Brandywine Village Associates v. Carlino East Brandywine, L.P. et al

Eastern District of Pennsylvania, paed-5:2016-cv-05209

AMENDED COMPLAINT with EXHIBITS against CARLINO EAST BRANDYWINE, L.P., EAST BRANDYWINE TOWNSHIP, GIANT FOOD STORES, LLC, KATHERINE M. KETTLETY, CHRISTINA B. WATTERS, FRANK E. WATTERS, JR, THOMAS R. WATTERS, filed by BRANDYWINE VILLAGE ASSOCIATES.

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19 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA: BRANDYWINE VILLAGE: ASSOCIATES,:: Plaintiff:: v.: Civil Action No. 5:16-cv-05209-JLS: CARLINO EAST BRANDYWINE,: Jury Trial Demanded L.P.; GIANT FOOD STORES, LLC;: EAST BRANDYWINE TOWNSHIP;: CHRISTINA B. WATTERS and: KATHERINE M. KETTLETY, in their: individual capacities and as: co-administrators of the Estates of Frank: and Beatrice Watters; FRANK E.: WATTERS, JR.; and THOMAS R.: WATTERS,:: Defendants:: VERIFIED FIRST AMENDED COMPLAINT 19 TABLE OF CONTENTS INTRODUCTION ...........................................................................................................................1 PARTIES .......................................................................................................................................10 JURISDICTION AND VENUE ....................................................................................................11 THE RELEVANT ANTITRUST MARKET.................................................................................12 THE DEVELOPMENT OF BRANDYWINE VILLAGE SHOPPING CENTER .......................21 DEFENDANTS' PREDATORY PLAN TO DEVELOP A GIANT SUPERMARKET ON THE WATTERS PROPERTY AND STIFLE COMPETITION ............................................25 CARLINO'S AND GIANT'S VEILED THREATS AGAINST BRANDYWINE VILLAGE AND EXPRESSED INTENTION TO ELIMINATE COMPETITION BY ACQUIRING BRANDYWINE VILLAGE SHOPPING CENTER .......................................26 THE GIANT-ENGINEERED CLOSURE OF EAST BRANDYWINE TOWNSHIP'S ONLY SUPERMARKET .....................................................................................29 BRANDYWINE VILLAGE'S UNSUCCESSFUL EFFORTS TO RECRUIT A NEW SUPERMARKET ANCHOR TENANT .......................................................34 CARLINO'S INVASIVE AND DEFECTIVE LAND DEVELOPMENT PLANS .....................35 THE TOWNSHIP'S COLLUSION WITH CARLINO TO ABUSE THE POWER OF EMINENT DOMAIN TO CONFER A PRIVATE BENEFIT ON CARLINO AND GIANT BY UNDERMINING BRANDYWINE VILLAGE SHOPPING CENTER .........41 CARLINO'S PREDATORY AND BASELESS LITIGATION AGAINST BRANDYWINE VILLAGE AND ASSOCIATED PARTIES .....................................................52 CARLINO'S FALSE AND MISLEADING ADVERTISING DEPICTING BRANDYWINE VILLAGE SHOPPING CENTER AS CARLINO'S PROPERTY ...................54 COUNT I – AGAINST ALL DEFENDANTS – AGREEMENTS TO RESTRAIN TRADE IN VIOLATION OF SECTION 1 OF THE SHERMAN ACT, 15 U.S.C.§ 1 ................56 COUNT II – AGAINST ALL DEFENDANTS – UNFAIR COMPETITION..............................58 COUNT III – AGAINST CARLINO – ABUSE OF PROCESS ...................................................59 COUNT IV – AGAINST THE INDIVIDUAL DEFENDANTS AND CARLINO – SPECIFIC PERFORMANCE ........................................................................................................61 i 19 TABLE OF CONTENTS (CONTINUED) COUNT V – AGAINST THE INDIVIDUAL DEFENDANTS – BREACH OF CONTRACT...........................................................................................................63 PRAYER FOR RELIEF ................................................................................................................64 JURY DEMAND ...........................................................................................................................67 -ii- 19 For its First Amended Complaint, Plaintiff Brandywine Village Associates ("Brandywine Village") alleges as follows: INTRODUCTION 1. This action arises from Defendants' concerted predatory efforts to suppress competition in the supermarket industry in and near East Brandywine Township, Chester County, Pennsylvania, by undermining and destroying a shopping center owned by Brandywine Village in order to illegally suppress competition for a planned shopping center that some of the Defendants intend to build directly next door to Brandywine Village's long-existing shopping center ("Brandywine Village Shopping Center") in East Brandywine Township, Chester County, Pennsylvania. 2. Defendants have unlawfully conspired to harm supermarket competition and the consuming public, as well as to injure Brandywine Village, by using illegal means – and not merely sharp or aggressive business tactics – to interfere with Brandywine Village Shopping Center's business operations and cause the permanent closure of its anchor tenant, the only supermarket in East Brandywine Township, leaving local residents without an easily accessible supermarket and Brandywine Village Shopping Center without an anchor tenant for more than a year and a half. As of the date of this filing, the more than 7,600 (and increasing) residents of East Brandywine Township remain without an easily accessible supermarket as a result of Defendants' predatory scheme. 3. For many years from 1995, a supermarket operated continuously and successfully as the anchor tenant at Brandywine Village Shopping Center. The supermarket was originally owned by the Cropper family and run as "Croppers' Market." Later, after changes of ownership, the supermarket operated under the name "Stauffer's Market." The supermarket shut down in -1- 19 September 2015 in substantial part because of the unlawful conduct of Defendants, who have planned for years to build a competing supermarket next door. Since then, Brandywine Village has been unable to secure a replacement anchor supermarket or other anchor tenant for Brandywine Village Shopping Center, despite diligent efforts to do so. 4. Defendants have engaged, and continue to engage, in their anticompetitive conduct because of plans to build another shopping center, directly next door to Brandywine Village Shopping Center, that will feature a new Giant supermarket as its anchor tenant. Driving Brandywine Village Shopping Center's previous supermarket from the market, and preventing Brandywine Village from attracting another supermarket as an anchor tenant, suppresses competition for Giant. 5. Defendant Carlino East Brandywine, L.P. ("Carlino"), a property developer, is motivated to suppress competition in the supermarket market by inflicting harm on Brandywine Village because Carlino stands to gain financially from building a new supermarket for Defendant Giant Food Stores LLC ("Giant") on the undeveloped property adjoining Brandywine Village Shopping Center. It was, and is, in Giant's interest not to have a competing supermarket in operation directly next door. Further, Carlino has repeatedly expressed interest in acquiring Brandywine Village Shopping Center outright, and engaging in predatory and exclusionary practices to undermine and reduce the value of Brandywine Village Shopping Center is consistent with that ultimate goal. 6. Carlino's anticompetitive and conspiratorial acts have included, at a minimum: a. knowingly seeking and obtaining hasty municipal approval of multiple defective land use plans that violate applicable land use laws and regulations and improperly interfere with Brandywine Village's property rights and the property rights of other neighboring -2- 19 landowners; b. commencing an objectively baseless sham lawsuit against Brandywine Village and related parties – including Brandywine Village's individual partners and outside counsel – for anticompetitive purposes; c. conducting secret property development negotiations with defendant East Brandywine Township (the "Township"), thereby inducing the Township to violate the Sunshine Act and the Municipalities Planning Code repeatedly, to Brandywine Village's detriment; d. inducing the Township, through threats of sham litigation, to improperly exercise its eminent domain power in violation of Pennsylvania law primarily for Carlino's private benefit and to Brandywine Village's detriment, and as a means of circumventing valid, enforceable, and valuable easements that benefit Brandywine Village; e. actively and baselessly opposing Brandywine Village's efforts to enlarge its existing retail space to improve its ability to attract a new anchor supermarket tenant to the Brandywine Village Shopping Center; f. causing the predatory publication of literally false and misleading advertisements representing and/or implying that Carlino owns and has the right to dispose of Brandywine Village's property and the property of another neighboring landowner; 7. Defendant Giant is motivated to inflict harm on Brandywine Village through the exclusionary and predatory practices detailed herein because it stands to gain financially from opening a new Giant supermarket next to Brandywine Village Shopping Center without having to compete with an existing supermarket in the relevant geographic market. Giant, directly and through Carlino, made repeated illegal attempts to ensure that the long-time supermarket anchor tenant at Brandywine Village Shopping Center would close permanently no later than the time -3- 19 when the new Giant store at Carlino's planned development is ready to open. As matters turned out, Giant was able, through its relationship with a major grocery wholesaler that gained control of the Brandywine Village Shopping Center supermarket lease in late 2014, to ensure that Brandywine Village Shopping Center's supermarket anchor tenant went permanently dark long before the new Giant supermarket was ready to open. 8. Giant's anticompetitive, conspiratorial, predatory, and exclusionary acts have included, at a minimum: a. Making, or inducing Carlino to make, illegal offers to enter into anticompetitive agreements with Brandywine Village to eliminate supermarket competition in the relevant market; b. actively insisting upon and financially subsidizing the construction of a through-road that will inflict competitive harm on Brandywine Village and stifle supermarket competition in the relevant market – even when Carlino and East Brandywine Township were prepared to proceed without such a road; c. scheming so that one of Giant's major wholesale suppliers, which also held the lease to the supermarket space at Brandywine Village Shopping Center, would act against its own economic interest by declining to renew that lease, causing Brandywine Village's competitive supermarket space to become vacant; d. expressly encouraging and agreeing with its business partner, Carlino, to engage in the specific anticompetitive and predatory conduct outlined above in paragraph 6, including Carlino's conduct relating to the land development plans, the sham tort action, and the objectively baseless condemnation proceeding; and e. in conjunction with Carlino, actively investigating Brandywine Village's -4- 19 financial health to assess the impact of Giant's anticompetitive scheme, with a view toward Carlino's ultimate acquisition of Brandywine Village Shopping Center after its economic value has been undermined, thereby eliminating any possibility of supermarket competition from the neighboring parcel. 9. Defendant East Brandywine Township (the "Township") is motivated to inflict harm on Brandywine Village by Carlino's stick-and-carrot approach of making repeated threats to sue the Township if the Township did not act in accordance with Carlino's wishes and, simultaneously, promising in writing to reimburse the Township and its Supervisors for any costs or liability the Township or Supervisors may incur in litigation with Brandywine Village. 10. The Township's anticompetitive, conspiratorial, exclusionary, and predatory acts have included, at a minimum: a. engaging in secret negotiations with co-conspirator Carlino, in repeated violation of the Pennsylvania Sunshine Act and the Municipalities Planning Code, to help develop Carlino's and the Individual Defendants' property at the expense of Brandywine Village; b. making official decisions that adversely affect Brandywine Village, in collusion with Carlino and at Carlino's behest, without affording Brandywine Village required notice or an opportunity to be heard; c. in collusion with Carlino, improperly exercising its eminent domain power in violation of Pennsylvania law primarily to confer private benefits on Carlino and Giant, to Brandywine Village's detriment, not primarily for a public purpose, and as a means of circumventing valid, enforceable, and valuable easements that benefit Brandywine Village and are binding on the Individual Defendants and Carlino; -5- 19 d. purporting to condemn a portion of Brandywine Village's land fronting U.S. Route 322 without the required notice to or consent of the Pennsylvania Department of Transportation; e. approving multiple defective Carlino development plans that substantially interfere with Brandywine Village's property rights and with supermarket competition in the relevant market, despite the Township's knowledge that the plans contained numerous non- waivable violations of land use laws and regulations and despite Carlino's acknowledged ability to develop its property based on a by-right plan that would not interfere with Brandywine Village's easements or other property rights or with supermarket competition in the relevant market; f. issuing a letter actively supporting its co-conspirator Carlino's successful application for substantial public funding for its planned development without notice to the public, opportunity for public discussion, or official action at a public meeting, thereby helping to place Brandywine Village – which receives no such public funding – at a further competitive disadvantage. 11. Carlino purports to be the equitable owner, by virtue of an agreement of sale, of the land adjoining Brandywine Village Shopping Center on which Carlino intends to develop a new shopping center anchored by a Giant supermarket, located at 1279 Horseshoe Pike (U.S. Route 322), East Brandywine Township (the "Watters Property"). The record owners of that land are the estates and/or children of its original owners, Frank and Beatrice Watters: namely, Christina B. Watters and Katherine M. Kettlety (individually and as estate representatives), Frank E. Watters, Jr., and Thomas R. Watters (collectively the "Individual Defendants"). 12. The January 4, 2010 Agreement of Sale between Carlino and the Individual -6- 19 Defendants imposes on the Individual Defendants an affirmative duty to cooperate with Carlino to obtain all necessary approvals, permits, and easements to develop the Watters Property, and to join with Carlino "as a petitioner or applicant whenever required on any applications" to obtain approvals and permits. Agreement of Sale at 30, ¶ 13(O). 13. The Individual Defendants have, in fact, cooperated with Carlino and/or joined with and aided and abetted Carlino as a petitioner or applicant in multiple aspects of Carlino's efforts to develop the Watters Property, including joining in Carlino's land development applications to the Township and Carlino's application to the Pennsylvania Department of Transportation for a highway occupancy permit to facilitate the construction of the "Connector Road" discussed below. 14. The Agreement of Sale also imposes on Carlino a duty to keep the Individual Defendants informed of all communications with the Township or other municipal entities involved in granting permits and approvals needed for the development. Agreement of Sale at 32, ¶ 17. The Individual Defendants, in particular Christina B. Watters as de facto spokesperson for the family, have carefully monitored the progress of the Carlino development and have not hesitated to offer their opinions about what should be done to advance their interests. 15. The close cooperation among Carlino and the Individual Defendants is further evidenced by the fact that all of them have been represented for various purposes by the same counsel, Marc B. Kaplin and other attorneys from Kaplin Stewart Meloff Reiter & Stein, P.C. Indeed, in the 2010 Agreement of Sale, Carlino and the Individual Defendants purported to waive the conflicts of interest that had already been created by the Kaplin Stewart firm's overlapping representations of Carlino and the Individual Defendants. Agreement of Sale at 35, ¶¶ 20-21. -7- 19 16. The Individual Defendants are motivated to inflict competitive harm on Brandywine Village because they stand to gain financially from the successful consummation of their agreement of sale with Carlino. Under that agreement of sale, the conditions precedent to closing – and thus to the Individual Defendants' receipt of the purchase price for their land – include, among other things, Carlino's obtaining all necessary permits and approvals in final and unappealable form, Carlino's execution of a lease with Giant, termination of Brandywine Village's sewage easement, and obtaining the legal right to build the "Connector Road" (discussed below) in part through neighboring property and through other easements owned by Brandywine Village. Agreement of Sale at 36-37, ¶ 22(A)(5)-(8). The agreement is also contingent on Carlino's ability to "convert" Brandywine Village's preexisting stormwater drainage and basin easement into parking spaces and stormwater management area for Carlino's own planned development – that is, to destroy Brandywine Village's irrevocable stormwater drainage and basement easement. Agreement of Sale at 5-6, ¶¶ L-M. 17. The Individual Defendants are also motivated to inflict harm on Brandywine Village by what appears to be a well-known personal animus toward the principals of Brandywine Village by one or more members of the Watters family, likely driven by competitive concerns, acknowledged in internal correspondence among Township personnel as early as 2005. For example, on November 18, 2015, the Individual Defendants' counsel, Marc B. Kaplin, wrote to a representative of Giant, in connection with an attempt to resolve the parties' differences that subsequently failed, "Chris [i.e., defendant Christina B. Watters] and her family are having a hard time rationalizing signing an agreement that benefits the BVA people in any way." 18. Accordingly, this First Amended Complaint states a claim for, among other things, illegal anticompetitive harm in the "Supermarket Market" (as defined below) centered on -8- 19 East Brandywine Township, Chester County, Pennsylvania. Defendants have conspired in violation of the antitrust laws to harm Brandywine Village, as well as to harm competition, by (a) depriving over 7,600 Township residents, as well as others from surrounding communities, of an accessible, competitive market with ample choice of, and fair prices for, supermarket products and services and (b) ensuring, by illegal means, that when Giant opens its new supermarket, it will be able to charge higher prices and/or offer a reduced selection of goods and services to consumers than it would be able to charge or offer if a competing supermarket were still operating at Brandywine Village Shopping Center. See, e.g., Babyage.com, Inc. v. Toys "R" Us, Inc., 558 F. Supp. 2d 575, 583 (E.D. Pa. 2008) (Brody, J.) (stating, in denying motions to dismiss antitrust claims, "Hallmarks of such actual harm [to competition] include an increase in retail prices above and beyond what they would be under competitive conditions, a reduction in output below what it would be under competitive conditions, and a deterioration in quality and service."). 19. In addition to the public's loss of the only supermarket in East Brandywine Township – a loss that has already been felt for eighteen months and is ongoing – Defendants' unlawful conduct has harmed and/or threatens imminent, and in some respects irreparable, harm to Brandywine Village in, at a minimum, the following ways: a. direct and ongoing loss of rental income from the engineered closure of Brandywine Village's anchor supermarket tenant and inability to replace that tenant; b. weakened economic viability of Brandywine Village Shopping Center as a whole and damage to Brandywine Village's goodwill and reputation due to the decrease in overall customer traffic caused by the vacant supermarket space, including likely lease non- renewals or insistence upon unusually short-term lease renewals by current tenants; -9- 19 c. onerous expenditures of escalating costs and attorneys' fees to oppose defective land development plans and defend against objectively baseless and predatory sham litigation that is not protected under the Noerr-Pennington doctrine; and d. taking of real property and extinguishment of or interference with valid easements in a condemnation proceeding brought for anticompetitive purposes and primarily for a private rather than a public purpose, as well as disruption to Brandywine Village's business operations and inability to secure a replacement anchor supermarket tenant due, in part, to the pendency of the condemnation and other proceedings. 20. This action is designed to end the Defendants' unlawful conspiracy in restraint of trade, to enjoin the Defendants from pursuing their anticompetitive, predatory, and exclusionary scheme any further in the marketplace or in state court, and to award Brandywine Village trebled compensatory damages and reasonable attorneys' fees and costs. PARTIES 21. Plaintiff Brandywine Village is a Pennsylvania partnership with its principal place of business at 16 Industrial Boulevard, Paoli Corporate Center, Paoli, Pennsylvania. 22. Brandywine Village owns Brandywine Village Shopping Center, a retail shopping center offering a variety of goods and services located at 1239 Horseshoe Pike (U.S. Route 322), East Brandywine Township, Pennsylvania. 23. Defendant Carlino is a Pennsylvania limited partnership with an office address of 100 Front Street, Conshohocken, Pennsylvania. 24. Upon information and belief, Defendant Giant is a Delaware limited liability company with its principal place of business at 1149 Harrisburg Pike, Carlisle, Pennsylvania. 25. Defendant Township is a second class township in Chester County, Pennsylvania. -10- 19 The township municipal building is located at 1214 Horseshoe Pike (U.S. Route 322), East Brandywine Township, Pennsylvania. 26. Defendant Christina B. Watters is an adult individual who resides in Oxford, Pennsylvania. 27. Defendant Katherine M. Kettlety is an adult individual who resides in Downingtown, Pennsylvania. 28. Defendants Christina B. Watters and Katherine M. Kettlety are the co-administrators of the Estate of Frank E. Watters (Orphans Court of Chester County, Pennsylvania, No. 1504-0240) and the Estate of Beatrice S. Watters (Orphans Court of Chester County, Pennsylvania, No. 1509-0872). (The Frank Watters Estate and the Beatrice Watters Estate will be referred to collectively as the "Estates.") 29. Defendant Frank E. Watters Jr. is an adult individual who resides in or near Gloucester, Virginia. 30. Defendant Thomas R. Watters is an adult individual who is resides in Huntington, Maryland. 31. Each of the Individual Defendants and each of the Estates has a fee ownership interest in the Watters Property. JURISDICTION AND VENUE 32. This action arises under the Sherman Act, 15 U.S.C. § 1, and Pennsylvania state law. 33. The Court has subject matter jurisdiction over this action under 28 U.S.C. §§ 1331 and 1367 and 15 U.S.C. § 15. 34. Venue is proper in this district under 28 U.S.C. § 1391 and 15 U.S.C. §§ 15 and -11- 19 22 because a substantial part of the events or omissions giving rise to the claims occurred here and because Defendants transact business here. 35. All Defendants are subject to the personal jurisdiction of this Court because they engaged in purposeful conduct in or directed to Pennsylvania as set forth in detail in this First Amended Complaint. 36. Further, Carlino is subject to personal jurisdiction because it transacts business in this district, has its principal place of business in this district, and is actively attempting to develop the Watters Property. Giant is subject to personal jurisdiction because Giant transacts business in this district, has a leasehold interest in part of the Watters Property, and has colluded with Carlino as described herein. The Township is subject to personal jurisdiction because it is a Pennsylvania municipality. Christina B. Watters and Katherine M. Kettlety are subject to personal jurisdiction because they reside in Pennsylvania, and all of the Individual Defendants are subject to personal jurisdiction because they have ownership interests in the Watters Property, are signatories to and beneficiaries of an agreement to sell the Watters Property to Carlino, and have engaged in affirmative conduct in this district such as, for example, joining in Carlino's land development plans for the Watters Property. THE RELEVANT ANTITRUST MARKET 37. The relevant market for purposes of the antitrust claims in this action is the supermarket market in an irregularly shaped geographic area that is centered on East Brandywine Township and described in more detail below (the "Supermarket Market"). 38. The supermarket business is substantial and affects interstate commerce. -12- 19 39. The supermarket business is, in general, highly competitive and characterized by narrow profit margins, competitive pricing and promotional programs, industry consolidation, and competitor store openings even in small-radius geographical markets. 40. Supermarkets compete almost entirely with other supermarkets. Although there is partial overlap between the goods and services sold by supermarkets and the goods and services sold by, for example, convenience stores or drugstores, other retail channels are not substitutes for true supermarkets. Only the presence of another supermarket in the same geographic market can provide the competition necessary to constrain the prices at which a supermarket sells goods and services to consumers while maximizing the selection of goods and services available. 41. The Federal Trade Commission ("FTC"), when analyzing supermarket mergers that may affect competition, begins with the principle that "[c]ompetition in food retailing depends on proximity in both retailing format and in geographic location." 77 Fed. Reg. No. 121, Koninklihke Ahold N.V./Safeway Inc., Analysis of Agreement Containing Consent Orders to Aid Public Comment, at 37,675 (June 22, 2012). 42. From the FTC's point of view, the relevant geographic market for purposes of supermarket competition is the area in which "a hypothetical monopolist of the retail sale of food and grocery products in supermarkets in each relevant area could profitably impose a small but significant non-transitory increase in price." In the Matter of Cerberus Institutional Partners V, L.P., AB Acquisition, LLC, and Safeway Inc., FTC File No. 141 0108, Analysis of Agreement Containing Consent Order to Aid Public Comment, at 3 (Jan. 27, 2015). 43. Consumers, including consumers who reside in the Supermarket Market, prefer to purchase food and other daily necessities from supermarkets located near their homes or along the route of their normal drive home from work, without incurring time-consuming and costly -13- 19 detours or otherwise unnecessary travel to and from the store on often congested roads. As the FTC has recently stated, supermarket customers seek "convenience and, as a result, competition for supermarkets is local in nature." In re Koninklihke Ahold N.V. v. Delhaize Group, NV/SA, FTC Dkt. No. C-4588, FTC Complaint, at 3 (Oct. 31, 2016). In general, "the overwhelming majority of consumers' grocery shopping occurs at stores located very close to where they live." Id. The FTC has noted that "[c]onsumers generally do not travel more than two or three miles to their grocery shopping." FTC v. The Kroger Co., Civ. A. No. 3-00CV1196-R, Plaintiff's Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction, at 10 (N.D. Tex. June 2, 2000) ("FTC Kroger Brief"). 44. As the FTC also recognizes, where "supermarkets are located in rural areas, the relevant geographic areas are larger than areas where … supermarkets are located in more densely populated cities." In re Koninklihke Ahold N.V. v. Delhaize Group, NV/SA, FTC File No. 151-0175, Analysis of Agreement Containing Consent Order to Aid Public Comment, at 3 (July 22, 2016). The Supermarket Market centered on East Brandywine Township, although its population is growing rapidly, currently lacks urban density, and much of its area remains rural in character. 45. A geographic market for supermarkets is affected by natural boundaries such as lakes, rivers, mountains, or other natural geographic features. It may also be constrained by man- made physical barriers, such as major roadways, or man-made political boundaries, such as a city limit or county line. FTC Kroger Brief, at 11; In the Matter of AB Acquisition, LLC, FTC File No. 131-0227, Analysis of Agreement Containing Consent Order to Aid Public Comment (Dec. 23, 2013). -14- 19 46. Applying the above-described factors to analyze supermarket competition in non- urban geographic areas for purposes of proposed mergers, the FTC defines relevant geographic markets that are nearly always less than ten miles in radius and frequently much smaller, depending upon population density and barriers to travel. For example, in one recent merger case, the FTC found the relevant market to range "from a two- to ten-mile radius around each of the Respondents' supermarkets." In the Matter of Cerberus Institutional Partners V, L.P., AB Acquisition, LLC, and Safeway Inc., FTC File No. 141 0108, Analysis of Agreement Containing Consent Order to Aid Public Comment, at 3 (Jan. 27, 2015). In another, the FTC found that "[t]he relevant geographic markets in which to analyze the Acquisition's effects are the areas within an approximate three- to ten-mile radius of the parties' supermarkets in … eleven localized areas." In the Matter of Lone Star Fund V (U.S.), L.P., Bi-Lo Holdings, LLC, Etablissements Delhaize Frères et Cie "Le Lion" (Group Delhaize) SA/NV, and Delhaize America, LLC, FTC File No. 131-0162, Analysis of Agreement Containing Consent Orders to Aid Public Comment, at 3 (Feb. 25, 2015). 47. The FTC has conducted similar relevant-market analyses in proposed mergers involving Giant-related supermarket entities in Pennsylvania, requiring significant divestitures to avoid harm to competition in geographic markets substantially similar to the Supermarket Market centered on East Brandywine Township. 48. For example, in 2016, the FTC entered into a consent order with two merging supermarket companies (whose post-merger successor is the ultimate parent of defendant Giant), requiring divestiture of 81 supermarkets in 46 different geographic markets. In re Koninklihke Ahold N.V. v. Delhaize Group, NV/SA, FTC File No. 151-0175 (July 22, 2016). Many of the Pennsylvania geographic markets in which the FTC required divestiture to protect competition in -15- 19 that matter were comparable in size, population, and/or population density to the Supermarket Market centered on East Brandywine Township. 49. Similarly, in 2012, the FTC intervened when Giant's ultimate parent company agreed to acquire sixteen Genuardi's supermarkets from Safeway, as part of Safeway's plan to exit Bucks, Montgomery, Delaware, and Chester Counties by closing all 24 remaining Genuardi's stores in those counties. The FTC determined that the merger would violate Section 7 of the Clayton Act and Section 5 of the FTC Act by removing supermarket competition in the area surrounding Newtown Township, Bucks County. 77 Fed. Reg. No. 121, Koninklihke Ahold NV/Safeway, Inc., Analysis of Agreement Containing Consent Orders to Aid Public Comment, at 37,675 (June 22, 2012). Newtown Township covers approximately 22.7 square miles and had a population of 2,846 in 2010. The FTC defined the relevant geographic market in that matter as "Newtown Township, Newtown Borough, and the portion of Middletown Township north of the line formed by Bridgetown Pike and Langhorne Yardley Road in Bucks County, Pennsylvania." Id. Pre-merger, the area contained a Giant supermarket and a Genuardi's supermarket located only two miles apart. Id. 50. Consistent with the FTC's approach to defining geographic markets for supermarket competition, the Third Circuit recently held that a geographic supermarket market defined as "greater Morristown, which includes Morristown and its neighboring communities," was a plausible geographic market that supported an antitrust claim alleging harm to supermarket competition. Hanover 3201 Realty, LLC v. Village Supermarkets, Inc., 806 F.3d 162, 183-84 (3d Cir. 2015) ("If the ShopRite in Morristown raised its prices, it is plausible that only the most diligent and frugal customer would move his or her grocery shopping to a more distant supermarket."). -16- 19 51. The Supermarket Market for purposes of this action includes all of East Brandywine Township (which covers 11.4 square miles and had a population of over 7,600 as of 2015) as its core, as well as the northerly portion of West Brandywine Township that lies along U.S. Route 322. From Brandywine Village Shopping Center, the Supermarket Market extends northwest approximately 9 miles along U.S. Route 322, as far as the intersection with Route 10 at Honey Brook, and to the southeast approximately 3 miles along U.S. Route 322 to the intersection of U.S. Route 322 with the U.S. Route 30. To the north and northeast of Brandywine Village Shopping Center, the Supermarket Market extends as far as the barriers to the local road network presented by Marsh Creek State Park and the Pennsylvania Turnpike, from two to four miles away. To the southwest of Brandywine Village Shopping Center, the Supermarket Market extends approximately four miles, to the barrier to the local road network presented by the West Branch of Brandywine Creek. 52. To be a convenient shopping destination for the vast majority of the residents of East Brandywine Township and the rest of the designated Supermarket Market, a supermarket must be located within the Supermarket Market. 53. In the food retailing sector, a supermarket is generally defined as an establishment with a selling area at least 5,000 square feet in size that sells by self-service and offers fresh produce and fresh meat in addition to packaged groceries and other goods. Because of Defendants' predatory and exclusionary conduct described herein, there is presently no supermarket operating in the core of the Supermarket Market; the nearest supermarkets are currently located at the relatively inaccessible fringes of, or outside, the Supermarket Market. 54. Although a small food store called O'Connor's Market opened in June 2016 in East Brandywine Township, that store is not a supermarket. As the Township acknowledged in -17- 19 the summer 2016 issue of its newsletter, O'Connor's Market is "a small, family-owned food market and is not targeted to compete with the large box stores like Acme or Giant." O'Connor's Market's selling area occupies far less than the minimum 5,000 square feet to be considered a supermarket and does not offer the full range of products sold by a supermarket, including fresh produce. The store is best described as a deli, selling a limited range of meats, cold beverages, and sandwiches. The only other business selling groceries in any form in East Brandywine Township itself is a gasoline station with a minimart, which is also not comparable to or competitive with a supermarket. 55. Accordingly, a supermarket located near the center of the Supermarket Market and operating without any other competing supermarket in the center of the Supermarket Market – like the Giant supermarket planned for Carlino's development – could profitably impose a small but significant non-transitory price increase on the goods it sold, or could limit the selection of goods offered for sale to the public, without losing a significant number of customers to the relatively inaccessible supermarkets, big-box stores, and warehouse club stores operating on the margins of or just outside the Supermarket Market (including stores located along the Route 30 corridor, as well as Eby's General Store in Honey Brook). 56. In 2013, even before closing of the supermarket at Brandywine Village Shopping Center was engineered by Giant as discussed below, Carlino represented to the Commonwealth of Pennsylvania (in its successful application to receive at least one million dollars in public funding for its proposed development of the Watters Property) that East Brandywine Township, although "[o]ne of the fastest growing areas of Chester County," "is underserved for supermarkets, restaurants and food uses," and "this area of Chester County north of Downingtown is significantly under-retailed for fresh food and grocery offerings." (Emphasis -18- 19 added.) Significantly, Carlino represented to the Commonwealth that Giant was specifically interested in the proposed Watters Property location "because of a hole in the food and grocery market in this part of Chester County." (Emphasis added.) 57. Moreover, in its fall 2015 newsletter (called "The Milemarker"), the Township described the ongoing injury to consumer welfare that followed the September 2015 closure of Brandywine Village Shopping Center's anchor supermarket tenant, Stauffer's Market. The East Brandywine community has grown substantially over the last fifteen years, with the latest expansion taking place at Applecross which is across the street from Brandywine Village Shopping Center. The closest competing grocery stores are, at best, inconvenient. There is an Acme and Giant in Thorndale, a 140,000 square foot Wegman's in Downingtown, and another Giant and Acme in Lionville. All of these store locations were mere minutes away in 1990 but pose significant traffic challenges in 2015, especially during rush hour. Maybe the regional map appears to be saturated with stores, but unless you drive your car from Stauffer's to Wegmans at 5:00 p.m. (or to Thorndale, or to Lionville) you won't get a sense of how you can't get there from here. 58. Members of the affected public in East Brandywine Township and its immediate vicinity have also highlighted the need for a nearby supermarket in comments posted on the Township's public Facebook page. When the Township shared a link entitled "Giant Development Status" on August 9, 2016, members of the public posted responsive comments such as, "I sure hope this gets approved! We need a market now!" and "This is ridiculous! Give the people who live here a vote! We want a market!!!" 59. Portions of West Brandywine Township are similarly affected by the absence of a supermarket in the local area. In January 2016, a person purporting to be a resident posted on the West Brandywine Township page of the website Niche.com (which bills itself as "a website that helps you discover the schools and neighborhoods that are right for you"), "I do wish that we had a grocery store nearby. We had one but it closed and it has become very inconvenient when my family or I may need something. Before, we were able to stop on the way home from school or work but now, we have to travel out of the way just to get the food. There is a giant and acme in -19- 19 Thornedale [sic] and shady maple in Lancaster but nothing in between making the trips hard and far." (Emphasis added.) 60. Local community demand for a supermarket in the Supermarket Market has also found expression in an online petition recently initiated on the Change.org website. The initiator of that petition wrote, "since the loss of Croppers/Stauffers supermarket in September 2015, our neighborhood has been without a community supermarket." The petition drew hundreds of public comments, nearly all from individuals purporting to be local residents, within just a few days of its original posting on February 28, 2017. 61. Although the Change.org petition takes a decidedly pro-Carlino, pro-Giant point of view, some of the public comments favor the construction of a Giant, and some favor the return of an independent supermarket such as Croppers' or Stauffer's, but most simply call for any supermarket that can serve the area. For example, one supporter commented, "We absolutely need a supermarket in the township! It's ridiculous to drive 20+ minutes when we could have one right up the road?!" Another stated, "We need a supermarket for our community. Driving into Downingtown or Thorndale is an extreme inconvenience." A third wrote, "Missing Croppers – would be able to stop on my way home now I have to drive further every time." A fourth commented, "We need a viable grocery story in this area to meet the needs of the hundreds and hundreds of homes that they keep building." One person identifying herself as a former employee of Croppers' Market wrote, "When Croppers was bought out and then abandoned, it left an entire community with no grocery store in the area," 62. Croppers' Market and its successor Stauffer's Market, as supermarkets and the anchor tenants at Brandywine Village Shopping Center, participated directly in the Supermarket Market. -20- 19 63. The supermarket that Defendant Carlino plans to build for Defendant Giant on the Watters Property would also participate directly in the Supermarket Market. 64. Defendant Giant already operates three supermarkets on the fringes of or not far outside the Supermarket Market: one on East Swedesford Road in Exton (Giant store #6051), one on Eagleview Boulevard in Lionville (Giant store #6478), and one on Lincoln Highway in Thorndale (Giant store #6301). Therefore, it is not surprising that Giant is highly motivated to open a new supermarket at the center of the Supermarket Market that would not substantially overlap and compete with the natural trade areas of its existing stores. Upon information and belief, Giant's market studies and development plans will generally confirm the parameters of the Supermarket Market as set forth in this First Amended Complaint. 65. As noted above, Giant has recently attempted to dominate various other local geographic markets in the supermarket business, including local markets in the mid-Atlantic area, by merger with competitors, but its efforts have been thwarted by FTC-mandated store divestitures to preserve competition. See, e.g., FTC Docket No. C-4588. 66. Brandywine Village is an indirect participant in the Supermarket Market in that its interests are inextricably intertwined with that market and it suffers injury from anticompetitive harm to that market, consistent with the principles set forth by the Court of Appeals for the Third Circuit in Hanover 3201 Realty, LLC v. Village Supermarkets, Inc., 806 F.3d 162 (3d Cir. 2015). THE DEVELOPMENT OF BRANDYWINE VILLAGE SHOPPING CENTER 67. In the late 1980s, the Township rezoned land along U.S. Route 322 belonging to Frank and Beatrice Watters to allow for commercial use. 68. On August 7, 1989, Frank and Beatrice Watters entered into an agreement of sale (the "1989 Agreement") with Robert and John Cropper, father-and-son owners of Croppers' -21- 19 Market, an independent supermarket, for the approximately eleven-acre eastern portion of the rezoned land. The Croppers purchased the acreage to build a new shopping center to house their expanding supermarket business, along with other tenants. 69. One portion of the land along U.S. Route 322 that was retained by Frank and Beatrice Watters is now the Watters Property, and the acreage sold to Robert and John Cropper ultimately became the Brandywine Village Shopping Center. 70. The Watters and the Croppers understood and agreed that it would be necessary for the Watters to grant easements to enable the Croppers to develop the purchased acreage into a retail center as intended. Accordingly, in furtherance of the 1989 Agreement, Frank and Beatrice Watters entered into an additional agreement with Robert and John Cropper on June 13, 1990 (the "1990 Agreement") in which they agreed that, at the time of settlement, the Watters would convey certain easements appurtenant to the Croppers in connection with their use and enjoyment of the approximately eleven-acre easterly parcel. The 1990 Agreement provided for easements in connection with, among other things, the construction, operation, and maintenance of a septic facility, as well as vehicle access via a driveway from U.S. Route 322. 71. L&R Partnership is a Pennsylvania partnership formed by Leonard Blair and Richard Blair. 72. In early 1993, Robert and John Cropper, along with L&R Partnership, formed plaintiff Brandywine Village, with the intention that Brandywine Village would construct a retail shopping center featuring Croppers' Market as the anchor store. 73. On July 29, 1993, Frank and Beatrice Watters entered into a revised agreement of sale with Brandywine Village (the "1993 Agreement"). The 1993 Agreement identified Brandywine Village as the purchaser of the acreage specified in the 1989 Agreement and as the -22- 19 holder of the easements to be provided by the Watters, and otherwise ratified the terms of the 1989 and 1990 Agreements. 74. On June 24, 1994, Frank and Beatrice Watters and Brandywine Village entered into a Cross Easement Agreement that was intended to implement the Watters' contractual obligations under the 1989, 1990, and 1993 Agreements to confirm or grant certain easements to enable Brandywine Village to develop its parcel into a retail center as intended. The Cross Easement Agreement refers to the Watters Property as "Parcel B" and to the property owned by Brandywine Village as "Parcel A." A true and correct copy of the Cross Easement Agreement is attached hereto as Exhibit A. 75. For example, the Cross Easement Agreement confirmed an easement for the construction of a septic sewage plant on the Watters Property to service the new retail center on Brandywine Village's parcel. Cross Easement Agreement, Ex. A at 2-10. Brandywine Village was to build, manage, and carry the cost of the sewage plant at its own expense until the Watters Property also needed to use it – a highly valuable asset increasing the marketability and potential profitability of the Watters Property for future development purposes. 76. The Cross Easement Agreement likewise provided for an easement over the Watters Property in connection with an access driveway servicing both Brandywine Village Shopping Center and the Watters Property. Cross Easement Agreement, Ex. A at 10-13. 77. The Cross Easement Agreement expressly states that, although the location of the access driveway within the access easement may be modified "in order to allow Parcel B to be developed to its fullest extent under applicable governmental laws and regulations, such modifications shall be reasonable and shall not interfere with the flow of traffic from Parcel B to Parcel A, or Parcel A to Parcel B, or with surface water drainage or replacement sewer system -23- 19 area in accordance with the plans [for the development of Parcel A]." Cross Easement Agreement, Ex. A at 11-12. The signalized entry/exit to the access driveway, constructed at Brandywine Village's expense, was likewise a significant benefit to the marketability and potential profitability of the Watters Property for future development purposes. 78. The Cross Easement Agreement also conveyed easements to Brandywine Village over the Watters Property in connection with a stormwater detention basin and drainage of runoff water to service Brandywine Village Shopping Center. Cross Easement Agreement, Ex. A at 15- 16. 79. The Cross Easement Agreement provides that the stormwater basin and drainage easement granted to Brandywine Village therein is "irrevocable." Cross Easement Agreement, Ex. A at 15. 80. The Cross Easement Agreement expressly acknowledges that the easements granted therein are those "necessary for the proper and uniform development of Parcels A and B." Cross Easement Agreement, Ex. A at 2. 81. Brandywine Village completed construction of the Brandywine Village Shopping Center in 1995. 82. From 1995 until Defendants began to interfere with Brandywine Village's property rights and business interests as set forth below, Brandywine Village Shopping Center was a successful retail center with a thriving supermarket anchor tenant serving the growing population of thousands of residents in the Supermarket Market. 83. Brandywine Village Shopping Center's other commercial tenants have included, at various times: All About Pets, Inc. (TLC Pets); All Season Tanning; Bobby Ray's Steaks and Hoagies, Inc.; Bonds Eye Care; Brandywine Family Medicine (Gateway Family Medicine); -24- 19 Burger King; China Moon; China Moon II; Dairy Queen (D&D Sweetlife/RSC Associates); Face Fitness; Fulton Bank; Gemini Hair Salon; Hair 322, LLC; Michelangelo's Pizza; Movie Gallery; Pace Fitness; Pennsylvania Liquor Control Board; Parkway Cleaners, Inc.; Party Things; Post- Net; Princess Salon; Quest Diagnostics Clinical Labs; Rite Aid; and Wild Bird Marketplace. 84. Recently, Brandywine Village's long-time tenant Burger King has opted not to renew its lease and will be vacating its tenancy at the end of May 2017, expressly because of its concerns about the continuing impact of the lack of an anchor tenant at Brandywine Village Shopping Center. 85. Similarly, another long-time tenant has demanded a substantial rent reduction in any lease renewal and has indicated that it may elect not to renew its lease. That tenant, too, has stated that its concerns arise from the lack of an anchor tenant and the impact of that vacancy on Brandywine Village Shopping Center's viability. DEFENDANTS' PREDATORY PLAN TO DEVELOP A GIANT SUPERMARKET ON THE WATTERS PROPERTY AND STIFLE COMPETITION 86. Frank and Beatrice Watters are deceased, and the Watters Property is now owned by their Estates and descendants, the Individual Defendants. 87. Carlino alleges that it is the equitable owner of the Watters Property by virtue of a January 4, 2010 agreement of sale between the Individual Defendants and Carlino. 88. To the extent that Carlino is the equitable owner of the Watters Property, its property rights are subject to the easements held by Brandywine Village over the Watters Property in accordance with the Cross Easement Agreement and the 1990 Agreement. 89. Continuously since at least late 2008, Carlino has intended to develop the Watters Property with a retail shopping center that will feature a Giant supermarket as its anchor tenant. 90. On June 1, 2010, Carlino entered into a lease agreement with Giant for the -25- 19 planned supermarket, with an amendment dated January 18, 2012 (the "Giant Lease Agreement"). 91. The planned initial size of the Giant supermarket has changed over time but is currently stated to be 56,161 square feet, with an additional potential expansion area of 9,250 square feet, for a total possible size of 65,411 square feet. The Carlino development, as proposed, would also feature a bank branch and additional retail stores, as well as a parking area. 92. To clear the Supermarket Market of meaningful competition for the planned Giant to be developed by Carlino, defendants Carlino, Giant, the Individual Defendants, and the Township have conspired to engage in a variety of anticompetitive, unlawful, predatory, and exclusionary conduct as set forth below. CARLINO'S AND GIANT'S VEILED THREATS AGAINST BRANDYWINE VILLAGE AND EXPRESSED INTENTION TO ELIMINATE COMPETITION BY ACQUIRING BRANDYWINE VILLAGE SHOPPING CENTER 93. As early as November 11, 2009, months before the Giant Lease Agreement was executed, Giant asked Carlino about the possibility of Carlino buying out Brandywine Village Shopping Center, for the obvious purpose of eliminating supermarket competition for Giant in the Supermarket Market. Giant again encouraged Carlino to acquire Brandywine Village Shopping Center on December 17, 2009. 94. Less than two weeks after entering into the Giant Lease Agreement, Carlino representative Peter Miller placed a telephone call to Brandywine Village, seeking a meeting. In June 2010, Peter Miller and Peter Carlino met with Brandywine Village representatives Leonard Blair and Richard Blair at Chef Alan's American Bistro at the Fairgrounds Square Mall in Reading, Pennsylvania. 95. At the June 2010 meeting, Peter Miller and Peter Carlino told the Blairs that Carlino planned to develop a shopping center on the Watters Property featuring a Giant -26- 19 supermarket as the anchor tenant. They further told the Blairs that there was nothing Brandywine Village could do about it and that Brandywine Village Shopping Center could not hope to compete with Carlino's planned development and would therefore go out of business. Peter Miller suggested that Brandywine Village should sell its property to Carlino before it was too late but added that Carlino would have to perform due diligence by inspecting Brandywine Village's financial records before making any offer. 96. Peter Miller, on behalf of Carlino, later sought a second meeting with Brandywine Village, which took place at Carlino's offices in Wyomissing, Pennsylvania, in September 2011. Leonard Blair attended the September 2011 meeting on behalf of Brandywine Village, and Peter Miller and Peter Carlino attended on behalf of Carlino. Giant also sent two representatives to the September 2011 meeting: Joe LaCagnina, Director of Real Estate, and William Shrader, Vice President of Real Estate. 97. At the September 2011 meeting, Peter Miller told Leonard Blair that Carlino and Giant intended to do as they pleased with the Giant development without consulting or cooperating with Brandywine Village. Miller again tried to bully Brandywine Village by stating that Brandywine Village might as well sell out to Carlino since they could not do anything about Carlino's plans. As an alternative, the Giant representatives made an illegal, anticompetitive proposal that Brandywine Village should allow the supermarket at Brandywine Village Shopping Center to continue operating only up to the time that the new Giant was ready to open next door, and that Brandywine Village should agree with Carlino and Giant to then close the Brandywine Village Shopping Center supermarket and permit the new Giant to operate without local competition. In exchange for this illegal agreement not to compete, Carlino or Giant said they would defray the expense of converting Brandywine Village's supermarket space to another -27- 19 retail use – specifically, a lawn and garden center – that would not compete with Giant. Brandywine Village rejected this illegal proposal on the spot. 98. Soon after the failed September 2011 meeting, Carlino's representatives, including Peter Miller, attended one of numerous secret meetings (discussed in more detail below) with Township officials. At that meeting, according to notes made by the Township Manager, Carlino wanted the Township Planning Commission to "bless" Carlino's development plan concept so that Carlino could "go to [the] Blairs and show them they mean business." 99. Carlino's Peter Miller subsequently contacted Leonard Blair seeking a third meeting. That meeting took place on October 6, 2011 at a coffee shop near Carlino's office in Wyomissing, Pennsylvania. Peter Miller and Peter Carlino attended on behalf of Carlino, and Leonard Blair attended on behalf of Brandywine Village. 100. At the October 6, 2011 meeting, Peter Miller boasted to Leonard Blair that Carlino had Brandywine Village "checkmated" and "covered every way." Miller then reiterated the illegal Carlino/Giant proposal that Brandywine Village should agree to convert its existing supermarket space into a lawn and garden center that would not compete with Giant. 101. Brandywine Village consulted with the management of its supermarket tenant, Stauffer's Market, as to its future intentions, confirmed that Stauffer's Market intended to continue operating as a supermarket, and again rejected Carlino's and Giant's illegal, anticompetitive proposal. 102. Thereafter, with their illegal bullying tactics having failed, Carlino and Giant continued plotting to ensure that Giant would not face competition in the Supermarket Market from any tenant of Brandywine Village. In November 2011, Giant wrote to Carlino noting that "AWI/Stauffer's wants to fight us with a grocery store (and perhaps they are thinking they can -28- 19 get their store switched over before we are able to build our store)" and proclaiming, "They will be sorry they pushed on this deal." 103. As recently as 2016, Carlino and Giant were actively trying to evaluate Brandywine Village's cash flow from Brandywine Village Shopping Center to assess the effects of their ongoing anticompetitive efforts. In June of that year, Carlino's chief financial officer wrote to Giant, stating that he had researched Brandywine Village's 2015 tax records and calculated the amount of taxes Brandywine Village had to pay on its by-then vacant, non- revenue-producing supermarket space, and concluding, "This just further demonstrates the cash flow issue the owners are facing." Such efforts by Carlino and Giant indicate that they have continued to pursue their long-term goals of stifling supermarket competition, undermining and destroying the value of Brandywine Village Shopping Center, and someday acquiring Brandywine Village Shopping Center to eliminate any possibility of supermarket competition in the relevant market. THE GIANT-ENGINEERED CLOSURE OF EAST BRANDYWINE TOWNSHIP'S ONLY SUPERMARKET 104. Croppers' Market was founded in 1953 and served the people of East Brandywine Township and the surrounding locality continuously as a family-owned supermarket for many decades. 105. In 1995, Robert and John Cropper relocated Croppers' Market to 50,910 square feet of retail space as the anchor tenant of the newly built Brandywine Village Shopping Center. 106. Robert Cropper died in 1999, leaving John Cropper as the sole operator of Croppers' Market. 107. In 2002, John Cropper sold Croppers' Market to its wholesale supplier, Associated Wholesalers, Inc. ("AWI"). AWI assumed Croppers' Market's 20-year lease, which -29- 19 was subject to renewal in June 2015, and continued to operate at Brandywine Village Shopping Center under the name Croppers' Market. 108. In September 2011, AWI and Stauffer Family Group, LLP ("Stauffer") entered into a sublease agreement for the Croppers' Market space. Thereafter, Stauffer continued to operate a supermarket at Brandywine Village Shopping Center under the name "Stauffer's Market," with AWI as the sublandlord. 109. According to a late 2011 report by the East Brandywine Township Manager to the Township Board of Supervisors, Carlino representative Peter Miller told the Township Manager in November 2011 that Giant attempted to buy out AWI's interest in Stauffer's Market in 2010 or 2011 but was unsuccessful. 110. In September 2014, AWI filed for Chapter 11 bankruptcy protection in the U.S. Bankruptcy Court for the District of Delaware (No. 14-12092). 111. Even before AWI actually filed for bankruptcy, Giant and Carlino were actively monitoring the situation and regarded AWI's financial difficulties as a potential competitive opportunity. In August 2014, Giant wrote to Carlino, "Do you think the latest news regarding AWI has any bearing on how long these guys [i.e., Brandywine Village] want to hold out on East Brandywine?" Carlino replied, "It could. … Perhaps if a deal for AWI takes place, we should meet with the acquirer to work on a settlement." 112. During the bankruptcy proceedings, AWI's lease of the Brandywine Village Shopping Center supermarket space was acquired by 1257 Horseshoe Pike Downingtown LLC, a special-purpose entity formed and controlled by C&S Wholesale Grocers (collectively, "C&S") specifically to hold that particular lease. 113. Upon information and belief, C&S is a major wholesale supplier of Giant, and -30- 19 Giant is a major customer of C&S. According to its website, C&S is the tenth largest privately held company in the United States, with approximately $30 billion in net sales in fiscal 2015. 114. Stauffer's Market, with C&S as its new sub-landlord and wholesale supplier, operated for only a few additional months. 115. Months before C&S had to make any decision about renewing the lease for the supermarket space at Brandywine Village Shopping Center, C&S was well aware that a new Giant supermarket was planned for the adjacent Carlino development. In December 2014, a representative of an outside real estate consulting firm working with C&S wrote to the C&S employee responsible for the Brandywine Village lease, "This is the location where we have the option issue and adjacent development issue." 116. By February-March 2015, Giant, through the intercession of C&S, had established direct contact with Brandywine Village's subtenant, Stauffer, and began to negotiate directly with Stauffer, initially without Brandywine Village's knowledge, to acquire the Brandywine Village supermarket space. According to a memorandum prepared by Stauffer's counsel, Giant suggested to him that Carlino would have an interest in acquiring Brandywine Village Shopping Center in its entirety and that Stauffer should "structure a deal for Carlino to come in and buy the center which would then allow him to buy the store … and would get rid of the opposition to the expansion next door which he described as being a win/win for everybody." 117. Eventually, with the knowledge and approval of C&S, Giant began to negotiate with Stauffer concerning a potential assignment of Stauffer's sublease to Giant. As part of that negotiation, Giant obtained from Stauffer access to Stauffer's confidential financial information relating to its supermarket business at Brandywine Village Shopping Center. 118. By late July 2015, attorneys for C&S had drafted an assignment agreement that -31- 19 would have (a) obligated C&S to renew the supermarket lease at Brandywine Village Shopping Center and (b) obligated C&S to obtain Brandywine Village's approval to assign that supermarket lease to Giant. C&S, through its counsel, sent those documents to Giant for review and approval. C&S had also by that time drafted, but not sent, a letter to Brandywine Village exercising its option to renew the supermarket lease. 119. C&S advertises itself as a supporter and supplier of independent supermarkets such as Stauffer. Yet C&S – contrary to its own economic interest – when faced with the possibility of losing Stauffer as both its supermarket subtenant and its customer, never explored obtaining any replacement supermarket tenant other than Giant itself, even though it knew that Giant planned to open a new store at the next-door Carlino development. Further, C&S determined – again contrary to its own economic interest – that it would not renew the supermarket lease at Brandywine Village Shopping Center unless Giant was willing to accept assignment of that lease. This conduct by C&S defies explanation unless C&S was acting at the behest of, and in the anticompetitive interest of, its significant customer, Giant; no other explanation is plausible. 120. For reasons that remain obscure because Giant has deliberately withheld, among other documents responsive to Brandywine Village's subpoenas, "internal communications relating to the possible assignment of the Stauffer sub-lease and C&S primary lease," Giant did not approve the assignment of the Brandywine Village Shopping Center supermarket lease and did not execute the documents provided to Giant by C&S for that purpose. Further, up to the last possible moment, Giant led C&S and Stauffer to believe that it would approve the lease assignment. The most plausible explanation for Giant's conduct is that, having maneuvered C&S, Stauffer, and Brandywine Village into a situation in which the only two realistic options -32- 19 were for Giant to accept assignment of the lease or for Brandywine Village's supermarket space to become vacant, Giant – consistent with its long-held and previously expressed purpose of ensuring that there would be no supermarket competition from any tenant at Brandywine Village Shopping Center – deliberately chose to pull the rug out from beneath C&S and Stauffer after misleading them into thinking they had a deal and, instead, let the store go dark for anticompetitive reasons. 121. Accordingly, at the end of July 2015, C&S formally notified Brandywine Village that it would not exercise the lease renewal option for the Brandywine Village Shopping Center supermarket space. 122. In August 2015, while Stauffer's Market was winding down its operations at Brandywine Village Shopping Center, Giant asked Carlino to place a large "Giant Coming Soon" sign along Route 322, with the obvious intention of dissuading any potential competitor from pursuing an interest in the soon-to-be-vacant Brandywine Village Shopping Center supermarket space. Giant wrote to Carlino, "We want it to be a rather large sign announcing our intentions." Within days, Carlino submitted proposed signage to Giant, and Giant approved it. The sign was erected by September 2, 2015, and remains in place today – right at the edge of an entrance driveway to Brandywine Village Shopping Center. 123. In September 2015, Stauffer's Market ceased operations and vacated the anchor tenant space at Brandywine Village Shopping Center. 124. From September 2015 to the present, the anchor supermarket space at Brandywine Village Shopping Center has remained vacant, and there has been no other supermarket in East Brandywine Township to service its more than 7,600 residents or the additional residents of the surrounding area in the Supermarket Market. -33- 19 BRANDYWINE VILLAGE'S UNSUCCESSFUL EFFORTS TO RECRUIT A NEW SUPERMARKET ANCHOR TENANT 125. Beginning in summer 2015 and continuing to the present, Brandywine Village has made diligent efforts to market the supermarket space to potential supermarket operators in order to reestablish a functioning anchor supermarket tenant at Brandywine Village Shopping Center. 126. In spite of its best efforts, and as a result of Defendants' anticompetitive conduct as set forth herein, Brandywine Village has been unable to secure a new supermarket tenant at a reasonable long-term rental rate and on reasonable terms. 127. To increase the marketability of Brandywine Village Shopping Center's anchor supermarket space, on January 18, 2016, Brandywine Village submitted a sketch plan (the "Expansion Plan") to the Township Planning Commission, proposing to expand the size of its supermarket space by an additional 5,000 square feet. 128. After Brandywine Village submitted the Expansion Plan, Carlino intervened in the Township Planning Commission's deliberation process, claiming to be an interested party by virtue of its purported equitable ownership of the adjoining Watters Property. 129. Through its counsel Marc B. Kaplin, Carlino baselessly opposed the Expansion Plan in April 2016 by raising various pretextual engineering objections to the enlargement of Brandywine Village's supermarket space. None of Carlino's sham objections alleged any effect by the proposed expansion on Carlino's property rights, and the only plausible reason for Carlino's opposition was to advance its own and Giant's anticompetitive purposes by preventing Brandywine Village from creating a new and substantially larger supermarket space that could compete more effectively than the existing 50,190 square foot space with Giant's planned supermarket space of up to 65,411 square feet. 130. Because of Carlino's improper interference in Brandywine Village's presentation -34- 19 of the Expansion Plan, in conjunction with the other anticompetitive conduct by Carlino and its co-conspirators as alleged in this Complaint, no further action has been taken on the Expansion Plan. CARLINO'S INVASIVE AND DEFECTIVE LAND DEVELOPMENT PLANS 131. Carlino filed its first land development plan for the Watters Property with the Township in January 2011 (the "2011 Carlino Development Plan"). 132. The 2011 Carlino Development Plan contained numerous non-waivable violations of applicable zoning and land use laws. Those legal defects included, without limitation: a. Carlino did not have standing to seek land development of property belonging to another neighboring landowner, Spence LLC, and its attempt to do so violated Section 399-47.N of the Zoning Ordinance; b. The plan failed to comply with Section 399-81.E of the Zoning Ordinance, which requires that "provision shall be made for safe and efficient egress to and from public streets"; c. The plan failed to comply with Section 399-82 of the Zoning Ordinance, which requires that "interior drives shall be designed to prevent blockage of vehicles entering or leaving the site" and "traffic channelization shall be planned such that a main driving aisle, which vehicles can use to enter the site and parking bays, is removed from any primary building so as to avoid traffic conflicts in and from the primary building"; d. The turning radius provided in the plan for trucks entering from the main roadway was not sufficient to facilitate a right turn from within the development without turning from "through lanes" and encroaching on opposing lanes of traffic; e. The proposed truck turning template in the plan required a truck's path to -35- 19 go from the center of the access road over the stop bar of the internal road, which is an unsafe movement; f. Carlino did not seek a variance from Section 399-81.E or Section 399-82 of the Zoning Ordinance, nor did the Township condition approval of the 2011 Carlino Development Plan on Carlino obtaining such variances; g. The plan failed to comply with Section 399-111 of the Zoning Ordinance, which provides that five parking spaces must be provided per 1,000 square feet of leasable area; h. The plan provided for only 4.8 parking spaces per 1,000 square feet of leasable area; i. The plan proposed that more than 65% of the net area of the Watters Property was to be covered by impervious surfaces; j. The plan thereby failed to comply with Section 399-86.C of the Zoning Ordinance, which mandates that "stormwater shall be managed in compliance with § 350-52 of Chapter 350, Subdivision and Land Development" and further dictates that "[e]mphasis shall be on retention and infiltration of stormwater on site, unless this is deemed by the Township to be clearly impractical or inappropriate in relation to site conditions"; k. The plan also thereby failed to comply with Section 350-42.B of the Subdivision and Land Development Ordinance ("SALDO"), which states that "[t]he management of stormwater on the site, both during and upon completion of the disturbances associated with the proposed subdivision or land development, shall be accomplished in accordance with the standards and criteria of this section"; -36- 19 l. The plan showed stormwater from the Watters Property going into stormwater management structures located on other properties, including an infiltration basin on a neighboring tract of land owned by Spence, LLC; m. Because Carlino had no right to develop the tract of land belonging to Spence LLC, stormwater from the Watters Property would flow onto Spence LLC's land in direct contravention of Section 399-86.C of the Zoning Ordinance and Section 350- 42.B of the SALDO. 133. In spite of the 2011 Carlino Development Plan's numerous defects, which should have precluded its approval, the Township conditionally approved the 2011 Carlino Development Plan in April 2011 and issued final approval on August 4, 2011. 134. Brandywine Village promptly appealed the 2011 Carlino Development Plan to the Chester County Court of Common Pleas, which reversed the Township's approval of the plan on October 10, 2012 (No. 2011-09777). 135. In its decision sustaining Brandywine Village's appeal of the 2011 Carlino Development Plan, the Court of Common Pleas acknowledged that the plan proposed to install a public road through Brandywine Village's drainage easements, proposed to use the property of another neighboring landowner without that owner's consent or participation, and otherwise did not meet requirements for approval. 136. Following the reversal of the 2011 Carlino Development Plan, Carlino did not file another land development plan for the Watters Property for more than two years. It finally filed a second land development plan on December 9, 2014 (the "2014 Carlino Development Plan"). 137. The 2014 Carlino Development Plan, like the overturned 2011 Carlino Development Plan, would also have improperly disrupted Brandywine Village's easements over -37- 19 the Watters Property and contained numerous other non-waivable violations of applicable zoning and land use laws, including but not limited to proposing construction of a bank building in violation of a required setback provision and impervious surface limitations and designing deficient access to the Brandywine Village Shopping Center that would cause delivery trucks to encroach into opposing traffic lanes. 138. Despite those obvious defects, the Township hastily approved the 2014 Carlino Development Plan on January 21, 2015, without affording Brandywine Village adequate notice and an opportunity to be heard, even though Section 399-48.E of the Township's own Zoning Ordinance required advance notice to Brandywine Village. 139. Brandywine Village promptly appealed the Township's approval of the 2014 Carlino Development Plan to the Court of Common Pleas of Chester County. 140. On application by Brandywine Village, the Court of Common Pleas of Chester County entered an order dated April 7, 2015, requiring the Township to conduct hearings and make a proper record upon which the Court could decide the appeal from the Township's approval of the 2014 Carlino Development Plan. 141. Pursuant to court order, the Township belatedly provided notice and held hearings on the 2014 Carlino Development Plan in July, August, and September 2015. 142. At those hearings, Brandywine Village raised objections to the 2014 Carlino Development Plan, including objections to all of the plan's violations of applicable zoning and land use laws described above. 143. At the conclusion of the hearings in September 2015, because of the obvious defects in the 2014 Carlino Development Plan (defects that even Carlino was forced to admit at the hearings), the Township sought a way to nullify its earlier approval of the plan to provide -38- 19 Carlino an opportunity to submit yet another plan as quickly as possible. 144. Thus, although the Township purported to ignore the pending appeal and reverse its own plan approval based on the defects admitted by Carlino at the hearings, the Township still ignored numerous other non-waivable zoning defects that Brandywine Village had raised, including but not limited to: setback violations for the planned bank branch building; unsafe traffic design and movements; improper impervious coverage because of the Brandywine Village sewer plant existing by easement on the Watters Property; and deficiency in the total acreage of the final parcel to be developed. 145. By proceeding in this irregular fashion, the Township deliberately structured the matter so that Carlino would be able to file yet another development plan almost immediately. 146. Accordingly, in October 2015, before the Court of Common Pleas could rule on the pending appeal of the 2014 Carlino Development Plan, Carlino filed a third land development plan for the Watters Property (the "2015 Carlino Development Plan"), to which Brandywine Village also objected. 147. The 2015 Carlino Development Plan once again carried over substantially the same disruptions to Brandywine Village's easements and the same non-waivable violations of applicable zoning and land use laws that were contained in the 2014 Carlino Development Plan. 148. After holding hearings in February through April 2016, the Township granted conditional preliminary approval of the 2015 Carlino Development Plan. 149. Brandywine Village promptly appealed the Township's conditional preliminary approval of the 2015 Carlino Development Plan to the Court of Common Pleas of Chester County. That appeal remains pending as of this filing (No. 2016-04843). 150. In June 2016, Carlino submitted a "final" plan for approval based on the 2015 -39- 19 Carlino Development Plan. That "final" plan is currently before the Township's Board of Supervisors for review, despite the fact that Carlino has not satisfied the conditions set by the Township in its April 20, 2016 conditional preliminary approval of the 2015 Carlino Development Plan. The Township Board of Supervisors held hearings on this "final" plan on February 24, 2017 but has not yet decided whether to approve the plan. 151. Carlino's continued filing of repetitive plans (to which Brandywine Village must respond at significant expense to protect its legitimate property and business interests), even while appeals are pending and conditions from earlier filings remain unsatisfied, is another predatory tactic to financially overwhelm Brandywine Village and impair its ability to, among other things, attract an anchor supermarket tenant for Brandywine Village Shopping Center. 152. Throughout Carlino's multiple land development plans, the Individual Defendants have joined in and supported Carlino's applications as the fee owners of the Watters Property (and as parties who stand to gain financially when the conditions precedent to closing under their agreement of sale to Carlino, including Carlino's obtaining all necessary approvals and permits, are satisfied). The Individual Defendants engaged in this conduct knowing and intending that one result would be the destruction or invasion of Brandywine Village's easements under the Cross Easement Agreement (an agreement that is binding on the Individual Defendants and Carlino), and, upon information and belief, knowing and intending that Brandywine Village and competition in the Supermarket Market would be harmed for the financial benefit of Carlino, Giant, and the Individual Defendants themselves. 153. Even an unwilling conspirator can be liable for damages arising from antitrust injury under the Sherman Act, and there is no requirement that every viable defendant in an antitrust conspiracy be a competitor of the plaintiff. See MCM Partners, Inc. v. Andrews-Barlett -40- 19 & Assoc., Inc., 62 F.3d 967, 973 (7th Cir. 1995) ("acquiescence in an illegal scheme is as much a violation of the Sherman Act as the creation and promotion of one") (quoting United States v. Paramount Pictures, Inc., 334 U.S. 131, 161 (1948)); Spectators' Comm. Network Inc. v. Colonial Country Club, 253 F.3d 215, 222 (5th Cir. 2001) ("we conclude that there can be sufficient evidence of a combination or conspiracy when one conspirator lacks a direct interest in precluding competition, but is enticed or coerced into knowingly curtailing competition by another conspirator who has an anticompetitive motive"). The Individual Defendants are far more than unwilling conspirators here. THE TOWNSHIP'S COLLUSION WITH CARLINO TO ABUSE THE POWER OF EMINENT DOMAIN TO CONFER A PRIVATE BENEFIT ON CARLINO AND GIANT BY UNDERMINING BRANDYWINE VILLAGE SHOPPING CENTER 154. By virtue of the fact that Brandywine Village filed for and received final land development approval from the Township in 1995, Brandywine Village obtained the property rights and privileges shown on those approved plans, in addition to the property rights it holds by virtue of the Cross Easement Agreement and related private agreements. 155. In parallel with the three Carlino development plans making their way through the approval and appeal process between 2011 and the present, Carlino conspired with the Township – frequently by means of unlawful secret meetings – to invade Brandywine Village's property rights with the primary purpose of conferring an illegal private benefit on Carlino at the expense of Brandywine Village and the public whom the Township purports to serve. 156. Even before Carlino and Giant entered into the Giant Lease Agreement, Carlino representatives, including Carlino's counsel Marc B. Kaplin, had begun secretly meeting with members of the Township's Board of Supervisors, the Township Manager, and other Township representatives to discuss Carlino's development of the Watters Property. Many of those -41- 19 meetings violated the Pennsylvania Sunshine Act and the Municipalities Planning Code, as the Township issued no public notice, two or more Township Supervisors were in attendance, decisions were made, and no required written minutes were kept. 157. Two of the Township Supervisors in particular held unlawful secret meetings with Carlino representatives at various times: current Supervisor (and Chairman of the Board of Supervisors) Jay Fischer and former Supervisor Hudson Voltz. Both Fischer and Voltz are attorneys licensed in the Commonwealth of Pennsylvania and bound by the Pennsylvania Rules of Professional Conduct, which prohibit, among other things, conduct involving dishonesty, fraud, deceit, or misrepresentation. 158. The Township, including Fischer and Voltz, continued to have illegal secret meetings with Carlino representatives for years to discuss development of the Watters Property and plot the Township's role in promoting Carlino's private business interests at the expense of Brandywine Village and the residents of the Township. 159. Based on unofficial private notes kept by the Township Manager and other written references, it is possible to infer when some, but not all, of the Township's illegal secret meetings with Carlino took place. However, some dates of such meetings remain unknown because no written records of them have so far come to light. The Township Manager has acknowledged that he destroyed unofficial notes documenting at least some of the additional secret Township-Carlino meetings for which no notes have been produced by the Township. Carlino's counsel, the Kaplin Stewart firm, has represented that Marc Kaplin took no notes of any secret meetings with the Township in which he participated. 160. Township officials, including Fischer and Voltz, were or should have been well aware that their secret meetings with Carlino to discuss Township business were illegal. Indeed, -42- 19 on October 7, 2010, the Township Manager sent the Township's Board of Supervisors an email in which he stated that he had told Carlino representative Peter Miller that "the Board cannot continue to meet in these back-room meetings to discuss these issues, as it appears to violate the Sunshine Act for open meetings to discuss agency business, other than very narrow issues such as legal matters pending before the Board, at the advice of our Solicitor. I said we need to avoid this appearance, as there are too many eyes watching this project." The Township Manager included both Fischer and Voltz as recipients of that email. 161. Nevertheless, various Township officials, Fischer, Voltz, and the Township Manager, continued to hold unlawful secret and unrecorded meetings with Carlino and others well after 2010, for the purpose of conspiring to advance Carlino's private interests at the expense of Brandywine Village and the public. In January 2013, the Township Manager expressed his "concern" to the Township's outside solicitor about the prospect of the three Township Supervisors again attending an illegal off-the-books meeting with Carlino to help plan Carlino's development, stating: "I got the impression all 3 Board members would attend, which concerns me, of course, since it was clear that others knew of the 'non-Sunshine' meetings that had previously occurred with more than one Supervisor in attendance." 162. One of the major topics of the improper communications between Carlino and the Township has been the proposed construction of a road that would link U.S. Route 322, which is south of the Watters Property and Brandywine Village Shopping Center, to North Guthriesville Road, which is north of the two parcels. This proposed road (the "Connector Road") would, if constructed, divide the Carlino development to the west from Brandywine Village Shopping Center to the east. 163. However, every version of the Connector Road that has been proposed in the -43- 19 2011, 2014, and 2015 Carlino Development Plans would (a) disrupt or destroy the easements on the Watters Property benefitting Brandywine Village Associates, (b) take land from Brandywine Village for a deceleration lane on U.S. Route 322 (except that this aspect was not present in the 2011 plan but was added thereafter), (c) limit any possible expansion in the size of the Brandywine Village Shopping Center supermarket space, (d) create traffic access problems for Brandywine Village Shopping Center's parking lot, and (e) make use of property to the north of Brandywine Village Shopping Center that was previously owned by Spence LLC and is now owned by L&R Partnership and John Cropper (and which has never been owned by Carlino). 164. Carlino could, at any time up to and including the present, have chosen to develop the Watters Property with a Giant-anchored commercial development according to a by-right plan without the Connector Road, and, therefore, without interfering with Brandywine Village's property rights or business operations and without any need for condemnation by the Township. However, Carlino has instead consistently chosen to pursue development plans with the Township that threaten harm to Brandywine Village and, therefore, foreclose Brandywine Village Shopping Center as an entry point for a competing supermarket. 165. Carlino has no legitimate business need to build the Connector Road or any similar roadway, because, as part of the Cross Easement Agreement, the access constructed by Brandywine Village for its use was intended to be and is available for use by the Watters Property, and Carlino otherwise has direct access to the Watters Property from U.S. Route 322. Moreover, as early as 2010, Carlino had prepared an alternative land development plan showing the development of the Watters Property without the Connector Road, thus confirming that Carlino itself does not believe the Connector Road was or is necessary for the commercial development of the Watters Property. -44- 19 166. Further, after the Chester County Court of Common Pleas in 2012 disapproved the 2011 Carlino Development Plan that included the Connector Road, the Township informed Carlino that Carlino was welcome to develop the Watters Property without the Connector Road. For example, in an email dated April 9, 2013, the Township's solicitor, Stacey L. Fuller, wrote to Carlino's counsel Marc B. Kaplin, "Even after the Township agreed to proceed without the connector road, Carlino has decided it would prefer to proceed with the road." 167. In fact, based on the documents produced in this case so far relating to the Connector Road (which represent only some of the documents on that topic in the possession of Carlino and, especially, Giant), Giant appears to have consistently pressed for construction of the Connector Road in its proposed form – that is, a form that disrupts or extinguishes Brandywine Village's easements on the Watters Property, creates traffic problems for Brandywine Village Shopping Center that would affect the relative competitiveness vis-à-vis Giant of any supermarket tenant of Brandywine Village Shopping Center, and precludes expansion of Brandywine Village's anchor supermarket space. 168. Although a December 2008 plan for the Carlino/Giant development depicted an access road on the western side of the Watters Property, away from Brandywine Village Shopping Center, the current version of the Connector Road soon supplanted that early plan. 169. Giant's active facilitation of the Connector Road is evident in the Giant Lease Agreement itself, where Giant expressly agrees to make "a one-time payment" to Carlino "[i]n consideration of the substantial costs to be incurred" by Carlino in building the Connector Road. Giant Lease Agreement, ¶ 6.03A. Carlino and Giant have deliberately withheld the amount of that "one-time payment" from discovery in this litigation. Notably, despite Giant's agreement to subsidize Carlino's construction of the Connector Road, Carlino subsequently negotiated with -45- 19 the Township to receive a credit of $1.705 million against the traffic impact fee that Carlino would otherwise have to pay the Township pursuant to local ordinance. 170. The Giant Lease Agreement also appears to make Giant's obligation to pay rent to Carlino contingent, under certain conditions, upon the completion and opening to traffic of the Connector Road. Giant Lease Agreement, ¶ 3.03(d). Further, Giant appears to have the right to terminate the lease agreement if the Connector Road is materially changed or removed from the site plan. Giant Lease Agreement, ¶ 6.09. 171. In February 2013, in a written status update from Carlino to Giant, Carlino stated that the Connector Road "serves no commercial purpose" because of the paucity of traffic on North Guthriesville Road and noted that "[i]f we can avoid the condemnation, it will shorten the litigation and allow us to proceed with the development more quickly…. This would require a site plan change, but it is a change we would like to discuss with Giant as eliminating the road may allow the development to take place much sooner than if we fight through the litigation." 172. Giant, however, evidently vetoed – for obvious anticompetitive reasons – the idea of proceeding without the Connector Road and insisted that Carlino's development include the Connector Road in spite of the Township's willingness, and Carlino's expressed desire, to proceed without the Connector Road. In late March 2013, the Township Manager wrote to Carlino, "[Y]ou mentioned during the meeting that you would contact Giant about whether to proceed with the plan including the connector road, or with a by-right plan, with access only to the proposed site." Carlino responded, without further explanation, "we are proceeding with the plan that includes the construction of the connector road." 173. In August 2013, Carlino was still trying to persuade Giant that proceeding without the Connector Road was in Carlino's and Giant's economic interests, writing: "[O]ur goal is to -46- 19 open the Giant as soon as possible and the alternative draft site plan I gave would help accomplish this goal as it avoids having to condemn a couple of the property rights Blair [i.e., Brandywine Village] has and thus the opportunity for further litigation. … Obviously access is important, but given the access Giant would have, I believe getting the store open should be Giant's primary focus." Nevertheless, Carlino's subsequent land development plans sought the Connector Road unchanged, indicating that Giant – acting against its own economic interest in opening its planned supermarket as soon as possible – again rejected Carlino's proposal to proceed without the Connector Road. 174. In October 2013, Carlino's counsel, Marc Kaplin, wrote to the Township Supervisors that "[a]fter multiple discussions with Giant Food Stores and analysis of alternative site plans," Carlino had determined to proceed with the Connector Road as "originally required" by the Township. 175. Given that Carlino has no legitimate business need for the Connector Road and that the Township did not require construction of the Connector Road (at all, let alone for any alleged public purpose) after the rejection of the 2011 Carlino Development Plan, the only plausible explanation for Carlino's continued inclusion of the Connector Road in its subsequent development plans is that Carlino and Giant intended – again, for obvious anticompetitive reasons – to invade Brandywine Village's easements, prevent expansion of Brandywine Village's supermarket space, and create unfavorable traffic patterns for Brandywine Village Shopping Center's parking lot, thereby reducing the ability of Brandywine Village Shopping Center and any Brandywine Village supermarket tenant to fairly compete with the Carlino development and the proposed Giant supermarket (and, after the closure of Stauffer's Market, to ensure that Brandywine Village would never be able to attract a new anchor supermarket tenant). -47- 19 176. In principle, the Township could build a connector road through the Individual Defendants' and Carlino's property and through Brandywine Village's property and easements based on a properly supported finding of public purpose. However, to build such a road primarily for a public purpose would require a taking only 50 feet in width and would not require the extinguishment of Brandywine Village's easements. The only plausible explanation for the Township's willingness to exercise its eminent domain power to take an excessive width of land – over 175 feet, as discussed below – and condemn Brandywine Village's property rights for a Connector Road that the Township did not need for a primarily public purpose is that the Township hoped to avoid threatened litigation with Carlino. 177. Carlino, through its counsel Marc B. Kaplin, repeatedly threatened to sue the Township if it did not condemn Brandywine Village's property rights as Carlino wished. For example, the above-referenced memorandum prepared by the solicitor to the Township's Municipal Authority states that Kaplin had claimed "Carlino will be forced to file suit against the Township" because of Carlino's alleged agreement with Giant to build the Connector Road. Similarly, in a July 16, 2013 email to the three Township Supervisors and other Township personnel, the Township's solicitor reported on negotiations with Kaplin in which Kaplin had again "threaten[ed] to sue the Township if we do not proceed with the condemnation quickly." 178. Thus, although the Township had acknowledged in 2013 that there was no legitimate public purpose for the Connector Road, Carlino and the Township entered into a memorandum of understanding on August 20, 2014 (the "2014 MOU") that is essentially a "contract to condemn" Brandywine Village's property rights. A true and correct copy of the 2014 Memorandum of Understanding is attached hereto as Exhibit B. 179. In the 2014 MOU, Carlino and the Township made certain public declarations -48- 19 that are contradicted by their private communications about the Connector Road. For example, the 2014 MOU falsely recites, "The Township has made an independent judgment that the Connector Road is in the public interest and for a public purpose," and "The Township has informed the Developer [i.e., Carlino] that the Township would like the Connector Road constructed by the Developer in connection with development of the Project." This statement is directly contradicted by the Township solicitor's April 2013 statement, noted above, that the Township had already "agreed to proceed without the connector road." 180. The 2014 MOU also provides that the Connector Road is to be built by Carlino in conjunction with its development of the Watters Property at no cost to the Township, and it further purports to grant Carlino a $1.705 million credit against the $1.795 million traffic impact fee it would otherwise have to pay to the Township in connection with the proposed development. 181. In order to ensure Carlino's ability to build the Connector Road in spite of the neighboring landowners' unwillingness to sell their property and easements for that purpose, the Township agreed in the 2014 MOU to condemn Brandywine Village's easements under the Cross Easement Agreement, as well as part of the tract to the north of the Brandywine Village Shopping Center that is owned by L&R Partnership and John Cropper (the "Spence Property"). 182. Under the 2014 MOU, Carlino – as the "carrot" counterpart to its "stick" threats to sue the Township – also agreed to pay the Township's legal costs for any condemnation proceeding, as well as the fair market value costs of the takings themselves. Carlino further agreed to pay any defense costs of the Township, as well as of the Township's Board of Supervisors and any other Township officials, and to indemnify them for any damages award in any lawsuit brought by Brandywine Village or other owners of condemned property interests. -49- 19 Carlino and the Township agreed on these extraordinary provisions without discussing the alleged need for condemnation, the purchase price, or potential alternatives to condemnation with Brandywine Village or other affected property owners. 183. On October 3, 2014, pursuant to the 2014 MOU, the Township passed a resolution of condemnation as to Brandywine Village's easements under the Cross Easement Agreement, among other property rights. On November 14, 2014, the Township filed a declaration of taking against Brandywine Village and others in the Court of Common Pleas of Chester County (No. 2014-11237). Thereafter, on December 9, 2014, Carlino filed the 2014 Carlino Development Plan (which, as discussed above, was first approved and then "disapproved" by the Township). The condemnation action filed by the Township remains pending as of the filing of this Complaint, and Brandywine Village continues to expend valuable time and resources opposing this objectively baseless and illegal action in Pennsylvania state court. 184. The Township did not take Brandywine Village's property rights by eminent domain primarily for a public purpose. Instead, as documented in its private and internal communications, the Township contracted with Carlino in the 2014 MOU to take Brandywine Village's property rights and subsequently filed a declaration of taking for the primary purpose of conferring a private benefit on Carlino because Carlino had (a) threatened to sue the Township if it did not agree to abuse its eminent domain power as Carlino demanded (the stick) and (b) agreed to pay the Township's and Township personnel's legal costs if the condemnation was challenged (the carrot). 185. Further, the parameters of the Township's taking only serve to evidence the lack of a legitimate public purpose. Specifically, the Township purports to condemn a strip of land -50- 19 over 175 feet wide, including Brandywine Village's easements, for purposes of the Connector Road. However, as the Township has acknowledged, construction of the Connector Road would only require land with a width of 50 feet. Brandywine Village believes and therefore avers that the true purpose of the Township's taking of an otherwise inexplicably excessive amount of land is not to build the Connector Road at all, but rather to provide stormwater drainage for part of Carlino's proposed development, enabling Carlino to develop a building pad for a bank tenant as well as additional parking spaces that it would otherwise not be able to develop – a purely private benefit. Pennsylvania law expressly and unambiguously prohibits the use of eminent domain powers to "take a private property in order to use it for private enterprise…." 26 Pa. C.S. § 204. 186. Through its willful abuse of eminent domain at Carlino's – and, indirectly, Giant's and the Individual Defendants' – behest to facilitate a Connector Road that threatens harm to Brandywine Village's property rights and business operations, and through its baseless approvals of Carlino's repeated defective land development plans and manipulation of the land development approval process to benefit Carlino at Brandywine Village's expense, the Township became a voluntary participant in the Defendants' unlawful predatory scheme to harm competition in the Supermarket Market. 187. The manner in which the Township has purported to exercise its eminent domain power in collusion with Carlino, as well as the pendency of the collusive condemnation action itself, have seriously impaired Brandywine Village's ability to secure a replacement anchor supermarket tenant and thereby further harmed Brandywine Village. Any potential commercial tenant or real estate broker is bound to perceive Brandywine Village as an undesirable store location because the Township is colluding with Carlino, both publicly and privately, to confer -51- 19 an exclusively private benefit on Carlino at Brandywine Village's expense and to enable the implementation of land development plans that violate zoning and land use laws – in short, to steamroller Brandywine Village so that nothing will stand in the way of a Giant supermarket, as Carlino and Giant have threatened from the beginning. CARLINO'S PREDATORY AND BASELESS LITIGATION AGAINST BRANDYWINE VILLAGE AND ASSOCIATED PARTIES 188. On April 6, 2015, Carlino – again by its counsel Marc B. Kaplin – filed an objectively baseless civil action in the Court of Common Pleas of Chester County against Brandywine Village, L&R Partnership, John Cropper, Leonard Blair, Richard Blair, and their counsel Paul Prince (No. 2015-02938) (the "Carlino Tort Action"). In that sham lawsuit, Carlino alleges that, according to its "preliminary assessment of damages," it seeks to recover over $3 million from Brandywine Village and the other named defendants. 189. In the sham Carlino Tort Action, Carlino alleges that the above-referenced individuals and entities have wrongfully interfered with its development of the Watters Property and purports to state claims against them for tortious interference with contracts and business relations, abuse of process, and breach of the Cross Easement Agreement, among other causes of action. 190. Carlino filed the Carlino Tort Action in bad faith, without an objective basis in fact, and for the sole and improper purpose of increasing the legal costs of Brandywine Village and the other defendants and thereby exerting additional pressure for Brandywine Village to submit to Carlino's and its allies' predatory, anticompetitive scheme. 191. Carlino revealed its true, improper, and predatory purpose in bringing the Carlino Tort Action in a written status update to its co-conspirator Giant (actually a written status update drafted for use by Carlino's principal contact at Giant to brief his Giant colleagues) stating, "This -52- 19 has been our developer's [i.e., Carlino's] push to apply additional pressure on the Blairs [i.e., Brandywine Village] to cease litigation." Acting with such a predatory purpose is not protected petitioning activity under the Noerr-Pennington doctrine. 192. In a particularly egregious demonstration of Carlino's bad faith and objectively baseless conduct in bringing the sham Carlino Tort Action, Carlino sued Brandywine Village's long-time counsel, Paul Prince, for simply fulfilling his professional responsibility by advocating on behalf of his clients in connection with Carlino's abusive development tactics. The only plausible reason to sue an opponent's counsel in his individual capacity for engaging in privileged conduct is to interfere with that counsel's ability to provide continued effective representation to his or her client, and to try to intimidate and deter that client from defending its legal rights. 193. Further, the sham Carlino Tort Action (a) names the individual partners of Brandywine Village and L&R Partnership as defendants without alleging any facts that could possibly support individual liability and (b) makes no factual allegations that Brandywine Village engaged in any conduct that was not for the legitimate defense and protection of Brandywine Village's own property rights. 194. The sham Carlino Tort Action has caused Brandywine Village and the other defendant individuals and entities in that case needlessly to incur substantial attorneys' fees and other defense costs. 195. The sham Carlino Tort Action is part and parcel of Defendants' predatory and exclusionary scheme to harm competition in the Supermarket Market by attacking Brandywine Village and the Brandywine Village Shopping Center simultaneously in every possible forum, and in every possible illegal manner short of open violence, intending thereby to prevent -53- 19 Brandywine Village from recovering from the engineered closure of its anchor supermarket tenant and from being able to expend the resources necessary to successfully expand Brandywine Village's supermarket space to compete fairly and effectively with the planned Giant supermarket on a level playing field. See, e.g., Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768 (6th Cir. 2002) (for purposes of Sherman Act monopolization claim, tortious business conduct was also anticompetitive conduct that supported jury verdict in favor of antitrust plaintiff), cert. denied, 537 U.S. 1148 (2003). CARLINO'S FALSE AND MISLEADING ADVERTISING DEPICTING BRANDYWINE VILLAGE SHOPPING CENTER AS CARLINO'S PROPERTY 196. As an additional form of predatory and exclusionary conduct, Carlino caused false and misleading advertisements to be published on the internet, containing false square footage data from which a reasonable person could plausibly infer that Carlino owned or controlled Brandywine Village Shopping Center. 197. During a beginning as early as 2012, Carlino caused its then-real estate broker, Metro Commercial, to place the false and misleading advertisement on the internet websites most commonly used by commercial real estate brokers to publicize available commercial real estate, LoopNet.com and CoStar.com. 198. A true and correct representative example of Carlino's false advertising is attached hereto as Exhibit C. 199. Specifically, the advertisements contain a proposed rendering of a Giant supermarket, represent that the area available for lease at Carlino's development is over 144,000 square feet, and contain a geographical depiction of what purports to be Carlino's development, but which includes areas that do not belong to Carlino, as well as Brandywine Village's easements over the Watters Property. -54- 19 200. Carlino's representation concerning the area available for lease at its proposed development is literally false, because the proposed buildings described in the 2011, 2014, and 2015 Carlino Development Plans have a total area of well under 100,000 square feet. Thus, the figure of 144,000 square feet, considered in conjunction with the equally false geographical depiction of the Carlino development, falsely implies that Carlino owns or controls part or all of the Brandywine Village Shopping Center. 201. Carlino received copies of advertisements placed on its behalf by Metro Commercial and was, therefore, aware of the false and misleading content of this particular advertisement even if Carlino did not authorize the advertisement in advance. However, Carlino did nothing to correct the false and misleading advertisement. 202. Carlino's false and misleading advertisement, including the false square footage figures, remains accessible to the public on LoopNet.com as of February 27, 2017, although the property is now listed as "off market." 203. On October 19, 2016, after Brandywine Village filed its initial Complaint in this matter, Carlino contacted Metro Commercial to inquire about the false and misleading advertisement attached as Exhibit C. Metro Commercial responded, "I will have it taken off. This must be old." Thus, Metro Commercial acknowledged that the false and misleading advertisement was still available online, in some forum controlled by Metro Commercial (and, therefore, indirectly by Carlino) as of October 19, 2016. 204. Despite a valid document request and subpoena, neither Carlino nor Metro Commercial has produced to Brandywine Village a copy of the false and misleading advertising "package" – even though Carlino executive Peter Miller requested a copy of it from Metro Commercial after this lawsuit was filed – or the original documents or files from which the false -55- 19 and misleading advertisement was compiled, indicating that the materials were destroyed by both entities, and raising an adverse inference. 205. Carlino's false and misleading advertisement is consistent with Carlino's and Giant's avowed anticompetitive purpose of acquiring Brandywine Village Shopping Center (as well as the Spence Property that presently belongs to L&R Partnership and John Cropper). COUNT I AGAINST ALL DEFENDANTS AGREEMENTS TO RESTRAIN TRADE IN VIOLATION OF SECTION 1 OF THE SHERMAN ACT, 15 U.S.C. § 1 206. Brandywine Village incorporates by reference the allegations in the preceding paragraphs as if the same were set forth fully herein. 207. Defendants' conspiracy and agreements to restrain trade in the relevant market are not reasonably necessary to accomplish any procompetitive objective and have not had and will not have any procompetitive effect, but rather have caused an anticompetitive effect in the relevant market. 208. The purpose and effect of Defendants' predatory and exclusionary conduct was to limit or eliminate competition in the Supermarket Market, including by raising rivals' costs, to the ultimate benefit of Carlino, Giant, and the Individual Defendants and to the detriment of Brandywine Village and the consuming public in the Supermarket Market. 209. By their intentional conduct described above, Defendants have violated and continue to violate Section 1 of the Sherman Act, 15 U.S.C. § 1. 210. Defendants have successfully and substantially harmed competition in the Supermarket Market, as demonstrated by the fact that the more than 7,600 residents of East Brandywine Township, and more people in the surrounding area that is also part of the relevant -56- 19 Supermarket Market, have not had a much-needed supermarket within convenient driving distance for the past eighteen months. 211. Brandywine Village and its tenants have likewise been proximately and substantially injured as a result of Defendants' unlawful intentional conduct because Brandywine Village Shopping Center lost its anchor supermarket tenant and has been unable to obtain a replacement supermarket tenant or expand its existing supermarket space to improve its marketability. Brandywine Village has also been injured by having to expend large sums to prevent the condemnation of its land and easements through an illegal exercise of the eminent domain power primarily for Carlino's private benefit, as well as to defend itself at great cost and burden against Carlino's objectively baseless and admittedly predatory sham lawsuit. By causing Brandywine Village Shopping Center to go without an anchor tenant for the past eighteen months, Defendants have also substantially damaged Brandywine Village's goodwill, reputation, and ability to retain its existing tenants – including Burger King – and attract future tenants and business. From the absence of a rent-paying anchor tenant alone, Brandywine Village has lost $60,000 per month in rent and common area maintenance charges. Even former Township supervisor Hudson Voltz has testified under oath that he believes the absence of an anchor supermarket tenant at Brandywine Village Shopping Center is hurting Brandywine Village's other commercial tenants. 212. Brandywine Village seeks the recovery of its actual, incidental, and consequential damages caused by Defendants' antitrust violations, in an amount to be determined at trial. 213. Brandywine Village's damages are to be trebled pursuant to 15 U.S.C. § 15(a). 214. Brandywine Village also seeks the recovery of its costs of suit and reasonable and necessary attorneys' fees pursuant, to Section 1(a) of the Clayton Act, 15 U.S.C. § 15(a). -57- 19 215. Brandywine Village also seeks preliminary and permanent injunctive relief pursuant to Section 16 of the Clayton Act, 15 U.S.C. § 26, as set forth more fully in the prayer for relief below, to prevent Defendants from continuing their anticompetitive scheme, including by enjoining the Township from proceeding with its illegal, anticompetitive condemnation action against Brandywine Village and enjoining Carlino from any further attempts to misuse the public power of eminent domain to procure condemnation of property rights that it cannot acquire in a voluntary transaction, as well as from any further prosecution of its objectively baseless and predatory sham lawsuit against Brandywine Village and others. COUNT II AGAINST ALL DEFENDANTS UNFAIR COMPETITION 216. Brandywine Village incorporates by reference the allegations in the preceding paragraphs as if the same were set forth fully herein. 217. Defendants have, as described above, engaged in intentional and conspiratorial conduct that is contrary to honest commercial practice and has, therefore, engaged in unfair competition in violation of the common law of Pennsylvania. 218. The Defendants' predatory actions were and are calculated to procure an unfair competitive advantage for Carlino and Giant through tortious and improper means, including the predatory, exclusionary, and unfair conduct set forth in this First Amended Complaint. 219. The Defendants have engaged in the intentional actions set forth in this First Amended Complaint willfully and deliberately, and their conduct has caused injury to Brandywine Village as well as to competition and the public. 220. The anticompetitive effects of Defendants' conduct are not outweighed by any -58- 19 procompetitive justification. 221. As a result of Defendants' intentional, outrageous, and malicious conduct, and Defendants' reckless indifference to Brandywine Village's rights, Brandywine Village has been directly injured in an amount to be determined at trial and is further entitled to an award of punitive damages to punish Defendants' conduct and deter similar conduct. COUNT III AGAINST CARLINO ABUSE OF LEGAL PROCESS 222. Brandywine Village incorporates by reference the allegations in the preceding paragraphs as if the same were set forth fully herein. 223. Carlino brought and has maintained the sham Carlino Tort Action wholly for an improper purpose and without a legitimate basis in law or fact – in Carlino's own telling words, to "apply additional pressure on [Brandywine Village] to cease litigation." In other words, Carlino has admitted that it brought the sham Carlino Tort Action for the improper purpose of exerting legal and financial pressure on Brandywine Village to stop defending its property rights or lawfully opposing Carlino's abusive land development plans. 224. Given Carlino's admission that it brought the sham Carlino Tort Action to put pressure on Brandywine Village to acquiesce in Carlino's development plans – including, among other things, the extinguishment of Brandywine Village's easements and the building of the Connector Road in a manner harmful to Brandywine Village's business operations – it follows that the admittedly objectively baseless Carlino Tort Action was also brought for equally improper anticompetitive purposes. In other words, Carlino sued Brandywine Village, Brandywine Village's individual partners, and Brandywine Village's outside counsel Paul Prince -59- 19 to drive up rival Brandywine Village's costs, consume Brandywine Village's valuable and limited resources, continue to undermine Brandywine Village Shopping Center and its ability to generate revenue, and prevent Brandywine Village from restoring competition to the Supermarket Market by attracting a new anchor supermarket tenant to compete with the planned Giant. 225. Under Pennsylvania law, harassment, draining resources, and delaying litigation constitute an improper purpose and, thus, an actionable perversion of the legal process. General Refractories Co. v. Fireman's Fund Ins. Co., 337 F.3d 297 (3d Cir. 2003). 226. Carlino has also abused the legal process in connection with the Township's condemnation proceeding against Brandywine Village, in that, on or about February 18, 2015, Carlino filed a motion to intervene in the Township's condemnation action. 227. There is no basis in the Pennsylvania eminent domain code or the Pennsylvania Rules of Civil Procedure for intervention in an eminent domain proceeding absent an ownership interest in the property being condemned. 228. Carlino sought, baselessly and in bad faith, to intervene in the condemnation proceeding solely to further increase Brandywine Village's costs and thereby pressure Brandywine Village to resolve the matter in Carlino's favor so that Carlino could proceed with its unilateral plan to develop the Watters Property with a Giant supermarket in accordance with its existing plan. 229. Carlino's land development plans depend on preventing Brandywine Village from overturning the condemnation, and Carlino's legally baseless attempt to intervene in the condemnation proceeding was for Carlino's own financial benefit and to the intended prejudice and harm of Brandywine Village. -60- 19 230. On April 7, 2015, the Court of Common Pleas of Chester County issued an order denying Carlino's petition to intervene. 231. Carlino then filed a motion for reconsideration, which the Court of Common Pleas likewise denied. 232. Carlino's baseless attempt to intervene in a condemnation proceeding employed legal process primarily for a purpose for which it was not designed. 233. The petition to intervene caused harm to Brandywine Village by requiring it to expend funds needlessly in opposition to the baseless petition. 234. Carlino's conduct as set forth above in connection with the sham Carlino Tort Action and the condemnation proceeding was intentional, willful, wanton, malicious, and outrageous, and was carried out with a reckless disregard for Brandywine Village's rights, thereby entitling Brandywine Village to an award of punitive damages. COUNT IV AGAINST THE INDIVIDUAL DEFENDANTS AND CARLINO SPECIFIC PERFORMANCE 235. Brandywine Village incorporates by reference the allegations in the preceding paragraphs as if the same were set forth fully herein. 236. The Cross Easement Agreement specifically provides, "The terms hereof shall, without limitation as to any other available remedy at law or equity, be specifically enforceable upon mandatory and/or prohibitory injunctive relief." Cross Easement Agreement at 17, ¶ E.4. 237. The Individual Defendants remain subject to the obligations of the Cross Easement Agreement, and to the extent that Carlino is the equitable owner of the Watters Property pursuant to the agreement of sale, Carlino is likewise subject to the obligations of the -61- 19 Cross Easement Agreement. Those obligations include (a) the irrevocable stormwater basin and drainage easement granted to Brandywine Village and (b) the access easement granted to Brandywine Village that may be modified only in a reasonable manner that does not interfere with the flow of traffic to or from Brandywine Village Shopping Center. 238. Carlino and the Individual Defendants have pursued multiple land development plans for the Watters Property that purport to extinguish Brandywine Village's irrevocable stormwater basin and drainage easement and to modify Brandywine Village's access easement unreasonably and in precisely the manner that is forbidden by the Cross Easement Agreement – that is, in a manner calculated to interfere with the flow of traffic to and from Brandywine Village Shopping Center. 239. Further, by its 2014 Memorandum of Understanding with the Township, Carlino entered into a "contract to condemn" that improperly purports to obtain by eminent domain what Carlino is precluded from obtaining by the express terms of the Cross Easement Agreement – namely, the destruction or material interference with Brandywine Village's easements over the Watters Property. 240. Brandywine Village, as owner of the easements, is entitled to enforce the terms and conditions of the Cross Easement Agreement. 241. Defendants' land development of the Watters Property so as to invade Brandywine Village's easements has caused and will continue to cause injury to the value of Brandywine Village's property interest in the Brandywine Village Shopping Center. 242. The requested relief, as stated in the prayer for relief below, properly restores the parties to their status as it existed immediately prior to Carlino's and the Individual Defendants' wrongful conduct. -62- 19 COUNT V AGAINST THE INDIVIDUAL DEFENDANTS BREACH OF CONTRACT 243. Brandywine Village incorporates by reference the allegations in the preceding paragraphs as if the same were set forth fully herein. 244. The Individual Defendants, as owners in fee simple of the Watters Property and as the estates of and successors in interest of Frank and Beatrice Watters, are bound by the terms and conditions of the Cross Easement Agreement. 245. All of the above-described wrongful conduct by Carlino – including, without limitation, the repeated filing of knowingly defective land development plans designed to invade Brandywine Village's easements and the improper procurement of the Township's condemnation of Brandywine Village's easements primarily to confer a private commercial and competitive benefit on Carlino and Giant (and thus, indirectly, on the Individual Defendants, who will benefit financially from Carlino's development of the Watters Property) – was authorized, supported, and facilitated by the Individual Defendants as the owners in fee simple of the Watters Property and under an affirmative duty of cooperation with Carlino imposed on the Individual Defendants by the agreement of sale for the Watters Property. 246. Further, the Individual Defendants' agreement of sale with Carlino requires Carlino to keep the Individual Defendants well informed of the status of land development efforts relating to the Watters Property at all times. Pursuant to that provision, the Individual Defendants have at all times known about Carlino's actions in connection with the land development plans, 2014 Memorandum of Understanding and related condemnation proceeding, and tort litigation against Brandywine Village and others as they occurred. The Individual -63- 19 Defendants, however, did nothing to prevent any of Carlino's wrongful conduct toward Brandywine Village. 247. By so acting, the Individual Defendants have breached and continue to breach the Cross Easement Agreement with Brandywine Village. 248. As a direct and foreseeable consequence of the Individual Defendants' breach of the Cross Easement Agreement, Brandywine Village has suffered damages and will continue to suffer damages in the future, as already described in this Complaint. PRAYER FOR RELIEF WHEREFORE, Plaintiff Brandywine Village respectfully requests that this Court enter judgement in Plaintiff's favor and against Defendants and grant relief as follows: Declaratory Relief a. Declare that the Cross Easement Agreement does not allow Carlino or the Individual Defendants, or any of them, to modify, terminate, or alter Brandywine Village's stormwater basin and drainage easement or access easement without Brandywine Village's express consent, including by procuring a public entity's condemnation of those easements by eminent domain. b. Declare that the Cross Easement Agreement does not allow Carlino or the Individual Defendants, or any of them, to implement any land development plan that violates, interferes with, or modifies Brandywine Village's stormwater basin and drainage easement or access easement without Brandywine Village's express consent. c. Declare that the Township's purported condemnation of Brandywine Village's easements under the Cross Easement Agreement is not primarily for any -64- 19 legitimate public purpose but is primarily for the purpose of conveying an illegal private benefit to Carlino and Giant (and, indirectly, to the Individual Defendants). Preliminary and Permanent Injunctive Relief d. Preliminarily and permanently enjoin Carlino, Giant, and the Individual Defendants: i. from interfering in any way with Brandywine Village's stormwater basin and drainage easement or access easement under the Cross Easement Agreement, and ii. specifically, from denying Brandywine Village access to and use of the Watters Property for the operation of its access easement and stormwater basin and drainage easement. e. Preliminary and permanently enjoin Carlino, Giant, and the Individual Defendants from filing, executing, pursuing, or agreeing to any proposal, plan, permit, application, or agreement that requires, calls for, contemplates, or is based on the surrender, minimization, alteration, modification, or termination of Brandywine Village's stormwater basin and drainage easement or access easement under the Cross Easement Agreement without the express written consent and agreement of Brandywine Village. f. Preliminarily and permanently enjoin Carlino, Giant, and the Individual Defendants from making any physical alteration of the Watters Property that in any manner interferes with or creates the possibility of interference with Brandywine Village's stormwater basin and drainage easement or access -65- 19 easement under the Cross Easement Agreement. g. Preliminarily and permanently enjoin Carlino from engaging in false and misleading advertising that directly or indirectly misrepresents (i) the dimensions or location of the Watters Property in which Carlino has an alleged ownership interest, (ii) the amount of retail space on the Watters Property that Carlino has available for rent or reasonably expects to have available for rent once the property is developed, or (iii) the dimensions or location of Brandywine Village's property, the amount of retail space that Brandywine Village has available for rent, or the continued viability of Brandywine Village Shopping Center. h. Preliminarily and permanently enjoin Carlino from further prosecuting the sham Carlino Tort Action against Brandywine Village and the other defendants named in that lawsuit. i. Preliminarily and permanently enjoin the Township from improperly condemning Brandywine Village's stormwater basin and drainage easement or access easement under the Cross Easement Agreement and from further prosecuting its baseless condemnation action filed in the Court of Common Pleas of Chester County. Damages and Other Relief j. Award Brandywine Village treble damages for Defendants' conduct in violation of the Sherman Act. k. Award Brandywine Village compensatory damages for Defendants' tortious conduct and breach of the Cross Easement Agreement. l. Award Brandywine Village punitive damages based on Defendants' outrageous -66- 19 19 VERIFICATION In accordance with 28 U.S.C. § 1746, I certify that I am a general partner of L&R Partnership, which is in turn a general partner of Plaintiff Brandywine Village Associates, and I verify under penalty of perjury that the factual averments of the foregoing amended complaint, to the extent they are within my personal knowledge, are true and correct to the best of my knowledge and belief. Dated: March 10, 2017 ______________________________ Leonard Blair 19 19 19 EXHIBIT A ······---· 19 ·--·······-"-J--,;;---:;:::i~-----~~=====================:::::;::==== 'b3.~V @ (1994, Chester County, Pennsylv9-nia; be.ing part o;e' .Chest.er Count;'..y Ta.Jc: ~s&essment Parcel No.· 30·-,2-48,. an<! be:i,.ng mo;re part.j<::ula:riy snown and described as: Parczel "R" on a title plan for l3randywine East Towne center, made by Chester Valley Engineer~ dated '.N().Yel'llber 11, 1989 and last revised March 2s, 1991,:and r:e.co:tded prior' ·to recerding hereof; and further shown on a certain plan of sul:idivision and. land; qeve1opm¢l1t for Bra,l1dywine East Towtie Qente.:17 made by Edward B. Walsh & Associates·, Inc:"' dated October 27~ 1993, last revi~ed April ·13, 1:9:94/: consisting of eight sheets, (which plaps shall hereinat;t~r J:>e referre<;I to as_, t:'he 1iPlan 1fJ; wh:i.ch t;.ract is be.:teinafter refe:tr.e.d ·tt:r as 11 J?a.rcfol Bn; and Wl{ER:E~S, Br:andyW,ine is the ·owner: of a certain tract of gr:ound located on Horseshoe:Pike, Route 322, in Ea;st B:ta:nd.ywine Township, Che,ster County, Pennsylvani.a, being part of Chester County Tax Asse:ssmel;l.1:, ]?arcel No. ~0·"".2'."'48, consist:Lng o'f approximately Bk 3 f 1 b ? G i 12 5 19;i~=;=\ . 11.535 aPX'es UI<clus±ve of adj·acemt·i~~~~;if-of-warl, · ·. ··=:w· · a<>.jacent to !;~.=!· ·=-:. =:.1: Parcel B, above desor:ibedr .-~~~:'.:':1m~.~~{''·''parti~cularly shown and)W,...~-;;~:Ji:·\;,,.~ . ~t~£;~;:~:~ . described as. Pareel A on. t'h~· ·J:l:l:a'.m.l which tract of grouni;l is hel:'~in:af t~r r~f.errerl to,t~;::;:,:~=ih~ii)A and 11; WHEREAS, Brandn-~~~:~i;;~~~~~ed Pa:tq[ii~ A f r6m Watters by deed. .•. .,::1:;=·:;:·:-~:l~::·.:·~:·i: . •!:':;:..,:;.~:i: ·~. da1:_ed ~ven c'I?J.te; ..);1;e.~e~if'tlf•;=''' pursuan;(,. ·"f:C)Ji. an a:gree.m~:nt of sale ·. . ~:::···.~:~:~·=::~=·~:!:·:. ·::.!~:; . .:. .::::•:=.·~.:.;;:::.=~.-::::-._i~~~·~.i;i:; whereunaer Wat.t~r~ 'ianQ:'•:,;sJrandyw:t~· ·:·:;~ ";:.. ·r · ·.ed:'::&o ~;- ~ . ~-·:. . ~-r g:rant and convey to each other:• ~;~~~:~:::£i1bss eas~~,~~~\,~61! may be necessary for t}).e ~. ~ . =·· ~;:~ . ·.::.~ · ~:~i. ~~ a}" ··~:. ~::: ··~:::i·" prop~r: ap.d(;'·~~'i:'f~~tl\'.: deveioP;m:en~\~l!,.J?~~cels ~· and: B; · 3 No,:::'.;,~~;~~:FbRE, and i~~;;~~·{;~~··'~o be bound# for themselves and .:. ~--~~:;. ·~··:;~~~ .. .:·=:;;~-:····~:::!· for their ·s'UcceE:1sor.s, heir.s ··-and assigns., BraI1dywine and Watt~rs A. Sewer System Easement. Watters hereby grants, ba:rgci;in,s,. as13igns and cqnveys l1l'lto· B)Z'~dywine an ea$ement over, under,. across and l1POri Parcel B for all puz-poses necessary in connection with the installation, maintenance, repair, replacement anii:operat:ion of ~.n on-site septic, 13¢.wer $yE;.tt:t;n to service Parcels A and B1 as set:forth. .in the Plan, in accordance ·with, and UI14~:r::ancl subject, to the f.ollowi:ng tex;rn~ and conditions: 1. l'h;e; are& ·of the easement her:eiua1i:><:1ve g;:r,a:r1ted. shall be limited to those areas specifically described in ~xlifbit 11 A11 ·att:glched hereto and I11a.cie part he.reef,crn:q to sµch addltionai area or areas as .ll\a:Y in th~ ftttti±:e l:>~ requ.ir¢d in connectien with any repairs, replacements or connections to the 2 BK 3 7 7 6 PG l l2b 19 ··········-·········---·-·····-·············· sewer system to be inst;.p.lled by "";,,,S>,;/> ~r~~i.W:i-P.:~/pursuant to the terms hereof; provided that any such .~4.$~}~~~~~·;,.~~eas shall be limited to those loqations as shall not.:.uh~~,~~l,~Jl~ interfer~ with the use or a.evelopment of Parcel .. .. '~/'~~~'.:,;:~~~fal .: ·.... be .-..,·. ·~ cfosctribed en plans to be submitted: to Watters ¥.~~;:,:.~~~~,~~;; prior:~itten appreival, provide,4 t:h~t su.ch a,pprova~.,..;,~~;!'.;i:~~:::•b¢ un~ea~~~~~!Y withlield.;:::··,,,,,:·•\;>:, "':\. .. . .. ]::::iM::~;;··,::'<•::,, •:":: .2:~ C ''l;'li~ ''=~a·sement tt~lf:~d::tit granted shall include the r~ghtzs to ex9a.~;~;~;;:~~i. i~;rade thgf"·;~]'.~t;,_';~ ~arcel B for installation of pri~aryi;:'.~~a.. ·P.~P~:~oement J!l~P~t&.'.~:,,~~J.~''''~n accordance with t:he Plan ' and to l;,t;:'.':~f'i~n, repa4.:::~;j:~;lace all Iiecessary equipment appurtenant·:·t:o the operation df"'"t.he $ewer system including,. without limitation, all manhbleS,, mains, laterals., connt:ictiorr$, pumps and/ or other equipment necessary or convenient to the use and operation of the sewer system:;?:nd/o:r requi,re}Q, by .o:t· in Gonnection with any governmental approvals relating· to its installation, use or ope:rat,ion. 3 .. The installation, use,, operati:on; repair and replacement of the sewer syst:em shall be per.formed by Brandywine in acc;qr0,a_tt¢e w±th all applicable g9verrtme!ltal regulcitions., approval$ and. permits. .4 .~· The rig]lts granted hereunder shall include a right of: acc;.es.s over and upon any and .(3.11 portions. qf Parcel B a·.s may be reasonably necessary for acdes's to the easement areas described in Exhibit 11 A 11 by Brandywine:, its contractors~ £K 3 77 GPG i I 27 19 suboontracto;rsr employees and agranl;s11i:, /:,s:::~,,<> ·~fi.@;,:=by ·their vehicles and ~guipmertt • . /~';;;~;:::,::::~:;!"'.;" s.:sranc;3:zl~~· · ii,e\;wlil'.U..."·''indemnify and hold harmless. ··;::it, .·.:,,::••:•::•..,i• . ' Watters from and aga:i:, ..l:t~y.:,,:·and ·c:U1 c.laims, losses., tlamages,, liabilities and demand~.;;,,~:1~=~~§;:;:from pe:i;;~nal injuries or prop~rty •.:r !~~;::/\~:~ . !:~~•. ·:=;:. . .tfh..:fr.'.:lt damage ca,.used by ..~ ...'~in~:•" in t.he. ~~~~_8:;t~~ qf a:~y rig:hti:>;granted hereunde.r su~;j,~~~;:"·'b~;~;;·,,~;~e· duty .;~~~r:):>~·i1,~~tion of wat.ters and:~;t:~ .~·::i:·:~:~. "!:;:~:~i: ~:~ .:·:~·::. "1. .:~i Brand¥W1"ne,UJo::,~~.~··;t:h~~r pr-0pq; . ~:ireot;:lts, as set forth below, . .::=!'=i:'.~<:•. •::;:,:,,. ·::1. . .· ...· ··•+·;L\· \ '! •:•'. . . . ... of operaJ:l;li(rii:::l'lf:'=t.'fie $ysrt:ern,ifQ.;r::1:nh.,'e•"b~l:iefit cf Parcel$ A an4. 13 after:i,:E~~·~;;i~:..·=~::~ • •\t·!::;:~:~= ~;. ~~~·~~·::::;~~:=:;.::. ·:~==· connecti~n•i,.o;f 1any improvem~l;.s;i .. . ~:¥. ·:•'; .•: dn. . ·!;: . ··:•:- ~! Parcel B. ·:::':·:·:;..!'' 6. The:own;~'''Of J?a:rce1 B shall l}µve the rig'µt; at: its sole c.ostt. and ~~ense, to cause the connection O.f arty improvements .erected,by it on Parcel B to the sewer syI>tem constructed,by t:h¢ Owrl~:t:" of Pa:t:'C$l ·A pur.S\laJ:it tq the terms or tJd.$ easement; provided that, any such connection shall be made only in accord,p:n~e with Plans and $pe9i'fica,tions approved:in advanqe by the own.er of Parcel .A.. A'.ny costs iht:!lirred. by the owner of Parcel A in connec:tion with any modif±.cation of.the sewer system necessa:t:yto ~ccoromo4:ate the connection by t}J:e o'i(Iler 0f Pc:t;rcel I} shall be paid, by the owner of Parcel B upon demand by the c>wner of' Pi:11:c¢el .A., which dema:nd may be made in advance of incurring such costs and eXpe.t1se.:s but W::tl.'i:ch $l1c;ll be i:l¢<?¢mpa11ieq by a stat~.mer1,t itemizing any such costs or expenses. BK 3 77 6 PG l I 28 19 7. Fli\>m and afte>;·~~~~-:;:t!::==:·:,:. ··=~::;: ··;:r·· Qf My. ~mprQvemen.ts. on Par<!el B t.o the sewer systent:~~~~,~~~~~t~d. thereon by the owner of Parcel A, the owners of Parc~,~~:;;i~'.'.;~~1::'~ shall share in all costs and e4P~IJ.ses assooiat.ed wi~Tu'.::~~~'.'.;~~e;tat:ion, S1Jpervi~dori, repair and replaGement of the sey~~:;~~~~·~~;'.:&n. Parc~;h'i~J3 in. the same prbportions as the rna~irnurn us.~g~:;"~~jib:d~~ed to e(;l~~}~~tcel bears to the total maximum usa;ge tdk;:,··~~~:;:=·~~lwer $yS,t.~~;;;;~i;·,,,;~~}forth in parc;i.graph 9, . ...::~:;::: ~~i~ . .~~#!h -~~.r:·~: . .. ···~·~-~~~:.. ·;~~;:7!:" below. Notw,:i:~~~'r.\ii~~ the fot~9.:.)\}:he owner of Parcel A shall ·=~:· .:;~ ··=·~:: ~==: •. ··. ~ =~ . .. ·:::::e:~ contini..te tllpi'::~e.''1i;fes~onsible,;;•'fo~•, ..~v.J:r.~eeing bhe ·ope.ration,:uepair /:('!:;. '\,. '\"'\.> . . . . . 11' 1:':·"',.)~:::-::•·H'':: . . . . . .·· . . . . . ·. replacem1?,t.f~, ~nfjl ·~mpervisio~..~·~!le sewer system and may include, in ~~; ~~) . . the costs o':r:·:·maintenance to b~···s'hared pursuant t:o t:he provisions of this. pa;r<;l.graph, a rea:,aon~.Ple management fee which sha.11 not exoee<;l.. (on a proportionate basis) that which the Owner of Parcel A charges to the t:.e:nants or other users of the improv:ements on Parcel .A. If the owner· of <Parcel A engages any unrelated thil;'d p:<.=J,rty to provide. management or supervision services relatiqg to the sewer system, the fµll amount of any maP.a.g.emen:t or othe:i: fees paid. to such Unrelated third party shall be included in the ·:.?hared c::osts of ma:i.nt~n~nee of the sewer system. Without limiting the foregoing, the shared costs of ma.intenance of the sewer s}'st:em shall include {a)·· the actual and reasonable cost paid 'by the owner of Parcel A for opera.ting, ma,n(.ig-in,g, equippirl;g; repairin,g; policing, insuring, securing and maintaining the sewelf sYstem including,, without limitation, taxes levied or assessed on material, equipment, BK.3776PGi l 29 19 ., /"":'.~::::::,,,,,,) supplieis. attd servi,ces p\lrchased. ..£6'i:: 1 1:1J';h~·;i;;h:t~irrt;enartoe ...• ... ' . " thereof and. .. .::·~. ~~.· ..:~ ·~;:;;~:' . . -. .. ''"•, . i;ees for req\lired lioen.se.s a~d:,;'.~~~~t>{''~nd:J .• -:-::· ·::. .. ~::=:= r.easonable rental of movable equipment used in .•~~;;~~~:t~t:::ion; rep?;ir 1 ngd:p;t;enance and;replacement thereof;: P'i?'~·::::~~·~::~::~)t:'.:'.6f"ric and other utility charges ~~~.. ===.... ·::::~f,;if •!:: •• ·-:·;? . •!· relating to the ope:rt~r'.'i:c?h::aifu.d uiaintenand.~tof the s·ewer system·; (c):~;;~..:~~::i:·:~r ...:\~,.:~~i. . ··i~1i=¥·~~_;;h ·=~·i. . . a management: fee,.pS''•:!;}tj;s.<!;.ri:bed above;,.;;;:~·<ilL a).1 capital e~en<iitur~s .• . . {,:"'' •,,, ''•:;'.\. ·'.;:. ·.·. ·. ..,.i"',,,;:;.:::., . '\,,) . . .· ·•· relatl·ng t:o n~q,~!S~firif 11·:replac·emen'fh.. ¥18' imp'.rtrvernents to t:he sewe:r .. ·~:?~. . ~:::.::~: ..::=- ...:~,.;-~:!~!.:~:!·;::.:;~;;:,. system; fe{..;;~~:.•·•eif reasona~~te·•,fe~'Eil~es, at the owner of Parcel •:: A's OJ?t~,fi?~;;::::·~~~'.t~~o~·e<;:t:e4 Xif!~~l~ ·: ~h.J Cind improvements ., '•i,, ••.•••;::,. ',:.···· to U1e se\\'$r system, ··=:P~~~J~cl'. tnat the ·&;ho~~ ·bt Rarcel A s.halt not include, any amounts t;:':·f~:d reserves f:~;,,,~~~i tal improvements which are not mutually approved bY. the owne.rs of both Parcels A and B or reas.onably anti.cipated by the ·owrier of Parcel g, to be necessary to comply with a:ny governmental re911lat•io:ri re:lating to tl'.te· oper~ti<:>n of the system~ There shall be excluded f'rom the· shared costs of maintenance a:Pd operation, of tpe sewer system any expenses inourr~d to pqnrt¢ct impr¢vements op; e.:i,J::..hia:r Parcel, .repciirs or replac=ements of lateral lines or other .equipment serv:i.ng <>tily tlie imp'l::chlements on o:µe of the t:;w9 Parcels, or e;xpe~s.e:s i11cµrre¢i in connec1;:ion with r:epairs or replacements;ri.ecessitated due tct damage. caused .by the negligence or willful misconduct of the owner of one of: the two Parcels, a,nd i:tl each sucl,i instance the co~t.s or e:?Cpenses shall be.:borne solel;y:by t.bat ParoeJ, owner whose parcel if! benefitted by t.he 6 SK3 77 6 PG l I 30 19::::::e::n:~pl~c¢rnent or whose .::~~~~~;;;~;~~~tated the rep~ir or 8. At the ~l(~~'\~~ci~;;:~~lendar quarter, the owner,!::-~:~~=~.:=~::?~::·;. ~~~:~~=.;: ·;~f~ . . . of Parcel A shall furnis.ti•· .~h,¢•.. ~ner of Pa:rmel B with a statement,:inre~s.onahle detail,.l~~~~~~~·~\~~ the o~er of Pa,:rcel B, sett.i'.ng forth the actual go~'.~s::;,,~~ ·:,~~~er· syst:~~;;:~;~pation and maintenance ~~r· .;~:.·.:·= . ·~~~·~~:\. ·-~=.~:..:!:.•:·;,·!·· •.·~~~~:· •.. ·~--~;:. "~~:. (as. defineci abqy;~:)1 \?al:~1i1Qt· incurred:.,b~j!'t.Jle owner of:Parce.1:B during· the pr~cedin,g::·~~~~::;.'._.i Wi th:i.11/'~;i.~,;f. O) days after receipt of ·- .::~:::;:~~·==.. .~;!::.~:~... --~·:.: ...~..:E~ =~~;. .. ·=!~ ! ·~ such st~~·~~~~~;;,.,:::~~Ei owner ir;1:=;.:p,!~~;~,,,!E. shall pay to the owner of Parcel A "iiµ'~:.·p*:eportionate 'S.P:a;r:~ t (as defined above) of such costs and expens:=~:~,..::'· In the a.lter;:t'I~:, at the option of the owner of Parcel A, the owner of_ Parcel A may estimate the projecteCl: costs and expenses to be .shared by the owners of the two Parcels priqr to the cG:mmencement of any calendar year and furn±s"h, the tJwner Qf Parcel B with a statement of such projected annual expenses (including reserves. <'Jl.S above set f.orth) . The owner of P'arcel B will thereafte::i:" be responsible to pay on the fir'S:t Cist) da,y ·of each calendar quarter a s.um equal to one-quarter (~} ·Of its p:topQrtiona:te share of:such a.nnu:a.1 c9sts and eXI?~r:tses .as estimat·ed by the. owner of Parcel A. In the latter event, the owne.r of Parcel A. will furnish the. owner of Parcel B with a statement within ninety (90) ciays $ftei:' th¢ e·Iid qf each calendar year itemizing, in reasonable detail., the actual costs incurred or expended and the owner o:f Parcel B,shall ~ex;:eive a; credit for any overpayment of its 7 BK 37 7 6PG l i 3 l: 19 --------------~------------------'---~------·- ..... "''"·.·~···· proportio11ate share based on preceding year or, in the eve~tu·::,~f:m,::=~.,'.'.g,.~~iciency, shal1 P<iY to the .~': h,.·_,~.· l,.:,·.=:',·.;1,:·.~ !,':·,t'.: ',:.~_: _.: . .,.,..~ .• ~...... ..·.,:.,:,·""'.'"' t·:::e:;;: furnished for the ow!J:e:r of Parcel A the amo:un~:-.J~,;~Pt.i:,Jl~h.in thirty (30) days after receipt of the itemized ~~~~'.~~~;::;:::•••,otwithstanding anything to the .:~ •:-~ •:!·· .:·~.... ··~=· co~trary contained .,Ji'.~i~~'~;~;:• "ti~~ owne:r{'~1, of Parcel A shall be .~;::;:~· ·=:: •• ~::~ .~:::.-. .:::·••~;!i.·;~~ responefihle to flJ;~d,,;;~t.,~:'':~b.~h·l'on. ·of a,µ.t••:P.,P..st;~ allocated to reserves .==~ x:~:..... %~:~::... ···=1~0: .•~:.;: .•·•• ·~::,. • =:=:! . ·:~: for capital irow.:~~rriap~s!::br replad~~h~s t<ff' the sewer system on o:c .. " . . ':;,,~···,···;, '::,,.,,;) " . ..:·;-::·::';.,,:;::,.,;;: . '•. .· '• . }Jef or~.· the::•t:i:m;~, · ~;L:red.:f:cr;i:V ~?'1!¥ffi~~~!: ~hereof by ~h~ Qw!J:er of:=:~::i:~:~:.;;::=~.-~··...:~: .•;;.;..;~~ ··:!:·· -~·~L ··=··· .l Parcel B.d'i ''ihs.°':p:C-oportion~te)slilci::t"-e .• thereof. ~·~:1:;==;,,,,, '.•:\. '\''=•:,/' .... ' !: i;;'"' =!":;;(::..::•''. . \, ··•;;:,) ji 9. The· sew~r:::?.,¥E:ltem to }:)~ constructed by the owner of Parcel ';j(·='·~~ Parcel B '· p~~~~~:~t to the t,erms hereof, shall be designed and constr~cted~ to accommodate the connection of im,provements ge11erating sewage flows of not:Less than twelve th():Q.,s<;tn:d- ('12, ooo) gallons. per day. Of s'J.lqh max:imum gaily 13ewage flows, the owner of Parcel A shall be allocated capacity of eight thouszi.nci (8, 000) gallons per day and the owner of Parcel B shall be allocated capac±ty of four thousand C4, oo o) gallons per day. Irt 1::'.P.e event of improvement ·or expa:qsion of the system joixitly,funded by the .owners pf th~ J;>arcels as ab9ve set totth, the ad.dit:ional capacity shall be allocated in the same proportion as the origin.al alloGatip:q$,:P~i:ng o.ne,-tl?,ira {l/3)' to the owner of Parcel B and two-thirds (2/3) to the owner .of J?arcel A, absent: any other mutual agreement to the cortt:rary. If the improvements or expansion .of the sewer sy,stem are made at the: sole cost of the 'owner of Parcel. A~ 8 BK 3 77 6 PCd \ 3 2 --...,,------------.......====================·----··----.·.·· 19 ··-·· .. f:he;l the additional capacity owner of Parcel l\ s~2l:(~~~;~) the pe:rmitted,:"~~.:.:'~i,.·;~~~Ult of J,enefit ol' a1i s.uoh. expansion or improvement. 10. conne:ct.ion with any law, ordinance or to tb.:~: operation of the sewer ~;:!!• •.•;~i.;~: system, the to such add.itiopaJ documentation,=~··"':; ... Ii.Qt. ·~. !t,. i'ncota'Sistent:; w;:tt\ii• t;!he ':,i:i~rmE; hereof' a$ may be ..:...:· ..:~ neces~ary t;o-i,::::~~~t-~t~te the,i='~~~s.i'.;\@f Pareel·s A and B as a ~· .....!:::::~~:!: ·. ~;:::::. .··=:~ .. . ~;. ~~-:;~~- ~:~:: .:~: ~:::• cooper;at;i.~e.··~;;r:,. i?f@liJrlciatioI.1.,f.l>'i;'Ji>~·e;i:>s .,bf real property wJ.1o$e pµrpos¢ ' is to o~~~~:~~ mhliitai~\.(~f~;;: system to !re cOMtrUoted and owned by t:fiet owner of Parcel A.. oµ Parc(;l B. 11. 'l'l}e own.er of Parcel A agrees that if a publicly operated sewer syst:em becomes available to service Parcel A hereafter, t}l.e o:wnex qf Paroel A f?hall,f i:le ~9r the .:ippropria~e permits to connect Parcel A to the p.Ublic,' sewer system. If Parcel ~ 'does receive such a .permit, then upon connection, the owner of Parcel A agrees t<;> ¢e.'*se \\sing any portion of' the f3ewer system which has been constructed by the owner of Parcel A on Parcel B to· tbe ext~nt that, the owner of Parcel A is permitted, to tie into the public system iP. te17Illl:? of c~pacity. The, own,er 9f l?ax;cel A:?hall retain an easement and right of use of the sewer system. on. Parcel B to the extent necessary 'to prov:ide capacity allc.»cated under .t:)aragrap.h 9,,above, and .not provided by connection to the public sewer system. At such time as the owner of Parcel A is required t.o 19,:•:,, '.i::::·:\,:.~:l' .!: ceaE!e \l;sir>.9 the sewer $yst,em on:. 1?.at9~:l.;:·~'.~~::,~~· .:=·~-·~=:. •;,:-.. ~~.:any portion. . ~·~.:.;~·· thereof, . the owner of J?a:tce:l A sllall.i:=:·::~h..·=,i~t;s·l~·~~le cost, seal off such portion of the sewer systi~~" ii~~~:~~~~i::''on, Parcel B which is not req1..ti:t:e¢t t;:o se;r:vice Par,rji~;~=:::~:~;:;:'.~~'.~,''~he .. .. .. ...:·: . ~. .;e,ultest J~·x.tent possible in. keeping with 'the pre.we'~l~~;;;~~~~~sions ~~11,this paragraph. At that !!~~~:~~::::~.:~:~·:::.:: .·~~:~::d:·<~~f..;i: tiIJtEh the oWlJ.er. Ji)f,,,,:'.P;fil1§el ''''a m;:ly µ.~~=r:.:fh~t: portion: of the sewet;:i'·'·::::~>1J •• . .t.f·'··.,··,,,;·\.·;:\ . · system on Paro.~11. S: ~lcff; the, .owngt ·•:Qf\ll?areel A has ceased using•, ·······<t for t!ie sol~"'~~·}:;~~d::,tf~ the so.11';;:::~~;;:,, ·~ (.e o~ the owner of Parcel B 1;ma septic t~",;;~~~~~~:·~~ titv<>r:rt=~~:~er <>f. 1>aro1>l A ~J;,~h.~#1 pn. Parcel B s~a.JrJ ¢ease to the extent that the owner foi- an ~-site of Parcel ''~·r·;r~· permitted to ··~s:~..:'~he public sewer system to service Parcel A. At such titne or bimes as the prov±sions of this paragraph become operative, the p~rties ag·ree to execl;lte su.c.h other and £11rther do~utnentat:J.on. as m~y ·Pe required to ter111;iD,ate or modify {as applicable) the easement for the sewer system on l?aroel B and to c.onf.irm the assumption of responsihil.ity and expense by the ·owne'!r o:f Parcel B for the sewer sys:tem·, o:r that portion thereof, of which the owner of Parcel B has assumed sole use and control. IL Access Easement... grants, bargai.i:is ~ transfers and a$sigtis unto the own~r of Parcel A a perpetual easement iti favor of the owner of Parcel A and all other owners and their te·nant.s1 subt$ti?tntf3, ~.mp1:¢yees, age11t&1 concessionaires, licensees, customers and invitees with respect to any improveme;?nts on Pa.reel A,. an easeme:nt for access, in common 10 6K 3 I 76 PG l l 34 19 with t}le qwp.er pf l?a:t"c:el B, ·t••o· . .r:<""¥l"'~l. •. .• . . .r·:::::,n,.·.• ...: _:.'.:.~ ....:;.': .·...: ·~.i~',·.:.·,:.'·,~.·:,L ~':.·:.,'. ~::;a' .. ~ ....n·. ·d. . ·.. vehicu,lai:' ~ccess Un¢luding, withot.tt limitation,,,,.itf~:,,. . ·i~·rid. egress for delivery and. '.=;;s;:t:. ., . f~ . •·.:.:M:i~:.. _:·r==~::· service trucks and vehiclesJ;:1,~d;v~f'.' 1•:(~P'c:>b. and within the area, and on. ~ .'• ~:::.::.;~~.·~:::~·~;.;:.::::··~:~~:i ..~f. i .. the term.s a,nq condition~.J';b~:lo\!t·•descr:i,be;d: l. . J~~~~:.:f:~he-ac~af'~ easement hereby granted is as set f·qrt:~ q_;l;··'t~~:::'~~atl' 1:'~nci as ~~~~:;:'.iJ~ittiol;L.larly de9~rib~d in ~:.'... .. ~:·: ... ·:~~:·~: •. ··:;~ . !:=~,· .. '•:;.. ·;"'·::~.._, ~~~:: Exhib' t w1l11 att · ~li· d.';· h'.' '':beto. . . . . .. . . l.. . .. . ·j::::r;;:~ .~\,.) J. .· .. . .::"::~"t~ ·1 ./'' "':::::'.::::=·:,~(·:'::::i~ . .. .:-. ..,1::-::;:;,,,~,,.':!:lie easemep~::·,Q..~:i;;~:t:~ granted shall include the righ:t. to .!~,l~~~~~[t:r:'.: insta11,;:•''w~~Ji~e~kJ, ··:~epair and rep;l.ace ~n a¢ces$ .} drive w~~~;~~'~i~,~~,}C?.rea. .i ~!:.. . desci'.:'""'d,:;~;·:=~:&hibit "B" and. all such other;:.·~. . ·::;.·:•::.•:=), . .. . ' lmproveme~t~'·~~s may be requii~a--·';for the safe and proper use of the ea'sement: area <1$ an ~cceas d~ive in ac¢ordance with all gove:tnmental permits and: approval:r:elatingc the:ret.o. Such improvetnent:s shall incluQ.e, without limitation, a traffic signal, traffic island(sJ, r'o.adway, curbing and a<ijaceftt landscaping, .alid any sueh s;ignage as may be reguired .for traffic control or;i.4entif:ica,:tion bf any improvements e:>n P,arcel A., i,1·1 each o<H':le' subject to receipt ·of all applicable govern'inefit2a1 ·appr.ovals and perll\its. 3• 'rhe owner of ~a:rcel 1\, agre~t:J t,hat th~ a.c.ce$$. dtiV'.e construc.t.ed by it Within 'the easem~nt area a:OoVe• descriJOed may }:)e modified in the future{ at th~ request.. of the owner 9f Par,tet B, in order t:o allow Parcel B to be develope,Cf, to $.ts fuiiest e.xtent under applicable governmental laws and regulations.. Such 11 BK 377 6 PG i l 3. 5 Case 5:16-cv-05209-JLS Document 104 Filed 05/09/17 Page-86 -of- 119 ·-------····-··--- ... .,,,-.,:s:~'\,,<> i:noO.ifi9a:tions shall:Qe reasonablE?!. firtP:ii'.s$'.;1;t,J::.tA1ot interf e:r:e with the flow o:f traffic from. Parcel B t;:e:::$~~~i'.i~:}~r Parcel A to Parcel B, .{,::H:l' .:'.:\.''::;:i:i'' or with surface water drain ·- '(i?r ·=ii:'~P·lacement sewer system area in ~:-;.::~,.,.••.~;.·. ·:~:.:.~==·:)~ accordance with the plans'J•'''•Xf•::'.bhe'"owner of Parcel B not.:i,f.i.es the owner of Parcel A in ~r};~,$~:;=~ii:,;f'ts requ~§~ for such modifications,:;:~· . ~~;:;;;=~~~; ·"::~~:".::}.:; . .,:t:·:·<~~?:·. ~: .. . . .. . . . and the access dr,;i¥gi:)i~~ n'ot t::hen ~~~;r,t' pJ;;ysica11y installed ~nd there i$ $till .,~l·~P~~~~~~ity .ir ~;:: ·~!;... ·•·.f !::~;..· a t.o ~~~;;~ -~~~;;~~inal ...:·=·· ~:~~· ·~ ~:~: development plan and s~.cure u..e~~:~1~'.I'iY;::46vernmen;!~;t;,:=f,.,l! approvals thereof without ·"" .~:::::!::.. ~.:·.~·.; . ·=~:~: . . · . ~.:,:;h -: ··-==i~.;!. r· delaying, a!~:Vie;;i;~~~l'ft of Par~~:~:f:~/'•wli~h the m¢dlfi..ca.t::±on: 'to tl'.Le Plah ' shall bf~~~i:~:;~£;~that timet,,'.~~!}~:"· access drive has already been physically iilstaTled; t;b,,en the <il;ive $hall he mod.i.fied as requested (and subject to the ctb9ve limitations) by the: ownet; .of Par¢e1 B at. its sole cost and expense (including all costs of governmental apprevals). 4. The owner of. parcel A hereby grants, bargains, assigns and conveys unto the owner of Parcel B and to the owners, tenants, subtenants, employees, ag:ent$, conpessiona.ire13, licensees, customers and invitees with respect to each part thereof. and improv¢ments thel'.'eon e;i::'ept~d, aP. eafZ:l.eme;ti:t to use~. ix:i cqmmon w,ith t.he owner of Pa:t::cel A, all drives, entl'.'a.rtqes and exits {,Put p;qt parking areas), located on Parcel A, sub)ect only to such traffic and qt,her regµ1at:ions as Illa¥ apply tp the, use thereof .by the own~r of Parcel A and its own tenants, subtenants, employees, agents, conc.essionaires, licensees, Cl.lstomers and invitees. 12 BK3 7 76 PG ·1 13 6 19 s. The owners Of -;~:~~~~,,:~:;,<>rid B each ag:ree to indemni.fy and hold harmlesi> t,!!_:~~~~;;:~¥~-:.r~nd against. any and all claims I act: ions I suits I ¢qfl~:si;;. a)i!~~:l::E:).~penses (including I .but not limited to, reasonable ~~~;'.~i,,::~~e'i:2~~~:i;;::~~:?:: ... ·===:::!!::. and costs of suit) which ll'lay (lrise frQm the use bi' li~tr, ··~r ~my peil!'~oµs acces.sing the 'Parcei oWI1~d P1.!Xi~~~~~;!,:';:8:::~~he eas'.eni$.}i:~J11 ••heretnabove g:r;~nted, of by, either· any access driy~,,,.~~~~~~di!·on eithe~='=;,;~:~::~':,;~, or· Parcel B,. From and. f.~c ~\~~i •. ~ ~f::::~::~: .; ....#·=~·:='~..:~:~:=:~::~= after .. . . . t'':me:\£'.h;a•t. ~·· the,.;~ "''"''" · ·::,,· .,.... .... .... ! ':l '•:;,_atlY. ....i:b commen~e,s. \ •:::::l:: .. ·. . . P.ment ·•til.evelo. y. >on. . . .a.ct:ivit .. ... its .......... Parcel~ ~~~'.h'.;w.~~;~:r·"klso ag~e'~~;i;~~=:,Ja.try public liability insuram::e .~\::~:·.=;:.i; ':;~:.,.\ .·::=:·.)• ~~· E~~. ·¥· ... t:;;;~::i::~ ..::;:.~~~ w1Aih co);t%f:'m.,_eW. Jisingle 1imiti~\RRi i!lPt:1ess· than o·ne Mi:Llion Dollarf3· ($1, oop, o·~·o:;;o:~l per occu:r:r~~;;-~:~_.::~nd naming the other as additional insured, with resp.ect t.o the use by each of any access drives looated O'Il .Parcels A a:p.d/or B pursuant to wh:iGh cross easemep.t:s for u$e have, hereiriahove b,een granted. c. Highway Improveme·nts. Basement. The owner of Par~el B hereby grants; bargains, transfers, assigns a:p:q <;onveys to the owner of Parcel A an irrevocable easement over, across and upon Parcel B. and al.se> upon tbe .adjac~nt P;:ircel owned, by the owner o:f P.:trcel:a aP..d,:being th~ J.:>alarice of thE;;ir overall property whi¢h i$ more particl,llarly described in their Deed dated November 20., 1944 '· rece>rded i;n the Gll.e.ster Cou!ltY O~fice for-the lteqorciing of Deeds in Bbok. n--22, l?ag-e szs, within the ultimate right-of-w~Y lines of Route 322 as shown on the Plan for highway widening and highway impJ:ovement~: i.n accord):l;nce wi t;:h the construction plan prepared by 13 ~~· 3 77 6 PG i I. 37 19 Traffic Planning and Design, Inc.,,,.,.,:<::::\/':~ as Drawing: No. id~;dt•ffi:i~d 1148'- .~::. .\ ·~: ~.::: ·-:·~_:;;!:;•, 2i d~ted September lltb, 1990 ..,a.b,J'::;,.'' •;· ··lted i:;o £.he Pennsylvania:l::=~~.:~:;1i ·:\:. '~::;· . . . . . Department of T:ransportatiq.;t=LO!~P.t;~ti,b~T"l on or about April 2:6th, ., .. . ·"-· i~:.~·.=~::::~~;::. "i;·~:~:J,. ~~ • 1.9;91 and approved by P~~Bm.p,'1':,!. ' '::;'.93.J:f;Jil'' easement ls granted suhje.qt;: to .·,. . ..=;:;·.:;:~::~~l!::~:·-~~=~ . ~~.:~-!~ . . ...... .. .. . . ... an(l toget;..he.r with the::i'~~l.l:Q'Wiri§:''terms, .~~gh,ts and c<;>P:d:itiot.ts: 1.,....,,'.'.~~~~;::~~h~t of Par9~:;r,-.'.~' \~.hall ~ -;~_;}:.r: =:.. ··:~ ~?;:_ ..:.:r...... •.• . 1, .. ....;:~:=· !~~~:::....:~:_:~==~. ~;; ~:~ indemnify and hold harmless the owm$:r(d~; "J?,~T.C°el B fro1t'G.\A~:f1aga'~nst at}.y c;i.nd a,,ll. c1e.ims, ~!(;==:~/Ii:: .--~=e~=~-~J ] ..:.-:;·;;:~-:.;:~.'. ~~,:··· ~=·:~·. .. . ac.tions, SJ.lit~} .; .... .. CQ$.ts •.·~·:.. ·t-:-:-:!,~... .:i!inq expeJJ:-Se.s ....:-· •••:'•{i.,ri&;J.uging:, •... but· not .limited to, ".!. ~:· .... reaso~ab1~'.~,~~4.rl;.~~:::f ees and.,,<:Jo,~':,;.~ ·:~~~·tJ which may 1 arise, from the ~~:;~.;.!::::.:-.·.~:!~ ~===:·::.==.;:.. ~··:!; . !;:. .::~:~=:~:!~·::;::~·,.. OQ!l$t:ru~i'tH.ti'.:: q!f"'"g.ny a11d a;lil,h.:[gijway impi;ovemerit::s q:r1 the property owned by ·::€~:;::.~~er of Parc~~'•::;;:.:''~s above desc;t;ibed. . 2. The easement grante<.i shall include all rights l1eqe$!3al:Y and convenient to t·he pe:tf ormance by the <>,wr+er o~ Parcel A of the highway improvefuents described above, and by their cont;ract:o;rs, sµbcont:raof:ox-s, employee.s a11c1 age,n:ts., 3. The owner of Parcel,B agrees th('lt the area lying w.ithin the ultimate right-0:f-way lines as shown on the Plans, .:tnd a~ fµrt:her descri:'.be(i on the· q.'bov~-rt:jf:~reJ::\<:!ed cpnst;rt.!cti<.5,n p:la.~ by Tr.af fie P:tanning and Design, Inc. shall J::>e dedicated for pl)blic use for highway purposes· and agrees to execute and/ or:fain in a dee"d of dedic<?.tio:n co:nv~ying the ~an:re tt:l the PeJn:+sylvcinia Depa·:tttment of Transportation at any such time as requested by the owner of Parcel A and/ or the Penn:.sylva;nia Department of 14 BK 3 77 fi.PG \ l 38 19 ·<::.='.·.\,,:...... !::;·:~ ...:.::;: ~ D. Stormwater Basin andi~Jltiii.=:L~lll..~~·;'~asements. The owner .:~;~;~~. ~=a~ \;a: .. ·-~~~·!··· of ·parcel B. here):)y gran~s, ba;i::~~~~$;,;·;!f.=!Q~'1eys and assigns unto the .·. ·· .. ... .i~;r -~=·;;!r:\:..'.·~::~;;~;;.:~;: owner of Parcel A an irrevoc.4.Me ..eas~ment over, upon, across and l>nde.- l>arael .l! Lo);' all l~,~~~:~J~ssaey in conp.ectiG>!l, with tbe cqnstruction, ope~at~¢~}:. ·r;f!!PCil'r' and rep4acement of a sto:tmwater ·'· .;::::·:i'.;;:::::;.~?::~.~ ~:::~~. ... i;.:~: detention basin., ~ri~. '''t~l p'l:;lf:lform alill'.'.:"'i'.f~q,essary grading and re.,, ·. ..."!t!" ··~!~:-:~:·.. ·"!_·~·. -:!•!:.:·::...::... ··~;~ grading .;in con!le~·,..,;qri•;;;~i,~h 13u~h Q.~~i1:~'\c;~~ttt:.r:t::io!l, and to dtairt ~1(:.:,.·=r ..;..l ·'.~ k • • .:.-::·::~·"::;: _·:r;~·· .:~r .. ·surface wate~a\i"' t_.ae said d~t.eiit:J. ·· asin, within t.hat portion ·'::r::~c~;;;'.~!;~~~;~' ''~hose (~:~ con4itio!>s as belew set are •;;'=•:.;,:,··';:· 1.. The eas;;n~;~rfrhereinabove granted shall include a:11 right$ as may pe ne9essacy Jn fc;,vor ot the qwner of Parcel A, its contr~ctors, subcont.ra.ctors, agents and employees to 9,rade and construct the stormwater basin on Parcel B as shown on the Plan-" to instcill al.l appurtenant Jl1Pe$.; bel7Itisi riprap, spillwa;y~i g:nd other oomp:onents. of,the stormwater basin as are required by the Plans and/or for proper funct:f.oning, of tbe basin;. and to opepate~ ma.;i,ttta,J,n;, ~epa;i~, r:eg;i:::a:de, anll:teplc:i.ce all of the tor~g<?.ing a$ necessary to. maintain the stormwater basin in !;>:roper condition so as to function in (;lpcordance wit:h its design. The ea-i:)ement heteinabG'.>ve ~ranted shall also include the right to drain stormwater runoff:from Parcel A and from the .access drive constructed on Parcels pursu~I:lt t9 Septit;>,n.,A hereof· into the said 15 BK3 77 6 PG I I 3 9 19 ... __:.;. ~----,--=--·~· .:!"::,,'.i::::::::=:=:,,,i,::'':;: 2. Th¢ atea within·iwl!l;£a1i'.'..~.J:J.re'"eas.em~nts here:Lnabove granted may be exercised is .a~i;::::~h~~!/·~~'·· the Plan and as more:;:=·.:;:~:;~li .··;·\=.:.:.~=:-~;;~;~~:~: part:Jcula):'."ly descri}:)ecj, in ~· .. "it ·:11·tmi\,,,l;ittached hereto ei,nd made part h1>re.<>l'. "''.;,!;::;,,,,,;;;~:::;'.) 3. ':,sf:G>rmwarter basin: and alJ. appurtenant: and qqrnppfiefit ~t;Ot1ll~)~t~~{}~¢S io(nd ~~\,rit: i>\\a).l be i;rl'$t;lll$d in acco~dance with =l'~fi~'2'~~1~J· and in .;:''~~ci~d~&Jk with:all applicable gove~men::;~;.~,:~:·,,j~~ .~;:::r.:~~~~el A hereby a~ees to;~ indemrti~;<r,~~~·:'.~~~·d harmles,. j~~~;;;¥~k: ~f Parcel B fxom and against .. ''::,,,'l:•"'.;:';· . . '!::·,::.'.:,.,,~/ . .. . .. . . . . . . .·. any ?ll'l.d al;l'''~c1:ions; claims; strit.s., costE; and expeI:lfl~S (i.nclud~ng, but not limit~Q: to, rea.sonabi.e cP'.un·sel fees and. cost$ of suit} i whi.ch may arise from the .construction and use of the stormwater detention basin <ind appurtenant and component equipment and facilities on Parcel B. El. Miscellaneous .. 1. The oMlers of Parcels A and B further each agree to cooperate with one another including~ without limitation~ t:he eJ{:ecµt;,ion aJ:J,d a9knPwledgemeµt 9f al,l $t1C:h f11:r;ther instruments or document$ as may'be required to effectuate the purposes<:>:!: th¢ ' easements hereinabove granted am:i to"• grant such additional easements ci.s m?Y be reqUireci t.o facilitat:e the proper qpn,strtiction a:nd development of the buildings and improvements shown on the P1a11. The owners of Parcels A ap<;l. B further agree t.o grant and l6 .. 19 .:l:~ .. convey 1'11 such other cross E>1'S~~~~~~:.;:::i~1'Y,.,Jv·· .;1::\.,\::,;ii .. be · . nece;sS;tty to a¢oommc>:date the installation a_~.sr't;?P'e.~~ti;i.on of all drainage, wate·r,:.:·~· ·;:- ·;:. ~~:; .. le .~i: parking lot, access and other=i~Ejlli~'.i~!;' and facilities ·shown on the Plan. /:~:!:~~::~~;;::::) . 2• ·easements ·::~. " . '" f ot' ·~!:: coirst:ru¢t:l.on granted hereunder shall .;i..n~· ~~·:=:,,;;~" and storage of. right d'.¢·~L ~gccess .::=''':.::=:,,:,;~\. =•:1,1. . . ·.. ... ..... ·... . ·. ·'.::'''''i~:;;:=·;:":·i,;~··.1,,,; . . construction ve~¢.r~·~::.''meiteri:a1 apd(~qµipm~b.t, foJ: s.ucli: p~:i:iods of ~!(=:=~ii~~~~. "!t!:::•:~t .~i .• .. .:.•;~•!:'~::~:~:• v::• /:" time: as may,~:;)??~~~~;~~·fy, f'rom,it:k.m.~'1·P.-i?!':t;.,ime, in connection with the:·. .,!;.~;,;: ..::'.:'•! ''\ ·. ·.. ·. . . ·.· .i: ij, '\ \''l:,,f· . efficie11t:·lL_ctj~Fn,;;~otion of .;::t·h~;:.. l::llJPr:9vements. $ucb rights shall:::Eurtbe:J1'.:i.t11~i·~~~,,;;~ right of!:'.~~:~e;~;~:;:,;;~:r an;sr s.uoh 1?Prtions of efthet .Pareel ~;··~~;;::'~e neces.sary ·~ci;;;'.~.'~mporary passage by the benef.itted pa,r:.ty; .its d()ntraci;,qr~ i su}:)gi:;mtract::ci;rs, etnploye~s an<l ase:ntl3' py~r any such portion of either Parcel as may be necessary or convenient to· the efficient construction of all improvements to be consbructed within any of the specifically described easement areas. 3. The terms and conditions hereof shall he cove!lants running with t,he land, and .shcill benefit .and bin4 the ownex::s: of J?arcel$ i\ and J3 and thei~:respective lieirs, succes$ors, administrators and assigns.. 4. The terms hereo:f shali, without limitatien. as t.o 'any other avaiH.rble remedy· at law or equity, be spe.cifi.cally enforceable upori: manda:t:Ol:'Y and/or prohibitory injunctive relief. .5. .·Notwithsta.ndin .............· .......... a Cl:nything t<::> contained herein, ther.e shall be no personal recourse againat an:y 17 SK37 J 6. f>G>·I l 4 l Case 5:16-cv-05209-JLS Document 104 Filed 05/09/17 Page 92 of 119 ---·-·---.,,,. ""' -·~-- ·- -'- . - - --· •',;.,,,,::::::~\,,/::: individual partner of Brandywine VilJ~.g~::,~s.:~bciates· hereunder for any liability relating to t4~:;:'.:'· \ \,:'.~1i[~ation obligationt? of .. . . ?y~ ~~::~::~f:. . •!:: ..... " ! Brandywine Village Associat~~\h~re.~ae:z. and any recourse the ref or shall be limited solely .. ~:9;;::,~~~'.'.::~~a.f nst the assets of Brandywine Village Associates, irt.<!!~~4~~:·:,ih~ real ~£r6jfJ.te, qompr:i.sing Parcel A, ... ..-::.:~·::{~::-:~:.. !t!e.. ·~·=::·. =·~· . '.a:. ·;:_ and the tents'· issJ:!J~~';,;in:?ti?~o'fits th~¢'.~9.f ·~.rid there,from.;:;~· "··::-... ":'!. "!t..: ..,•-:;~·"~!::~~ ····:::·:.... ·~;:.; IN WITNESS.... ~~:Rm9~'.>•::~he parti~~i;'.~~!ve .,h~'low caused this Cross .:.~(·=~.:.~\. ·==·=.~: .•• J ~ ·;;::. ~;~:~::,N.:• .:=: Easement: ·A9'r.efe.:\'rl.~ii~'.···,tQ,;,;be: made·:f&,pq=•·1~l'!l'.~~uted on tl'lg l:lay and year 2i .• •:'li;;;;i;,:::;;'.'.'.."''.···::; . .. . . . . ...,. 11. \. ·:\ ·=(''•i=•'' .. ... first above. wtsbt.'J:;E!ja·.,,,,.. •·:: .,,, ·:,,.,,•.,; ..;':(':::,.:·=,,<'\'.''::,)• 1;· f .:":;•':; •:·:;.•: ••'',.,,,<:\,) _Ji BRANOYW'.f~•::~_i:LILAGE @SOCIATES. ··:~::~!~ ....:... .. . ··' '·' ......~~;.;;.··· . . ·Sy: L&R !?A.RnrERSIUP; a Pennsyhranict g.e:he.ral partnership .artd a general partner of Brandywine Village Assoc' tes By: Partner· By: ®M ~c ~ BrandywI Associates By: l>,Qbe~~~e;.er;;>.l B,ranqy:Wine Village Associa.t·~s Partner of sign.attires continued on next p<l.ge BK 3 7 / 6PG l l 42 19:F:ta · . wtabt:!'ers _.('::~~:~;ii J a~ .=·='·;,."'=,s;y{i~i~·e s. Watters ·::·· ..•.,,· BK 3 7 7 GPG t l 43 19 COUNTY OF .C-M~· (SEAL) N()TAAIA!. SEAL SUZANNE M,OAVIS. NOl!iiry Bublic fatttown Twp:,<;: ..·. ·. t.!i;:tly. COll'l~~!'1 ~~nires .13•. 1995. . 7 6 PG BK 3.•·. 7 i1 .. 44 19 [Attach Legal Easement: AreasJ,. 19 ED~~D ~ ~ Ji£~~' Ccmpfu,Ci1>il Engitit~!:iH.!1 .. f(;;ohsultatian Smiim /'::~::~:!~:;;~ ~:., y-· Aptil 131 1994. ·=·~ '''j!j~SCRIPTict>l'''t ., ·i:•' FOR ..•.. '.t\,,,::•··· i!t:WINE VI 'h;. · · SYSTEM ·;•.,,, ALL '!'HAT CERTAm('t~~~::...~x;:l parcel ~p·•' improvements thereon, .:=- wi~~::· all sit:uate}p the,,,~lii>::-of·''East Br~~i~e · ty of Chester, Com:nonvealth of Pennsy-lvania,,~ ~~~bed accordifil1 ·i; o'i, . "Easement Plann for ~randywine Village pre~e:J.-'•t>Y::: ~rd B. i•&;: • ·., Inc., Exton, PA dated Mat:ch 10, '-~ 1994, and:!t~t"'~et.tJ~~ 4-13-94:::,.~·wit:::::~: +:.::=:·. ·~!.' .;~; . .:L. . ·1 BEGINNING at'•:,~'.::·~in~ oti. i:he .easte~~....t'.-i}ile .. J.~rie et: Pa,rcel 0 B" at the lands ot: I?arcel 11.N', ~i,(] pqint:: ~i.ng locatt:!d 'No:r:th 50 53 too" F.ast, 620. 38' from a point on the north urtiµJate tight-<>f-way line o.f Horseshoe l?ike (SR322h thence· extending: throllgh. the Iand!S of said Parcel 11 s·~ the five (5) following courses and distances: . .. ].) NOrth 3S)0 07'40'1 West, 68.34 1 to a poit'lt; 2) SoUth 50°521 20 11 We$t, 106.00' to a point; 3) ij<>rth 39°07'4011 We.st, 90.00' to a l?oint; 4) South. so~s2:io: west, 267. 7.6' to a point; 5) South 10 39 19 West, 28.27' to a point on the Access F.aSement across n5u for Parcel ''A''.; then~ ext:ending along $aid Access F.asement N75°25'44" w, 59 .. 88' to a point:: thence leaving said Access Easement and extending thr;ough the lands of said Parcel ns11 the three t:3) following coµrse,s and ~ista.rlc:es: 11 'North 50°52 120" F.aSt1 324. eo·.. to a poiht; 2.1 Ncrrth 39°07'40.0 we$t, 350.00• to a point{ 3) North 50°52' 20" East, 180.00' to a point. at the l~ds. <:>£ E?iward. A,. Russell; thence e~t~ilding a1<.;lng the lands of sai<,i aussell S39°o7 1 40 11 s, 538.35• to a p<:>int at Pa~cel, "A;t; thence e~nding along the lands of said ~eel "A" s50°53'00" w, 74.00' to the first mentioned point and place of beginning. CONTAINING in arect two, and two hun<ked ~ighty-two one thousandt:tiis of an ac~e n:ore orl~ss. (.,2;;.c~8:2 Ac•+/-) BJEl#tS/tER£l7iPROFESS!ONAL EN$.Jtj£f/ER$- PA /IM, PE& MD 750SprihgdaleDrive~ Exton,f'A f9~1. .;·64.;0/~3-;~0J 1. c FAX; 610!368~54d4K J. l:Fij I ... Q ro 19 [Attach Legal 'E'asemeht A:t:ea] 19 .lll~;:~~~;::;) EDWARD B. WALSH!:& ·14sSQC'IAr~..S:. INC. C,omplttt Ci1~/E1tgf11e~f:in!f.QelfJ/ni~l'~!1'ltation Smiitts,,.,l.:::;:~~:;~::"''~il,,;: .:•'.. '.JS~YWINE VILLAGi:i ·=r 13· 1994 /:::~~:~;::~1:~.~1~s:;~~::!;:,,~::·\, ALL THAT CERTAit\l .,;'t;;tl{lJ:t;, ''qr11 ·~eel <:>f. 4~'9~~) w·itf' all impr;qvements theraon, situate in the ~o~:·· ·.'df,i&st:aroo~1'®1::. cQpnty <>f Chester, ~wea.lth Pf Perins:ylv~ia. . '''a~ . .. •. •'aec01:oing ~<>:j:a:,=::J~~nt. J?lan'' for Bran,dyW;i.oe Village prepared by ....·· ..,,, .. Wiilsh & ~9.Q...:;i,_]r:lp~! axtoh.i PA1 dated Maren 10, 19941 and .: last revis~ ·.•.•:~1,~·;1,iis. ftiliows ~~tw~~~;·:::;::;,i .. . . B~GINN~ at;".a:,,.~pq~nt on the east:~i:lf.,:'~.it.le .linE:t 91: J?arqel "B 11 at the lanqs ·qf Parcel HA., s~id·:'Poirit being locati§d,,N"orth 5Q9 $3'00'i east, 190.0Q' from a pc>int. 11 Ori the no:r::th ultimate r:Ight-<>f--way- line. of· Horseshoe Pike (SR322)~; thence ex.t~ndiqg through t:tre lands of:;1a;id ~arcel ·0 8!' the tour (:4) following courses and di:ata.Jlces~ ·· ll ~orth 396 61•no•i west, 90.00' to a point.: 2) North 76°07'25" wesb 71.19' to a point:. 3) South 50°56'30" West, 110.001 to a point; 4) So-uth 05°50 1 30" West, 52.33' to a poiQt: 0n the north ultimate righ.t:-0f1'""w'ay line of said Horseshoe Pike (SR322); thence extending aloQ9· said north, ultimate t'ight~f--way lirie NOtth 39°03 1 3011 West; 125~.00·' to a point·; thence leaving said north right:-0f'-·1way· line and extending· throµ<Jh the 1a:n$$ of said P~rc~l 'ttJ3i• tl'l~ .ft>~ PO fo].1~ing course~ ·and dis~~nces: 1) S~uth ·84603t30·'' ~$t, 32: •.53J to a point:; 2) North 50 56:'30'' East; 149.:00' to a pointl. 3} .$outh 75°26•44i' East,. 89 .. 14' to a point; 4) South 3~0p7'00" ~st~ J.,4Q .. OQ' to a point•;· at the title line of Parcel "B'~ at the lands of Parcel "A!1: thence extendi09; a.long the lands of said Parcel 11 A11 South 50°53 1 00!1West, 35.. 00' to the .first.' point and place ot beginnd.ng •. CON';t'A::mING in area: .t:orty-six one hundr:edtfuJ of an aq:e ~:r;~ .o:r;e less. (..046 A¢ +/-) REGJSTE!?.ED PROFIESSJONAL ENGINEERS..., PA. NJ,DE& MD · · · i50 Springd<lteDrive, Exti.o.ntf.:.~. ·9~.·.44.· 1.. • p1<1.13~.~. 1$60 FAX: IKJ'3BP·14~?G i I4 '!;. BK S11"fo P& 11 IfB ti 19 [Pi;tta<::h Legi:i,l Basin:Easement .Atea] .. .,· .;===:.f.·:~~-=;· BK 3J 7 6 PG i I 4 9 19 Iii:~;;,:~;::::) EDWARD a~ 'WAi..SH!~·:ii~·SQC~4t~i' 1Nc~ Complete Cil'ilEngine.~,"../?t.s,i)i'1.l<;,o~sulta'twt1 Sm>ites .,r,~?;:::::~,~~::,~ April 131 1994,,,:'·.,:'7 ...~YWINE VILLA~:i. ~'Tm':. ~IN:& DRAINAG~, ~EMENT ··='::··:::,,;;1::;.· '~;'.'' !i:;,' ·. '' < '', .;:;:';: •;:,;., ALL... IJ.IMT. CERTA~ t~~gt\ ~\~reel. Of g.· . '\ vt£t1;t;'.~tali ·.,improvements. th~t"eor11 situate irt the· ~§h.i'tl>. O; '.tifst Brandywi':' ~Urity:''bf Chester i. COamonwealth of Pennsylvana and .~$fi~~~·''aQihording b:~yan. ...· .: .. nt. Plan" for Brandywine .·village prepare<:\ PY ~re,l··=S~ ·~:lisl'i' & . As$0C•(i=IJ.1~1:,,··=,~.;~, PA.·I'. <'Jated March 10~ 1994 ana last re'<fisea A~~~,~~:·.¥,s)follows t<?,,,:w-i.:fu.::·'\ . ·!: '! ···· ! . ~;=~:". ~:·::~i· ··::_.:;:=:;!!,,.·!·;;.i.t.····~. .. . ..;!!;' ·.!~;·.~_::~: ~;:~~·--·~M~~.~-:~~i: .} BEGINNING:J,, a~ St;iP9fn=f on the, eaipt~rn=i:~'f:le line of Parcel ••.gJ• at the, lands of. Parcel 1'A",'\~ai;a ioi:nt being l~t~•:Nqrth 50q53'00 11 Ea.st, 225,.,00' from a,point ~.:t~~'· ~~&:::t:~,~te Eigh~;,.,pf-~y,,...:fi:ne. of Hors3shoe ·.Pike. (SR322) i. . thenqe ·~xtenaing· t:})rougn· ·tile 1an~ of Set.id P.;t.rcel 0 B11 ~~9 07•oou ~tz·, 14Q.OO' a;t()11g th.e north bounOc:i.J:Y'-·: 'Qf,1 an. Acces.e Easement to a. point~: thenc.e extending through the landS of· >sa:id' i>a.r.eel 11'B" and" also being aloo!ZJ'' the east boundary of a Se\lage Easetnent,;the. ~~ 1~foll9Win~ 9ourse~ and distances:· · ... ~ 1)' .NlQ ' 0 ~919 .. "' ' ":E. .2a.21 .· ' ' ' to q;' 'point. .., • 4) N56°52·~0" .E J.2'3.42• to. e;t point: thence leaving said Sewage Easement and extending tht'olJ9h the lands of. said Parcel ''B" S39°07·'00" E, 158.. 28 1 to a point at the, lands of Parcel "A"; thence e~ending along the la!lds of said Parcel .,A'r $SOP,!$~'0Qu w, 150.• ()0' to' the first ment~9lle9point and place of ~i4oiQg~ CONTAININGinarea fifty-four one hundredths of an acre more.or less .. (.54 Ac. +/--) REGISTERED PROFESSIONAL ENGINEERS- PA, NJ, DE& MD0~ 31 '1 ~:·?G 1 \ 5 () 750 Spriogdal~ Drive, Extofli FA 19341 • FJ10l383-1360 u. · · FAX: 8101363~5464· .. ·~ 19,.,. ·-~::f ~~Qf~\ · DATE: 0£/29/1994 Tiii'.: 10:311\" .INST. . CffEST~; Coutltt: PA •.... """:. 5.04. . .7. 0.·, . · . un c " OFFlcEJIF JJIERE~l)ER: ii .~· ·•·,,: ·.. . ~t;~~i'...,.,...,,;~ {,. t ... .; "'"· ...... '. •;:.'.,',,.c RECEIPT !«! l 0431&1 ~EC f'EE: UIC RTI Slltll. l!l!IlTAX ~K J J 7· 5PG f l 5l 19 EXHIBIT B 19 RESOLUTION 14 OF 2014 EAST BRANDYWINE TOWNSHIP CHESTER COUNTY, PENNSYLVANIA RESOLUTION AUTHORIZING EXECUTION OF AND ENTERING INTO MEMORANDUM OF UNDERSTANDING WITH CARLINO EAST BRANDYWINE L.P. WHEREAS, Carlino East Brandywine L.P. ("Developer") is the equitable owner of an undeveloped tract of land located at 1279 Horseshoe Pike in East Brandywine Township, Chester County, PA containing approximately 10.118 acres, UPI #30-5-227 (the "Carlino Property"); and WHEREAS, Developer intends to improve the Carlino Property as a mixed-use commercial development (the "Project"); and WHEREAS, the Carlino Property is located adjacent and to the west of a parcel of land owned by Brandywine Village Associates ("Brandywine Village Associates Property") which has been developed with a shopping center ("Brandywine Village Shopping Center"); and WHEREAS, the Carlino Property is encumbered by a Cross-Easement Agreement dated July 24, 1994 ("Cross-Easement Agreement") which, among other things, grants to the Brandywine Village Associates Property an access easement and a stormwater basin and drainage easement over portions of the Carlino Property (collectively the "Easements"); and WHEREAS, in order to support existing volumes of traffic and traffic projected to be generated by new growth and development in the Township, the Township has an interest in creating a new public road connecting Horseshoe Pike to North Guthriesville Road ("Connector Road"); and WHEREAS, the Connector Road proposed by the Township would traverse the eastern side of the Carlino Property and extend northward through UPI #30-2-47, which is owned by L & R Partnership and John R. Cropper (the "L & R Property"); and WHEREAS, in order to construct the Connector Road, a po1iion of the Carlino Property would need to be used for the right-of-way and the construction of the Connector Road and related improvements; and WHEREAS, in addition, in order to construct the Connector Road and storm water management facilities necessary for the Connector Road, a portion of the L & R Property (the "Connector Road Parcel") and right-of-way over a small area of the Brandywine Village Associates Property adjacent to Horseshoe Pike ("322 ROW") would need to be acquired; and WHEREAS, the Easements are located in areas on the Carlino Prope1ty where the Connector Road is proposed and will need to be modified or extinguished in order to construct the Connector Road; and WHEREAS, the Connector Road is intended as a public road for use by the general public and is not necessary for the development of the Carlino Property. The Township has made an 19 independent judgment that the Connector Road is in the public interest and for a public purpose; and WHEREAS, the Township has informed Developer that the Township would like the Connector Road constructed by Developer in connection with development of the Project; and WHEREAS, in addition, the Township requested that Developer attempt to acquire the Connector Road Parcel from the owners of the L & R Property and acquire the 322 ROW from Brandywine Village Associates at their fair market value, and to modify or extinguish the Easements to the extent necessary to construct the Connector Road, but the Developer has been unsuccessful in acquiring these interests; and WHEREAS, as a result of Developer's inability to acquire the Connector Road Parcel and the 322 ROW and extinguish or modify the Easements by negotiation, the Township intends to exercise its power of eminent domain to acquire the Connector Road Parcel and the 322 ROW and modify or terminate the Easements as necessary to construct the Connector Road; and WHEREAS, Developer has expressed a willingness to construct the Connector Road and related improvements at the time it constructs its Project if the Township acquires the Connector Road Parcel and the 322 ROW and modifies or terminates the Easements as necessary to construct the Connector Road; and WHEREAS, the Township wishes to enter into a Memorandum of Understanding By and Between East Brandywine Township and Carlino East Brandywine, L.P, concerning the condemnation of the Connector Road Parcel, the 322 ROW, and the extinguishment or modification of the Easements and Developer's construction of the Connector Road, and any costs and risks associated therewith, a copy of which is attached hereto. NOW, THEREFORE, BE IT RESOLVED, by the Board of Supervisors of East Brandywine Township, that the Board of Supervisors of East Brandywine Township is hereby authorized to enter into and agree to adhere to the Memorandum of Understanding attached hereto. ADOPTED by the Board of Supervisors this 20111 day of August, 2014. ATTEST: EAST BRANDYWINE TOWNSHIP By its Board of Supervisors ABSENT Mary eth Smedley, Sfutary Hudson L. Voltz, Chairman ._ ___ Ja. Fischer, Vice-Chairman -Ar~a?,~7\ ·.. _/,,, 19 MEMORANDUM OF UNDERSTANDING This MEMORANDUM OF UNDERSTANDING entered into this 20th day of August, 2014 by and between EAST BRANDYWINE TOWNSHIP ("Township"), a second class township of the Commonwealth of Pennsylvania with an address of 1214 Horseshoe Pike, Downingtown, Pennsylvania 19335 and CARLINO EAST BRANDYWINE, L.P. ("Developer"), a Pennsylvania Limited Pattnership with an address of 875 Berkshire Boulevard, Suite 102, Wyomissing, Pennsylvania 19610. Background A. Developer is the equitable owner of an undeveloped tract of land located at 1279 Horseshoe Pike in East Brandywine Township, Chester County, PA containing approximately 10.118 acres, UPI #30-5-227 (the "Carlino Property"). B. Developer intends to improve the Carlino Property as a mixed-use commercial development (the "Project"). C. The Carlino Property is located adjacent and to the west of a parcel of land owned by Brandywine Village Associates ("Brandywine Village Associates Prope1ty"). The Brandywine Village Associates Property has been developed with a shopping center ("Brandywine Village Shopping Center"). D. The Carlino Property is encumbered by a Cross-Easement Agreement dated July 24, 1994 ("Cross-Easement Agreement"). Among other things, the Cross-Easement Agreement grants to the Brandywine Village Associates Property an access easement and a stormwater basin and drainage easement over portions of the Carlino Propetty (collectively the "Easements"). 19 E. The Township has enacted a Transportation Impact Fee Ordinance pursuant to Article V-A of the Pennsylvania Municipalities Planning Code. Pursuant to the ordinance, the Township imposes a transportation impact foe of $3,507 for each new PM peak trip generated by new development in the Township. Based on the Developer's proposed Project the Impact Fee which the Developer would be required to pay under the Township's Transportation Impact Fee Ordinance is $1,795,000.00. F. In order to suppo1i existing volumes of traffic and traffic projected to be generated by new growth and development in the Township, the Township has an interest in creating a new public road connecting Horseshoe Pike to North Guthriesville Road ("Connector Road"). G. The Connector Road would traverse the eastern side of the Carlino Propc1ty and extend northward through UPI #30-2-47, which is owned by L & R Partnership and John R. Cropper (the "L & R Propetiy"). A sketch of the Connector Road crossing the Carlino Property and L & R Property is attached hereto as Exhibit A. H. In order to construct the Connector Road, a portion of the Carlino Property would need to be used for the right-of-way and the construction of the Connector Road and related improvements. I. In addition, in order to construct the Connector Road and storm water management facilities necessary for the Connector Road, a portion of the L & R Property (the "Connector Road Parcel") and right-of-way over a small area of the Brandywine Village Associates Property adjacent to Horseshoe Pike ("322 ROW") would need to be acquired. The general location of the Connector Road Parcel and the 322 ROW are depicted on Exhibit A. 2 19 J. Fmiher, the Easements are located in areas on the Carlino Property where the Connector Road is proposed and will need to be modified or extinguished in order to construct the Connector Road. K. The Connector Road is intended as a public road for use by the general public and is not necessary for the development of the Carlino Property. The Township has made an independent judgment that the Connector Road is in the public interest and for a public purpose. L. The Township has informed Developer that the Township would like the Com1ector Road constructed by Developer in connection with development of the Project. M. In addition, the Township requested that Developer attempt to acquire the Connector Road Parcel from the owners of the L & R Property and acquire the 322 ROW from Brandywine Village Associates at their fair market value, and to modify or extinguish the Easements to the extent necessary to construct the Connector Road. N. Despite repeated attempts, Developer has been unable to acquire the Connector Road Parcel from the owners of the L & R Property, acquire the 322 ROW from Brandywine Village Associates, or to modify or extinguish the Easements to the extent necessary to construct the Connector Road. The owners of the L & R Property and the Connector Road Parcel have repeatedly rejected the Developer's efforts to acquire the Connector Road Parcel and the 322 ROW and to modify or extinguish the Easements. 0. As a result of' Developer's inability to acquire the Connector Road Parcel and the 322 ROW and extinguish the Easements by negotiation, the Township intends to exercise its power of eminent domain to acquire the Connector Road Parcel and the 322 ROW and terminate the Easements as necessary to construct the Connector Road. 3 19 P. Developer has expressed a willingness to construct the Connector Road and related improvements at the time it constructs its Project if the Township acquires the Connector Road Parcel and the 322 ROW and terminates the Easements as necessary to construct the Connector Road. NOW THEREFORE, in consideration of the facts set forth in the Background hereof, the parties hereto, intending to be legally bound hereby, agree as fol!O\vs: Agreements 1. The Township hereby agrees to use its condemnation authority to acquire the Connector Road Parcel and the 322 ROW, and modification or extinguishment of the Easements ("Condemned Property Interests"). 2. In the event the Pr~ject receives final land development approval and all necessary permits, Developer will, at its sole expense, design, permit and construct the Connector Road in conjLmction with the Project, in accordance with Township and Pennsylvania Department of Transportation requirements, and when completed, dedicate the Connector Road, the associated right-of-way and all related facilities and improvements to the Township, at no cost to the Township and prior to the issuance of the first certificate of occupancy for a building on the Carlino Propetiy. 3. If the Connector Road is constructed and dedicated as set forth in paragraph 2 above, Developer will be entitled to a credit in the amount of$1,705,000 against the $1,795,000 impact fee for the cost of construction of the Connector Road and the value of the portion of the Carlino Property used for the Connector Road. Therefore, at the time of the issuance of the first building permit for the Project, the Developer shall pay to the Township the $90,000 balance of the Trafiic Impact Fee. 4 19 4. Within ten (10) days after the complete execution of this Memorandum, the Developer shall deposit the sum of $75,000 with the Township to cover the estimated out-of- pocket legal fees and other direct costs ("Costs") that will be incuned by the Township in connection with the condemnation of the Condemned Property Interests ("Cost Deposit"). The Cost Deposit shall be held by the Township in a separate account ("Cost Deposit Account") and shall be used by the Township solely for the payment of Costs incuned by the Township in connection with the condemnation of the Condemned Property Interests. As the Township incurs Costs, the Township may withdraw from the Cost Deposit Account the sums required to pay the Costs incurred by the Township, and shall provide to the Developer copies of the invoices for such Costs. If the balance in the Cost Deposit Account drops below $7500.00, upon ten (10) days prior written notice from the Township to the Developer, the Developer shall replenish the Cost Deposit Account with the estimated amount of the remaining Costs that will be incurred by the Township in connection with the condemnation of the Condemned Property Interests. Upon the completion of the condemnation proceedings, the remaining balance in the Cost Deposit Account shall be returned to the Developer. 5. The Township has obtained an Appraisal prepared by William Wood Company LLC dated January 8, 2014 which estimates the fair market value of the Connector Road Parcels to be $45,000.00 ("Connector Road Appraisal") and an Appraisal prepared by William Wood Company LLC dated January 8, 2014 which estimates the fair market value of the Route 322 Right of Way to be $14,000.00 ("322 ROW Appraisal"). Developer has obtained an Appraisal prepared by A.R. Hughes & Company dated May 5, 2011 which estimates the fair market value of the Connector Road Parcels to be $71,000.00 and an Appraisal prepared by A.R. Hughes & 5 19 Company dated May 5, 2011 which estimates the fair market value of the Route 322 Right of Way to be $6300.00. A. Within 10 days after the complete execution of this Memorandum, the Developer shall deliver to the Township an irrevocable standby Letter of Credit in the amount of $125,000.00, which is approximately 140% of the estimated just compensation required to be paid to the owners of the Condemned Property Interests for the condemnation of the Condemned Property Interests ("Letter of Credit"). The lending institution that issues the Letter of Credit shall be a Federal or Commonwealth chartered lending institution authorized to conduct business in the Commonwealth of Pennsylvania. The Letter of Credit shall be effective for a minimum period of two (2) years and shall include a provision that it shall automatically renew for additional two (2) year terms absent notice of termination from the lending institution to the Township ninety (90) days in advance of the then termination date. B. When the amount of just compensation due to the owners of the Condemned Property Interests under the Eminent Domain Code has been finally detem1ined, the Township shall provide written notice to Developer of the amount of just compensation due and Developer shall pay the said sum to the Township within thirty (30) days and the Letter of Credit shall be released to the Developer for cancellation. If the Developer does not pay said sum to the Township within the required timeframe, the Township shall be permitted to draw upon the Letter of Credit to pay said amount. If the amount of just compensation due the owners of the Condemned Property Interests is less than the face amount of the Letter of Credit, the remainder of the Letter of Credit shall be released to the Developer. If the amount of just compensation due the owners of the Condemned Property Interests exceeds the face amount of the Letter of Credit, 6 19 the Developer shall reimburse the Township for any additional sums due within thirty (30) days of the date of the Township's written notice to Developer. 6. Within ten (10) days after the Developer posts the Cost Deposit and the Letter of Credit the Township shall commence actions required to condemn the Condemned Property Interests. The Township shall take all necessary actions to authorize the condemnations, institute condemnation proceedings and take all further legal steps that arc required to effectuate the condemnations. The Developer shall prepare all plans and other supporting information to facilitate the Township's condemnation of the Connector Road Parcel, the Route 322 ROW, and the Easements, as necessary and requested by the Township. 7. If any of the owners of any of the Condemned Property Interests institute an action or actions in Pennsylvania or Federal Courts against the Township, Board, and/or other Township officials (collectively, the "Township Defendants") that alleges that the Township has harmed such owner(s) and that such harm has not, and will not be compensated under the procedmes of the Pennsylvania Eminent Domain Code instituted by the Township when it condemns the Condemned Property Interests, the Developer will assume and pay for all of the costs to defond such action. If any such action results in an award of damages against one or more of the Township Defendants the Developer will indemnify the Township Defendants against whom the award of damages is entered. This provision has been included in this agreement because counsel for Brandywine Village Associates has repeatedly threatened to institute an action against the Township and its officials, which action is alleged to exist separate and apart from Brandywine Village Associates' right to compensation under the Pennsylvania Eminent Domain Code. Neither Counsel for the Developer, nor the Township Solicitor understand the unstated basis for such cause of action. However, in order to protect the 7 19 public interest, the Township has requested that the Developer both defend and indemnify the Township against such action and any judgment rendered against the Township in such action, and the Developer has agreed to do so. Accordingly, if any such judgment is entered against one or more of the Township Defendants as a result of such unstated, independent claims, and such judgment becomes final and unappealable, the Developer shall pay and satisfy such judgment. In addition to the Cost Deposit and the Letter of Credit that the Developer will deliver to the Township pursuant to paragraphs 4 and 5.A above, within 10 days after the complete execution of this Memorandum, the Developer shall deliver to the Township a second irrevocable standby Letter of Credit on the same terms as specified in paragraph 5.A above in the amount of $250,000.00 ("Second Letter of Credit"). The Second Letter of Credit shall serve as security to insure that the Developer satisfies any such final and unappealable judgment entered against one or more of the Township Defendants. 8. After the Township files the necessary Declarations of Taking to condemn the Condemned Property Interests Developer shall submit to the Township an application for preliminary/final land development approval for the Project ("Preliminary/Final Plans"). The Preliminary/Final Plans shall be in substantial conformity with the Final Plans approved by the Board on August 7, 2011, with the exception of modifications necessary to bring the Pr~ject into compliance with Section 350-34.E of the SALDO. 9. After the Developer has received all necessary approvals to construct the Project in conformity with the Preliminary/Final Plans, has entered into any Development and Financial Security Agreements required by the Township, and the condemnations of the Condemned Property Interests are final and unappealable, the Township shall grant the Developer permission and/or easement across the Connector Road Parcels and the Route 322 Right of Way 8 19 to construct the Connector Road and, if requested by Developer, shall grant to the Developer the right to install, use, maintain, repair and replace an 8 inch PVC sewage conveyance line across a portion of the Connector Road Parcel and shall permit the assignment of such sewer line easement to the Authority. 10. When the Developer completes the construction of the Connector Road in accordance with the Preliminary/Final Plans, the Township shall authorize the condemnation of the portion of the Connector Road and the facilities related thereto that have been constructed on the Carlino Property and the road right-of-way as depicted in the Preliminary/Final Plans as defined in paragraph 8 above. Upon adoption of a resolution authorizing the condemnation, the Developer shall convey such portion of the Connector Road, the related improvements and the right-of-way in fee to the Township by deed in lieu of Condemnation and the Township will accept such deed. 11. The payment for the design of the Connector Road, the payment of the cost of acquisition of the Condemned Property Interests, the conveyance of the pmtion of the Connector Road constructed on the Carlino Property, the conveyance of the right-of-way in fee, and the payment of the said $90,000 referred to in paragraph 3 above, shall satisfy in full the Developer's obligation under the Transpmtation Impact Fee Ordinance. 12. This Memorandum shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, successors, administrators and assigns. 13. This Memorandum constitutes the entire agreement among the parties hereto and supersedes all prior negotiations, understandings and agreements of any nature whatsoever with respect to the subject matter hereof. No amendment, waiver or discharge of any provision of 9 19 this Memorandum shall be effective against either party unless that party shall have consented thereto in writing. 14. This Memorandum shall be interpreted and construed in accordance with the laws of the Commonwealth of Pennsylvania. 15. All notices or other communications required or permitted to be given under the terms of this Memorandum shall be in writing and shall be sent by ce1tificd mail, postage prepaid or by private carrier guarantying next day delivery, addressed as follows: If to the Developer, addressed as follows: Peter S. Miller Carlino East Brandywine, LP 875 Berkshire Blvd., Suite 102 Wyomissing, PA 19610 With a copy to: Marc B. Kaplin, Esquire Kaplin Stewart Meloff Reiter & Stein 910 Harvest Drive P. 0. Box 3037 Blue Bell, PA 19422 If to Township, addressed as follows: East Brandywine Township Attention: Scott T. Piersol, Township Manager 1214 Horseshoe Pike Downingtown, PA 19335 With a copy to: Stacey L. Fuller, Esquire Gawthrop Greenwood, PC 17 E. Gay Street, Suite 100 PO Box 562 West Chester, PA 19381-0562 lO 19 IN WITNESS WHEREOF, the parties hereto have caused this Memorandum of Understanding to be executed the day and year first above written. CARLINO EAST BRANDYWINE L.P. By: CARLINO EAST BllANDYil/f L.P. By: %i Peter S. Miller \;l{JL ATTEST: EAST BRANDYWINE TOWNSHIP By its Board of Supervisors ·rviro-;sJJet;fi --------+--· ABSENT Mary Beth Smedley, Secret y Hudson L. 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