Seller, or any entity in control of, controlled by or under common control witb Seller. This option to buy back the Premises shall expire upon the earlier to occur of the foUowing: (i) Buyer cOlomencing construction of a retaU development containing an anchor tenant oC at least 37,500 square feet, or (ii) the date which is thirty-nine (39) months after the Closing. (e) Ootion to Purchase Seller's ,Remainiop,Commercial Lands. Buyer shall bave the right to purchase the' "Seller's Remaining Co~mercial Lands", as they are shown on Exhibit A attached hereto and made a part hereof, for a period beginning at the Closing for the Premises and extending through the date that is one (1) year after an Anchor Tenant opens its doors to the public on the Premises ("Option Period"). As part consideration for the granting of this option to purchase from Seller to Buyer, Buyer shall pay Seller the following sums: (i) 525,000.00 for the portion of the Option Period running from the date of Closing for the Premises and continuing through and incl~d.Q.g the date that I!I~ Anchor Tenant opens its doors to the public on the Premises, due and payable at the Closing for the Premises, and (il) $25,000.00 for the portion of the Option Period otcurring after the before mentioned portion of the Option Period, due and payable within thirty (30) days after the date that an Anchor Tenant opens its doors to the public on the Premises. The Option Purchase Price is equal to Forty-Five Thousand Dollars (545,000.00) per acre, subject to the terms and conditions set forth herein in Paragraphs 3(b), 6, 7, 8, 9,10,11,13,14,15,16,17,26 and 29. Buyer shall pay Seller the Option Purchase Price, as adjusted in accordance herewith, at a closing set for such transfer at a mutually agreeable place and time witbin thirty (30) days of Buyer giving Seller written notification of its intention to exercise its rights hereunder. If, at any time during the period beginning upon the expiration of the Option Period and ending two (2) years later~ Seller wishes to sell or lease Seller's Remaining Commercial Lands, then, upon the receipt by Seller of a bona fide third party offer for Seller's Remaining Commercial Lands or for any portion thereof, which Seller desires to accept, Seller shall provide Buyer with a true and accurate copy of any such bone fide offer, and Buyer shall have thirty (30) days to exercise its option to purchase the property that is the subject of such third party offer on the same financial terms and conditions as said offer, but subject to the terms and conditions set forth herein in Paragraphs 3(b), 6,,7, 8, 9, 10,11, 13, 14, 15, 16, 17,26 and 29. In the event Buyer fails to accept sucb proposal in writing within thirty (30) days, Seller may sell the subject property to said third party upon the terms set forth in said offer, within one (1) year of the date on whicb Seller provided notice to Buyer of the receipt of such proposal. <0 Easements and Restrictions on Seller's Remaininp C..ommercial Lands. At the Closing, Seller will execute an Easements and Restrictions Agreement which is mutually agreeable to Buyer and Seller, which shall be agreed to between Buyer and Seller within ninety (90) days after the date of full execution and delivery of this Agreement to Buyer, which shall contain the easements and restrictions set fortb on Exhibit C, attached hereto and made a part hereof, as well as such other easements and restrictions as Buyer shall deem to be necessary or desirable for the development of the Premises, which shall encumber Seller's Remaining Commercial Lands and shall be filed upon the appropriate land records along with the deed to the Premises. , " -6- " ."'~'.- NI""~~~~ ""'~,"' ~ "'.J;d,,,,_~'~_ ~ ~'''~lIIlu~.1 ff"""""""~1il-'-' ." L , ,"'"'-'01,_ ~,. ,,-,> '....~ '...w.~,..,., ~~ .. IN WITNESS WHEREOF, tb~ parties' bave bereunto set tbeir baDds and seals to any number of duplicate originals, as of tbe day and year first above written. Wlln.....: STATEOF afV'1~'1I..Ja-.-;Co ) ):ss COUNTY OF Q.",,-b--rl~ SELLER: BUYER: g:_mrow Edward J. Pab' Its: Executive e PresideDt ~D^ ,1997 Per50D8l1y appeared Micbael Cassidy, as the sigDer of the foregoing instrument, and ae~owledged before me the same to be his free act and deed, individually and as one of three general partnen of G & C Associates. Notarial Seal Annette Sue Hann, Notary Public Chambersburg Bora, Frankfin County My Commission Expires Feb. 23, 1998 Member, PennsylvaruaAssocialion of Notaries STATEOF~.,,~I~I'" ) .. ): ss COUNTY OF C~",b-r k.-oU Jl}~ Ir Mitary Public My Cummission Expires: O~ I J-3/ q 8 lYloo OA .1997 PCl'sonaUy appeal'ed Julie A. Cassidy, as the signer of the foregoing instrument, and acknowledged before me tbe same to be bis free act and deed, individually aDd 8S one of three general partners of G & C Associates. >> Notarial S.ul ~ f:j-----.' Annette Sue Hanni Nota Public Chambersburg Bore, Fra:rin County otary Public My Commission Expires Feb. 23, 1998 M C .. E I (j "1 '/QS . . . Y ommJSSlon xp res: f7'- J-.i:) Member, Pennsylvania AssocialiOn of Notaries .. -7- -.o..J='~""'IlIiP"~ ~""J_ . ""--="-lr~.=' ~"~ STATE OF Pe~"l'1l uav, i"- ) ):ss COUNTY OF c.u",bu-l......Li , ~.. ~"~\ J ."~ , ~ ~ .'i~~.l_" " 'YVl~ OJ.. .1997 penonaUy appeared Barbara L. Garling, as tbe signer of tbe foregoing instrument, and acknowledged before me tbe same to be bis free act and deed, individually and as one of three general partners of G & C Associates. Notarial Seal Annette Sue Hann, Notary Public Chambersburg Boro, Franklin County My Commission Expires Feb. 23, 1998 Momber, PennsyMoniaAosoolallonafNolarles .. STATE OF GEORGIA ) ):ssAtlanta ) COUNTY OF FULTON ~~ kJ~_ My Commission Expires: 0"-183}9 B c:\~',\ 3<:> .1997 Personally Appeared Edward J. Pabich, as the Executive Vice President of Ahold Real 'Estate Company, signer oftbe foregoing instrument, and acknowledged before me the same to be his free and duly authorized aet and deed on behalf of Ahold Real Estate Company. l:\lima\proJeetl \sblppensburg\pJI\eauidylOp&s.wpd April JOt 1m otary PubUc My Commission Expires: " -8- 'Jl1ibd ~ , "."""""'~~"i" If. -~~''"''''"''~'~ '"~ ~J. .~... .~ ~I ., ~.~ I_~ ~. i,~.,~. ".~.-,. ""-= ~~ , .. EXHIBIT r. Tbe Easements and Restrictions Agreement sball include, but Dot be limited to, provisions cORcerning: I, lJa. Commercial purposes of the type normally found in a retail shopping center including, witbout limitation, restaurants, financial institutions, service shops, professional offices and retail stores. 2. nile Restrictions. (a) N..- nuisance type or undesirable uses sucb as pawn sbop, flea market or swap meet, vehicle sales or service, or car wash, adult materials or entertainment, theater or gallery, school. library, church or otber place of assembly. bowling alley, skating rink, or other place of recreation or amnsement, funeral parlor or mortuary, hotel, motel or motor inn or nigbt club, cocktail lounge, or any other business whose principal business shall be tbe serving of alcoholic beverages on premises. Tbe ancillary service of alcoholic beverages on premises in conjunction with a restaurant operation shall not be prohibited. (b) Seller's Remaining Commercial Lands shall not be used as a supermarket, convenience store, or for the sale of off-premises consumption of healJh foods, delicatessen items, groceries, fresh fruit or vegetables, meat or otber food items generally sold in supermarkets, except as, part of normal restaurant operations on the Premises, or as a drug store, pharmacy, beauty supply store or health and beauty aid store (the wording of the restriction shall be acceptable to Giant Food Stores,lnc.). 3. Buildin~s and Imnrovements. (a) Desigo.ofthe Improvements to Buyer's Remaining Commercial Lands must be reasonably approved by Buyer prior to its construction to insure that it is functionally, architecturally and aesthetically eompatible with the improvements to the Premises. No building sball have a metal exterior other than canopies, trim and other architectural details. No building located in an area to be agreed upon for the location of so-called outlois on Seller's Remaining Commercial Lands shall exceed twenty-two (22') feet in height measured from rough grade to the top of the highest building protrusion. (b) Buyer and Seller must agree on allowable building areas and no-build areas for Seller's Remaining Commercial Lands, including minimum parking requirements. (c) Buyer and Seller must agree on allowable signage, including locations, for the Premises and Seller's Remaining Commercial Lands to assure that signage does not conflict or get blocked, and signage shall not advertise any business except those conducted on the respective properties. All such signs must comply with all applicable laws, rules, regulations and other criteria or all applicable governmental and quasi-governmental bodies having jurisdiction over tbe Premises, or any portion thereof, on tbe date hereof. 4. F.aliements. Tbe necessary utility and drainage easements for development of the Premises and Seller's Remaining Commercial Lands, including those set fortb berein above, shall also be a component of the Easement and Restriction Agreement, including provisions for tbe relocation of same from time to time in a_reasonable manner. " <0 '~-,..."''';,." ,,~~~ ~~, L~_ , ~,= " ~ .. "' -"~-"~~'ll";W,>.""t" .. . ASSIGNMENT OF BUYER'S INTEREST IN AGREEMENT OF SALE The undersigned, as Buyer under a certain Agreement of Sale with Michael Cassidy, Julie A. Cassidy and Barbara L, Garling, d/b/a G & C Associates dated April 30, 1997, as amended by Amendment of Agreement dated May 13, 1997 (the "Agreement"), does hereby assign all of its right, title and interest in and to the Agreement to ARC Shippensburg Limited Partnership, a Connecticut limited partnership ("Assignee"), as of the date hereof. Assignee accepts such assigtiment and agrees to faithfully perform all of Buyer's obligations under the Agreement, commencing as of this sixteenth day of April, 1998, ~r~~ TATE COMPANY WITNESS: By Name: Title: ~. 12. ~~. c: ASSIGNEE: ARC SIDPPENSBURG LIMITED PARTNERSHIP By: ARC SHIPPENSBURG GP LLC, General Partner WITNESS: By: Ahold Re,al Estate Company, Sole Member By Name: Hans A. Kempers Title: .R~1~....t". -)}~ E~I-H~i"T \1 VI fa ,"~~!;\r"~,,,~>,-k ~N-~"~~""""_41,,'_ ,. ~~= ,~- ",,'~ ,~- ~~"I~,""'''''''''-'',- -. p. I AUG. 7.2000 10: 1SAM DAVIO MARTIN EXC t.JO.247 P.2/G . . . DAVID H. MARTIN EXCAVATING, iJ.'VC. 4961 Cumberlanclltwy.. Chambersburg. PA 17201 . Phone - 717-264-2168 , Estimating FAlC - 717-264-6011 . Aceaunllng FAX - 117-264-0221 , August 2000 (j &: C I\$5aCillIOJ Mr. MicI1aI Cassity " '-'~ ~ Be: Site t>ropa-.J I EIliI11l!&e for ilu: Co......uctioD of Site ImprovC1llODts for SbippellSblU'll Market Plaee" ShippeDSburg Towaship, Cll1IIlIerJud County David H. Mulln ExcaYltill& Ilu:IUpOtll~ is plcascdto ofl'er tbc following pWe quoIC 10 perform 1be ~ workll5 taken froIll the Site Plan sheets 1 of I thru I ofl and Highway Oc:cupaac:y Pennit Plan sheets 1 ofJ tbnlJ of J as prepared by Hoover Engineering . Services, lacorpJrated, The Site Plans have 1be latest dato ofli24199 and Ii1e Highway PI8DlI arc cIall:clltnl'YT. No S]*iticatioDli wen; rcx;civccl. This project was bidllOt subject to scalt \VlI&IIlS- Davie! R Martln EJa:avatitI& Inc. will fUrnish aIllJlllterials. labor. and cquipiiient 10 porfonn the foUColWins listed work. SlTB PUP4DAnO~ ANu GRADiNG . InstaU two IU ~on CDlr8IICC pet Plan . InstaJl up 102360 ft ofsik fence . Apply Up to 5000 sy of~ seecJing and SltllW mulc:h for erosion 1lODII'01 ' . Clear and grub site as necessary to perfonn the listed work . Suip die work lite oflO]I6Oil BIId JICltkpilc for ~eat OD !be Market site . Constnlct the storm water rete1Ition basin to design gra4as . Wta1l rocJc rip lap 011 tI1c 5lorlIl water detention basin spillway per Plan delail . Pert'onn Cllt and till opeJations on the 1:ownsbip rolld to design subgl'adelO inl;ludc the IlDtnIlleeJ into the Markel aite includina f04:k excavation . Pmonn clltand till operations on the stite toad widening improvements to desigD subgrllde elevations including rock excavation lUId neceSS8JY uaffic CODIJOI . ,Stoc:1q>il!, llpproximately"9S00 cubic yards of excess cut spoil onthe Market site . Pn:pIre IID4 e:ompllCt pavemem subgracle . Rep(1!:4\spreec!; lIlId.macbinc grade topSOil oil lawn aras 6" thick . Perform I\lll.:e~ co1l$trU.Ction stakeout for the liatecl8itc work .fOa TD PalCJ. 0," .".....................G...~...............I................. S 131,425.110 ~1iQllng . BGcIchue & Dour Work' $""", RemoOAl . WAter "Sewer L/Iw$ . SeptiJ;; s!/"cems SItue " pm . Tap SeU f''X I-t-l ~ 1, 1:" "e tl _~~ ,""""'..0 '<~-""""""""" ~ - - -""'l!llililli.""'n'....... '"0 <<U'n. ~ ~ .. - , I ~~O"~ 6~-Elli~"-"'L p.2 AUG. 7.Z000 10'19AM DAVID MARTl~ ~XC 1'iO.247 P.3/G . . ; . 2 '_lllOlI OAC,....... l4r,_Colllly ... SIooI'..,...II_...tbo~.t8l1o..._ror ___....JIJuIIIIt....,~f ll.1'WI""~ eu...... c-.--e, A.DDJTIONAI.COfi' .TOUPOllT EXCESS SPOIL F.IlO,M 1lIE MUU'CJ:T S1TI . Expottappmltimlllely 9SOO CY nf elO:CSS cut material ftom'tbe _ and dispose of at II pemUtted site POJl."Tm: PVCR. OF ................................................................ $13,315.1J11 C11U INSl'ALW:nON . Exavate and backfill for approximately 3060 feet of ~ curb . lllstall approxhnate:Iy 3060 feet of concrete curb per Plan . Pedonn tbea.ecesawy ~on _CIlIU for the c:UIb inslalla1ioD -FOR.T8E-P.RIC.E.OF...."''''....__.,.-".......................................................... S 32,450.00 SQ)BW~JNS'l'A,LLATlON .PreparuDd.eompact .theSllhgnu1e for approximately 6S2S sq. it. of S' wide 4"lbick c:I1llCIete sidewalk . !llslal14" of..cieellstoMaggrcgatefot tile si4cW8Drbase . In..ot:!l epproxinlate!y 6525 sq. it of coDCrefe sidewal!< per Plan " Pe:fo:m 1he nece_'Y cO!!!!T'Jction n..krom for the 5ic!ewalk il1Stll!1arion POR T!!E PP.I.C! OF ...............~.j..~...:......:....,...~~~~"t,~~!....~!~.,............. S 26,090.00 PAVlNG " lns1=!1 eppl\lx, 1150 sq, yd. of2..4. 51_apple, eompacll:d 6" thiclc on all_ pa\lCll:leJU.a.,reas ' . Iusta11 epprox. 3800 sq. yd. ofbitllmioous pa~lIt con~ ofS" BCBC aad J %" lD-2 srice~u!se on the 'l'oWllShipRoadAlldMerket eDlraIIceS . Ji1stlIl1 approx. 3100 sq. yd. ofbitumi.._ pavement COJIsillljng of s" BCBC and 1 'h" 1D-2 surfe.<le ~U!SlI on the ,Slate road 'Vid~iDg areu per PIan . Install approx. 250 sq, yd. ofbilUlllinoQS pavement consistilJi of'" BCBe ;md 1 W' lD-2 SlIlfaee ~ 011 the Me...tett!1lJll!lee fi'om the state toad per Plan . InsWl approx. 2700 sq. yd. ofbitwninous p&vcmentowrlay consisting ofS" BCBC and I %" JD...2 swface eourse on the mo'..sting pllved SQJi'al:e of the slalll road per Plan . Ins1all signage and line strippillg per Plan POB THE.PRICE ()lr ..........'i.......,...1".1'...............................- S 159,oas.OO "''''--""",,'Q''''''~'. -.. - ~ - ~~,"'-~ L " j, .,~ ,.....~ ..".. - ~_ L " ' ,I , - j ~ .ll:l'~ ., -"r~""lU'>iIllf'''''~ p.3 IlLIG. 7.200[1 10: 19AM DAVID MARlll"! EXC NO. 247 P.4/6 . -A~ " r . 3 '7 ^....I-:lOOO O&C_ Ur, Nj.II..U:.... JIIr: .........../_..r..COU_....rSlltIa.... . for SdppciI..u...... ~ihlt[ rliWlT......... C;lIiOwW CGIIilCY STf)RMWATER SYSTEM · R.emove approximately 90 ft of 18" CMP per PIIII -Insta1l appIIIXimatdy 700 flof 1 S" CMP 3' to 1 I' deep per PI6n . IIllltaU awuollimately 71S ft of IS" CMP ]' to 13' deep per PlllIl .. liIstall appnucimatdy 30 It of24" CMP per Plan . Install apjll'l)"liwa~1:y 465 ft of27" eM!> per }'Ian . IilillIU appr07im_ly 110 ft of33w CMP per PIIIll - Jnsta1I. apjliC',q,qlil<'ly 672 ft of 42" eM!> S' to 14' deep per Plan - Provide ~ pipe: envelope of stone aggtepte h(ddi!\g on all insWled pipes . IIllltall t\1e 2,4" CMP stomI wat1:r buin discharae pipe, anu;seep collar. end section, lUld 30" CMP liser liIId uasb tadl: . IJIslaU !he stmm water basill ClJilcrere riser Sll'IICtUI'e with trash rack and tempcmuy plywood riser box per Plan . lDsl8l1 sixteen inlets aDd tlllee 5Iom1 water 5}'5tIlm mauhole$ per P!IIIl. . Jnstall one WDlll'Cte llIIdwall OIl1he 42W CMP discharge end - InstaU rock rip IlIp at tile pipe discharaes per Plan . Drill, blast, and excavate rock as necessary to iusiall the slonn water system . Cleanup all elCl:eS& 1reIlcl1 spoil and stoekpile 011 the Malket site - PerfODll CIlIISlI1Il:IioD s\akl:Out as DCCCSaaty FOR 'IDE PBICE OF .......................,.................................. S 122,495.C)O WAT.Q.MAIN . .IDsIaIl appI'OX., 780 ft of f' DI class S2 water maiu l:OIDpl~ in _ to iIlQl1Ide ODe 8" gate valve and valve boll. one 2" blow oft S10De aggrega~ beddio,g el1vclope, . stone ag8Jcgate backfill in pavcmmt &reDS, _tiOA hIook:inc. and WII1lirls tape . O>nr-t III the existiDg 12" water maiD with an 8" iapping llIeewe and tllJlJliDB valve . Relocatll one fire hydraut with 6" Dl leader usiDg tile existing fire hydnult, 6'" gate valve, aDd valve box . CbIoriDate. teat, aIld flllSb. the iDstaU water main . C1~ aud remove IIIl ttench $pOil . Drill aIld blll9t to teIIIOve rock hm the wau:r III8in alignment FOIl'l1ll PBICE 01' ...............,....,.............C1..........................5 4S~ .,,~ ,~'- ~aRl!I!"."r'==" - ,~" 0,-" , "" i_~.~ ' - -'1J'-""""-,,, p. ~i AUG. 7.~1l 11l'21lAM DAVID MARTiN ExC . ...,~., 1'10.247 P.S/b J ,~ .. .. ''''''''''~ (j4t:_ w,.:....Cuoity ... ~""""'_IItr"'"_.,___... ................y_~r_"'t;,~c.....,. SA.NlWl1' uwm . lIIst1l1lpprcll!ial,"A\y 173S ft. of 8" SDR 35 pve sewer ~ at an aVCIlIge depth of 20 ft per Plan to iDclude stone aggrllpU: beddiIIg envelope &n4 comple1c stone ~ backfiU in the futunI TOWDSbip road . r..!IlaIl,tOur 6" SDR. 3S PVC sewer service IatenlIs complete with 4" cleanDat and 6"x 4" redocer including stone aglJl'CgalebecldiDg and colllplete,stol\ll a/JllRlgaw baeW in the 1'ul1Im TOWIlSbiproad per Plan · IR&tI!I six precast llllIJIholes averaging 20ft deep per Plan · Install c0ll!ltJCli9ll to !lie existing Municipal manbo1e · Air pressure_all insta1le4lilles . VllC'''m' ~a11 iIl.sal!led maIlholes · Drill, blast, lUlIl ~ roI:lt as !\lqIIinKl fur the iIlsfII\I.tinn. . Cleanup aad slllCkpi!e II!! tmlcn spoil on the Market site · Res'.me offl;ill: lawn llll:llS . P<..&.im llOililtnii:lion stakeout as =-ry POll TO PRICE OF .,..P...........................................",........"'............. $ 293,985.00 If complete atuDe .eldlll is lIot require bl tlte t'atllre Towu!Iip roadw." DEDUCT TIlE PRICE OF ...i...iI....;...H;.-...n;~..n.".'I".n:ll....":II...- . S 101.138.00 ILECTRIC TRE.~CH AND CONDUIT WOllSfrt ucmilNG . Bxca~ ItIId b=d:till approximately 2270 it of2' ll'ide;x 3' deep lnlDOh Compl$ with stone dust ~dding envelope an4 complete stone 1IglJl'Cgate backfill in the T~lliptoed\WIY . Imla11 approllimalely 1130 ft oU" dia. PVC elee1m conduit in the _vate4 trellCh complete with pull rope in place and sweeps lip to the light pole bases . lDslall approximately 1401\ of3" dia. pve electrical oonduit in the excavated 1feIICh ~p1ere with pull rope in pll!Oe lIlld sweeps up to the ligln pole bases . lDs1all eiiibtjur",ljorJ volil boxes . Drill, bIa5t, 1IIId """"..40 JOdt as ~SlI1')' . C1e1llillp all m:m:h spoilliIid SUlckpile Oll the Ma.-ket site . Pilffann ~ C01I5~tion stakeout . Exduding~hiiIg Dr j;;staUing conduclor wiring in the condWts . &dudingjUmlahing or tnmlffing fight potu. 1Joses. or Iigh(s 'OR'IBE PBJ.CE OF ...........................................................au. S 14,.575..00 -,-'"~ ,--- ,-,- ~,,~~ I II. '~'"'"" , 'n JtI!j' -~" >'._~.- -~"~'!I.~"~'" p.5 Fl.IG. 7,2000 lB:2I'lRM IlllVID MARTIN EXC ... ".4, NO. 247 P.6/G I "~ .. 11\uiPlo1lAl1lO s g&C~ IoUficl,"",Caooiw lIo! lIIIo"'-"'/&rIooaloIrr.C....."'..... .r... ..,.."'..... tar "'Il<r . _..-......SIoIppmo....~t'tomIIm...c._ GAS LINE TRlNCBEXCAVATION AND BACKFILL , . Exeavateaod bqddilllppl'OXimat;ly 760 ft 012' wide x 3' iJeeP 1I\mCh Complete with &loae dust bedding enw:lope aod COlIIJllctc slOne aggregate bacldill in theT~p~y · Drill. bl-. __cavate roekas lIeC:eSS8IY · C'.1..,;o'''IP all ~ spoillllld stockpile wille Market site · ","..IVnn_5lIIY~stakcout . ExchNli1lgfwnishing f>>' hfatoJJ;"c the g.t1S line JOlt. TD PBICE or ..........1o......_.....-.~""....__~__.....,...........__.,.,...".. S 13.s:z0.. NOT INCWDIDJN TD ABOVlUSTED WORK: . lilapmiOll, upping alId utility user fees . Pcfmit '* . Material Of soil tcstillg · Soil tomjll1etloG testing . Processing, baudIlng. Of ImlSportiug contaminalcd Soils . Elwavatioll. of\lil$uitable soils 01" poor bearing capaci1y soils below desi.tn &Ubllllde ele\ll11ioos . UnclerglOlJnd electric. tolephoDe. 01" TV servic:es . Installation of site liglUins $\aIIlIards or Ullderzroun4 ~itc light e!el:lric win: . MailllaD8lrc.c of grass _ atlilr geIlmnariour aay. wareriIIg · RelOI'ati,\lJl of lllilily poles in the SlIIte roadway imjllIWemellt area Thmk you for the opporlllllity 10 quote this work. Plcasccall iftllere ~ Gf qlW9liOD$ RcspeelfuUy SlIbmi1fed. DaInia R. Mc(;ans, Bstima10r , . f"' - :;-c. ^ ~i "~'~-~iti~M~~~NJI,~,ilij~ir~~iuiluwti~*,.lml.a~;,%i.*f",)li'b'm,,",jj,Jm;li>it>'..'8\I'tt'~-"'''--''~'''':''' ,-"" ,""" . . - , -'" -~ - ~ '1I11~mj'~ -. .. . -"t.i1l-' ,~u.",.,"-,. .. . '0 c::> 0 c: "T\ ?: c.... =;:1- "'O![p c:: m'gJ z r-;ir-2 Z. J Z~ I ~go W~ !':J-i ~6 -0 :~~~-f. ~ :x i~~~ zO "g w '.--' ~ N ;g (..,) ~ . " , j': f: !, , I i I I_i [ j' ;~. '~,-- ,; ,,--k.:-,,,,"-,.'--~'_ _'_0, ,>,-,,<0>., ~, ,-', ,-~ ' - .;,~:~;L~~'::.:, ;', . S .-::c: :'1.':;' '::: ;:'-~:'~~:;'--;:~:, :". :L::~::;<b,,:,.~~'," ",' N' " > MICHAEL 1. CASSIDY and JULIE A. CASSIDY, CO-PARTNERS, t/d/b/a G & C ASSOCIATES, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. : NO. 00-8861 GIANT FOOD STORES, INC., AHOLD REAL ESTATE COMPANY and ARC SHIPPENSBURG LIMITED PARTNERSHIP, Defendants : CIVIL ACTION - LAW NOTICE TO PLEAD TO: Michael J. Cassidy and Julie A. Cassidy, Co-Partners, tld/b/a G & C Associates, and Sally J. Winder, their attorney: Yon are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. McNEES WALLACE & NUR1CK LLC By /I-i- L. (;J~ ~ Helen L. Gemmill Attorney I.D. No. 60661 Kimberly M. Colonna Attorney I.D. No. 80362 100 Pine Street P. 0, Box 1166 Harrisburg, P A 171 08-1166 (717) 232-8000 Dated: June 25, 2001 "': "' .~ "'~ --, ' __,' ~ ,---..,1.-,,';, '-"'r: ---''-'';-'^ ,-------.'-. , -; '. ~ -- .' :.-~ __ ,",,_,,~ :~~ -:".;'---~,~i~-:,-;.--",- -'-";";' -__.;;2iA;'~';:;;:-:_'-~;~;,,~~..-, -:-, .- . '-~ " MICHAEL 1. CASSIDY and JULIE A. CASSIDY, CO-PARTNERS, t/dIb/a G & C ASSOCIATES, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. : NO. 00-8861 GIANT FOOD STORES, INC., AHOLD REAL ESTATE COMPANY and ARC SHIPPENSBURG LIMITED PARTNERSHIP, Defendants : CIVIL ACTION - LAW ANSWER WITH NEW MATTER OF DEFENDANTS AHOLD REAL ESTATE COMPANY AND ARC SHIPPENSBURG LIMITED PARTNERSHIP Defendants Ahold Real Estate Company ("Ahold") and ARC Shippensburg Limited Partnership ("ARC") by and through their counsel, McNees Wallace & Nurick LLC, for their answer and new matter to the Complaint, state as follows: ANSWER 1, Admitted upon information and belief. 2. Admitted with clarification, By way of further answer Giant Food Stores, LLC, is the successor by merger to Giant Food Stores, Inc. ("Giant") and is a limited liability company organized and existing under the laws ofthe State of Delaware with a principal place of business at 1149 Harrisburg Pike, P.O, Box 249, Carlisle, Cumberland County, Pennsylvania 17013-0249, 3. Admitted in part and denied in part. Ahold and ARC admit that Ahold is a Connecticut general partnership that engaged in the business of acquiring sites for grocery stores, including Giant stores. Ahold denies the remaining averments of the paragraph. By way of further answer, Ahold's correct address is 6300 Sheriff Road, Landover, Maryland 20785. ,_CO,,"~ " -""""d',,-'>" -- ,,-, - -, ,,~ '- ',-'" " 'L. ~, '~". ,,,c..:..;',,,~,~- '._ ,_~;"' 4. Admitted in part and denied in part. Ahold and ARC admit that ARC is a Connecticut limited partnership formed for the purpose of taking title to the real estate located in Shippensburg Township, Cumberland County, that was purchased by Ahold from the Plaintiffs (the "Shippensburg Property"). Ahold and ARC deny the remaining averments of paragraph 4, By way of further answer, ARC had no obligation to build a grocery store and/or other businesses on the Shippensburg Property, and ARC's correct address is 6300 Sheriff Road, Landover, Maryland 20785 5. Admitted. 6. Admitted. 7, Admitted in part and denied in part. Ahold and ARC admit that a closing took place on April 16, 1998, admit that real estate was transferred to ARC by plaintiffs by special warranty deed, admit that ARC paid plaintiffs the agreed upon purchase priced of$450,000.00, and admit that the deed is recorded in the Cumberland County Recorder of Deeds Office in Deed Book 175, page 606. Ahold and ARC deny that the real estate transferred at the April 16, 1998, closing was subject to an agreement of sale dated April 30, 1998, By way of further answer, the real estate transferred at the April 16, 1998, closing was subject to an agreement of sale dated April 30, 1997. 8, Denied as stated. The agreement of sale is a document that, in its entirety, speaks for itself. By way of further answer, Paragraph 8 of the agreement relates to the payment and apportionment of taxes. 2 ~m ~"- ~,~;, "'1"'",- >,,"!-"i_',"'-,,_ - __0 i, ;;--~- .j .";;-""..,;,;-"" ":C~-'~'-""'-"--'b 9. Denied as stated. The agreement of sale is a written document that, in its entirety speaks for itself. Ahold and ARC deny Plaintiffs' characterization of the terms of Paragraph 30(a). 10. Denied as stated. The agreement of sale is a written document that, in its entirety speaks for itself. Ahold and ARC deny Plaintiffs' characterization of the terms of Paragraph 30(b). 11. Admitted in part and denied in part, Ahold and ARC admit that they have made no efforts to design and construct storm water management structures/areas, sanitary sewer lines, and water lines at the Shippensburg Property. Ahold and ARC deny the remaining averments of Paragraph II as they represent characterizations of the terms of the written agreement of sale, and the agreement of sale is a written document that, in its entirety, speaks for itself. By way of further answer, Ahold and ARC had no obligation to undertake any efforts to design or construct storm water management structures/areas, sanitary sewer lines, and water lines at the Shippensburg Property. 12. Admitted in part and denied in part, Ahold and ARC admit that they have advised Plaintiffs that they do not presently intend to design or construct storm water management structures/areas, sanitary sewer lines, and water lines at the Shippensburg Property, Ahold and ARC deny the remaining averments of Paragraph 12 as they represent characterizations of the terms of the written agreement of sale. The agreement of sale is a written document that, in its entirety, speaks for itself. . By way of further answer, Ahold and ARC had no obligation to undertake any efforts to design or construct storm water management structures/areas, sanitary sewer lines, and water lines at the Shippensburg Property. 3 , ~-~- '.;1;_, ,~~;., ~c<" ='" ,- '"''',''~'''' ,_",.y ,--'"--,':c..__> < ......': 13. Denied. Paragraph 13 avers conclusions oflaw to which no response is required. To the extent that a response is required, Ahold and ARC deny that they have breached any written agreement with the Plaintiffs. 14. Denied. After reasonable investigation, Ahold and ARC are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and therefore deny the averments. 15. Denied. After reasonable investigation, Ahold and ARC are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and therefore deny the averments, 16. Denied. After reasonable investigation, Ahold and ARC are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and therefore deny the averments, 17. Denied. After reasonable investigation, Ahold and ARC are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and therefore deny the averments. 18. Denied, Paragraph 18 avers conclusions oflaw to which no response is required. To the extent a response is deemed necessary, Ahold and ARC deny that they breached any contract with Plaintiffs and deny that they caused Plaintiffs damage in any amount. 19. Denied, Paragraph 18 avers conclusions of law to which no response is required. To the extent a response is deemed necessary, Ahold and ARC deny that the breached any agreement with Plaintiffs, and deny that they are liable to Plaintiffs jointly, severally, or otherwise. 4 '{ - .- ',.-'1;-,-.,,; ~",-~,', ,~_ ',_.' " : >' ,-,<,-:,,,-,-- - ,-,,: <,- ',"'- -.., _,__ .- ;__~ ~"'-;":~'i';"i,-" 'ri'~"' ,-~,.",; '--..i_, ,0, ~;;::_,.{:,.'::::,:,,,,:- WHEREFORE, Ahold and ARC request that Plaintiffs' demand for reliefbe denied, that judgment be awarded in favor of the Defendants and against Plaintiffs and that the Defendants be awarded their costs in connection with this action, along with such other relief as this Court deems just and proper. NEW MATTER 20. Ahold and ARC never had any obligation to Plaintiffs to design or build storm water management structures/areas, a sanitary sewer line, and/or a water line on the Shippensburg Property. 21. The decision whether or not to construct storm water management structures/areas, sanitary sewer lines, and water lines was within the sole discretion of the Buyer. 22. Paragraph 13 of the agreement of sale states that nothing in the agreement obligates Buyer to obtain any governmental permits or final approvals necessary to authorize the construction and development proposed by Buyer and that Buyers ofthe property have "sole, absolute and uncontrolled discretion" whether or not to obtain those approvals. 23. Construction of any storm water management structures/areas, sanitary sewer line, or water line would require the permits and final approvals that paragraph 13 states Buyer, in its sole discretion, is not obligated to obtain, 24, Paragraph 30( d) of the agreement of sale provides that if Buyer failed to construct a retail development on the Shippensburg Property, Sellers [Plaintiffs 1 had the option to repurchase the property for the purchase price of the property, plus the costs of the Buyer's improvements to the property, including storm water and utility designs. 5 'fi "--. - ~--.' d ,- ---:',L.-s;;;",~ -~'_' .~_' ,_ ., '_""~_ ~ __" "'-1' ' ,--A. -'.';-, "','~- -- '" ;h",,;;;~;},~~b~,),,":-,,-, "'0(.'" -" '-- ~:; 25. Pursuant to the terms of paragraph 30( d), in the event that the Buyer did not develop the Shippensburg Property, Plaintiffs were not entitled to obtain, free of cost, the benefit of Buyer's improvements to the Property. 26. Under Paragraph 30( d) of the Agreement, Plaintiffs are not entitled to recover the cost of installing storm water management structures/area, a sanitary sewer line, and a water line. 27. Pursuant to the terms of the agreement, the design and construction of a sanitary sewer line and a water line at the Shippensburg Property was conditional upon the Buyer's development of a retail development of that Property. 28. Paragraph 30( c) of the agreement of sale provides that the Buyer "shall install" a sanitary sewer line and a water line "to service the buildings in its [Buyer's] development of the Premises. " 29. Nothing in the agreement of sale obligated the Buyer of the Shippensburg Property to construct a sanitary sewer line and/or a water line to service the property currently owned by Plaintiffs in the event that the Buyer did not develop the Shippensburg Property, 30. Plaintiffs' claims, in whole or in part, fail to state claims upon which relief can be granted, 31. Plaintiffs' claims, in whole or in part, are barred by the applicable statutes of limitations. 32. Plaintiffs' claims, in whole or in part, are barred by the doctrine oflaches. 33. Plaintiffs' claims, in whole or in part, fail because Plaintiffs have failed to mitigate their damages. 6 'I: . ",,~~'l:C;:A,Jc ,',',-<--'-~','- . c ',,>J'-,-." ,,- J'., 1'-' '~;'T' ,_:,,";,,,,,,,,;,,,:,--,,-, -'I ,:;~ .. WHEREFORE, Ahold and ARC request that Plaintiffs' demand for reliefbe denied, that judgment be awarded in favor of the Defendants and against Plaintiffs and that the Defendants be awarded their costs in connection with this action, along with such other relief as this Court deems just and proper. McNEES WALLACE & NURICK LLC By /l.LL~ Helen L. Gemmill Attorney I.D, No, 60661 Kimberly M. Colonna Attorney I.D. No, 80362 100 Pine Street P. O. Box 1166 Harrisburg,PA 17108-1166 (717) 232-8000 Attorneys for Defendants Ahold Real Estate Company and ARC Shippensburg Limited Partnership Date: June 25,2001 7 .~ L ~' '~, -; : ; ",-', .-....~,; ". VERIFICATION Subject to the penalties of 18 Pa. C.S.A. ~ 4904, relating to unsworn falsification to authorities, r hereby certify that I am Assistant Secretary of Ahold Real Estate Cumpany, that r am authorized to make thi~; verification on behalf of Ahold Real Estate Compan} and ARC Shippensburg Limited Parmership, that I have reviewed the foregoing and that the faCts set forth therein are true and corree! to the best of my knowledge, information and belief. AHOLD REAL "ESTATE COMPANY and ARC SHIPPENSBURG LIMITED PARTNERSHIP B~- David S. Lima ~ Dated: June 22, 2001 t . \ ~ A~^ - .,",- ,;. :' ;.,,,,,-.' ,_,. ^~,:" -: -, '~-', i-:'-'-, - b'.i'~>:-;; ~"',.kJ" ~"~":"'T"C ,~ _:"";;;~i,.~," " "C" . '. CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by regular, first-class U.S, Mail, postage prepaid, upon the following: Sally J. Winder, Esquire 70 I East King Street Shippensburg, P A 17257 /LLL. P ~ Helen L. Gemmill Date: June 25, 2001 -: ilil'" <,<c~t;co<~'lI - -- , ~"' '-~'.~~~~*'>- " .' ~,:,::,{"c'i0:"'ii9"" ""h"";;,o; ';"" <, ~ ,:J; i~, < Be ,,:'c' .,~<""" """';' """".'''~'' ~~ ;;;; t~'j 2,. ::J ----.,..,--,. ....-.! cn ,): -..;" [:-() " ::;" ~, ""':... ,,-~i ;:S:-~i ~- -, ~- ~ , c, 1-) c,-! :-.j (j-J .':'_':1 :~? -;;; ::'l~tf ij?;~ g -< L- :::> ~,. '-'" , . ~-,--,~ ' -- ~ -'M ..~"',> -, h_Li__",~ .., '~__ w, '-'-'- -,-,-,,"""-__ '<-~"-",,,:- -,',i;i'"--" '--~-~'.--'J;' ~,-,~;;,,,.. ,__ _,'___-~,' " ji", MICHAEL J. CASSIDY and JULIE A. CASSIDY, CO-PARTNERS, t/d/b/a G & C ASSOCIATES, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 00-8861 GIANT FOOD STORES, INC" AHOLD REAL ESTATE COMPANY and ARC SHIPPENSBURG LIMITED PARTNERSHIP, Defendants : CIVIL ACTION - LAW ORDER AND NOW, this _ day of , 2001, upon consideration of Defendant's Preliminary Objection to Plaintiffs' Complaint, it is HEREBY ORDERED that Plaintiffs' Complaint fails to state a cause of action against Giant Food Stores, Inc. Therefore, Defendant's Preliminary Objection in the Nature of a Demurrer is sustained and Giant Food Stores, Inc., is DISMISSED from this action. BY THE COURT: J. ,--, I',' ,- " ',', -;,---~, -,_ ,-~",,,_-'''',\.,__i'; ',,-, "- <. -,,'-,-,-,-,,'" , " !&~I MICHAEL 1. CASSIDY and JULIE A, CASSIDY, CO-PARTNERS, t/dIb/a G & C ASSOCIATES, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 00-8861 GIANT FOOD STORES, INC" AHOLD REAL ESTATE COMPANY and ARC SHIPPENSBURG LIMITED PARTNERSHIP, Defendants : CIVIL ACTION - LAW PRELIMINARY OBJECTIONS OF DEFENDANT GIANT FOOD STORES, INC. Defendant Giant Food Stores, LLC, as successor by merger to Giant Food Stores, Inc. ("Giant"), by and through its counsel, McNees Wallace & Nurick LLC, respectfully submits the following preliminary objection to Plaintiffs' complaint: Preliminary Objection Pursuant to Pa. R. Civ. P. 1028(4) in the Nature of a Motion to Dismiss for Legal Insufficiency of the Complaint (Demurrer) I, Plaintiffs' Complaint avers that Plaintiffs entered into an agreement for the sale of approximately ten (10) acres of real estate in Shippensburg Township, Cumberland County, Pennsylvania with Defendant Ahold Real Estate Company ("Ahold"). (Complaint ~ 5). 2, Plaintiffs' Complaint avers that the agreement for the sale of the real estate (" Agreement") was assigned to Defendant ARC Shippensburg Limited Partnership (" ARC"), (Complaint ~ 6), 3. Plaintiffs aver that on or about April 16, 1998, the real estate was purchased by ARC. (Complaint ~ 7). , ,-, "._,_"",,_ " 0, ,,_ '-1",- -", '. ..;ok"""'" ,,-'-'-' .- , -",,--, :~: - -, 4. Plaintiffs allege that, pursuant to the terms of the Agreement, the Buyer of the real estate was obligated to design and construct storm water management structures/areas, a sanitary sewer line, and a water line, (Complaint 'If'lf 9-10), 5. Plaintiffs' Complaint asserts only one cause of action, an action for breach of the Agreement. 6. Plaintiffs do not allege that Giant was a party to the Agreement. 7. Plaintiffs do not allege that Giant was an assignee of the Agreement. 8. Plaintiffs do not allege that Giant was the Buyer of the real estate. 9. Plaintiffs have failed to aver any facts to support a claim that Giant is liable for any obligations contained in the Agreement or for any breach of the Agreement. 10. The Agreement and other documents attached to Plaintiffs' Complaint demonstrate that Giant was not a party to the Agreement, an assignee of the Agreement, or a Buyer ofthe real estate, 11. As a matter of law, Plaintiffs have failed to plead sufficient facts to support a cause of action against Giant. 2 --~ .., -.0_'_, ^ '.) 0-,> ~ ,-_ ,oj., "., , . -'':''\- .,. ,~.-/ .."-- ,'.;<."- - -, - <, --~ . - -' - ~ ., . ,- ;~" -- '-'.:"'''lli;~(;';i c, WHEREFORE, Giant Food Stores, LLC, successor by merger to Defendant Giant Food Stores, Inc., requests that its Preliminary Objection be sustained and requests that Giant be dismissed from the case. McNEES WALLACE & NURICK LLC By /I-LL. ~ Helen L. Gemmill (J.D. No. 60661) Kimberly M. Colonna (J.D. No. 80362) 100 Pine Street P. O. Box 1166 Harrisburg, P A 17108-1166 (717) 232-8000 Attorneys for Defendant Giant Foods Stores, LLC, successor by merger to Giant Food Stores, Inc. Date: June 25, 2001 I€m -- ',r,^' "~--1l!U"-' . ';, -- ,."" "",,"' -,' , ~'c" '-'- l. -"J, , . <'", - ',--;;..'.."k ,- i!,~ <-" i-; ,'- . .....'1<;..; CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by regular, first-class U.S. Mail, postage prepaid, upon the following: Sally J. Winder, Esquire 701 East King Street Shippensburg, P A 17257 1/..1- L. (;J #J Helen L. Gemmill Date: June 25, 2001 ~! ,~""""OJ~lfl~iOld~' ~- ~--. 'l""""-=~' ,~ "~.~ ""~ ~" ~'"" Jj"""...... J.ttl" '~~~iiiWi!ill;;1l~f"_ MICHAEL J. CASSIDY and JULIE A. : IN THE COURT OF COMMON PLEAS CASSIDY, CO-PARTNERS, tJdlb/a : CUMBERLAND COUNTY, PENNA. G & C ASSOCIATES, Plaintiffs v. GIANT FOOD STORES, INC., : NO. 00-8861 AHOLD REAL ESTATE COMPANY: and ARC SHIPPENSBURG LIMITED: PARTNERSHIP, Defendants : CIVIL ACfION - LAW PLAINTIFFS' PREUMINARY OR.JECfIONS TO DEFENDANTS' NEW MAlTER Plaintiffs, by their undersigned attorney, preliminarily objects to defendants' new matter pursuant to Pa R.C.P. I028(a)(2) as follows: 1. In paragraph 31 in defendants' new matter to plaintiffs' complaint, defendants allege that "Plaintiffs' claims, in whole or in part, are barred by the applicable statute of limitations. " 2. In paragraph 32 in defendants' new matter to plaintiffs' complaint, defendants allege that "Plaintiffs' claims, in whole or in part, are barred by the doctrine of laches." 3. In paragraph 33 in defendants' new matter to plaintiffs' complaint, defendants allege that "Plaintiffs' claims, in whole or in part, fail because Plaintiffs have failed to mitigate their damaees." A copy of defendants' answer with new matter is attached as Exhibit "A". 4. The foregoing affirmative defenses are merely conclusions of law. No material facts on which the foregoing affirmative defenses are based are stated anywhere in .j'''' ~~ ,'"". - -~ I~ if"rr,'-, defendants' answer with new matter. 5. Pa R.C. P. Rule 10 19(a) provides as follows: (a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form. 6. Under the foregoing, paragraphs 31, 32 and 33 of defendants' new matter are legally insufficient as failing to conform to law or rule of court as required by Pa R.C. P. Rule 1028(a)(2) and should be dismissed- WHEREFORE, plaintiffs respectfully request this Court sustain plaintiffs' preliminary objections and dismiss paragraphs 31, 32 and 33 of defendants' answer with new matter. ~ Sally J. inder, Attorney for Plaintiffs 701 East King Street Shippensburg, P A 17257 (717) 532-9476 ,<-.- . I~ ~~. "L -" ~,_ _", _. - "," ,. - ful'; "- MICHAEL J. CASSIDY and JULIE A. CASSIDY, CO-PARTNERS, t/dlb/a G & C ASSOCIATES, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 00-8861 GIANT FOOD STORES, INC., AHOLD REAL ESTATE COMPANY and ARC SHIPPENSBURG LIMITED PARTNERSHIP, Defendants : CIVIL ACTION - LAW ANSWER WITH NEW MATTER OF DEFENDANTS AHOLD REAL ESTATE COMPANY AND ARC SHIPPENSBURG LIMITED PARTNERSHIP Defendants Ahold Real Estate Company ("Ahold") and ARC Shippensburg Limited Partnership ("ARC") by and through their counsel, McNees Wallace & Nurick LLC, for their answer and new matter to the Complaint, state as follows: ANSWER 1. Admitted upon information and belief. 2. Admitted with clarification. By way of further answer Giant Food Stores, LLC, is the successor by merger to Giant Food Stores, Inc. ("Giant") and is a limited liability company organized and existing under the laws of the State of Delaware with a principal place of business at 1149 Harrisb~g Pike, P.O. Box 249, Carlisle, Cumberland County, Pennsylvania 17013-0249. 3. Admitted in part and denied in part. Ahold and ARC admit that Ahold is a Connecticut general partnership that engaged in the business of acquiring sites for grocery stores, including Giant stores. Ahold denies the remaining averments of the paragraph. By way of further answer, Ahold's correct address is 6300 Sheriff Road, Landover, Maryland 20785. ~)(14 t r:, L l' LI A /., 1~ "1'!1IlI' ,I "~~t:",-, 4. Admitted in part and denied in part. Ahold and ARC admit that ARC is a Connecticut limited partnership formed for the purpose of taking title to the real estate located in Shippensburg Township, Cumberland County, that was purchased by Ahold from the Plaintiffs (the "Shippensburg Property"). Ahold and ARC deny the remaining averments of paragraph 4. By way of further answer, ARC had no obligation to build a grocery store and/or other businesses on the Shippensburg Property, and ARC's correct address is 6300 Sheriff Road, Landover, Maryland 20785 5. Admitted. 6. Admitted. 7. Admitted in part and denied in part. Ahold and ARC admit that a closing took place on Apri116, .1998, admit that real estate was transferred to ARC by plaintiffs by special warranty deed, admit that ARC paid plaintiffs the agreed upon purchase priced of $450,000.00, and admit that the deed is recorded in the Cumberland County Recorder of Deeds Office in Deed Book 175, page 606. Ahold and ARC deny that the real estate transferred at the Apri116, 1998, closing was subject to an agreement of sale dated April 30, 1998. By way of further answer, the real estate transferred at the April 16, 1998, closing was subject to an agreement of sale dated April 30, 1997. 8. J?enied as stated. The agreement of sale is a document that, in its entirety, speaks for itself. By way of further answer, Paragraph 8 of the agreement relates to the payment and apportionment of taxes. 2 --'l: ." . .n__"J..' m:5t,[ 9. Denied as stated. The agreement of sale is a written document that, in its entirety speaks for itself. Ahold and ARC deny Plaintiffs' characterization of the terms of Paragraph 30(a). 10. Denied as stated. The agreement of sale is a written document that, in its entirety speaks for itself. Ahold and ARC deny Plaintiffs' characterization of the terms of Paragraph 30(b ). 11. Admitted in part and denied in part. Ahold and ARC admit that they have made no efforts to design and construct storm water management structures/areas, sanitary sewer lines, and water lines at the 8hippensburg Property. Ahold and ARC deny the remaining averments of Paragraph 11 as they represent characterizations of the terms of the written agreement of sale, and the agreementof sale is a written document that, in its entirety, speaks for itself. By way of further answer, Ahold and ARC had no obligation to undertake any efforts to design or construct storm water management structures/areas, sanitary sewer lines, and water lines at the 8hippensburg Property. 12. Admitted in part and denied in part. Ahold and ARC admit that they have advised Plaintiffs that they do not presently intend to design or construct storm water management structures/areas, sanitary sewer lines, and water lines at the Shippensburg Property. Ahold and ARC deny the r~aining averments of Paragraph 12 as they represent characterizations of the terms of the written agreement of sale. The agreement of sale is a written document that, in its entirety, speaks for itself. By way of further answer, Ahold and ARC had no obligation to undertake any efforts to design or construct storm water management structures/areas, sanitary sewer lines, and water lines at the 8hippensburg Property. 3 ....l'~ -'I~-I '-~~~~~.; _~, "'....~,_'..:cJ ~~Jjjg_ 13. Denied. Paragraph 13 avers conclusions oflaw to which no response is required. To the extent that a response is required, Ahold and ARC deny that they have breached any written agreement with the Plaintiffs. 14. Denied. After reasonable investigation, Ahold and ARC are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and therefore deny the averments. 15. Denied. After reasonable investigation, Ahold and ARC are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and therefore deny the averments. 16. Denied. After reasonable investigation, Ahold and ARC are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and therefore deny the averments. 17. Denied. .After reasonable investigation, Ahold and ARC are without knowledge or information sufficient'to form a belief as to the truth of the averments of this paragraph and therefore deny the averments. 18. Denied. Paragraph 18 avers conclusions oflaw to which no response is required. To the extent a response is deemed necessary, Ahold and ARC deny that they breached any contract with Plaintiffs and deny that they caused Plaintiffs damage in any amount. 19. Denied. Paragraph 18 avers conclusions oflaw to which no response is required. To the extent a response is deemed necessary, Ahold and ARC deny that the breached any agreement with Plaintiffs, and deny that they are liable to Plaintiffs jointly, severally, or otherwise. 4 ,. d, -,., Ii- ~- - ",,"l"""'"""~:'~;;:'i;~,_,:,' WHEREFORE, Ahold and ARC request that Plaintiffs' demand for relief be denied, that judgment be awarded in favor of the Defendants and against Plaintiffs and that the Defendants be awarded their costs in connection with this action, along with such other relief as this Court deems just and proper. NEW MATTER 20. Ahold and ARC never had any obligation to Plaintiffs to design or build storm water management structures/areas, a sanitary sewer line, and/or a water line on the Shippensburg Property. 21. The decision whether or not to construct storm water management structures/areas, sanitary sewer lines, and water lines was within the sole discretion of the Buyer. 22. Paragraph 13 of the agreement of sale states that nothing in the agreement obligates Buyer to obtain any governmental permits or final approvals necessary to authorize the construction and development proposed by Buyer and that Buyers of the property have "sole, absolute and uncontrolled discretion" whether or not to obtain those approvals. 23. Construction of any storm water management structures/areas, sanitary sewer line, or water line would require the permits and final approvals that paragraph 13 states Buyer, in its sole discretion, is not obligated to obtain. 24. Paragraph 30(d) of the agreement of sale provides that if Buyer failed to construct a retail development on the Shippensburg Property, Sellers [plaintiffs] had the option to repurchase the property for the purchase price of the property, plus the costs of the Buyer's improvements to the property, including storm water and utility designs. 5 \~ " ~~~ 'j I , -, Lillali <;0,-" 25. Pursuant to the terms of paragraph 30(d), in the event that the Buyer did not develop the 8hippensburg Property, Plaintiffs were not entitled to obtain, free of cost, the benefit of Buyer's improvements to the Property. 26. Under Paragraph 30(d) of the Agreement, Plaintiffs are not entitled to recover the cost of installing storm water management structures/area, a sanitary sewer line, and a water line. 27. Pursuant to the terms of the agreement, the design and construction of a sanitary sewer line and a water line at the 8hippensburg Property was conditional upon the Buyer's development of a retail development of that Property. 28. Paragraph 30(c) of the agreement of sale provides that the Buyer "shall install" a sanitary sewer line and a water line "to service the buildings in its [Buyer's] development of the Premises. " 29. Nothing in the agreement of sale obligated the Buyer of the Shippensburg Property to construct a sanitary sewer line and/or a water line to service the Property currently , owned by Plaintiffs in the event that the Buyer did not develop the 8hippensburg Property. 30. Plaintiffs' claims, in whole or in part, fail to state claims upon which relief can be . granted. 31. Plaintiffs' claims, in whole or in part, are barred by the applicable statutes of limitations. 32. Plaintiffs' claims, in whole or in part, are barred by the doctrine of laches. 33. . Plaintiffs' claims, in whole or in part, fail because Plaintiffs have failed to mitigate their damages. 6 .~ _,O~. . , ~= '"_ICjll1ili~ i.l!t1~~~?:l':; WHEREFORE, Ahold and ARC request that Plaintiffs' demand for reliefbe denied, that judgment be awarded in favor of the Defendants and against Plaintiffs and that the Defendants be awarded their costs in connection with this action, along with such other relief as this Court deems just and proper. McNEES WALLACE & NURICK LLC By ILL.. L ~ Helen L. Gemmill Attorney I.D. No. 60661 , Kimberly M. Colonna Attorney J.D. No. 80362 100 Pine Street P. O. Box 1166 FIarrisburg,PJ\ 17108-1166 (717) 232-8000 Attorneys for Defendants Ahold Real Estate Company and ARC Shippensburg Limited Partnership Date: June 25, 2001 7 ~ ",. "-- -"- , J..- -. ,_ '~, " &i' PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritteu aud submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next: _ X_ Pre-Trial Argument Court Argument Court ---------------------------------------------------- CAPTION OF CASE (eutire captiou must be stated in full) MICHAEL J. CASSIDY and JULIE A. CASSIDY, Co-Partners, tld/b/a G&C ASSOCIATES, Plaintiffs v. GIANT FOOD STORES, INC., AHOLD REAL ESTATE COMPANY and ARC SHIPPENSBURG LIMITED PARTNERSHIP, Defendants Civil Action No. 00-8861 1. State matter to be argued (i.e., plaintiffs motiou for uew trial, defendaut's demurrer to complaiut, etc.): Giant Food Stores, Inc. Preliminary Objections to the Com~ 2. Ideutify cOUllsel who will argue the case: (a) for Plaintiffs: Sally J. Winder, 703 E. Kin2 Street, Shippensbur2, PA 17257 (b) for Defeudant Giaut Food Stores, Inc.: Kimberly M. Colonna, McNEES WALLACE & NURICK LLC, 100 Pine St., P.O. Box 1166, Harrisbur2, PA 17108-1166 I will notifY all parties in writing within two days that this case has been listed for argument. McNEES WALLACE & NURICK LLC By ~t7. ~ Kimberl M. Colonna Attorneys for Defendants Dated: August 7, 2001 -1 ~ -j"',~. ~'~I;~;t';l\bfi"-J2.~-i~~i_lMt~ci~'J;;",'M-)g-;.mlQiH.~~rm.." n" ~-"L"r '~~~'i:I"" w^'^ ^, .._ ._~. -"'h ,-"" - '01 ',1 () <::) 0 c: <: "TI wEb ~ ---1 ITlr-n ,.- -," Z:J"" (;-) ]--:'1 :~D :z ,c I ~";'l! ci3~: <:0 r~~i ~..-:f: ;<::C. ;". -~t v' ~-, ..... i:~i~ c.' .... )>0 c '!? cyn Z w ~ ~ \.0 -< ,,'''''''''''' ~~''';~~'ro~~~~ ,; , MICHAEL J. CASSIDY and JULIE A. CASSIDY, CO-PARTNERS, t/dIb/a G & C ASSOCIATES, Plaintiffs : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 00-8861 GIANT FOOD STORES, INC., AHOLD REAL ESTATE COMPANY and ARC SHIPPENSBURG LIMITED PARTNERSHIP, Defendants CIVIL ACTION - LAW DEFENDANT GIANT FOOD STORES, INC.'S BRIEF IN SUPPORT OF ITS PRELIMINARY OBJECTION Plaintiffs' Complaint asserts a single cause of action -- a claim for breach of contract. The existence of an enforceable contract is a necessary element to that claim. The Complaint, however, fails to assert that Defendant Giant Food Stores, Inc. was a party to any contract with Plaintiffs. Therefore, the Complaint fails to state a claim against Giant Food Stores, Inc. and the preliminary objection must be granted. I. FACTUAL AND PROCEDURAL HISTORY Plaintiffs instituted this action on December 29, 2000, by filing a writ of summons against Giant Food Stores, Inc. ("Giant"),l Ahold Real Estate Company ("Ahold") and ARC Shippensburg Limited Partnership ("ARC"). On June 1,2001, Plaintiffs filed a Complaint naming as defendants Giant, Ahold and ARC and asserting a single cause of action for breach of contract. By corporate merger, Giant Food Stores, LLC, became the successor of Giant Food Stores, Inc. ,- ~.- " ,- - ~ "-'-- , The Complaint avers that Defendant Ahold and Plaintiffs had entered into a written Agreement of Sale ("Agreement"), by which Ahold agreed to purchase from Plaintiffs a parcel of real estate located in Shippensburg Township, Pennsylvania (the "Shippensburg Property") (Complaint, -,r 5). The Complaint also avers that by written assignment, Ahold assigned all of its right, title, and interest in the Agreement to Defendant ARC (Complaint, -,r 6) and that ARC purchased the Shippensburg Property (Complaint -,r 7). Plaintiffs assert that the terms of the Agreement obligated the buyer of the Shippensburg Property to design and build a sewer line, a water line, and certain storm w<:te~IDilll-agement structures. (Complaint -,r-,r 9-10). Plaintiffs ~----,. ".--~-,.- assert that the Agreement has been breached because those improvements have not been made. (Complaint -,r 11). Copies ofthe Agreement and the written assignment, which show the parties to the Agreement and assignment, are attached to the Complaint as Exhibits A and B and expressly incorporated by reference in the Complaint Significantly, the Complaint does not allege that Defendant Giant was a party to the Agreement or written assignment Moreover, Giant is not a signatory to any of the documents attached as exhibits to Plaintiffs' Complaint. There are simply no averments in the Complaint that Giant had any contractual relationship with Plaintiffs. Ahold and ARC answered the Plaintiffs' Complaint and raised new matter. Giant responded to the Complaint by filing a preliminary objection in the nature of a demurrer. This brief is submitted in support of Giant's preliminary objection. 2 " ~'ie2Illl..,,, ._...k, . ""."W,'.- II. ARGUMENT A. The Applicable Standard Pennsylvania Rule of Civil Procedure 1028(a)(4), provides that a preliminary objection may be filed by any party to any pleading on the basis that the pleading is legally insufficient. It is well settled under Pennsylvania law that, for purposes of resolving preliminary objections, a court must accept as true all ofthe factual averments pleaded in the complaint. See Giffin v. Chronister, 151 Pa. Commw. 286, 616 A.2d 1070, 1072 (1992). However, in determining whether to sustain a preliminary objection, a court need not accept as true "conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion." Id. 151 Pa. Commw. at 290, 616 A.2d at 1072. See also Aetna Electroplating Co., Inc. v. Jenkins, 335 Pa. Super. 283, 484 A.2d 134, 135 (1984). It is also well-settled that, under Pennsylvania's system of fact pleading all facts that are essential to a claim must be set forth in the complaint. Santiago v. Pennsylvania National Mutual Insurance Co., 418 Pa. Super. 178,613 A.2d 1235, 1238 (1992). Likewise, Pennsylvania Rule of Civil Procedure 1019(a) requires that "[t]he material facts on which a cause of action or defense is based shall be stated in a concise and sunnnary form." That rule imposes upon a plaintiff the duty to set forth the material facts upon which the cause of action is based and which plaintiff will eventually have to prove to prevail. See Baker v. Rangos, 229 Pa. Super. 333, 324 A.2d 498,505 (1974); Smith v. Wagner, 403 Pa. Super. 316, 588 A.2d 1308, 1310 (1991). Preliminary objections asserting that the complaint is legally insufficient (in the nature of a demurrer) should be sustained where "it appears with certainty that the law permits no recovery under the allegations pleaded." Green v. Mizner, 1997 Pa. Super. Lexis 796, 692 A.2d 169, 172 3 ~ , '.I'J'. (1997). In reviewing a challenge to the legal sufficiency of a complaint, the court must "decide whether sufficient facts have been pleaded which would permit recovery by the plaintiff if ultimately proven." Kaplan v. Cablevision ofPA, Inc., 448 Pa. Super. 306, 671 A.2d 716, 718 (1996). Dismissal of a claim is proper where it appears clear that the defective pleading cannot be remedied to state a cause of action. Hohensee v. Shapp, 39 Pa. Commw. 478, 395 A.2d 636 (1978). B. The Le2al Insufficiency of Plaintiffs' Claim a2ainst Giant. As explained above, Plaintiffs' Complaint in this case asserts only one claim - a single cause of action for breach of contract. In order to plead such a claim sufficiently, Plaintiffs must allege: (1) the existence of a valid and binding contract to which they and the defendants were parties; (2) the contract's essential terms; (3) that they complied with the contract's terms; (4) that the defendants breached a duty imposed by the contract; and (5) damages resulting from the breach. See Electron Energy Corp. v. Short, 408 Pa. Super. 563, 597 A.2d 175 (1991) and General State Auth. v. Coleman Cable & Wire Co., 27 Pa. Commw. 385, 365 A.2d 1347 (1976). In the present case, Plaintiffs have failed to allege the first essential element necessary to state a breach of contract claim against Giant. Simply put, Plaintiffs have utterly failed to allege ~ the existence oCa. valid and enforceable contract between them and Giant. While the Complaint ,..."~_..~:-.---,-"'. '~--""'----,."...",->"':,.,.<~. ''';-\", ,--, 'C'~' .",., ,'- ., "'~r"",I..:J"::'J . alleges that Plaintiffs had contractual relationships with Ahold and ARC, there are no allegations of such a relationship with Giant. There are no allegations that Giant was a party to the Agreement or that the Agreement was assigned to Giant. Indeed Plaintiffs have not asserted the existence of a contract between themselves and , Giant, because they cannot do so. No contract between Plaintiffs and Giant existed. The 4 "';c ~ "'.1illl'~\'.i ~~ - I ,~" ~. .,; L.;~,' Agreement, which Plaintiffs attached to the Complaint, was executed by Ahold, not by Giant. The assignment of the Agreement, which Plaintiffs also attach to the Complaint, assigns Ahold's interest in the Agreement to ARC, not to Giant. Thus, there is no basis even to infer that Giant was a party to any contract with Plaintiffs. As Plaintiffs have not asserted the existence of a contract with Giant and the existence of such a contract cannot be inferred, the breach of contract claim asserted against Giant is legally insufficient. "[I]t appears with certainty that the law permits no recovery" against Giant for the claim asserted in Plaintiffs' Complaint. Green, 692 A.2d at 172. Furthermore, because the documents attached to the Complaint establish that Giant was not a party to the contract allegedly breached, Plaintiffs cannot remedy the defective breach of contract claim asserted against Giant. When a defective claim cannot be remedied, dismissal ofthe claim is appropriate. See, ~ Hohensee, 395 A.2d at 637. 5 i, .'.'" III. CONCLUSION Plaintiffs' Complaint asserts only a breach of contract claim. Plaintiffs have not asserted, and cannot assert, that they had a valid and enforceable agreement with Giant. In the absence of any contract, Plaintiffs' claim against Giant for breach of contract is legally insufficient and cannot be remedied. Accordingly, Giant's preliminary objection in the nature of a demurrer should be gr811ted, and Giant should be dismissed from the action. Respectfully Submitted, McNEES WALLACE & NURICK LLC By I/-.-L L ~ Helen L. Gemmill (J.D. No. 60661) Kimberly M. Colonna (J.D. No. 80362) 100 Pine Street P. O. Box 1166 lIarrisburg,PPl 17108-1166 (717) 232-8000 Attorneys for Defendant Giant Foods Stores, LLC, successor by merger to Giant Food Stores, Inc. Date: August 17,2001 6 ,:. ."",,-,j);1t~, ~-~ I. CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by regular, first-class U.S. Mail, postage prepaid, upon the following: Sally J. Winder, Esquire 701 East King Street Shippensburg, PA 17257 /I---t- L . ~ Helen L. Gemmill Date: August 17, 2001 . '~4_ " ,H-'- "'~ .., '~ , --" .1 ,~". ~ ",]1 . , ,. MICIlAEL J. CASSIDY and JULIE A.: IN THE COURT OF COMMON PLEAS CASSIDY, CO-PARTNERS, tJdlb/a : CUMBERLAND COUNTY, PENNA. G & C ASSOCIATES, Plaintiffs v. : GIANT FOOD STORES, INC., : NO. 00-8861 AHOLD REAL ESTATE COMPANY and ARC SHIPPENSBURG LIMITED : PARTNERSHIP, Defendants : CIVIL ACTION - LAW PLAINTIFFS G &C ASSOCIATES' BRIEF lNoPPOSmON TO DEFENDANT GIANT FOOD STORES, INC.'S PRELIMINARY OBJECTION Plaintiffs in 1997 were owners of unimproved real estate in Shippensburg Township, Cumberland County. They entered into negotiations with persons who purported to represent Giant Food Store, Inc. ("Giant"). The negotiations were to reach an agreement with Giant to purchase a portion of plaintiffs' real estate for the construction of a large grocery store on the site. Price was an important consideration, but even more important to plaintiffs were certain site improvements (storm water management systems, sewer lines, water lines, and roads) necessary to service the grocery stored site. These site improvements were necessary for the grocery store site, but they would also provide a significant benefit to other real estate owned by plaintiffs and contiguous to the grocery store site. These site improvements would allow the residential development of plaintiffs' other real estate to proceed more cheaply. When the agreement of sale (prepared by the representatives/attorneys of Giant) was presented to plaintiffs, the buyer was named as Ahold Real Estate Company ("Ahold") or its nominee. Plaintiffs were told that this was standard operating procedure &Ti .--," 1""~''''~~ _L, ~m!^" . " " in the Giant corporate family. Ahold (or a separate business entity formed for the specific purpose of acquiring title to the Shippensburg Township tract of land) would acquire the site; Giant would construct the building and the site improvements, and Giant would then operate the grocery store under a long-term lease with Ahold. Giant was always at the forefront of events. Re-zoningofthe grocery store site from residential to commercial was accomplished upon representations of representatives of Giant that the site would be used for a grocery store. The Land Development Plan presented to Shippensburg Township for approval (and eventually approved and recorded in Cumberland County Plan Book 76, Page 110 et seq.) contained on several pages the outline of a proposed 48,093 square feet grocery store building upon which were marked , the words "GIANT FOOD STORE". All approvals of the development from other government units were given upon the representation that Giant would construct a grocery store on the site. Until shortly after plaintiffs filed their complaint in this action, a billboard-type sign stood on the site, proclaiming that a Giant store would be erected there starting in the Spring of 200 1. It didn't happen. It hasn't happened. According to Giant corporate mavens, it won't happen. The inhabitants of Hades will be all wearing mittens before Giant builds a grocery store on the Shjppensburg Township site. As a result of this corporate turnaround, plaintiffs have lost the considerable benefit to their residential development scheme of the site improvements which Giant was going to have to build for its grocery store. Plaintiffs have sued Giant, Ahold and the specific business entity formed to hold deed title to the Shippensburg Township site ("ARC"). Plaintiffs will concede that in its present form, their complaint is only for breach of contract, and that no signatures of any Giant representatives appear anywhere on the contract documents. Technically, Giant is therefore not a contracting party. Giant, however, was so intertwined in this complex business deal that it bears major responsibility for its failure, -2- " ~~~ <..w..< - ~ ~'~tr",,-- '. Plaintiffs have suffered damages at the hands of Giant corporate decision makers. Plaintiffs can, and will, make out a viable cause of action against Giant. For the sake of judicial economy, it will be best to consolidate all of the causes of action arising out of this failed business deal. For that reason, if the Court chooses to grant the demurrer filed by Giant, we urge that an interval of thirty (30) days be granted to plaintiffs to file an amended complaint to cure any defects appearing in their original complaint as it pertains to Giant. Respectfully submitted, ~~WWL- 701 East King Street Shippensburg, P A 17257 (717)532-9476 -3- :~ 1_: '... -.'~,,",- '. ' _"w-- MICHAEL J.CASSIDY and JULIE A. CASSIDY, CO-PARTNERS, Ud/b/a G & C ASSOCIATES, PLAINTIFFS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. GIANT FOOD STORES, INC., AHOLD REAL ESTATE COMPANY and ARC SHIPPENSBURG LIMITED PARTNERSHIP, DEFENDANTS : 00-8861 CIVIL TERM IN RE: PRELIMINARY OBJECTION OF DEFENDANT. GIANT FOOD STORES. IN(~ TO PLAINTIFFS' COMPLAINT BEFORE BAYLEY, J. ORDER OF COURT AND NOW, this 40~ day of September, 2001, (1) The preliminary objection of defendant, Giant Food Stores, Inc., to plaintiffs' complaint against it, in the form of a motion to dismiss, IS GRANTED. (2) Plaintiffs shall have twenty (20) days to file an amended complaint to state a cause of action against defendant, Giant Food Stores, Inc. :saa ~/ (51:o~ Sally J. Winder, Esquire For Plaintiffs Helen L Gemmill, Esquire For Defendants - 1 :fi i! I; i,t- UL In .,< - ,~ .' ~ ~- , FtLED--t);:FlC~ 0'" "." h"""'" n" '''TARY . i- !i"",~: :".~""):I":l,,,.\~d 01 SEP 20 Pi1 w: 00 CUtvidchu~i\j[) COUNTY PENNSYLVmlA ~~ . ,',"~ "",. eo . -"I~~ "'"'~ ~ ~- ~- I' - ,,' ~- ~, "." .~ ~ ,- '" :".,- ~, '~',<" _ I!l,..".~", ~!ffll1}JiF,~~'i'W!"'''~;:''h't,*,4''"l-'\'~''''W$~. ) . j~!fM~~~j!jj~MIl~~,,-,,~t4 ~"";~'__'"':'~ ~~ I ~ '_1 , 1li --- '.'"'''~jHitlllJJ~HfT . MICHAEL J. CASSIDY and JULIE A.: IN THE COURT OF COMMON PLEAS CASSIDY, CO-PARTNERS, tJdIb/a : CUMBERLAND COUNTY, PENNA. G & C ASSOCIATES, Plaintiffs v. GIANT FOOD STORES, INC., : NO. 00-8861 AHOLDREAL ESTATE COMPANY : and ARC SHIPPENSBURG LIMITED: PARTNERSHIP, Defendants : CIVIL ACfION - LAW PLAINTIFFS' &EPL Y TO AMENDED NEW MATTER OF DEFENDANTS AHOI,DREAI, EST A TE COMPANY AND ARC SHIPPENSBlJRG LIMITED PARTNERSHIP Plaintiffs Michael J. Cassidy and Julie A. Cassidy, co-partners, tld/b/a G & C Associates, by and through their counsel, Sally J. Winder, reply to the amended new matter, as follows: 20. Denied. To the contrary, Ahold and ARC are bound to plaintiffs by the provisions of the agreement of sale to construct the specified improvements on the Shippensburg Property. 21. Denied as stated. To the contrary, if Ahold and ARC decided not to construct the specified improvements, that decision would constitute a breach of their contractual obligations to plaintiffs. 22. Denied as stated. The agreement of sale is a written document that, in its entirety, speaks for itself. Plaintiffs deny Ahold's and ARCs characterization of the provisions of paragraph 13 of the agreement of sale. ~_.~'"~> -> ~"~" .""", > "II ~"~m"k-,' . 23. Denied as stated. The agreement of sale is a written document that, in its entirety, speaks for itself. Plaintiffs deny Ahold's and ARC's characterization of the provisions of paragraph 13 of the agreement of sale. 24. Admitted. 25. Denied. To the contrary, nothing in the agreement of sale states that plaintiffs may obtain, free of cost, the benefits of Buyer's [Ahold's and ARC's] improvements to the Property. Plaintiffs gave consideration for the promise to construct the specified improvements, by conveying the Shippensburg Property to ARC [Ahold's assignee]. Plaintiffs deny Ahold's and ARC's characterization of the provisions of paragraph 30(d) of the agreement of sale. 26. Denied. To the contrary, failure by Ahold and ARC to perform the provisions of paragraph 30( d) of the agreement of sale constitutes a breach of the contract between the parties, and plaintiffs are entitled to recover the cost of constructing the specified improvements as damages for the breach of contract. 27. Denied. To the contrary, the agreement of sale required Ahold and ARC to construct the sewer line and water line as a benefit to plaintiffs' adjacent residential and commercial property, regardless of whether or not they constructed their grocery store building. 28. Denied as stated. To the contrary, the specified sanitary sewer line and water line were to be constructed to specifications which would allow them to service the future development of plaintiffs' adjacent residential and commercial property. 29. Denied. To the contrary, the agreement of sale obligated Ahold and ARC to construct the sanitary sewer line and water line for the benefit of plaintiffs' adjacent residential and commercial property, regardless of whether or not they constructed their grocery store building. 30. Denied. Paragraph 30 contains no averments of fact, and therefore no responsive pleading is required under Pa R.C.P. Rule 1029(a), (d). -2- H ~~~ ~ i i_ . ~ "~':;j)(",,.':t: , 31. Admitted. 32. Denied. To the contrary, plaintiffs did not learn until, as late as Spring of 2000, that no grocery store building would be built on the Shippensburg Property and, by reasonably implication, that the specified improvements would not be constructed either, for the benefit of plaintiffs' adjacent residential and commercial property. 33. Admitted. 34. Admitted in part and denied in part. It is admitted that the increase in the arnount of damages caused harm and prejudice to Ahold and ARC. It is denied that evidence and witnesses relevant to defense of plaintiffs' claims may no longer be available. After reasonable investigation, plaintiffs are without knowledge or information sufficient to form a belief as to the truth of this averment. 35. Denied. To the contrary, plaintiffs filed their civil action within the term of the applicable statute of limitations. Any harm or prejudice to Ahold and ARC has been caused by their breach of contract and not by any delay by plaintiffs in filing the Complaint. 36. Denied. To the contrary, the expense and costs of constructing the specified improvements were so great that plaintiffs could not reasonably have been expected to construct them after Ahold's and ARC's breach of contract by failing to build them before they filed a Complaint to recover the cost of the specified improvements from Ahold and ARC. 37. Denied. Paragraph 37 contains no averments of fact, and therefore no responsive pleading is required under Pa R.C.P. Rule 1029(a), (d). , -.)- " " ~" ' .~"," - ~~,d' WHEREFORE, plaintiffs request that this Court enter judgment in favor of plaintiffs and against all defendants, jointly and severally, for the damages prayed for in plaintiffs' Complaint. J. 1-J~ Sal J.Winder Attorney for Plaintiffs Michael J. Cassidy & Julie A. Cassidy, co-partners, tld/b/a G & C Associates 701 East King Street Shippensburg, P A 17257 tel. (717) 532-9476 -4- , -=- - . iI~~ '-' """'t~0'-', VERIFICATION Subject to the penalties of 18 Pa C.S.A. section 4904, relating to unsworn falsification to authorities, I hereby verify that the facts set forth in the foregoing Reply to New Matter are true and correct to the best of my knowledge, information and belief Q' '" ~" >, f ;m''';Cy CERTIFICATE OF SERVICE I, Sally J. Winder, certify that on this date, I served a true and correct copy of the foregoing Reply to With New Matter upon the following counsel of record, by depositing the same in the United States mail, postage prepaid, addressed as follows: . Helen L. Gemmill, Esquire McNees,Wallace & Nurick 100 Pine Street P.O. Box 1166 Harrisburg, PAl 71 08-1166 Dated: September J..D ,2001 Sal~~~ d. /A)~ -, .'>: ~),Mii:'-"'fu"1W",,~""-I~;~iW!ii1o~~W'fk'~ffikv,w.i,~:.Ml!;;''''- -~'.-"1i1W~i~~; ",'; 11)[ I ~~ ~ ""='~' ,", .". ",''If__~~ ,_" ," ~, ",. ,~-<I, ,,--,'.'-- liJU "J,,, "~_ ,_, ~,' I.r ".' '~'1iI),~-,b () c:: > ""D fr' [pn": 2;:;! C0),.. ~'~,' 'h.. :?-C. ~C) C :? ~ '.'--" ,:::> '..~iU' AL,'i <:) o ,., \/) r'1 -0 "" I::) --_.' :-;';;I~'_"l :';:,i,Z! .",.'--' ~ ~if "~~) ~_,f~-:- 2'{.i ;~':{i~? .~ ':'-'1 :E ~ ""n 1::"- . ~ _'~_"~'~ __ .'.''"...P,'_"'" _" ,',I"'b';"-,-.- _"'''~ "~". ~-,_;_ _ "' "'-1.", _ _ '_:.",','_-, - k "--"'~,,,,i~ ""~"<" " <-i" '," .,;,;.;,; :".' ,,:~~ ".__";,','c,,o" '..:' ',~ ";,' "" ' ~~ '~,p," r MICHAEL J. CASSIDY and JULIE A. CASSIDY, CO-PARTNERS, t/dIb/a G & C ASSOCIATES, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 00-8861 GIANT FOOD STORES, INC., AHOLD REAL ESTATE COMPANY and ARC SHIPPENSBURG LIMITED PARTNERSHIP, Defendants : CIVIL ACTION - LAW NOTICE TO PLEAD TO: Michael J. Cassidy and Julie A. Cassidy, Co-Partners, t1d/b/a G & C Associates, and Sally J. Winder, their attorney: You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. McNEES WALLACE & NURICK LLC By I/-L L _ tLJ:; Helen L. Gemmill Attomey J.D. No. 60661 Kimberly M. Colonna Attorney J.D. No. 80362 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Dated: 'j?-31-ol ,"- .., "~',~ -.--'."~ . ,~'... ,',-'-- ;." "".-- , ,:~...,,,. , ";.I,,,,, ,'. ,"' ,,'..' , '" ',-. .,.'- - .", - " ~' ,"',""'"." - -', ,- ~;-;->".-~~;", C~-<';','i'--'~;;~"__';';". ',<.",' '",^-",;,~ MICHAEL J. CASSIDY and JULIE A. CASSIDY, CO-P ARINERS, t/dIb/a G & C ASSOCIATES, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. : NO. 00-8861 GIANT FOOD STORES, INC., AHOLD REAL ESTATE COMPANY and ARC SHIPPENSBURG LIMITED PARTNERSHIP, Defendants : CIVIL ACTION - LAW ANSWER WITH AMENDED NEW MATTER OF DEFENDANTS AHOLD REAL ESTATE COMPANY AND ARC SHIPPENSBURG LIMITED PARTNERSHIP Defendants Ahold Real Estate Company ("Ahold") and ARC Shippensburg Limited Partnership ("ARC") by and through their counsel, McNees Wallace & Nurick LLC, for their answer and amended new matter to the Complaint, state as follows: ANSWER 1. Admitted upon information and belief. 2. Admitted with clarification. By way of further answer Giant Food Stores, LLC, is the successor by merger to Giant Food Stores, Inc. ("Giant") and is a limited liability company organized and existing under the laws ofthe State of Delaware with a principal place of business at 1149 Harrisburg Pike, P.O. Box 249, Carlisle, Cumberland County, Pennsylvania 17013-0249. 3. Admitted in part and denied in part. Aholdand ARC admit that Ahold is a Connecticut general partnership that engaged in the business of acquiring sites for grocery stores, including Giant stores. Ahold denies the remaining averments ofthe paragraph. By way of further answer, Ahold's correct address is 6300 Sheriff Road, Landover, Maryland 20785. ,~ , ,',- '-,', ,'~~- . _r' ~':.c.'.k, ,. ",_~', _ - '_',"_ n_~ -, '-- " - - ~". - - OJ "",,,;; ., ,j:~';~ ":':'--;;,-" ~ :..~ -(>~ o:t ,<" "~. '" '" _-!,j"~,,,~, ".:c~ _ > '_~ Ail': 4. Admitted in part and denied in part. Ahold and ARC admit that ARC is a Connecticut limited partnership formed for the purpose of taking title to the real estate located in Shippensburg Township, Cumberland County, that was purchased by Ahold from the Plaintiffs (the "Shippensburg Property"). Ahold and ARC deny the remaining averments of paragraph 4. By way of further answer, ARC had no obligation to build a grocery store and/or other businesses on the Shippensburg Property, and ARC's correct address is 6300 Sheriff Road, Landover, Maryland 20785 5. Admitted. 6. Admitted. 7. Admitted in part and denied in part. Ahold and ARC admit that a closing took place on April 16, 1998, admit that real estate was transferred to ARC by plaintiffs by special warranty deed, admit that ARC paid plaintiffs the agreed upon purchase priced of $450,000.00, and admit that the deed is recorded in the Cumberland County Recorder of Deeds Office in Deed Book 175, page 606. Ahold and ARC deny that the real estate transferred at the Apri116, 1998, closing was subject to an agreement of sale dated Apri130, 1998. Byway of further answer, the real estate transferred at the Apri116, 1998, closing was subject to an agreement of sale dated April 30, 1997. 8. Denied as stated. The agreement of sale is a document that, in its entirety, speaks for itself. By way of further answer, Paragraph 8 of the agreement relates to the payment and apportionment of taxes. 2 ,',---- -.',.' '_"0 ",.~,', 0,,1,;<' -~ '" ,", 0-- , , >~, ~-, ,_ . '" n" ~_m~' .,~:'-;",'._ -- l ~'" j:.: ,l' ".1' ,> '__'-:;3:~~';:' ~,~;=____:,' 9. Denied as stated. The agreement of sale is a written document that, in its entirety speaks for itself. Ahold and ARC deny Plaintiffs' characterization of the terms of Paragraph 30(a). 10. Denied as stated. The agreement of sale is a written document that, in its entirety speaks for itself. Ahold and ARC deny Plaintiffs' characterization ofthe terms of Paragraph 30(b). 11. Admitted in part and denied in part. Ahold and ARC admit that they have made no efforts to design and construct storm water management structures/areas, sanitary sewer lines, and water lines at the Shippensburg Property. Ahold and ARC deny the remaining averments of Paragraph 11 as they represent characterizations of the terms of the written agreement of sale, and the agreement of sale is a written document that, in its entirety, speaks for itself. By way of further answer, Ahold and ARC had no obligation to undertake any efforts to design or construct storm water management structures/areas, sanitary sewer lines, and water lines at the Shippensburg Property. 12. Admitted in part and denied in part. Ahold and ARC admit that they have advised Plaintiffs that they do not presently intend to design or construct storm water management structures/areas, sanitary sewer lines, and water lines at the Shippensburg Property. Ahold and ARC deny the remaining averments of Paragraph 12 as they represent characterizations of the terms of the written agreement of sale. The agreement of sale is a written document that, in its entirety, speaks for itself. By way of further answer, Ahold and ARC had no obligation to undertake any efforts to design or construct storm water management structures/areas, sanitary sewer lines, and water lines at the Shippensburg Property. 3 ~, ,,' ^',~, ,. ,,", '^ --',,^~, ~,- ,-<.- ...-.,,' ""';,."'" ',,- '- :' ~-- ,,-:: ~ ,,- .,,' <~" "'" ~-- ,'" -i<,.__ 0 ,.;" -'"'_~~o~,--,c,^ ~o ,'C-'-/'"", -',c'ef.,'o -':r.-'~..t~-,,;;",,;,<-: .~ "'"il.:~,-, 13. Denied. Paragraph 13 avers conclusions oflaw to which no response is required. To the extent that a response is required, Ahold and ARC deny that they have breached any written agreement with the Plaintiffs. 14. Denied. After reasonable investigation, Ahold and ARC are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and therefore deny the averments. 15. Denied. After reasonable investigation, Ahold and ARC are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and therefore deny the averments. 16. Denied. After reasonable investigation, Ahold and ARC are without know ledge or information sufficient to form a belief as to the truth of the averments of this paragraph and therefore deny the averments. 17. Denied. After reasonable investigation, Ahold and ARC are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and therefore deny the averments. 18. Denied. Paragraph 18 avers conclusions of law to which no response is required. To the extent a response is deemed necessary, Ahold and ARC deny that they breached any contract with Plaintiffs and deny that they caused Plaintiffs damage in any amount. 19. Denied. Paragraph 18 avers conclusions oflaw to which no response is required. To the extent a response is deemed necessary, Ahold and ARC deny that the breached any agreement with Plaintiffs, and deny that they are liable to Plaintiffs jointly, severally, or otherwise. 4 "en,....' ~,", ~,' ',,' "",,; "' "", ' ,- ;--1' '"",SN."." ".">" '-.'- ,,"~;.:,' 'd, '--'''C--" . ,'<<~ ",;,'., "',}, T_',"i,',;"",;',:",,;,_! ':,.-,-"",- -"::..:).,' "c,'_:;'<_.,,;" .- ~; WHEREFORE, Ahold and ARC request that Plaintiffs' demand for relief be denied, that judgment be awarded in favor of the Defendants and against Plaintiffs and that the Defendants be awarded their costs in connection with this action, along with such other relief as this Court deems just and proper. AMENDED NEW MATTER 20. Ahold and ARC never had any obligation to Plaintiffs to design or build storm water management structures/areas, a sanitary sewer line, and/or a water line on the Shippensburg Property. 21. The decision whether or not to construct storm water management structures/areas, sanitary sewer lines, and water lines was within the sole discretion of the Buyer. 22. Paragraph 13 of the agreement of sale states that nothing in the agreement obligates Buyer to obtain any govemmental permits or final approvals necessary to authorize the construction and development proposed by Buyer and that Buyers of the property have "sole, absolute and uncontrolled discretion" whether or not to obtain those approvals. 23. Construction of any storm water management structures/areas, sanitary sewer line, or water line would require the permits and final approvals that paragraph 13 states Buyer, in its sole discretion, is not obligated to obtain. 24. Paragraph 30( d) of the agreement of sale provides that if Buyer failed to construct a retail development on the Shippensburg Property, Sellers [Plaintiffs] had the option to repurchase the property for the purchase price ofthe property, plus the costs ofthe Buyer's improvements to the property, including storm water and utility designs. 5 _i' , .",,', -"'.',,;',--" -" ';1,,," ~"., ,-de.,'" ;~ ' '-~" ,~ "'-"""~ '","',-'" __', "n_'.,__,,'--'; '"~ -0 O'-;'_,._'~...;~',~:,..i.; :;:-;,1;;;;'-,~:~i1>.' ";'",__,__ "J;,'''1':,: 25. Pursuant to the terms of paragraph 30(d), in the event that the Buyer did not develop the 8hippensburg Property, Plaintiffs were not entitled to obtain, free of cost, the benefit of Buyer's improvements to the Property. 26. Under Paragraph 30(d) of the Agreement, Plaintiffs are not entitled to recover the cost of installing stonn water management structures/area, a sanitary sewer line, and a water line. 27. Pursuant to the terms of the agreement, the design and construction of a sanitary sewer line and a water line at the Shippensburg Property was conditional upon the Buyer's development of a retail development of that Property. 28. Paragraph 30( c) of the agreement of sale provides that the Buyer "shall install" a sanitary sewer line and a water line "to service the buildings in its [Buyer's] development of the Premises. " 29. Nothing in the agreement of sale obligated the Buyer of the Shippensburg Property to construct a sanitary sewer line and/or a water line to service the property currently owned by Plaintiffs in the event that the Buyer did not develop the Shippensburg Property. 30. Plaintiffs' claims, in whole or in part, fail to state claims upon which relief can be granted. 31. All of Plaintiffs' claims are based on the allegations that the Defendants breached the written agreement with Plaintiffs which was executed in April 1997 . 32. Upon information and belief, Plaintiff were aware as early as 1999, that Defendants did not intend to build a water line, sewer line, or storm water management structures on the Shippensburg Property. 6 .-- '.','--,<--- ,,',,'" ,: ',-,~ ' ,~,. -0'; ,. ~ _,I ' . ,~ '"", """<'".C-"",,, """,,,,,.- ,~ -' " ,~,~'~-" .: -- ,".- ,'Co "',~ ' ;'.--':" ,'_ '.~~ ,,;'J' , ,'" 33. Plaintiffs' Complaint alleges that the damage to Plaintiffs has increased by the passage of time because the costs of building the water line, sewer line, and storm management structures increase over time. 34. Plaintiffs' delay in filing their Complaint, after they knew ofthe alleged breach, caused harm and prejudice to Defendants in that the amount of damages claimed has increased, and in that evidence and witnesses relevant to Defendants' defense ofthe claims may no longer be available. 35. To the extent that Defendants have been harmed or prejudiced by Plaintiffs' delay, Plaintiffs claims are barred, in whole or in part, by the doctrine oflaches. 36. Because the costs of building the water line, sewer line, and storm management structures continue to rise, Plaintiffs failed to mitigate their damages because they did not undertake to construct those structures within a reasonable time after Defendants' alleged breach. 37. To the extent that Plaintiffs have failed to mitigate their damages, the claims are barred in whole or in part. 7 , '.' _ ,;.,,, '" " c , '''~.' " , _ c' ~, -, _",I~;.,\,. ... '.0"'''_'_''__,'__'." -c, _" .", "."__ "-,,,;',-,--- c~ ." -,,;i-~~,:,:'_,",(;:; ,",:,;', ;,,__,~ ~'_;:_,:::;~_,;'-" ,-.cd "',~,,: ""~'l' WHEREFORE, Ahold and ARC request that Plaintiffs' demand for relief be denied, that judgment be awarded in favor of the Defendants and against Plaintiffs and that the Defendants be awarded their costs in connection with this action, along with such other relief as this Court deems just and proper. McNEES WALLACE & NURICK LLC By !l.-LL. ~ Helen L. Gemmill Attorney J.D. No. 60661 Kimberly M. Colonna Attorney J.D. No. 80362 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendants Ahold Real Estate Company and ARC Shippensburg Limited Partnership Date: ~ - 31 - 0 I 8 - , .,i , ~ 0..; "'.' VERIFICATION Subject to the penalties of 18 Pa. C.S.A. S 4904, relating to unsworn falsification to authorities, I hereby certifY that I am Assistant Secretary of Ahold Real Estate Company, that I am authorized to make this verification on behalf of Ahold Real Estate Company and ARC Shippensburg Limited Partnership, that I have reviewed the foregoing and that the facts set forth therein are true and correct to the best of my knowledge, information and belief. AHOLD REAL ESTATE COMPANY and ARC SHIPPENS LIMITED PARTNERSHIP Dated: August 3/,2001 "~'-.' "-'---> - '-'.;'/"- ~. ,'~"~ ""'.',<<.-'1' --.<-" ""L,,""-''-'"~~''-C''' "~_~_ ;'.- . -~ "',,",', -, '.;,;.' - '.~ ^.,". ;i~- "--,. -i"'<" ,-":,""',-."',, " ,~..,,;,,-~; ""!~"-"';''''''"'~~'~' ~j CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by regular, first-class U.S. Mail, postage prepaid, upon the following: Sally J. Winder, Esquire 701 East King Street Shippensburg, P A 17257 II-L L. t:l '.0 Helen L Gemmill Date: IS' - .301 - 0 I .,;~ :l h.:;", - -n~d'H:riClrt...;,:"~.L..c:<:' .;~,~" --'-" , .. ,-, " "":.:.'-",,..;.',,;,"',- - I h .- "-- -" ;,. ",.-:'- " -",- o,w, ~" ii111J-.HW rrnlli~' .. "', l~~liiii~ T'"- "__," =W' ," = ,0> ~,~~ ,_J:O',r, ~ ,_ .. = .. ~~"'- __.,'l ,I.. '-'" ^' - r:in , , , , ,. . " ,. MICHAEL J. CASSIDY and JULIE A. : IN THE COURT OF COMMON PLEAS CASSIDY, CO-PARTNERS, tJdIb/a : CUMBERLAND COUNTY, PENNA. G & C ASSOCIATES, Plaintiffs : v. GIANT FOOD STORES, INC., : NO. 00-8861 AHOLD REAL ESTATE COMPANY : and ARC SHIPPENSBURG LIMITED: PARTNERSHIP, : DefendaIlts : CIVIL ACTION - LAW NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the folloWing pages, you must take action within TWENTY (20) DAYS after this Amended Ch1nplaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Amended Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LA WYERAT ONCE. IF YOU DO NOT BA VE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Pennsylvania Bar Association Lawyer Referral Service 100 South Street POBox 186 Harrisburg PA 17108 Telephone: 1-800-692-7375 or (717) 238-6715 By: ~~,N~ Sally J. Wi er Attorney for Plaintiff 701 E. King Street Shippensburg, P A 17257 - c - ~<, I i.. _,0___' "",]'.,",~' ^,;,; ~i1llm~:\': . . . , ( ~. '-r . MICHAEL J. CASSIDY and JULIE A.: IN THE COURT OF COMMON PLEAS CASSIDY, CO-PARTNERS, tJdlb/a : CUMBERLAND COUNTY, PENNA. G & C ASSOCIATES, Plaintiffs v. GIANT FOOD STORES, INC., : NO. 00-8861 AHOLD REAL ESTATE COMPANY and ARC SHIPPENSBURG LIMITED: PARTNERSHIP, Defendants : CIVIL ACTION - LAW AMENDED COMPLAINT 1. The plaintiffs are Michael J. Cassidy and Julie A Cassidy, general partners engaged in the business of real estate development and residential construction, and trading and doing business as G & C Associates, with a place of business located at 9974 MoUy Pitcher Highway, Shippensburg, PA 17257. 2. Defendant, Giant Food Stores, Inc. (hereinafter "Giant"), is a corporation which operates a number of grocery stores in Cumberland County, Pennsylvania, and maintains a business office at 1149 Harrisburg Pike, Carlisle, Pennsylvania 17013. 3. Defendant, Ahold Real Estate Company (hereinafter "Ahold"), is a Connecticut general partnership engaged in the business of grocery store site acquisitions for defendant Giant, having a business address of6300 Sheriff Road, Landover, Maryland 20785. 4. Defendant, ARC Shippensburg Limited Partnership (hereinafter "ARC"), is a Connecticut limited partnership, formed for the sole purpose of taking title to real estate in Shippensburg Township, Cumberland County, Pennsylvania, purchased from plaintiffs, upon which a grocery store and other businesses would be developed, having a business address of6300 SheriifRoad, Landover, Maryland 20785. 5. On or about Apri130, 1997, plaintiffs and defendant Ahold entered into a written agreement whereby plaintiffs agree4 to sell and defendant Ahold agreed to buy approximately 10 acres of land zoned commercial and situate in Shippensburg Township, Cumberland County, Pennsylvania. A copy of the written agreement is attached hereto, marked Exhibit "N' and incorporated by reference. -1- - ", , . 1 '" .'~ . ~" 0 i -.,,~'t=',.,,"~~ ';. ''"''"'~, .. ,l. . , 6. By written document of assignment, dated April 16, 1998, defendant Ahold assigned all of its right, title and interest in the agreement described in paragraph 5 of the complaint to defendant ARC. A copy of the written document of assignment is attached hereto, marked Exhibit "B", and incorporated by reference. 7. On or about April 16, 1998, closing and transfer of title of the real estate which was the subject of the agreement of sale dated April 30, 1997, took place. On that date, plaintiffs conveyed the subject real estate to defendant ARC by special warranty deed, and defendant ARC paid plaintiffs an agreed upon purchase price of $450,000.00. The deed of conveyance tor the subject real estate has been filed of record in the Cumberland County Recorded of Deeds Office in Deed Book 175, Page 606. 8. Paragraph 21 of the agreement between plaintiffs ("Seller") and defendant Ahold ("Buyer") provided as follows: "SlJRVIV AI, OF CLOSING. All covenants, conditions and representations contained in this Agreement shall survive Closing." 9. Paragraph 30(a) of the agreement stated that at closing Seller would grant an appropriate easement over property located to the rear of the real estate conveyed, to Buyer, for the placement of storm water management structures/areas, and Buyer would design, construct and maintain said storm water management structures/areas on the said easement property. Said storm water management structures/areas were to be designed and constructed to include storm water runoff from other residential lands owned by Seller and from other commercial lands owned by Seller, and located next to Buyer's lot. 10. Paragraph 30(b) of the agreement stated that Buyer would install at a minimum an eight (8") inch sanitary sewer line and an eight (8") inch water line to service the grocery store building to be constructed on the lot purchased by Buyer, beginning at the currently existing public utility sewer and water lines located in or near the public road right-of-way to the front of Buyer's lot, with the water line running approximately 780 feet and the sewer line running approximately 1735 feet to a terminus near the rear of Buyer's lot, and Seller would be permitted to use said water and sewer line in the development of other residential lands owned by Seller and other commercial lands owned by Seller, and located next to Buyer's lot. 11. After the date of the agreement of sale (April 30, 1997) but before the date of closing on the Shippensburg Township property (April 16, 1998), defendant Giant and defendant Ahold entered into a written agreement (hereinafter "Package 2000"). Package 2000 contained provisions requiring defendant Ahold to construct on the Shippensburg Township property a grocery store building and the specified site improvements and requiring defendant Giant to enter into a 20 year lease of the grocery store building and to pay as rental for the leasehold the sum of$56,000.00 per month over the t~ of the lease. Plaintiffs do not possess either an original or a copy of the Package 2000 agreement and . plaintiffs believe all copies of the Package 2000 agreement are in the possession of defendants. -2- J;l - - ", ," "> . " .1. ._". ~' ["'~i . , . , 12. The period of time between the date ofthe agreement (Apri130, 1997) and the date of closing on the Shippensburg Township property was designated in paragraph 6 of the agreement as the "Feasibility Period". On many occasions during the Feasibility Period, representatives of defendant Giant (Bob Anderson among them) and representatives of defendant Ahold (Don Carr among them) assured plaintiffs that, upon approval of the Package 2000 agreement by the respective corporate boards of defendant Giant and defendant Ahold, both the closing on the Shippensburg Township property and the construction of the grocery store building and specified site improvements were afait Q(:compli, a "done deal". 13. Plaintiffs never saw a copy of the Package 2000 agreement, but plaintiffs were informed on many occasions during the Feasibility Period by representatives of defendant Giant and defendant Ahold of the provisions of the Package 2000 agreement, and they justifiably relied on the provisions of the Package 2000 agreement and upon the assurances of defendant Giant and defendant Ahold that closing on the property would take place and that construction of the grocery store building and specified site improvements would also take place. 14. If defendant Ahold had designed and constructed the specified site improvements, plaintiffs' adjoining residential and commercial lands would have been directly and significantly benefited. 15. Having defendant Ahold agree to design and build the specified site improvements on the Shippensburg Township property was a substantial part of the total consideration promised to plaintiffs to induce plaintiffs to go to closing and to transfer and convey the Shippensburg Township property to defendant ARC. 16. Having defendant Giant committed by the terms and conditions of the Package 2000 agreement to lease the grocery store building for a term of 20 years at a rental of $56,000 per month was pivotal in persuading plaintiffs to go to closing and transfer and convey the Shippensburg Township property to defendant ARC, because this commitment reasonably appeared to make the design and construction of the specified site improvements by defendant Ahold a certainty in the minds of the plaintiffs. 17. Neither defendant Ahold nor defendant ARC has to date made any effort to design and construct the storm water management structures/areas or the sanitary sewer line and water line ("specified site improvements") which were agreed to be designed and constructed by Buyer in the written agreement between plaintiffs and defendant Ahold. 18. On a number of occasions, representatives of defendant Giant and defendant Ahold have stated to plaintiffs that said defendants have no intentions and no plans ever to erect a grocery store building on the Shippensburg Township site or to design or construct the specified site improvements which Buyer agreed to design and construct in the written agreement between plaintiffs and defendant Ahold. -3- >>' '!:s'u . "'lie , . , . , . ' .' COUNT I BREACH OF CONTRACT PLAINTIFFS V. DEFENDANTS AHOLD AND ARC 19. Plaintiffs incorporate by reference the allegations contained in paragraphs 1 through 18 as though set forth at length. 20. By reason of their failure to design and construct the specified site improvements, defendant Ahold and defendant ARC have breached the provisions of the written agreement between themselves and plaintiffs. 21. The total costs of the design and construction of the specified site improvements are in excess of $462, 155.00 A copy of the proposal and estimate of David H. Martin Excavating, Inc., dated Augnst 7, 2000, stating total costs as of the date of the proposal and estimate is attached hereto, marked Exhibit "C", and incorporated by reference. 22. The total costs of design and construction of the specified site improvements will have escalated between August 7, 2000, and the date of decision/verdict in this case, due to increased prices for materials and labor necessary in the construction of the specified site improvements. 23. Plaintiffs' adjoining residential and commercial lands cannot be developed without the design and construction of the specified site improvements. 24. Plaintiffs have suffered damages as a result of the breach by defendant Ahold and defendant ARC, including but not limited to the total costs of the design and constrUction of the specified site improvements, plus the financing costs associated with plaintiffs' borrowing of funds to themselves design and construct the specified site improvements. 25. Defendant Ahold and defendant ARC acted jointly in producing the breach of their written agreement with plaintiffs; therefore, the liability of defendant Ahold and defendant ARC for the damages suffered by plaintiffs should be joint and several. WHEREFORE, plaintiffs demand judgment against defendant Ahold and defendant ARC, jointly and severally, in an amount in excess of $462,155.00, plus interest, costs of suit, and any other sums deemed by this Court to be appropriate. The amolint claimed is in excess of the claim for relief requiring compulsory submission to arbitration. -4- , - '~'"':; -,; ",', '~'~~, I~ " '-'. JJ - -I -- - '.;t"" ,"" ~- "~ ". '~~i . . . . , . '. COUNT II INTERFERENCE WITH CONTRACTUAL RELATIONS PLAINTIFFS V. DEFENDANT GIANT 26. Plaintiffs incorporate by reference the allegations contained in paragraphs 1 through 25 as though set forth at length. 27. Defendant Giant, acting without privilege or license, wrongfully interfered with plaintiffs' existing contractual relationship with defendant Ahold and defendant ARC by inducing or otherwise causing defendant Ahold and defendant ARC not to perform their agreement for design and construction of the specified site improvements. 28. Defendant Giant acted intentionally, knowingly and without justification for the purpose of inducing or causing defendant Ahold and defendant ARC not to perform their agreement with plaintiffs for the design and construction of the grocery store building and the specified site improvements. The actions of defendant Giant include but are not limited to a unilateral withdrawal from and cancellation of its obligations to defendant Ahold under the provisions of the Package 2000 agreement to occupy the grocery store building at the Shippensburg Township site and to commence lease payments for said occupancy in the amount of $56,000 per month. 29. Defendant Giant's withdrawal from and cancellation of its obligations to defendant Ahold under the provisions of the Package 2000 agreement, as set out in paragraph 28 herein was the sole reason for defendant Ahold's and defendant ARC's breach of its contractual obligations to plaintiffs to design and build the specified site improvements. 30. Plaintiffs have suffered damages as a result of the actions of defendant Giant, including but not limited to the total costs of the design and construction of the specified site improvements, plus the financing costs associated with plaintiffs' borrowing of funds to themselves design and construct the specified site improvements. WHEREFORE, plaintiffs demand judgment against defendant Giant in an amount in excess of $462, 155.00, plus interest, costs of suit, and any other sums deemed by this Court to be appropriate. The amount Claimed is in excess of the claim for relief requiring compulsory submission to arbitration. ~ - kJ-1#'~ Sally 1. W' der, Atomey for Plaintiffs Michael 1. Cassidy & Jnlie A. Cassidy, co-partners. tldIb/a G & C Associates 701 East King Street Shippensburg, P A 17257 tel. (717) 532-9476 -5- j~ ~" '. ,1"1'- " ,ili, . I ~ , ~~"~-, ~ ~ i '1?~I'__"c . . , VERIFICATION I verify that the statements made in the foregoing Amended Complaint are true and correct to the best of my personal knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: JOIJ~/t>1 ~~ / C, . ASSIDY ". ,~""" ~ <~. ~._~. ,r ^ , I I I i I I ,q-. ~ I I I. ) -~- . , '<''';;if~:: ~ - , \ " AGRRF.MENT OF PURCHASR AND':SALE TH]SAGREEMENT(IlAg,.eementll)is'ma:det~3.itib..dayof ~I' 1 . ", 199'T, by and between Michael Cassidy, Julie A. Cassidy and Bal"bara L. Garling, d/b/a G Associates, .with an 8dd~..' . of 9974 Molly Pitcher Highway, Shippeosburg, Pennsylvania 17257 (hereinafter referred to as "Seller"), and Abold Real Estate.Company, a Conrjeeticut general partnership with an addresS of One Atlanta Plaza. 950 East PilUS Ferry Road; Suite 2575, Atlan'ta, Georgia 30326, Attention: Edward"J, Pabieb, Excutive Vice President, or its nominee (herejnafter referred to as "Buyer"). . ,'. ,.,,"c WITNRSSRTH Seller: is the owner in fllC simple of a certain piece 'or parcel of land ~ted on the east side 'of Baltimore . Road (alk/a Queen Street) in the Township of Shippensburg, Pelinsylv8nia, containing approximately 'ten (10) acres, more or less, 85 is more fully described 00 Exbibit "A", which is attacbed hereto,8od hereby made a part hereof (hereina(t~r, togetber with all improvements lotated thereoo and all appurteuances related thereto, the "J>remises") and'.s will be more fully determined upon a survey of the Premises as set fortb hereinafter. ; Subject to the terms and conditioos of this Agreement, Buyer desires to purcbase the Premises from SeUer, and Seller'd.esires to sell the Premises to Buyer. NOW, THER,EFORE, in consideration oCtbe mutua' promises berein contained and of otber good and v.luable consideration, tbe parties bereto hereby agree as follow~: 1. PURCHASE AND SALE Upon and subject to the terms and conditions of this Agreement, Seller shall sell and convey the Premises to Buyer, and Buyer shan purchase tbe Premises from Seller. 2. TIME AND PLACE OF CLOSING. Tbe closing Bind transfer of tiUe (hereinafter tbe "Closing") shall ~e plaee at (or tbro.-gb the escrow services of) the offices of the title insurance company of Buye.r's choice, or Its agent (tbe "Title Company") on or before tbe date whicb is niuely (90) days after the ex:piration ofthe FeasibUit)' Period, as the same may be extended in accordance with Paragraph 5 (the "Closing Dete"), or at such other place and on such other earlier date as the parties may hereafter mutually agree upon in writing. Notwithstanding,the foregoing, Buyer may elect to hold the Closing on any earlier date by providing SeDer witb written notiee.speeifying sueb earlier Closing Date, which notice shall be mailed or delivered to Seller n()t less than ten (10) days prior to the Closing Date specified in such notice, 3. PURCHASE PRICE. Subjed to adjustmeuts as hereinafter set forth, the purehase priee to be paid for the Premises 'sJaaU be Forty~five Thousand (545,000.00) Dollars per acre (the IIPurchase Priee"). Tbe Purehase Price shall be paid and received as follows: - (a) Fifty Thousand (5 50,000.00) Dollars paid by Buyer to an account administered by the Tttle Company upon exe<:ution of this Agreement (the "Deposit"); The Title Company shall hold the Deposit in an interest bearing escrow aeeount at the state or federally ehai1e~d baRk of its choice, and shall disburse the Deposit in accordance with the terms eontained herein. At the Closing, the Deposit and all interest accrued tbereon shall be delivered to Seller, and the Purchase Ptice sball be eredit~ for sucb sum. ]n the event tbis Agreement is terminated as,set fortb herein or either Buyer or Seller default in their respective obligations hereunder and nO Closing takes piace, tbe Title Company s~all deliver tbe Deposit aud acerued interest tbereon, in accordance with the terms hereof. (b) The balance oUhe Purchase Priee (subjeet to adjustments.identified hereinafter) not pl:dd in accordance with tbis Agreement prior to the Closing, as hereinafter defined., shall be paid at Closing in cash or by eeJ1ified, casbier1s or treasurer's che<:k or wire transfer of immediately avaDable funds by Buyer to Seller, or ~o tbe Title Company pursuant to aD escrow closing. 4. DISBURSEMENT OF DEPOSIT TO SRLLER. If Closing is completed hereunder or if Buyer, without the right to do so and in default of its obligations hereuuder, fails to complete Closing, the Title Company shall pay the Deposit, and aU interest accrued thereon, to Seller; in the event of Buyer's default the right ofSeUer to obtain such money from the Title Company shall be Sellerls exclusive and sole remedy, and shall be deemed liquidated damages. 5, FEASIBILITY PERIOD. Buyer may conduct a development feasibility study, oUbe Premises abd Buyer sball have tbe right to terminate tbis Agreement if Buyer is not satisfied for any reason whatsoever until midnight of, the day one (1) year after the date orrull execution and deli~ery oftbis..Agreement to Buyer (the "Feasibility Period"). If Buyer is not satisfied witb the property or for any otber reason whatsoever at any time during said period, Buyer may terminate this Agreement by writteo notice to SeDer, whereupon the Title Company shall return tbe Deposit (except for one hundred (5100.00) doDars, which shall be paid over to the Seller as part considenltion for this Agreement) to Buyer, together with all aec:rued interest thereon, or so much thereof as may remain after tbe advances previously made to Seller in accordance with the preeeding seotence, t() Buyer, and this Agreement will cease, terminate and come to an end, and neither party shall have any further rights against or obligations to the othl;r by virtue of this AgreeJp~t. Notwithstandiog anything to tbe contrary contained herein, the Feasibility Period shall terminate on the thirtieth (30tb) day following the final unappealable issuance of all permits, approvals, permits and certificates, including, witbout limitation, any zone ex Ii, II;; 11-'1 A LJ ~ .J-< ~,~~~ -- ""~ '"' .' ",^ .. ~-~"'"' ~"- 1Ilid~1Ij ~'~. ;~ , H ~....,r.:}: " changes or permits, sp"ial permits ur ex.ceptions, site plan, wetlands approvals, water diversion, discharge aod !ltber environmental permits, state or local traffic commission certificates permits or approvals, and all other approvals ("Final Approvalsu), (rom all applicable federal, state, regional and municipal authorities necessary to authorize the Buyer's construction and development proposed for the Premises. Within the fint three months (3) o(the FeasibiUty Period Buyer wiD obtain a Phase I Environmental Report and a Title Insurance Report or Commitment whicb it deems satisfactory. 6. CONDITION OF TITLE. Title to the Premises shall be given'.'to Buyer (or its nominee) at the Closing by delivery of Seller,'s special warranty deed, in proper recordable form,' duly executed and acknowledged by Seller, and, if applicable, Seller's spouse. Buyer must be able to obtain from the Title Company an ALT A forlll Owner's Policy insuring good and marketable iee simple title to the Premises free and clear of all liens, restrictions, easements, encumbrances, leases, tenancies and other title objections, with standard exceptions deleted and such endorsements as Buyer may require, all at ordinary rates. If Buyer causes a sQ.rvey to be made, the description in the deed shall, at Buyer's option, be based upon that survey. If Seller in unable to convey title to the Premises to Buyer at Closing in accordance witb the requirements of this Agreement, Buyer shall have the option (a) of taking such title as Seller is able to convey with abatement of price in tbe amount (fixed or ascertainable) of any lien on the Premises, or (b) of terminating Buyer's obligations under this Agreement and being repaid all monies paid by Buyer on account of the Purchase Price; in either eV,ent Buy~r shall also have the right to pursue such,otber remedies as,may, be available to Buyer at law or in equity. ! I 7. POSSEs..~ION. Possession of the Premises shall be given to Buyer at the time of Closing unoccupied and free,of any leases, claims to or rights of possession. Any billboards aDd advertising signs on the Premises shall be removed by Seller prior to Closing 8. TAXES - APPORTIONMENTS. Taxes, both real and personal; utility cbarges; water and sewer rents and charges; and all other charges customarily adjusted for in the jurisdiction in wbich the Premises are located shall be apportioned on ~ per diem basis as of tbe date of Closing. Buyer and Seller agree to cooperate with each other in all reasonable ways and io good faith, both prior to and following the Closing, to equitably adjust all adjustments applicable to tbe Premises as of the Closing Date. AU realty transfer, recording or conveyance taxes, imposed on or in connection with this transaction sball be shared equally by Seller and Buyer. Seller shall pay any applicable fees or taxes payable as a, result of any previous agricultural tax status or relief that may have ~een applicable to t~~ 'remises. . 9. EMINENT DOMAIN In tbe event of the taking of all or any part of the Premises by eminent domain proceedings or the commencement Qf, any such proceedings, Buyer shall have tbe rigbt, at Buyer's option, to terminate this Agreement by giving written notice to Seller on or before the Closing Date. If Buyer does not so terminate tbis Agreement, the Purchase Price for the Premises shall be reduced by the total of any awards or other proceeds received by Seller with respect to any taking, and at Closing Seller shall assign to Buyer all rigbts of Seller in and to any awards or other proceeds payable by reason of any taking. Seller represents t"at the P~mises is oot currently subject to any such proceedings and Seller agrees to notify Buyer of t...e commencement of any eminent domain proceedings affecting the Premises witbin five days after Seller learns of any sueb proceedings. Buyer shall have tbe sole rigbt (in the name of Buyer or Seller or both) to negotiate for,'to agree to and to contest all existing or future offers and awards. 10. V101.A TlONS. Seller represents and warrants to Buyer that as oftbe date hereof the Premises is not in violation of any law, ordinance, rule, regulation or requirement, ineluding, witboutlimitation, tbose pertaining to subdivision, zoning, building, health, safety or environmental matten, oUbe municipal, state or f~eral governments, and no notice has been issued or served by any governmental autbority requiring or calling .attentiqn to any vio~Uon or tbe need for any work on or with respect to tbe Premises or any roads, highways, streets, avenues or alleys abutting the same, and Seller has no knowledge of any conditions which would constitute such a violation or warrant tbe issuance of any such notice. All notes or notices of violations of law or municipal or other governmental ordinances, regUlation, orders or requirements noted in or issued by any governmental autbority against or affecting the Premises on or before the time of Closing shall be complied with by Seller alld tbe Premises sball be conveyed free of the same. 11. RRPRRSRNTATIONS. WARRANTIES AND COVENANTS OF S'ELLER. Seller, as an indueeQlent *o,Buyer to execute tbis Agreement of Sale, represents, warrants and covenants to Buyer tbat: (a) The Premises is not the subject of any outstanding agreements,witb any party punuant to wbich any sncll party may acquire any interest in the Premises, there are no otber claims of ownership, titie or interest ill the Premises and there are DO other contraets, right of fint refU5als or agreements of sple affecting the PrellJises. There are no agreements with any. party to provide services to the;Premises which would continue after the Ctosing. (b) No tenancy agreements of any nature exist relating to the Premises, and there are no parties in possession of any portion of the Premises. -2- ;Ii ~",-,~., it_ . CJik changes or perlDits, special permits or. exceptions, site plaD, wetlands approvals, water diversio~, discharge and other environwental permits, state or, local trame commission certificates permits or approvals, and all other approvals (IIFhlal Approvalsll), from all applicable federal, state, regional and municipal authorities nec:essary to authorize the Buyer'S construction aod development proposed for the Premises. Within the fint three months (3) of the FeasibiUty Period Buyer will obtain a Phase I Environmental Report and a Title Insurance Report or Commitment whieh it deems satistactory. 6. CONDITION OF TITLR. Title to the Premises shall be given',to Buyer (or its nominee) at the Closing by delivery of Seller:'s spedal warranty deed, in proper recordabl~ form, duly, executed and acknowledged by Seller, and, 'if applicable, Seller's spouse. Buyer must be able to obtain from the Title Company an ALT A form Owner's Policy insuriog good and marketable fee simple title to the Premises free and dear of all liens, mtrictiODS, easements, encumbrances, leases, tenancies and other title objections, with standard exeep#ons deleted aod such endorsements as Buyer may require, all at ordioary rates. If Buyer causes a survey to be made, the description in the deed shall, at Buyer's option, be based upon that survey. If Seller in unable to convey title to the Premises to Buyer at Closing in accordance with the requirements of tbis Agreemeot, Buyer sball have the option (a) of taking sucb title as Seller is able to convey witb abatement of price in the amount (fixed or ascertainable) of any lien 00 tbe Premises, or (b) of terminatiog Buyer's obligations under this Agreement and being repaid all monies paid by Buyer on account of the Purchase Price; in either event Buyer sh,lll also have the right to pursue such other remedies as may be available to Buyer at law or in equity. 7. POSSESSION. Possession of the Premises shall be given to Buyer at tbe time of Closing unoccupied and free of aoy leases, claims to or rights of possession,' Any billboards and advertising signs on the Premises shall be removed by Seller prior to Closing 8. TAXES:. APPORTIONMENTS. Taxes, both real and personal; utility charges; water and sewer rents and charges; and all other charges customarUy adjusted for in tbe jurisdiction in which the Premises are located shall be apportioned on a, per diem basis as of the date of Closing. Buyer and Seller agree to cooperate with each other in all reasonable ways and in good faith, both prior to and following the Closing, to equitably adjust all adjustments applicable to the Premises as of the <,:Iosing Date. AU realty transfer, recording or conveyance taxes imposed on or in connection with this transaction shall be shared equally by Seller and Buyer. Seller sllall pay any applicable fees or taxes payable as a result of any previous agricultural tax status or relief that milY have been applicable to the Pr,mises. 9. EMINENT DOMAIN. In the event of the taking of all or any part oftbe Premises by eminent domain proceedings 'or the commencement Qf any sueb proceedings, Buyer shall bave the right, at Buyer's option, to terminate this Agreement by giving written notice to Seller on or beCore tbe Closing Date. If Buyer does not so terminate this Agreement, the Purchase Price for tbe Premises shall be reduced by the total or any awards or otber proceeds received by Seller witb respect to any taking, and at Closing Seller sball assign to Buyer all rightl of Seller in and to any awards or other proceeds payable by reason of any taking. Seller represents that the Premises is not currently subject to any such proceedings and Seller agrees to notify Buyer of the, commencement oC any eminent domain proceedings affecting tbe Premises within five days after Seller learns of any speb proceedings. Buyer shall have the sole right (in the name of Buyer or Seller or both) to negotiate for, to agree to and to contest all existing or Cuture offers and awards. 10. VIO~A TIONS. Seller represents and warrants to Buyer that as oftbe date hereof the Premises is not in violatiaD of any law, ordinance, rule, regulation or requirement, ioeluding, without limitation, tbose pertaining to subdivision, zoning, building, health, saCety or environmental matters, of the municipal, state or fed~ral governments, and no notice has been issued or served by any governmental authority requiring or calling .attention to any violation or the need ,for any work on or with respect to the Premises or any roads, highways, streets, avenue9 or alleys abutting the same, and Seller has no knowledge of any conditions which would cODstitute sucb , violation or warrant the issuance of any sucb notice. All notes or notices of violations of law or municipal or other governmental ordinances, regulation, orders or requirements noted in or Issued by any governmental allthority against or affecting the Premises on or before the time of Closing shall be complied with by Seller and the Preinises shall be conveyed free of the same. 11. REPRESENTATIONS. WARRANTIES AND COVENANTS OF SELLER. Seller, as an inducement to Buyer to execute this Agreement of Sale, represents, warrants and covenants to Buyer that: (a) The Premises Is not the subject orany outstanding agreements,with any party punuant to which any suell party may acquire any interest in the Premises, there are no other claims of ownership, title or interest in the Premises and there are no otber contracts, right offint refusals or agreements of sale affecting the Premises. There are no agreements with any, party to provide services to the p;remises which would continue after the Closing. (b} No tenaney agreements of any nature exist relating to tbe Premises. and there are no parties in possession of any portion of tbe Premises. -2- -<" ~ , ~". (e) The Premis~ have never been used as a dump site, bazardous waste disposal site or ror any otber storage or any other hazardous, toxic or polluting or contaminating substance, nor as a cemetery or other burial ground. (d) There are DO pending or threatened actions, suits or proceedings or any nature whatsoever relating to or affecting any portion or the Premises, or relating to or arising out or the ownership or all or any portion of the Premises, any lease, or this Agreement or the transadions contemplated hereby, or insolvency or bankruptcy proceedings involving Seller, in any court or by any federal, state, county or municipal department, commission, board, agency or other governmental instrumentality, wbetber or not covered by insurance. (e) To tbe best ot Seller's knowledge, there bas been no spill, leaking leaching or other introduction of any Hazardous Material, as'hereinafter defined, upon or from the Premises or upon or from real estate contiguous to the Premises, nor are there now, or have there ever been, any underground oil or other tanks, asbestos, or any other Hazardous Material at, in, under or on tbe Premises. A "Hazardous Material", as defined berein, shall refer to any substance regulated by, or subject to, any federal, state or other governmental authority, oversight, law, statute, rule (or ruling), ordinance, or regulation, including any potentially bazardous or toxic substances or waste. Seller agrees to provide tbe firm conducting such environmental site assessments witb'such inrormation as is within Seller's knowledge concerl;ling the past and present uses of and conditions at the Premises. (0 No portion of tbe Premises is subject to back taxes, roll-back taxes or any additional tax or tax penalty if tbe zone or use of the Premises sbould cbange: (g) All matters k,Down to Seller whicb migbt bave a material advene effect on the. ownership, maintenance, or operation or development of the Premises as eontemplated herein have been disclosed to Buyer. (h) Seller is not married, is the only owner oUbe Premises and Seller has sole right, power and authority to enter into tbis Agreement and consummate the tra~sactions contemplated herein. (i) No municipal or other governmental improvements areecting the Premises are, as or the date hereof, in tbe course or constructiQ~ or instaJllation, and to tbe best of SeUer's knowledge no such improvement bas been ordered to be made; all" street paving, curbing, sanitary sewers, storm sewers and otber municipal or other governmental improvements whicb bave been constructed or installed benefiting the Premises have been paid for and will not hereafter be assessed, and all assessments heretofore made have been paid in fuD; and tbere are DO private contractual obligatiQns relating to the installation of or connection to any sanitary sewers or storm sewers. All or tbe representations and warranties set forth in this Agreement shall be true and correct on the date hereof and sball be and remain in Cull force and ereect on the Closing Date, and upon request Seller shall confirm the same at tbe Closing. 12.. . DOCUMENTS TO BE FURNISHED, TO BUVER. Within ten (10) days after the execution of tbis Agreement, Seller sball deliver the following to Buyer: (a) Any surveys of the Premises, irany, that Seller huin its possession or under its control; , (b) Copies or all soils, environmental andlor engineering tests, reports or data relating to tbe Premises, if any, tbat Seller has in its possession or under its control; and (c) Tbe most recent title report or policy of title insurance, it any, tbat Seller bas in its possession or under its controL 13. COOPF.RATION OF SELLER."Seller agrees, provided that Buyer sbaD be responsible for all costs thereof, to cooperate with Buyer in applying for and 'obtaining all Final Approvals, as hereinafter defined, and to join in any application where necessary. Further, Buyer is hereby authorized to proceed in Buyer's own name or in Seller's name(s), as tbe case may be, as is necessary in connection with any Final Approvals. Final Approvals, as used herein, shall mean all permits, approvals and certificates (including, witbout limitation, any zoning changes or permits; special permits or exceptions; site plan; wetlands; water diversion or discharge; any other environmental permits; state or local traffic commission permits or certificates; lot split or lot combinatIon approvals and all other approvals) from, all applicable federal, state, regional, municipal and other governmental autborities necessary to authorize the construction aod development proposed by Buyer for tbe Premises, with all rights of appeal therefrom baving expired. Notwithstanding tbe foregoing, nothing in tbis Agreement shall be deemed to obligate Buyer to apply Cor or obtain any Final Approvals, it being expressly understood and agreed upon between the parties tbat it shall be within Buyer's sole, absolute, and uneontrolled discretion wbetber or not to do so. No cooperation by Seller as set rorth berein sball (a) be deemed to create any partnership or joint venture between Seller and Buyer, or (b) oblige Seller to payor incur any out-of-pocket costs. -3- ~ , "",.. ~ ~ - '-.lilIlllllililiiIiiiIIi_ '-IliIii1tl<lOJ"',[ _I J.:. ... 14. ACCEs..1fot Seller agrees to permit Buyer and Buyer's designees aceess to the Premises from time to time for the purpose of making such measurements, surveys, examinations, inspections, tests and analyses as Buyer sball deem necessary or desirable, and for the purpose of sbowing tbe Premises to prospective lenders, Investors, tenants or purchasers. All euminations, inspections, studies and tests made by Buyer pursuant to this Agreement shall be at tbe sole cost, risk and expense of Buyer and Buyer releases Seller from, bolds Seller harmless from and indemnifies Seller against, any damages or injuries to any property or person, any losses, costs (including reasonable attorney's fees), damages or expenses, and all claims by anyone arising from injury or damage as a result ofsuch activity, excluding, however, from such indemnity any consequential or speculative damages and any claim, liability, loss or damage that may accrue to, Seller as a result of Buyer, or its agents or contractors, discovering any soil or water contamination or otber environmental or geotechnical problem relating to the Premises and not caused by Buyer. Further, Buyer sball indemnify and bold Seller barmless from any liens' as.serted or claimed against any part of the Premises as the result of Buyer's activities. Buyer shall restore the Premises to substantially the same condition existing prior to such activity. The foregoing indemnity sball survive any termination of this Agreement. 15. SKI.l!S,. Seller hereby consents to the placing ohigns upon the Premises by Buyer, provided, however, tbat if Closing is not made hereunder, Buyer shall remove such signs, at Buyer's expense. 16. I;IROPERTV INCLUDED, The sale oftbe Premises includes aU improvements located thereon; all appurtenances of every nature relating to the ~remises; all strips and gores and all right, title and interest, if any, of Seller in and to any land lying in the bed or any street, road, highway, avenue or alley (opened or unopened, existing or proposed, now vacated or hereafter to be vacated) in front of or adjoining the Premises, to the center line thereof, and aU right, title and interest of Seller in and to any award made or to be made in lieu thereof and in and to any unpaid award for damage to the Premises by reason of change of grade of any street, road, bighway, avenue or alleYi and Seller agrees to execute and deliver to Buyer, at Closing, or thereafter, on demand, aU proper instruments for the conveyance of sucb title and tbe assignment and collection of any sucb award. 17. ASSESSMENTS PAYABLE IN INSTALLMENTS. If, at or prior to tbe time of Closing bereunder, tbe Prem~ or any part thereof shall be or shall have been affected by an assessment or assessments wbich are or may become payable in installments, of which tbe first installment Is tben a charge or lien, or has been paid, tben for tbe purposes of this Agreement all unpaid installments of any such as.sessment, including those whicb are to become due and payable after the delivery oUhe deed, shall be deemed to be due and payable and to be liens upon the Premises affected tbeh,by and shall be paid and discbarged by Seller, upon tbe delivery of the deed. 18. NOTICES" All notices to be given by either party to the other hereunder shall be in writing and sball be delivered in persOn, by private, nationally recognized carrier guaranteeing next day delivery or given by United States registered or certified mail, postage prepaid, return reeelpt requested, addressed to the party for whom intended at the address of such party appearing after sucb party's name at the beginning of this Agreement or at sucb otber address as the party in question may specify in a written notice to tbe party giving notice. AU notices sball be deemed given on the date sent. Notices by the parties may be given on tbelr behalf by or to tbeir respective attorneys. 19. BINDING EFFECT. This Agreement shaD be binding upon, and inure to the benefit of Seller and Buyer and their, respeetive beirs, executors, administrators, suc,cessors and assigns. If tbere shall be more than one Seller, they all shall be bound jointly and severaUy by the covenants, conditions and agreements herein contained, and the word "Sellerll shaU be deemed and taken to mean each and every penon or party merltioned as:a Seller herein, be tbe same one or more. 20. ENTIRE AGREEMENT This is the entire Agreement between tbe parties and tbere are no otber terms, obligations, covenants, representations, statements or conditions, oral or otherwise, of any kind wbatsoever. Any agreement bereafter made shall be ineffective to change, modify, discharge or effect an abandonment of this Agreement In whole or in part unless -such agreement Is in writlng and signed by the party against whom enforcement of the change, modification" discharge or abandonmeot is sought. 21. SURVIVAL OF CLOSING. All covenants, conditions and represeotations contained in this Agreement shall survive Closing. 22. HEADINGS The beadings incorporated in tbis Agreement are for convenience in reference only and are not a part of this Agreement and do not in any way limit or add to the terms aod provisions hereot 23. ' SRVRRABILITY. It is undentood and agreed by tbe parties th.atifany part, term or provision of this Agreement-Is held by any court to be Invalid, illegal or in conOict with i.ny applicable law, tbe validity of the remaining portions or provisions of this Agreement shall not be affected, and tbe rights and obligations of the parties shall be construed and enforced as if this Agreement did not contain tbe particular part, term or provision held to be invalid, illegal, or in conflid with any applicable law. 14. FORCE MAJEURE In the event eitber Seller or Buyer sball be delayed or bindered in or prevented from the performance of any a~t ~uired hereunder by reason of a natural disaster, strikes, lockouts, -4- ... ~,~~~H ~-~ ~ ~~ ~ , - '_ u' ~,~,' - .' " ,~ labor trouble, governmental authority, riots, insurrections, war, appeal o(the issuance of permits or other causes which are not in tbe reasonable control of tbe party obUged to perform and not avoidable by all due diligence, the party delayed shall promptly give notice to the other party, spec:ifying tbe cause for the delay and thereupon performance of sucb act sball be excused for such period of delay, and tbe Closing postponed accordingly. 1S. DEFAULT. In tbe event that for any reason whatsoever Seller sball fail to perform its obligations bereunder. tben, unless Buyer elects a coune of conduct as tbe result of a default by Seller wbicb is specifically set forth. herein, Buyer shall have any and all remedies available to it at Jawor in equity, including, without limitation, the right to damages, tbe remedy of specific performance or other injunctive relief. 26. UNDERTAKINGS BY SELLER AND BI1VER. In addition to tbe obUgations required to be performed ~ereunder by Seller and Buyer, Seller and Buyer each agree to perform such otber acts, and to eJ:ecute, acknowledge and deliver, prior to, at or subsequent to tbe Closing, sucb other Instruments. documents and other materials as tbe other may reasonably request and as shall be necessary in order to effect the consummation of the transactions contemplated hereby, to vest title to the Premises in Buyer or Buyer's nominee, and to secure any and all permIts, approvals and other grants of authority desired by Buyer. 17. COUNTERPARTS. This Agreement may by simultaneously eJ:ecuted in two (2) or more counterparts, each o(whicb sball be deemed an original, but all ofwblcb together sball constitute one and the same instrument. 28. GOVERNING LAWS. This Agreement shal~ be governed by tbe laws of tbe State of Pennsylvania, 29. BROKERAGE SeDer agrees to indemnify Buyer and hold Buyer harmless from and against the daims of any and all broken and other intermediaries employed by Seller in connection with the sale of the Premises. 30. POST-CLOSING OBLIGATIONS. (8) SeUer shall provide a permanent, perpetual, non..exc:Jusive easement over an area to the rear of tbe Premises which is rea!iQnably satisfactory to Buyer upon whicb storm water management structures/areas sball be,designed, construct~ and maintained ~y Buyer. Said easement shall be granted at Closing, either in the deed or in a separate instrument, at Buyer's option. Said storm water management structures/areas shall also be designed to accommodate the storm water runoff from the entire 17 aere+/.. commercially zoned site owned by Seller (IISeller's Commercial Lands"), including the Premises. Upon the utilization of said structures/areas by portions of Seller's Commercial Lands other than the Premises, such portions of Seller's Commercial Lands will be obligated to contribute to the maintenance costs of said storm water management structures/areas pro-.rata, based upon the area of aU property then utilizing tbe storm water management structures/areas. The storm water management structures/areas shall be designed to include storm water runoff from any residential development by Seller, its successon or assigns ("SeUer's Residential Landsll) loca~ in the water shed area shown on EJ:bibit "B", attached hereto and made a part hereof. The owners of Seller's Residential Lands shall not be responsible for any maintenance or construction costs for said structures/areas, (b) Buyer shaU provide a permanent, perpetual, non..eJ:clusive easement over an area beginning at the rear of the Premises and running to the currently existing public utility water and sanitary sewer lines. Said easement shall coincide with the location of Buyer's feeds for such services for its development, an4 Buyer shalllnstall at a minimum an eight (8") Inch sanitary sewer line and an eight (8") inch water Jine to service the buildings in its development of tbe Premises. Said easement sball be created at closing, eitber as a reservation in tbe deed or in a separate instrument, at Buyer's option. Seller's use of such easements shall not in any way materially, negatively affect the capacity ofsuch utilities to service Buyer's Premises. If Seller desires to increase tbe capacity of said utility lines prior to their installation, Seller shall so notify Buyer prior to the issuance of building permits therefor and shall pay to Buyer, in advance, the incremental costs of the design and instanation of such, lines of increased capacity. Upon, the utWzation of said utility lines by Seller, Seller will be obligated to tontribute to the maintenance costs of said utility lines, pro--rata, based, upon the capacity utilized by each property then connected to such lines. If Buyer sbould dedicate such lines to a pUblic utUity or agency, tben the private easement shall expire, along with the obligation for contribution (or maintenance. In any and all cases, ifSeUer shall elect to connect to such utility lines, it shall do so at its sole cost, including any so..called tie-in or tapping fees created by Seller's connections. (c) Ripht ofFint Refusal. If Buyer bas (ailed to construct a retail development containing an anchor tenant of at least 37~00 square feet (Anchor Tenant), and Buyer wishes t9 sell the Premises, then, 'upon the receipt by Buyer of a bona fide offer for all of the Premises or for any portihn of tbe Premises other than an orrer whick is for a so-c:alled "outlot" (the "First Right Property"), which Buyer desires to accept, Buyer shall provide, and hereby grants, to SeDer, a rigbt of refusal with respect to such aD offer to purchase the First Right Property. Seller shall be notified in writing of any such bone fide proposal to Buyer, and Seller shall have ten (10) days to decline or to accept the terms and conditions of such proposal by written notice to Buyer. In the event Seller fails to accept such proposal in writing within ten (10) days, Buyer may seU the Fint Right Property to a.third party within one (1) year of !h~ 4.~ on whicb Buye~. pr~v,ded notice to Seller of the receipt of such -5- ~' \"",,"'" " ., ~. ~ 1 ,~ "~'''::im,,-- " " proposaL In tbe event SeDer ac:eepts.the terms and (!onditions of such proposal, Buyer and Seller shall enter into a Purchase and Sale Agreement with respect to such First Right Property eontaining terms and conditions identical to those of such proposal, provided that Seller can supply Buyer with reasonably satisfactory evidence of On an cia I ability to perform. This right of first refusal Inures only to the benefit of Seller, or any entity in eontrol of, controlled by or under eommon eontrol with Seller. This right of first refusal shall expire upon the earlier to occur of the following: (i) Buyer commencing construction of a retail development eantaining an anehor tenant of at least 37,500 square feet, or (Ii) the date whieh is sixty (60) months after the Closing. (d) Ontion to BuY Back. If Buyer has failed to CODstruct a retail development eontaining an Anchor Tenant (the ~Required Reta,il") within thirty-six (36) montbs, and SeDer wisbes to purcbase the Premises back from Buyer, then, upon the receipt by Buyer of a written notice of Seller's Intention to re-purchase so much of the Premises as Buyer sball own at such time, Buyer shall have ninety (90) days (tbe "Cure Period") in which to eammence construction ofthe Required RetaiL If Buyer does not commence to construct the Required Retail within the Cure Period, then Buyer shall reconvey the Premises to Seller upon SeDer paying Buyer the Purchase Price, as set forth above, as adjusted at the Closing, plus the costs incurred by Buyer for improvements to the Premises or design of improvements to the Premises which are applicable for development at the Premises generally, as opposed to sucb improvements or designs which are only applicable for the buildings proposed by Buyer, but which applicable features shall include. without limitation, storm water and other utility designs and improvements, soil and, erosion and other site designs and improvements and any traffic improvements or designs. fie elosing for such traosfer shall occur at a mutually agreeable place and time within thirty (30) days of the end of the Cure Period. This option to buy baek the Premises inures only to the benefit of Seller, or any entity in control of. eontrolled by or under common control wIth Seller. This option to buy back the Premises shall expire upon the earUer to oeeur oftbe following: (i) Buyer commencing construction ofa retail development containing an anehor tenant oCat least 37.so0 square feet. or (ii) the'date which is thirty-nine (39) months after the Closing. ee) Ootion to Purchase Seller's Remainin" Commercial Lands Buyer shall bave the right to purchase the "Seller's Remaining CQmmercial Lands", as they are shown on Exhibit A attached hereto and made a part hereof, for a period beginning at the Closing for the Premises and extending through the date that is orie (I) year after an An4:hor Tenant opens its doors to the public 9n the Premises ("Option Period"). As part consideration for t~e granting of tbis option to purchase from Seller to Buyer, Buyer shall pay Seller the following su~s: (i) 525,000.00 for the portion of the Option Period runDing from the date of Closing for the Premises and continuing tbrough and incl"ding the date th.t an Anehor Tenant opens its doors to the public on the Premises, due and payable at the Closing for the 'Premises, and (Ii) 525,000.00 for the portion of the Option Period occurring after the before mentioned portion of the Option Period, due and payable within thirty (30) days after tbe date that an Anchor Tenant opens its doors to the public on the Premises. The Option Purchase Price is equal to Forty.Five Thousand D~lIars ($45,000.00) per acre, subject to the terms and eonditions set forth herein in Paragraphs 3(b), 6, 7, 8,.9, 10, 11, 13, t4, 15,16, 17,26 and 2.9. Buyer shall pay Seller the Option Purchase Price, as adjusted in accordance herewith, at a closing set for such transfer at a mutually agreeable place and time within thirty (30) days of Buyer giving Seller written notification of its intention to exercise Its rights hereunder. If, at any time during the period beginning upon the expiration of the Option Period and ending two (2.) years later, Seller wishes to sell or lease Seller's Remaining Commercial Lands, then, upon the receipt by Seller of a bona fide, third party offer for Seller's Remaining Commercial Lands or for any portion thereof, which Seller desires to aecept, Seller shall provide Buyer with a true and accurate copy of any such bone fide offer, and Buyer shall have thirty (30) days to exercise its option to purchase the property that is the subject of such third party offer on the same financial terms and conditions as said offer, but subject to the terms and cQnditionsset forth herein in Paragraphs3(b),6, 7;8, 9, 10, 11, 13,14, 15, 16, 17,26 and ~9. In the event Buyer fails to accept such proposal in writing within tbirty (30) days, Seller may sell tbe subject property to said third party upon the terms set forth in said offer, within one (1) year ofthe date on whieh Seller provided notice to Buyer of the receipt of such proposal. (I) Easements and Relltrlctlons on Seller's Remaininp' Commercial LandlL At the Closing, Seller wiD execute an Easements and Restrictions Agreement,which Is mutually agreeable to Buyer and Seller, which sbaD be agreed to between Buyer'and Seller within ninety (90) days after the date of full execution and delivery of this Agreem,ent to Buyer, which shall contain the easements and restrictions set fonh on Exhibit C. attached hereto and made a part bereof, as well as such other easements and restrictioDl as Buyer shall deem to be necessary or' desirable for the development of the Premises, which shall eneumber Seller's Remaining Commercial Lands and sball be filed upon the appropriate land records along witb the deed to the Premises. i, -6- , .'--- . ~~ " ~ I~ IN WITNESS WHEREOF., the parties' have hereunto set their hands and seals to any number of duplicate originals, as of the day and year first above written. Willl.....' SELLER: STATEOF am~~I~;c. ) ):ss COUNTY OF Q.,"-bKla...,olj 1Y\oa O^ Personally appeared Michael Cassidy, as the signer of the foregoing Instrument, and ackQ.ow~~ged before me the same to be his free aet and deed, individually and as one of three general partne" of G & C Associates. AJt ~ Id--- .b16tary Public My Commissiou Expires: WI nl 'i 8 Notarial Seal Annette Sue Hann; Notary Public Chambersburg Born, Franklin County My Commission Expif8s Feb. 23,1998 Member._~af_ STATE OF 1?~,,~lu"",":,c. ) , ), ss COUNTY OF C~",b<rk~ lYloo OA Personally appeared Julie A. Cassidy, as the signer of the foregoing instrument, and acknowledged before me the same to be his free act and deed, individually aod as one of three general partners of G & C Assocbttes. ~ Notarial "".1 ' , ~~ Annette Sue Hann, Nota Publlo Chambersburg Bo~, Frankrln CQu::a otary Public My Commission Exp"es Feb. 23, 1 M C . iE' D"'/'Z/Q8 y ommlS5 on Xplres: r7'- rr- Membe".__mNotaries , -7- o "I ~, ,-;.~- ,'~-,,- ~'o...' &Ki1 .1997 .1997 ," - STATEOF Penl\I'1lu",,",i"- ) ): .. COUNTY OF CL.""bw-l.....L) " 'I l " , ~1997 PenonaUy appeared Barbara L. Garling, as the signer urtbe foregoing iDstnment, and aeknowle,dged before me the same to be his free act and deed, individually and as one of three gencral partnen,of G ,& C Associates. Notarial Seal AnneUe Sue Hanni NotarY PubUc Chaml:ietSburg Bora, Franklin County My Commission Expires Feb. 23, 1998 ___of_ STATE OF GEORGIA ) ): ..Atlanta ) COUNTY OF FULTON ~~ lJ--- otary Public - My Cnmmissinn Expires: CJa./J3/'i 6 (:\~:\ 30 .1997 Personally Appeared Edward J.Pabich, as tbe Executive Vice PresideDt of Abold Real Estate Company, signer of the foregoiDg Instrument, and acknowledged before me the same to be his free and duly authorized aet and deed on behalf of Abold Real Estate Company. l:\llma\projccll\l.blpP'!uburg\pl\cassldYlOp&a.wpd AprilJO. 1m otary PubUc My CommisBion Expires: -,8- , -~, 'i~< ~~ ~'". '~~~'~1h:' -" ;;;or- " " c. . . "c EXHIBIT C Tbe Easements and Restrictions Agreement shalllnclude, but not be limited to, provisions concerning: 1. !.!It- Commercial purposes oUhe type normally found in a retail shopping center including, witbout limitation, restaurants, fin~ncial institutions, service shops, professional offices and retail stores. 2. Ifsl! Rl!Jltrietlons. (a) NQ nuisance type or undesirable uses sueb as pawn sbop, flea market or swap meet, vebicle sales or service, or ear wasb, adult materials or entertainment, tbeater or gallery, sebool, library, church or other place of assembly, bowling alley, skating rink, or other place of rec:reation or amusement, funeral parlor or mortuary, botel, motel or motor ion or night club, cocktail lounge, or any other business wbose prineipaI"business shaD be the serving ofaleoholic beverages on premises. The ancillary service of alcoholic beverages on premises in conjunction with a restaurant operation shall not be prohibited. (b) Seller's Remaining Commercial Lands shall not be used as a supermarket, convenience store, or for the sale of off~premises consumption of healt~ foods, delicatessen items, groceries, fresh fruit or vegetables, meat or other food items generally sold in supermarkets, except as part of normal restaurant operations on the Premises, or as a drug store, pharmacy, beauty supply store or health and beauty aid store (the wording of tbe restriction shall be acceptable to Giant Food Stores, Inc.). 3. Duildln"s and Imorovements. (a) DesJgn of tbe improvements to Buyer's Remaining Commercial Lands must be reasonably approved by Buyer prior to its construction to insure that it is functionally, architecturally and aesthetically compatible with the improvements to the Premises. No building shall bave a metal exterior other than canopies, trim and otber architectural details. No buDding located In an area to be agreed upon for tbe location of SOo-called outlots on Seller's Remaining Commercial Lands shall exceed twenty-two (22') feet in height measured from rough grade to the top of the highest building protrusion. . (b) Buyer and Seller must agree on allowable building areas and n....build areas for Seller's Remaining Commercial Lands, including minimum parking requirements. (c) Buyer and Seller must agree on allowable signage, including 10catioDS, for the Premises and Seller's Remaining Commercial Lands to assure that signage does not conOict or get blocked, and signage shall not advertise any business except tbose conducted on the respective properties. All such signs must comply with all applicable laws, rules, regulations and other criteria or all applicable governmental and quasi~goverDmental bodies baving jurisdiction over the Premises, or any portion thereof, on the' date bereof. 4. Easements. Tbe necessary utility and drainage easements for development of the Premises and Seller's Remaining Commercial Lands, including those set. forth herein above, sball also be a component of the Easement and Restriction Agreement, including provisions for the relocation of same from time to time in a r:easonable manner. '., .,,- Q ,'''';'J ~Ia ,,'~ "~~'"U~~.,,_..}l.~b'_';' > . > . ASSIGNMENT OF BUYER'S INTEREST IN AGREEMENT OF SALE The undersigned, as Buyer under a certain Agreement of Sale with Michael Cassidy, Julie A. Cassidy and Barbara L. Garling, d/b/a G & C Associates dated April 30, 1997, as amended by Amendment of Agreement dated May 13, 1997 (the "Agreement"), does hereby assign all of its right, title and interest in and to the Agreement to ARC Shippensburg Limited Partnership, a Connecticut limited partnership ("Assignee"), as of the date hereof. Assignee accepts such assignment and agrees to.faithfully perform all of Buyer's obligations under the Agreement, commencing as of this sixteenth day of April, 1998. ),~ TATE COMPANY WITNESS: By Name: ~. 12., Title: ~~. - ASSIGNEE: ARC SIDPPENSBURG LIMITED PARTNERSHIP By: ARC SHIPPENSBURG GP LLC, General Partner WITNESS: By: Ahold Real Estate Company, Sole Member By Name: Hans A. Kiimpers Title: ~"'-'<~.-...t". -t)t~ E:>(H-'~II II 10\ B ',',k, .>O,^';."-, " , - p.l AUG. .7.2000. 10'lSAM DAVID MARTIN EXC tlO.247 P.?/G ~ '. l , , '. , DAVID R. MARTIN EXCAVATDiG. INC. 4961 Cumberland Hwy.. Chambersburg. Pj\ 17201 ' Phone -111-264-2168 Esllmallng FAX -717-264-6011 ' Aot:ountlng FAX - 717-264-0221 G- lit. C Associates Mr. Micbael Cassity Be: Site }>mpoSl\J I EstiRll!te for the CoDJl;ructioa of Bite ImproveDIllDts for Shippeoalmtg Mullet Plaee, ShippellSbuFg Township. CUlllerlaDd County David H. Mamn Excavating. Ilu:orpDlllted is pleasedtooffilr the following price IJlIOle to perform the li_ work as taken ftQII1 the Site Plan sheets I of I thn18 on and Highway OccupallCY Pennit Plan sheets 1 of 3 WI13 of 3 as prepared by Hoover EngineeriDg Services, Incorporated. The Site Plans have the latest date ofli24i99 end lile Higbway , PI8llS arc daled nnl97. No speei&ations were reecivcd. This project was biclllOt subject to scale wages. David H. Martin EJitavating. Inc. will ftImish all materials, iabor. md tijuipwent to perform tile fonowil1g listed work. SITE PRlPUATION ANDGRAD~G . InstaU two rodl; wnsttuction entrance pet Plan . Install up fD 2360 ft of silt fence . Apply up to 5000 sy oftemporaty seeding and stmv mulch for erosion COIItIOl ' . Clear and grub lite as 1ICCeS9lII)' to perform the IisIed work . Slrip the work site of topsoil and stookpi1e for tqIial;ement on the Market site . Construct the slOlDl water reteation basiIl to design gradas . IDstaIl rock rip rap 011 the s1Drm water detention basin spillway per Plan detail . PerfonD cut and fill operations on the ToW\lSbip mad to design subgrade to inclllde the entIal1ce$ into the Market site including IOl;k excavation . Pi:rfOlDl Cut and 611 opemtions on the stitte toad widoIIing improvements to desigD subgrade eJevatloDS including rock eJtcavauon lIDd neceSSBIY tJatlic COIIIIOI . ,Stoc~le apptoximately'9500 cubic yards of excess cut spoil on the Marb:t site . Pn:pa.<e !mQ ColDpact paVllD.lIlDt subgrade . lleplaoo, spread, !!lid machine grade topSOil oil lawn lIR!8S 6" thick . perfonn nece~ ool!StrUCtion stBteout for the listed site \Wjrk ' , - IDR TD PRICE OF ........a......a..............~.....I........................... S 131,4Zs.oo- . E.>:ecuAtfng . &akhoe & Dozer Worle . Snow Remoua! . Water 8r. Sewer LInes . Septic Sysl<';m.> Slate ',FlU' Top Soil EXI-IIR.CT 1/ 'I C ",," . ,,,' ';-] ,,,' ,~ .i1ih r p.2 AUG. ?20aa. 1\3:1'3A11 DAVID MARliN EXC NO. 247 P.3/6 ". . ." 2 '_1llllO G.aCA8~ Wt._o,n>oy ... SlltP,.p...U_lIIriboC...-..'.IloIlB._ro. liIIIP..........._r-;~....--..~C"-_ ADDITIONAl. m.5T TO,.EXPORT EXCESS SlOB. FROJ'fTBE MARDT SITE . Expolt.appY.Ixima~ 9500 CY of eXJ:ess cut material ftom'tbe ma and dispose of at It pe1"'itted site POR rAil. PBJCR OF *'.AA.~&..6...~.........A.."~....."..."."...&."...'...~... $13..315..11I): ClllUJ INSTAlLATION . Ext-.AVate 8!!d b@ckfill f(lrapproximately 3060 feet of ~ curb . !!!.......t! appro.nmlltely 3060 feet of concrete curb per Plan . Pedoml!henet~ c.ol!St!'!lCtion $Ulkel!ut f(lr ihll cwb installalion FOR.TIIE,~c.E-.gF,-=-=",,,,,,~,,,,,,,,-"''''__A*''''...-''..''IO.~IO..~..IOIOIO...''IO....10.............. S 3Z,458.fM) SIDEWALKIl'(STALLA'rION .. Prepareand~the,"Jhg1PdP. for approximately 6525 sq. ft. ofS' wide 4" thick CIlllCII!1e sidewalk .. !!!...<!l!!! 4" ofdll!ln~!lUl!grega1efor the sidewalk base . rnstll!!~ro."l....tooly 6525 sq_ ft. of ooncrete sidewalk per 1'1an . pe:fe:m the neees=y cO!!StflJ-P.tio!l9!L1reom for the sidewalk installation FOR,T!!!. PPJ,CE OF ".__.~~..."".y"."~~':""::~:""-::-:"'H.t'~~~.~.~.."!.IO"IO...1010... S 26~090.00 PA\l!NG .. Insta!! lIppl"OX, 7U(l ~. yd. of2A stooe~, C011lpac#d 6" tbick on a11m:w {Ia_.e..<eas .. Install epprox. 3800~. yd. ofbitumiool!S pavemelll; lJonsisling of S" BeBe IIAd 1 %" ID-2 ~~.eurse 00 1M ToWllShipRcwbndMarket eidraIIce5 . lJlstlI!! appmx. 3100 ~. yd. ofbitw!linous pavemmt .,.",.m;ng of sn BC8C aud 1 %" ID-2 ~=~~.e!!!SlI1:l!l the.sIate road ~QdeQjllg _ per PIan . Install approx. 250 sq. yd. ofbitumiMlIS pavement consislil)g of 5" BOle 3Dd 1 W' lD-2 ~oour.e on !he MerkeUIlUe!lCe fi"mn tile slate mad per PIIlD . Install approx. 2700 sq. ,c. of bituminous I'",,,emmlt ovedllY oonsisling of S" BCBC Il!Id I %" ID-2 =face course on t!!e existing paved -r- of the !\fate road per Plan . lDs1all signage and line stripping per Plan FOIl TIlE. PRICE. OIl' ~lI"""'II"..'i.........,iil.'i~"'f~~"".",",""~."':"""".."~~.+.",",- S IS9,085.00 oo--~'i.~ "'~- ..j,"" , 'ttJ.^ p.3 " , NO. 247 P.4/6 '." AUG. 7_2W0 - HI: 19AM DAVID MARllN EXC 3 7 A\lpllt2000 GaCAnaaiaws Mr. ~,lw:I(:...1Y Jlo: llba...,....f_......Canmd....rSfloIa........_"'. S1tJppo......._-.Shlppoaahr&T-..~C<ImIy STORM WATER SYSJ'EM . Remove approximately 90 ft of ] 8" CMP per Plan . Install ~ly 700 ft of 15" CMP 3' to II' deep per P1lin . !n:ilall approximately 775 ft of 18" CMP ]' to 13' deep per Plan .. 1Ilstall approltimately 30 ft of24" CMP per PlaD .. Install aPJlIOlciDlately 465 ft of27" CMP per :Plan . liIstall approximately 110 ft of33" CMP per Plan . lmtaIlappwAima10ly 672 ft of 42" CMP S' to 14' deep per Plan . Provilk '4 pipe en~ of stone aggrepte bedding on all im!alled pipes . Install t\te 24" CMP stmm water basin cmcha:;e pipe, B111i'5eep COn!ll, end secliO!l, and 30" CMP t.- aDd tl1Isb lade: . lnstal1lhe slmm wliter basin concrete riser SlIllCture with uash taek an4 temJlOlilIY plywood riser bux per Plllii . Install sixteen inleis aDd three storm water sysWm IIlDlIhcle$ per Plan . Jnstall one 1:ODcn:1e CIldwail OIl the 42" CMP clillllharge end . lnstall rock rip nip at !he pipe discharges per Plan . Drill, blast, and excavate rock as JIeel'.SSll.-y to install ilie stonn wa1er system . Cleanup all excess tnmch spoil and stol:kpile 011 tlIe MaIket si1e . Perfmm ~ slakeout as nece5l11Y FOR TIlE: PIIIC.E OF ................................,..............."....... S 121,49s.oo WATERMAIN . Install approx. 780 ft of 8" DI class S2 WIler main compl~ in place to include one 8" gate valve and valve box. one 2" blow off; stone aggre~ bedding envelope, stone aggrogatebaokfill in ~ent ateas, _lion bloc!l:iri& and WIIOliDg tape . CnnnMt to the existing 12" water main wilitan 8" tapping sleeve IlIId tIIppiDg valve . Relocate one fire hydrant wilb 6" Dl leader lI5iIlg 1IIe e.xiSling file iIydraut, fi' gate valve, and valve box . Chlorinate, teat, and flQm tho install water main . Cleanup and remove all trencIl $POil . DriD and blast to JIlDIO\Ie rock hm lIJe Water IIl8iIl ali8ftmeDt FOB"l'BE PRICE OF ...............,..............................................$ 46,D85.08 .~, p.4 AUG. ;7.200[1. 1[1' 2[lAM DAVl D MARTIN ExC NO. 247 P.S/b " , . 1 , ., # 4 '.........:>DDO (1.<:_ >ir.IiJioi,ftlCmity Ile: S"".......'J:odno...tarltaCl...-.'lIIIo.,.._.. lhlppooI_lIiiuiiot-.~mn."'1;.~.4c...e, SA.Nn"ARl' ~ . !!IstAlI ~y 1735 ft. of 8" SDR 35 PVC sewer ,"p!= at an average depth of 20 ft per Plan to include stone agsre.. bedding envelope lind comple1Ll stone aggrep1e bacIdiU in 1he future Township road . tl!B!l!llf_ "" SDR 3S we sewer service Jatemls compJete wiOI4" cIeanout and 6"x 4" tedocer including stone ~gaIe beddiDg and compJete.stone llllB'CSllW baA:ldill ill the fimIIe T_blp foed per Plan . ~l siX precast l11811holes avcngiDg 2D ft deep per Plan . Instal! OO""dmt to !he existiJIg Municipal manhole . Air pressure teet all installed I~ e V=.r.ml:l test l!l1 iMlal!e4 manIIoles . Drill, blllZt, lUll! exaMl.te rock es I\IqI!QOO forb ilPdl.finn. . CI - -.. ,<-I-;", II ---h ./ .L_ "-1_-'. . ea..-Uy...... ............_llll ........._ SJI!l! on _ .v_..ll!! me . Restuie ofi'site 1&\\"11 aa--eas . PerfiiIIU C6m1hyQ~vn srakecut. as ~ POll TIlE- PRICE Of .1.......................................;;;;;;;;;;5..;"......:"'"-,.,,,'"-,,"'.... $ 293~S.. If complEte atoue l=l~!d'.n i& not require ill tile l'!m!re 1'ow!!IIIip roadway DEDUCT THE PRICE OF ..........i.......l~Ji-...,.~~~:c;-=.===..""'.,,==..'"....'",,..._ - S 101.130.00 1U.ECTRIC ~CH AND CONDUIT 1?01UlTt UGB'liING . ~lIlldbal:k5!lllppml!imately 1270ftof2' ,.ide.x 3' deepnnoh Complete with sUllIe dust b&ddiJl.g envelope and complete stone 8@gfegate bacldilI in the TCWllSlliproedway . Jmtall ~ly 1130 ftofZ" Ilia. PVC d<<1rit oonduitin 1he _vate4lm1C1l complete wl.dl Jl1l!l rope in p!aM!lId sweeps lip to IIle light pole bases . ln9llll1 ajlp1'llXimately 140 It of 3" dia. I'Ve e\el;lriGl!! oondllit ill the excavated 1l'ench complete with pull rope ill pIaoe end sweeps up to the ligln pole bases . Ins1ill eight jimdiiill! pull boxes . Drill, blast, llDd ellCllVlite todr. as =essary . Cleiillllp lill1ieiWh Sjlllil and SfllCkpil~ on the M:lrket site . PerfOmllleCllllWy tliIIsll'lil>tion stakeout . Exclllllingfumishmg or Mat ling cond-oICIor Wiring in the condWu . IDictllllingjilmlahmg OJ' insiu.'lmg light l"'ks, bases, or lighfs FOR TD P&J:CE OF .....cr..........................................."'................. S 14~7!1tOO ...,- ",' o. ,'" ';".10 ' j,', - ',". ,0"' '. -";"",' '~'''>'t;;...;' "; , ._~! p.5 AUG. 7.2000' Hl:2IJAM DA\lID MARTIN EXC . .... ~ NQ.247 P.6/6 > . -,.1 . . 5 1 ~1200D a&CAssoioialel Mr. MidIul c..,;" Ilo: S/foP_.I/....oIo..rt1lo~.rlilltliD,-....for """r ....-_..........~~~ GAS LINE TRENCBBCAVATION AND BACKFILL . Excavate 11II4 b$l!dillllppl'Ollimately 760 ft of2' wide X 3' \leep 1l'eIIC\t Comp!cte witbstone dIIst bedding en~lope 8lUI complete sfOne agreple backfill in the Township roadway .. Drill. blest, and excavate rocks lIeCeSS8IY . Cleanup all ttench spoil and stockpile on die Market site . ""'fWul neeessaryWIIstnlGtionstakeout . EJ<chulmgfiornishlng tJ1' i".ttzlli71g the pM line "JOlt TIlE- PRICE -OF .......''.~..101o....;;-=__-=~....,__-e..'''...'''~,........._........... S 13,520.. NOT INCWDlDIN TO ABOVlUSUD WORK: . Inspec:tioD, tapping and utility user fees · Pennit 6les . Material Of soil testing . Soil ....1II_lion testing . Processing, bandling. or trIl11sporting contaminated soils . Exclvllioti ofllllSUi1able soils or poor bear.ng <lIp8City soils below design subgrade elC'Yll1ioos . UndtrgIound eli\C1:ric. tIllepltolIe, or TV services . InstaIIation of !lite Iigluing stamIards or lIlld~ site light e1edric wiM . MaibleDance of grus _ after germiDatioa or lIIIY watering . Re1ocalion of uJility poles in the state roadway illlpl'(lVemtllt area Thmk you for the OPJlOrtWIity 1(1 quote this \'IIOik. Plclase~ if there llIl: any qut'sIiOJl' Rcspeett'ully SUbmiued. Demis R. McCam, Bstim&loi rrf. ~& ~~__~~;""'~ri-," "~~~~~elll~~~~ ~~ ~ . . ~ __ ,_ _~,,,~"~~J, ,_" e ,< "'~._ ~, ~~ L ,.~ ~~~" " ",0" _ ~~ . . , 'ii :j , ~ j (2 '", 0 ;~ " :'.'::) :.~,-:t- ~q.'i'--1 c:.~ n':fJ(', -..... [~lP 2:1) g:~.; en :;J,~ ?") ::':::r ~) -v --;-'f j?= (-") '..::II ~ Qd) ~1::J ':2 '>-rn )>c: 8 2: '...., ?O .=<! en -< , ._ ,.~'".,,~'~ ' _,,"_,,--',;< __' - - '_~",_ < __ . O.~'I"O '_'.""~,, ~ O".~'''' ,__,~r.~ '. . MICHAEL J. CASSIDY and JULIE A. CASSIDY, CO-PARTNERS, t/dlb/a G & C ASSOCIATES, Plaintiff v. GIANT FOOD STORES, INC., AHOLD REAL ESTATE COMPANY and ARC SHIPPENSBURG LIMITED PARTNERSHIP, Defendants - ~-<.~'>"'~ ' - --' b" -<;;_'_C_',_ ,'^-,>Lr;(;..;",' ~~",,' ;< :-',,~c,""' ,~. ,-~:. .."c. "'4,.a,;.;C" '.<',';;",',"i""~'~",*~;;;;.\1i;~ !;.':.c,;,,;:~_, ~~,'- L : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL V ANlA : NO. 00-8861 : CIVIL ACTION - LAW NOTICE TO PLEAD TO: Michael J. Cassidy and Julie A. Cassidy, Co-Partners, t/d/b/a G & C Associates, and Sally J. Winder, their attorney: You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Dated: Illog/OI I I McNEES WALLACE & NURICK LLC By ~ fl. /J~~ Helen L. GemmIll Attorney l.D. No. 60661 Kimberly M. Colonna Attorney J.D. No. 80362 100 Pine Street P. O. Box 1166 Harrisburg, P A 17108-1166 (717) 232-8000 -" '- ~= ,- -, ~~'I,; ~ f " ~m'- MICHAEL J. CASSIDY and JULIE A. CASSIDY, CO-PARTNERS, t/dIb/a G & C ASSOCIATES, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL V ANlA v. : NO. 00-8861 GIANT FOOD STORES, INC., AHOLD REAL ESTATE COMPANY and ARC SHIPPENSBURG LIMITED PARTNERSHIP, Defendants : CIVIL ACTION - LAW DEFENDANTS' ANSWER TO THE AMENDED COMPLAINT WITH NEW MATTER Defendants Giant Food Stores, Inc., Ahold Real Estate Company (nAholdn) and ARC Shippensburg Limited Partnership (nARcn) by and through their counsel, McNees Wallace & Nurick LLC, for their answer to the Amended Complaint and new matter, state as follows: ANSWER 1. Admitted upon information and belief. 2. Admitted with clarification. By way of further answer Giant Food Stores, LLC, is the successor by merger to Giant Food Stores, Inc. ("Giant") and is a limited liability company organized and existing under the laws of the State of Delaware with a principal place of business at 1149 Harrisburg Pike, P.O. Box 249, Carlisle, Cumberland County, Pennsylvania 17013-0249. 3. Admitted with clarification. By way of further answer, Ahold is engaged in the business of acquiring sites for grocery stores, including Giant stores. 4. Admitted in part and denied in part. Defendants admit that ARC is a Connecticut limited partnership formed for the purpose of taking title to the real estate located in - ~,- i ~, - '".L, ~'_J - 1'l,1m- '0 " Shippensburg Township, Cumberland County, that was purchased by Ahold from the Plaintiffs (the "Shippensburg Property") and admit that ARC has a business address of 6300 Sheriff Road, Landover, Maryland 20785. Defendants deny the remaining averments of paragraph 4. By way of further answer, ARC had no obligation to build a grocery store and/or other businesses on the Shippensburg Property. 5. Admitted. 6. Admitted. 7. Admitted. 8. Denied as stated. The agreement of sale is a document that, in its entirety, speaks for itself. 9. Denied as stated. The agreement of sale is a written document that, in its entirety speaks for itself. Defendants deny Plaintiffs' characterization of the terms of Paragraph 30(a). 10. Denied as stated. The agreement of sale is a written document that, in its entirety speaks for itself. Defendants deny Plaintiffs' characterization ofthe terms of Paragraph 30(b). 11. Denied. Defendants deny that Giant and Ahold entered into a written agreement called "Package 2000". Defendants deny that Ahold and Giant entered into any written agreement requiring Ahold to construct a grocery store or site improvements on the Shippensburg Property, requiring Giant to enter into a 20 year lease ofthe grocery store building, or requiring Giant to pay monthly rent of $56,000.00. Defendants further deny that they have copies of any agreement called "Package 2000." 2 "~ .' 12. Denied. Defendants deny that paragraph 6 of the Agreement of Sale designates a Feasibility Period and deny that representatives of Giant and Ahold made the representations alleged in paragraph 12 of the Amended Complaint. 13. Denied. Defendants deny that representatives of Giant and Ahold informed Plaintiffs of the provisions of any agreement called "Package 2000" and that they made the assurances alleged in paragraph 13 of the Amended Complaint. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment that Plaintiffs never saw a copy of "Package 2000." The remaining averments of paragraph 13 constitute conclusions oflaw to which no response is required. To the extent a response is deemed necessary, the averments are denied. 14. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and therefore deny the averments. 15. Denied. Defendants deny that Ahold agreed to design and build any site improvements on the Shippensburg Property, deny that any such agreement constituted any consideration promised to plaintiffs, deny that any such agreement induced plaintiffto go to closing and to transfer and convey the property to ARC. To the extent that the paragraph attempts to characterize the Agreement of Sale, that Agreement is a document that, in its entirety, speaks for itself. 16. Denied. Defendants deny that Giant was committed to lease a grocery store building for a terms of 20 years at a rental of $56,000.00 per month and deny that Giant was committed by the terms and conditions of any agreement called "Package 2000." Defendants 3 ~. J'MiIit:l't1,.. I~ ~ d " C lfJ'" further deny that any such commitment was pivotal in persuading Plaintiffs to go to closing or to transfer the property to ARC. The remaining averments of paragraph 16 constitute conclusions of law to which no response is required. To the extent a response is deemed necessary, Defendants deny the averments. Additionally, Defendant denies any implication that Ahold had any obligation to construct any site improvements. 17. Admitted in part and denied in part. Defendants admit that Ahold and ARC have made no efforts to design and construct storm water management structures/areas, sanitary sewer lines, and water lines at the Shippensburg Property. Defendants deny the remaining averments of Paragraph 17 as they represent characterizations of the terms of the written agreement of sale, and the agreement of sale is a written document that, in its entirety, speaks for itself. By way of further answer, Ahold and ARC had no obligation to undertake any efforts to design or construct storm water management structures/areas, sanitary sewer lines, and water lines at the Shippensburg Property. 18. Admitted in part and denied in part. Defendants admit that representatives of Ahold and ARC may have stated to Plaintiffs that they did not have any present intention or plan to erect a grocery store on the Shippensburg Property and that they did not have any present intention or plan to design or construct site improvements on the Shippensburg Property. Defendants deny the remaining averments of Paragraph 12 as they represent characterizations of the terms of the written agreement of sale. The agreement of sale is a written document that, in its entirety, speaks for itself. By way of further answer, Ahold and ARC had no obligation to undertake any efforts to design or construct storm water management structures/areas, sanitary sewer lines, and water lines at the Shippensburg Property. 4 ,.. >L.. - ." ,~ "- 20!'-" .' COUNT I: Breach of Contract Plaintiffs v. Ahold and ARC 19. Ahold and ARC incorporate by reference paragraphs one (1) through eighteen (18) of the Answer to the Amended Complaint. 20. Denied. Paragraph 20 avers conclusions of law to which no response is required. To the extent that a response is required, Ahold and ARC deny that they have breached any written agreement with the Plaintiffs. 21. After reasonable investigation, Ahold and ARC are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and therefore deny the averments. 22. Denied. After reasonable investigation, Ahold and ARC are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and therefore deny the averments. 23. Denied. After reasonable investigation, Ahold and ARC are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and therefore deny the averments. 24. Denied. Paragraph 24 avers conclusions of law to which no response is required. To the extent a response is deemed necessary, Ahold and ARC deny that they breached any contract with Plaintiffs and deny that they caused Plaintiffs damage in any amount. 25. Denied. Paragraph 25 avers conclusions oflaw to which no response is required. To the extent a response is deemed necessary, Ahold and ARC deny that they breached any agreement with Plaintiffs, and deny that they are liable to Plaintiffs jointly, severally, or otherwise. 5 .. J ',.' , '-,"',"""j" L '~ I ;ff~tlI.."'i'" WHEREFORE, Ahold and ARC request that Plaintiffs' demand for relief be denied, that judgment be awarded in favor ofthe Defendants and against Plaintiffs and that the Defendants be awarded their costs in connection with this action, along with such other relief as this Court deems just and proper. COUNT II: Interference with Contractual Relations Plaintiffs v. Giant 26. Giant incorporates herein paragraphs one (1) through eighteen (18) ofthe Answer to the Amended Complaint. Paragraphs nineteen (19) through twenty-five (25) of the Amended Complaint make averments directed at defendants other than Giant, so no response from Giant is required. 27. Denied. Paragraph 27 avers conclusions oflaw to which no response is required. To the extent a response is deemed necessary, Giant denies that it wrongfully interfered with any contractual relationship, denies that it acted without privilege or license, and denies that it induced Ahold and ARC not to perform any agreement for the design and construction of site improvements. By way of further answer, Ahold and ARC were not obligated to design or construct any site improvements. 28. Denied. Paragraph 28 avers conclusions oflaw to which no response is required. To the extent a response is deemed necessary, Giant denies that it acted for the purpose of inducing or causing Ahold or ARC not to perform any agreement with Plaintiffs and denies that it did so intentionally, knowingly and without justification. Giant denies that it unilaterally withdrew from or cancelled any obligations to defendant Ahold contained within "Package 2000", denies that it had any obligation to occupy a grocery store on the Shippensburg Property, 6 "~. ~~ ... " . .' and denies that it had any obligation to commence monthly lease payments of $56,000.00 for the occupancy of any such building. 29. Denied. Paragraph 29 avers conclusions oflaw to which no response is required. To the extent a response is deemed necessary, Giant denies that it had any obligations to Ahold under "Package 2000", denies that it withdrew from or cancelled any such obligations and denies that any such cancellation or withdrawal was the sole reason for Ahold and ARC's refusal to design and build site improvements at the Shippensburg Property. By way of further answer, Ahold and ARC were not obligated to design or construct any site improvements at the Shippensburg Property. 30. Denied. Paragraph 30 avers conclusions of law to which no response is required. To the extent a response is deemed necessary, Giant denies that Plaintiffs suffered any damage in any amount as a result of any act or omission of Giant. WHEREFORE, Giant requests that Plaintiffs' demand for relief be denied, that judgment be awarded in favor of the Defendants and against Plaintiffs and that the Defendants be awarded their costs in connection with this action, along with such other relief as this Court deems just and proper. NEW MATTER 31. Ahold and ARC never had any obligation to Plaintiffs to design or build storm water management structures/areas, a sanitary sewer line, and/or a water line on the Shippensburg Property. 32. The decision whether or not to construct storm water management structures/areas, sanitary sewer lines, and water lines was within the sole discretion of the Buyer. 7 0'0,(' 'I ",~, -~-. ,,~ ~ ~ ~ "j '" ' .' 33. Paragraph 13 of the agreement of sale states that nothing in the agreement obligates Buyer to obtain any governmental permits or final approvals necessary to authorize the construction and development proposed by Buyer and that Buyers of the property have "sole, absolute and uncontrolled discretion" whether or not to obtain those approvals. 34. Construction of any storm water management structures/areas, sanitary sewer line, or water line would require the permits and final approvals that paragraph 13 states Buyer, in its sole discretion, is not obligated to obtain. 35. Paragraph 30(d) of the agreement of sale provides that if Buyer failed to construct a retail development on the Shippensburg Property, Sellers [Plaintiffs] had the option to repurchase the property for the purchase price of the property, plus the costs of the Buyer's improvements to the property, including storm water and utility designs. 36. Pursuant to the terms of paragraph 30( d), in the event that the Buyer did not develop the Shippensburg Property, Plaintiffs were not entitled to obtain, free of cost, the benefit of Buyer's improvements to the Property. 37. Under Paragraph 30( d) ofthe Agreement, Plaintiffs are not entitled to recover the cost of installing storm water management structures/area, a sanitary sewer line, and a water line. 38. Pursuant to the terms of the agreement, the design and construction of a sanitary sewer line and a water line at the Shippensburg Property was conditional upon the Buyer's development of a retail development of that Property. 39. Paragraph 30( c) ofthe agreement of sale provides that the Buyer "shall install" a sanitary sewer line and a water line "to service the buildings in its [Buyer's] development of the Premises." 8 ~'. ~11,' "-~ ',--. '" -~'-,"j " 40. Nothing in the agreement of sale obligated the Buyer of the Shippensburg Property to construct a sanitary sewer line and/or a water line to service the property currently owned by Plaintiffs in the event that the Buyer did not develop the Shippensburg Property. 41. Plaintiffs' claims, in whole or in part, fail to state claims upon which relief can be granted. 42. All of Plaintiffs' claims are based on the allegations that Ahold and ARC breached the written agreement with Plaintiffs which was executed in Apri11997. 43. Upon information and belief, Plaintiff was aware as early as 1999, that Defendants had no present intention to build a water line, sewer line, or storm water management structures on the Shippensburg Property. 44. Plaintiffs' Complaint alleges that the damage to Plaintiffs has increased by the passage of time because the costs of building the water line, sewer line, and storm management structures increase over time. 45. Plaintiffs' delay in filing their Complaint, after they knew of the alleged breach, caused harm and prejudice to Defendants in that the amount of damages claimed has allegedly increased, and in that evidence and witnesses relevant to Defendants' defense ofthe claims may no longer be available. 46. To the extent that Defendants have been hanned or prejudiced by Plaintiffs' delay, Plaintiffs claims are barred, in whole or in part, by the doctrine of laches. 47. Because the costs of building the water line, sewer line, and storm management structures continue to rise, Plaintiffs failed to mitigate their damages because they did not undertake to construct those structures within a reasonable time after Defendants' alleged breach. 9 ,~ , L~.~-/li>;/IU' 48. To the extent that Plaintiffs have failed to mitigate their damages, the claims are barred in whole or in part. 49. A claim for interference with contractual relations is subject to a two year statute of limitations from the time when the alleged interference occurred. 50. Plaintiffs' claim for interference of contractual relations was pleaded for the first time the in the Amended Complaint filed on October 15, 2001, more than two years after any alleged interference by Giant. 51. Plaintiffs' claim for interference with contractual relations is barred by the applicable statute of limitations. WHEREFORE, Ahold and ARC request that Plaintiffs' demand for reliefbe denied, that judgment be awarded in favor of the Defendants and against Plaintiffs and that the Defendants be awarded their costs in connection with this action, along with such other relief as this Court deems just and proper. McNEES WALLACE & NURICK LLC By ~71. !JJ~ Helen . Genunlll Attorney J.D. No. 60661 Kimberly M. Colonna Attorney J.D. No. 80362 100 Pine Street P. O. Box 1166 Harrisburg, P A 17108-1166 (717) 232-8000 Date: 11/ or/ol Attorneys for Defendants Ahold Real Estate Company, ARC Shippensburg Limited Partnership, and Giant Food Stores, LLC 10 .~- tih, .' VERIFICATION Subject to the penalties of 18 Pa. C.S.A. S 4904, relating to unsworn falsification to authorities, I hereby certify that I am Assistant Secretary of Ahold Real Estate Company, that 1 am authorized to make this verification on behalf of Ahold Real Estate Company and ARC Shippensburg Limited Partnership, that I have reviewed the foregoing and that the facts set forth therein are true and correct to the best of my knowledge, information and belief. AHOLDREAL ESTATE COMPANY and ARC SHIPPENSBURG IMITED PARTNERSHIP Dated: November 5, 2001 "'_' ,,-',lo '., '"i'. , ,~;;,~',"~:_,"', ~"l' VERIFICATION Subject to the penalties of 18 Pa. C.S.A. S 4904, relating to unsworn falsification to authorities, I hereby certify that I am authorized to make this verification on behalf of Giant Food Stores, LLC, successor by merger to Giant Food Stores, Inc., that I have reviewed the foregoing and that the facts set forth therein are true and correct to the best of my knowledge, information and belief. GIANT FOOD STORES, LLC :~7 c~.. Gerry E. Adams Vice f'resloent, Real EstaIe Title: Dated: November~, 2001 .,' ,---" ,,-,', -', '''''",-~.' " y,.'" '- """~"",, -'", ,_ ,_ ."", ,_-" ," - -",' _,"'_d_, n-", " -",",k,',,","k.,,'.-,-"";"""C,V',-,,,,,, _""~, , . . CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by regular, first-class U.S. Mail, postage prepaid, upon the following: Sally J. Winder, Esquire 701 East King Street Shippensburg, P A 17257 ~ 11. I!:t~ Kimberly M. Colonna Date: Illng-lol_ I I ~->, , ,~- -"~I .- ;,;,,:~,:;-~:,,~:;,-::, ::''-,';,';- < --:<\ >1iIilji~ ,Cc,~ ~=~ ~, '~,' "<,--^,,, -, I. . .--","', ."",,,,.;..,.'),,,,~o .",JA;;;' " '_<_fe"_ 2F c,-'\ r<' f~~ -; , (. 1':,' ~ 'C ~"c,' . cv (:) ~:- ":5 J u:.) u ~':? ;;,::j => ...J _.<"J -< ffi ;i""~ ~ ~" - I ~ l I ,.. l,;.".J"",,,,'-. ~.I-''''h.'< .. MICHAEL J. CASSIDY and JULIE A.~ IN THE COURT OF COMMON PLEAS CASSIDY, CO-PARTNERS, tJdlb/a : CUMBERLAND COUNTY, PENNA. G & C ASSOCIATES, : PlaintitTs v. GIANT FOOD STORES, INC., : NO. 00-886.1 AHOLD REAL ESTATE COMPANY and ARC SHIPPENSBURG LIMITED ~ PARTNERSHIP, Defendants : CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFFS' REPT~Y TO NEW MATTER OF DEFENDANTS GIANT FOOD STORES,INC., AHOI.p REAl, ESTATE COMPANY AND ARC SHIPPENSBtJRG LIMITED PARTNERSHIP Plaintiffs Michael J. Cassidy and Julie A. Cassidy, co-partners, tld/b/a G & C Associates, by and through their counsel, Sally J. Winder, reply to the new matter, as follows: 31. Denied. To the contrary, Ahold and ARC are bound to plaintiffs by the provisions of the agreement of sale to construct the specified improvements on the Shippensburg Property. 32. Denied as stated. To the contrary, if Ahold and ARC decided not to construct the specified improvements, that decision would constitute a breach of their contractual obligations to plaintiffs. 33. Denied as stated. The agreement of sale is a written document that, in its entirety, speaks for itself. Plaintiffs deny Ahold's and ARC's characterization of the provisions of paragraph 13 of the agreement of sale. -l'ili~~ ' "... " ' '- ,- ., ". " ~, - - i'#:"~' , 34. Denied as stated. The agreement of sale is a written document that, in its entirety, speaks for itself. Plaintiffs deny Ahold's and ARC's characterization of the provisions of paragraph 13 of the agreement of sale. 35" Admitted. 36. Denied. To the contrary, nothing in the agreement of sale states that plaintiffs may obtain, free of cost, the benefits of Buyer's [Ahold's and ARC's] improvements to the Property. Plaintiffs gave consideration for the promise to construct the specified improvements, by conveying the Shippensburg Property to ARC [Ahold's assignee]. Plaintiffs deny Ahold's and ARC's characterization of the provisions of paragraph 30(d) of the agreement of sale. 37. Denied. To the contrary, failure by Ahold and ARC to perfonn the provisions of paragraph 30( d) of the agreement of sale constitutes a breach of the contract between the parties, and plaintiffs are entitled to recover the cost of constructing the specified improvements as damages for the breach of contract. 38. Denied. To the contrary, the agreement of sale required Ahold and ARC to construct the sewer line and water line as a benefit to plaintiffs' adjacent residential and commercial property, regardless of whether or not they constructed their grocery store building. 39. Denied as stated. To the contrary, the specified sanitary sewer line and water line were to be constructed to specifications which would allow them to service the future development of plaintiffs' adjacent residential and commercial property. 40" Denied. To the contrary, the agreement of sale obligated Ahold and ARC to construct the sanitary sewer line and water line for the benefit of plaintiffs' adjacent residential and commercial property, regardless of whether or not they constructed their grocery store building. 41. Denied. Paragraph 41 contains no avennents offact, and therefore no responsive pleading is required under Pa. RC.P. Rule 1029(a), (d). -2- 1i' : "I - . ~;j; ': ' " ~ ",' ,'-' t]}'1""'" 'w:.m 'i.l'M~~,' 42. Admitted. 43. Denied. To the contrary, plaintiffs did not learn until, as late as Spring of 2000, that no grocery store building would be built on the Shippensburg Property and, by reasonable implicatioll, that the specified improvements would not be constructed either, for the benefit of plaintiffs' adjacent residential and commercial property. 44. Admitted. 4S. Admitted in part and denied in part. It is admitted that the increase in the amount of damages caused harm and prejudice to Ahold and ARC. It is denied that evidence and witnesses relevant to defense of plaintiffs' claims may no longer be available. After reasonable investigation, plaintiffs are without knowledge or infonnation sufficient to fonn a belief as to the truth of this avennent. It is specifically denied that delay in filing the Complaint caused the hann and prejudice to defendants; defendants caused hann and prejudice to themselves by their breach of contract with the plaintiffs. 46. Denied. To the contrary, plaintiffs filed their civil action within the term of the applicable statute of limitations. Any harm or prejudice to Ahold and ARC has been caused by their breach of contract and not by any delay by plaintiffs in filing the Complaint. 47. Denied. To the contrary, the expense and costs of constructing the specified improvements were so great that plaintiffs could not reasonably have been expected to construct them after Ahold's and ARC's breach of contract by failing to build them before plaintiffs filed a Complaint to recover the cost of the specified improvements from Ahold and ARC. 48. Denied. Paragraph 48 contains no averments offact, and therefore no responsive pleading is required under Pa. RC.P. Rule 1029(a), (d). 49. Admitted. 50. Admitted in part and denied in part. It is admitted that the cause of action for interference of contractual relations was pleaded first of all in the amended complaint -3- . .' " " ~ ,I., , " ,,'" ..;. 'uiimi'i,:.j After reasonable investigation, plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the remaining avennents of this paragraph and they are, therefore, denied. If, in fact, the interference by defendant Giant with plaintiffs' contractual relationship with the remaining defendants took place more than two years before the October 15, 2001, filing date of the amended complaint, plaintiffs did not know about the interference, nor could they have learned, with reasonable diligence, about the interference, until the year 2000 came to a close without any construction activity being initiated on the Shippensburg Property. 51". Denied. Paragraph 51 contains no avennents of fact, and therefore no responsive pleading is required under Pa. RC.P. Rule 1029(a), (d). WHEREFORE, plaintiffs request that this Court enter judgment in favor of plaintiffs and against all defendants, jointly and severally, for the damages prayed for in plaintiffs' Amended Complaint. Sally J. der, Attorney for Plaintiffs Michael J. Cassidy & Julie A. Cassidy, co-partners, tldIb/a G & C Associates 701 East King Street S!lippensburg.PA 172.57 tel. (717) 532-9476 -4- ,"- J I~~ ~'" ,~ - ." ~ ,~ - "'" '"~,, ~~ " ~:'--:' . . VERIFICATION I verify that the statements made in the foregoing Reply to New Matter are true and correct to the best of my personal knowledge, information and belief I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: November ~1 ,2001 - , -. "-.~"" ',~ -- "" t jil"tij~,! - " .. , . MICHAEL J. CASSIDY and JULIE A.: IN THE COURT OF COMMON PLEAS CASSIDY, CO-PARTNERS, tJdlb/a : CUMBERLAND COUNTY, PENNA. G & C ASSOCIATES, Plaintiffs v. GIANT FOOD STORES, INC., : NO. 00-8861 AHOLD REAL ESTATE COMPANY and ARC SHIPPENSBURG LIMITED: PARTNERSHIP, : Defendants : CIVIL ACTION - LAW CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the Reply to New Matter and this Certificate of Service were served by regular, first-class United States mail, postage prepaid, upon the following attorney of record for the defendants herein: Helen L. Gemmill, Esquire McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, P A 171 08 Dated: November:2~ ,2001 ~UJ~ -1- ~r~' ~ =,~- ~~Iw....~~-MiIo~~IIli!ll&li'W~M~l;!;f~1fuiill~t~j@~ ~" (t:.llltilf' ..~ ,,= -" alI.lIiIl1lIi~ ~",- ,~ '" ,..:;..;,,'" , nll.'~ (") 0 (J C '-,--r ? Z -v 0'; 0 -n rnp1 '< Z~' i- -,.j '" i il Z r""- _bo (f) 1:: CO ,-'-" ' -< -\9 ~C':; ;:0- -,- ,. )> ~'~'\ ~ ~~~ ?5 Zl.. ==-C) '-P. ofn ';;-"'C: 2: '-=' :;r;! -j :0 -. ..,.- -< . '-",- j'; - ~-^''''.~"'''~,i''~",,;;;,:. "'~"- . "::,,,'lk;~t.~:j -'li.",'~~,," " '~ MICHAEL J. CASSIDY and JULIA A. CASSIDY, CO-PARTNERS, t/dIb/a G & C ASSOCIATES, Plaintiffs v. GIANT FOOD STORES, INe., AHOLD REAL ESTATE COMPANY and ARC SHIPPENSBURG LIMITED PARTNERSHIP, Defendants _,,-; '" 'c ':'~-~:-, ,J-, .:-: ,i;,-,,~'k"""',;;r--,''':, '"-;. ,,/~'~;;,2-:~:J:'"-~" I;~"'~ ,-",~ ~"~\':"iE',;i>"~~'"t'" ~,~'C'" ,- '", '0'" .; ': ii',:'j :,! : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLV ANlA ii ,I :1 ::1 I: I '! '; ;', A , ,.! : NO. 00-8861 ,1 i _'i , <;j PRAECIPE TO DISCONTINUE AND END SUIT To: Prothonotary ..i !,) II 1:1 '" il !'1 I, I'] " I ,:\ I : '1 j Mark this suit as discontinued and ended with prejudice. IJ!t.-./OL ally J. Winder 01 East King Street Shippensburg, P A 17257 (717)532-9476 Attorney for Plaintiffs f~':'" f' ii---.;",,,,,,,.w' 1._ - ,- ~~~'"., -~" -"",-"'" ~'''-'~~~d~~<.ii ",~~~~.,.-" .- ~ . ."'~~ c..' ,_,_," -, - "'""'~ ~,",. ~ -"h __:;',:-fI!,~' d'","'-"'''" "P"""",.", ~, , 0;'_'.- -.;:~;' , <j,..'; '"~,,:,__','0,"';-;:,,,;;- ;c-;,C"";-_-,:'",O,,__, (') C V(~": fll{,', ;; ;:~.' L_r. C,;_" ;:::.;,. ,~ ~ ~E~~;' ~:~~ -..--I -< '"" " '0, c::) l'-....;., n .:n ~ '=::0 ::") , cr-" :E:~ ~ ,,' .t:'~ .