HomeMy WebLinkAboutagenda item 2015 0813 rdc 05a3227 W. JEFFERSON BLVD. SOUTH BEND, IN 46601 | P: 574-235-9371 | FAX: 574-235-9021 | SOUTHBENDIN.GOV
Department of
Community Investment
Memorandum
Monday, August 10, 2015
TO: Redevelopment Commission
FROM: Chris Fielding
SUBJECT: Martins Corporation
Included in the Commission packet is an executed Purchase Agreement and Environmental
Indemnity Agreement between MARTIN’S SUPER MARKETS, INC. (MARTIN’S MO LLC) and the
RDC. This Purchase Agreement outlines the negotiated terms for the sale of a 2.83 acre parcel
adjacent to Ignition Park and their corporate headquarters.
Under the terms of the agreement Martins agrees to pay to the RDC $74,287.50 for the 2.83
acres. The EIA calls for the RDC to assist the company in obtaining a comfort letter from IDEM
with a maximum financial contribution of $15,000.
Staff is requesting the approval and execution of the enclosed Purchase Agreement and EIA.
It is anticipated that additional closing documents will be required and may require execution
by Marcia prior to closing at a later date.
ITEM: 5.A.(3)
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CONTRACT FOR PURCHASE AND SALE
This CONTRACT OF PURCHASE AND SALE (hereinafter “Agreement”), dated this
___ day of July, 2015, between MARTIN’S SUPER MARKETS, INC. and MARTIN’S MO
LLC (together, the “Company”), as buyer, and the CITY OF SOUTH BEND, DEPARTMENT
OF REDEVELOPMENT, by and through its governing body, the South Bend Redevelopment
Commission (the “Commission”), existing and operating under the provisions of Indiana Code
§ 36-7-14, as amended, as seller.
WITNESSETH:
1. The Property. The Commission is the owner of record of land, with the legal
description which is attached as Exhibit “A”, consisting of 2.83 acres, more or less (the
“Property”). The Property is further depicted on the Ignition Park Second Minor Subdivision
attached as Exhibit “B”. The Commission has completed the disposition process under Indiana
Code § 36-7-14-22 and desires to sell the Property to the Company under the terms and
conditions set forth herein pursuant to Indiana Code§ 36-7-14-22(h).
2. The Purchase Price. The Commission shall convey the Property to the Company
in exchange for cash in the amount of Seventy Four Thousand Two Hundred Eighty Seven and
50/100 Dollars ($74,287.50), and the conditions/agreements of Company contained in
Paragraph 8 of the Agreement (the “Purchase Price”).
3. Environmental Condition. In connection with this Agreement, the Company (a)
obtained a Phase I Environmental Report (the “Phase I”), attached as Exhibit “C”, indicating
that “recognized environmental conditions” exist at the Property including the existence of soil
contamination described in investigation reports prepared on behalf of the Commission, and (b)
will, prior to Closing (as defined below), obtain an updated Phase I on the Property (“Updated
Phase I”). The Company understands that the Commission, pursuant to the Voluntary
Remediation Program (“VRP”), has entered into a voluntary remediation agreement with the
Indiana Department of Environmental Management (“IDEM”) and the Commission and the
Company will eventually receive, with respect to the Property, a certificate of completion and
covenant not to sue, or equivalent, from the IDEM. In addition, the Commission and the
Company have entered into the Environmental Indemnity, Access and Remediation Agreement,
of even date with this Agreement (the “Environmental Agreement”), substantially in the form
of that attached as Exhibit “D”. The Company will be applying to IDEM for a comfort letter
(the “Comfort Letter”) with respect to the Property, and its receipt of a comfort letter from
IDEM with respect to the Property in substance and form satisfactory to Company is, unless
waived by Company, a condition precedent to the Company’s obligations under this Agreement
to purchase the Property. The Commission will provide a credit at closing to the Company for
the Company’s reasonable costs (including fees and disbursements of counsel and consultants)
to prepare the application for the Comfort Letter and to interact with IDEM obtaining the
Comfort Letter, up to $15,000. If the Closing does not take place, other than due to a default of
this Agreement by the Commission, the Commission will have no obligation to reimburse any
of the Company’s Comfort Letter costs.
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4. Conveyance of Property. The Commission hereby represents it is not aware of any
easements or encumbrances other than those of record. At Closing, the Commission shall
convey the Property to the Company by Limited Warranty Deed in the form set forth at
Exhibit “E” subject to the following:
(a) Applicable zoning laws and regulations to be zoned light industrial; and
(b) Seller will convey title to the Property subject only to real property taxes
not yet due and payable, all easements, conditions, reservations, leases,
licenses, access agreements and restrictions as may appear of record, be
apparent by an inspection of the Property, or of which the Company has
actual or constructive knowledge and to such other exceptions as may be
approved as provided below.
Following the execution of this Agreement, Company shall obtain, at
Commission’s expense, (i) not later than thirty (30) days after the date of
this Agreement a commitment for an owner’s policy of title insurance
issued by a title insurance company (a “Title Commitment”) on the
Property from Fidelity National Title Company (the “Title Company”),
together with legible copies of all exceptions of record referenced
therein; and at Company’s option and expense (ii) not later than sixty
(60) days after the date of this Agreement an ALTA survey of the Real
Estate.
Company shall have thirty (30) days after receipt of (i) such Commitment
and legible copies of all exceptions referenced therein and (ii) the ALTA
survey of the Property within which to notify Commission, in writing of
Company’s disapproval of any exceptions or other matters shown in any
of the foregoing (“Company’s Disapproval Notice”). If Commission
shall not have received any such notice of disapproval within the
aforementioned time period, the Commitment and the condition of title
shall be deemed approved.
In the event of any such disapproval, within twenty-one (21) days after
delivery of Company’s Disapproval Notice, Commission shall give
Company written notice (“Commission’s Title Notice”) of those
disapproved titled matters which Commission covenants and agrees to
either eliminate from the “Title Policy” or to ameliorate to Company’s
satisfaction by Closing. If Commission does not elect in Commission’s
Title Notice to eliminate or ameliorate to Company’s satisfaction any
disapproved title matters or if Company disapproves Commission’s Title
Notice, Company shall have the right, in its sole and subjective
discretion, to either (i) terminate this Agreement within fifteen (15) days
after receipt of Commission’s Title Notice by written notice to
Commission, or (ii) to waive any such matter(s). If Commission does
not eliminate or ameliorate to Company’s satisfaction all such
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disapproved matters prior to or at the Closing, then Company shall have
the right, to terminate this Agreement by written notice to Commission.
However, Company will be deemed to have waived all such item if
Company proceeds to close the transaction provided herein.
The Company agrees to accept the Property under the above-described circumstances and
subject to the above-described restrictions and encumbrances.
5. Taxes and Assessments. Company shall be responsible for any and all real estate
taxes and assessments for the Property, whether for periods prior to or after the closing, whether
or not yet due and payable. The Commission does not pay real property taxes and shall not be
responsible for any payments or credits for real property taxes for the Property.
6. Obligations at Closing. At Closing, the Commission shall provide a title policy
(the “Title Policy”) from the Title Company acceptable to the Company insuring the transfer of
the Property to the Company in the amount of Seventy Four Thousand Two Hundred Eighty
Seven and 50/100 Dollars ($74,287.50). The cost of issuance and all costs of all endorsements
of the Title Policy in the amount of the purchase price will be paid by Commission at Closing.
Other than the Title Policy costs and each party’s respective attorney’s fees, the Company and
the Commission shall share equally in all other closing expenses and fees, which shall be
evidenced by a Closing Statement prepared by the Title Company and signed by the parties
hereto or their respective representatives at closing. The parties each represent that no real
estate commissions are due and owing to any party with respect to this transaction.
7. Closing Date and Deliverables. The Closing shall be held at Fidelity National
Title Company at 4215 Edison Lakes Pkwy # 205, Mishawaka, IN 46545 at a mutually agreed
upon time (herein referred to as the “Closing”) on the later of (x) thirty (30) days after both
Company has received the Comfort Letter and the Commission receives approval of zoning as
light industrial, or (y) January 4, 2016, or as otherwise mutually agreed to between the parties
(the “Closing Date”). At Closing:
(a) Commission shall deliver to the Company the duly executed and
acknowledged Limited Warranty Deed conveying the Property to
Company as provided in Paragraph 4.
(b) Company shall deliver to the Commission: (i) the cash portion of the
Purchase Price; (ii) evidence satisfactory to the Commission the
Company has performed or is capable of performing the conditions set
out in Paragraph 8 of this Agreement.
(c) The Company and Commission shall each execute and deliver for
recording in the land records a memorandum evidencing the right of first
refusal described in Paragraph 10.
(d) Possession shall be delivered at Closing.
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(e) The parties shall pay all closing costs at Closing in accordance with
Paragraph 6 and shall execute a Closing Statement evidencing such fees.
8. Company’s Conditions and Use of Property. Except as otherwise provided
herein, the Company agrees:
(a) Subject to Paragraph 3 above and the Environmental Agreement, to
purchase the Property “AS IS WHERE IS” and without any
representations or warranties as to the condition of the Property by the
Commission and acknowledges that the Commission, including any of
its representatives, has not made any warranties or representations of any
kind relating to the Property or the condition or use thereof. The
Commission has provided to Company all environmental reports it has
completed with respect to the Property prior to the date hereof. In
addition, the Commission shall provide the Company access to the
Property for the 30 day period after the date hereof, in order for Company
to conduct an inspection for purposes of the Updated Phase I before
proceeding with this transaction to purchase the Property. [A1]By
to close this transaction the Company shall have completed to its
satisfaction its own investigation of the Property and has chosen to rely
exclusively on its own inspections of the Property. However, after the
inspection of the Property, the Company shall seek a Comfort Letter and
shall have the right, in its sole and subjective discretion in the event it
does not receive such Comfort Letter, to either (i) terminate this
Agreement by providing Commission written notice of its decision to
terminate; or (ii) waive any such matters which may arise as a result of
this inspection.
(b) Not discriminate on the basis of race, color, creed, sex, or national origin
in the sale, lease, rental, use or occupancy of the Property.
(c) By execution of this Purchase Agreement, the Company convenants and
agrees that at or after Closing, Company will upon reasonable request of
Commission, execute and deliver a Declaration of Easement in a form
substantially similar to Exhibit “F” permitting the City of South Bend
access to the Property for purposes of the provision of utilities, including
but not limited to, water, sewer, dark fiber, telephone, electric, gas, and
such other utility services which are necessary to service the IPPUD.
9. Commission Obligations. The Commission shall do the following:
(a) The Commission shall provide access to the Property by public right-of-
ways through the newly constructed Ignition Drive South illustrated on
Exhibit “G”.
(b) Upon request of Company, and at the earliest opportunity legally
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permissible and upon timely receipt of the appropriate documentation,
the Commission agrees to fully support the granting of a three-year real
property tax abatement and a five-year personal property tax abatement
applicable to the Property based on the investment and other criteria
evaluated by the City of South Bend according to its real property tax
abatement program. The Company’s petition for tax abatement will not,
however, preclude the Company from seeking State or other building or
development incentives.
(c) The Commission will use best efforts to facilitate the initial connection
of the Dark Fiber Loop operated by St. Joe Valley Metro Net, Inc. to the
park. The Company shall be responsible for all lateral feeds from the
outside property line to the Company’s building.
(d) Company has agreed to the Statement of Commitments which is attached
as Exhibit “H”. Company shall agree to be bound by such Statement of
Commitments so long as they are in a form reasonable satisfactory to it
so as not to unreasonably impair or restrict its use of the Property.
(e) The Commission will use all good faith and commercially reasonable
efforts to seek an amendment to the Planned Unit Development (“PUD”)
or other zoning of the Property in order for the Property to be utilized for
the permitted uses as set forth in the Statement of Commitments (referred
to above).
10. Right of First Refusal. After the Closing and until the Development of the
Property (as defined in Paragraph 10(c) below) (the “ROFR Period”), the Commission shall
have a right of first refusal to purchase the Property in accordance with the following conditions
(the “ROFR”):
(a) In the event Company receives a bona fide offer from an unrelated third-
party to purchase all or any portion of the Property at any time which the
Company is prepared to accept, the Company shall first offer to sell the
Property to the Commission on the same terms and conditions as the bona
fide offer (the “Offer”), and shall send written notice to the Commission
that contains the details of the Offer, including the name and the address
of the prospective purchaser of the Property. Within thirty (30) days after
notice of the Offer is provided to the Commission, the Commission may,
at its sole option, elect to purchase the Property from the Company upon
the same terms and conditions as the Offer by providing notice of its
election to Company within said thirty (30) day period (the “Election
Period”). The notice from the Commission shall specify the date for the
closing of the purchase of the Property which shall not be more than
forty-five (45) days after the date the Commission gives notice to the
Company of the Commission’s election to purchase the Property. If the
Commission fails to exercise its ROFR during the Election Period or
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within forty-five (45) days after the date the Commission provides notice
to the Company of its decision to purchase the Property, the Company
may sell the Property to the third-party in accordance with the Offer. If
the Company fails to close the sale of the Property to the third-party
within ninety (90) days following the expiration of the Election Period,
the Property shall again become subject to the ROFR.
(b) The Commission’s obligation to purchase the Property after its exercise
of the ROFR is subject to satisfaction of or a written waiver by the
Commission of the following conditions precedent:
i. Within thirty (30) days after the date upon which the Commission
exercises the ROFR, the Company shall, at its expense, obtain a Title
Commitment), pursuant to which such the title insurance company
shall agree to and insure good and marketable and indefeasible fee
simple title to the Property in the name of the Commission for the
full amount of the purchase price upon delivery of a deed to the
Commission from Company.
ii. The Title Commitment shall provide for issuance of a final title
insurance policy on the latest A.L.T.A. Owner’s Form or similar
form, free and clear of any all liens, encumbrances, highways,
rights-of-way, easements or other exceptions, except current taxes
which are not delinquent, the title insurance company’s standard
exceptions and other exceptions as the Commission, in its reasonable
discretion, may approve after examination of the Title Commitment.
The Commission shall be deemed to have accepted any exception
identified in the Title Commitment if the Commission does not notify
Company within thirty (30) days of receiving the Title Commitment
of any objections to any matter reflected in the Title Commitment
which may reasonably affect the Commission’s intended use for the
Property. Company shall have a period of twenty-one (21) days after
receipt of any notice from the Commission within which to correct
any such objections to title. If Company is unable to correct the
Commission’s title objections within thirty (30) days after receipt of
written notice thereof, then the Commission shall have the right any
time at its election to cancel and terminate its ROFR, unless the
Commission elects to waive such title objections and proceed with
closing.
iii. The cost of issuance and all costs of all endorsements of the title
insurance in the amount of the purchase price will be paid by
Company at Closing
iv. Real estate taxes shall be prorated as of the date of closing with
Company paying all real estate taxes and assessments for periods
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prior to the closing and the Commission accepting the title of the
Property subject to taxes and assessments which are not yet due and
payable and Company granting a credit to Commission at closing for
any such taxes and assessments.
v. At closing, the Company shall execute, acknowledge and deliver to
the Commission a limited warranty deed conveying Company’s
interest in the Property to Commission free and clear of all liens and
encumbrances other than current taxes, the standard exceptions
identified in the Title Commitment, and any other exceptions
identified in the Title Commitment which are accepted by the
Commission pursuant to Paragraph 10(b)(iv) above. The Company
and Commission shall execute, acknowledge and deliver any other
instruments, documents and assurances required or requested by the
title insurance company in order to convey the Property to the
Commission. Possession of the Property shall be delivered to the
Commission at the closing. At closing, the Commission shall pay the
purchase price in cash subject to any proration of taxes and
assessments.
(c) For purposes of this Paragraph 10, “Development of the Property” shall
mean the construction of a building consisting of at least 5,000 square
feet.
11. Assignment. This Agreement may not be assigned by the Commission to any
other party without the written consent of the Company, which consent may be withheld for any
reason, except in the case of an assignment to any entity of the City of South Bend or the
Commission or any entity in which the City of South Bend or the Commission have a controlling
interest or is the general partner, such consent shall not be unreasonably withheld. This
Agreement may not be assigned by the Company to any other party without the written consent
of the Commission, which consent may be withheld for any reason.
12. Entire Agreement. This Agreement embodies the entire agreement between the
parties with respect to the Property and cannot be varied except by the written agreement of the
parties. No representation, promise, or inducement not included in this Agreement shall be
binding upon the parties hereto.
13. Timing. Time is of the essence of this Agreement.
14. Notices. Any notices, requests, or other communications required or permitted
to be given hereunder shall be in writing and shall be either (i) delivered by hand, (ii) mailed by
United States certified mail, return receipt requested, postage prepaid. Any such notice, request,
or other communication shall be considered given or delivered, as the case may be, on the date
of hand delivery (if delivered by hand), on the third (3rd) day following deposit in the United
States mail (if sent by United States certified mail).
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Company: Commission:
Gregory L. Freehauf David Relos
Vice President Finance, CFO 1400 City-County Building
Martin’s Super Markets, Inc. 227 W. Jefferson Boulevard
PO Box 2709 South Bend, IN 46601-1830
South Bend, IN 46680-2709
With a copy to:
Corporation Counsel
City of South Bend, Indiana
1200 City-County Building
227 W. Jefferson Boulevard
South Bend, IN 46601-1830
15. Binding Terms. All the terms and conditions of this Agreement are hereby made
binding on the successors and permitted assigns of both parties hereto.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana and venue for any action shall be St. Joseph
County, Indiana.
17. Binding Upon Execution. This Agreement shall not be effective or binding until
fully executed by all the parties.
18. Survival of Terms. This Agreement, including without limitation, Paragraphs 7
and 8, will survive closing of the conveyance the Property and shall not be considered merged
into the deed or other documentation reflecting conveyance of the Property.
19. Partial Invalidity. If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions of
this Agreement shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
20. Additional Documents. Each party shall execute and deliver to the other all such
other further instruments and documents as may be reasonably necessary to accomplish the
actions contemplated by this Agreement and to provide and secure to the other party the full
and complete enjoyment of its rights and privileges hereunder.
21. Negotiated Agreement. This Agreement was negotiated by the parties at arm’s
length and each of the parties hereto has reviewed the agreement after the opportunity to consult
with independent counsel. Neither party shall maintain that the language in the Agreement shall
be construed against any signatory hereto.
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22. Construction of Terms. Words of any gender used in this Agreement shall be
held and construed to include any other gender, and words in the singular number shall be held
to include the plural, and vice versa, unless the context requires otherwise.
23. Authority to Execute. The undersigned persons executing and delivering this
Agreement on behalf of each of the parties respectively represent and certify that they are the
duly authorized officers of each and have been fully empowered to execute and deliver this
Agreement and that all necessary corporate action has been taken and done. The undersigned
persons executing and delivering this Agreement on behalf of the Company represent and
certify that (i) they are the officers of the Company duly authorized by a resolution of the
Members to purchase the Property and enter into this Agreement and (ii) that such action is
consistent with the Company’s Articles of Organization, Operating Agreement, and prior
Resolutions, and to the extent that this Agreement or any obligation herein conflicts with said
documents, the Company by approving this Agreement shall deem such documents to be
amended to allow for this Agreement and any action or obligation contemplated or required
hereunder. This Agreement may be executed in duplicate or through counterparts.
(Remainder of page intentionally left blank)
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of the day and year first above written.
CITY OF SOUTH BEND, INDIANA
DEPARTMENT OF
REDEVELOPMENT
Date: ______________________, 2015
______________________________
South Bend Redevelopment Commission
ATTEST:
______________________________
South Bend Redevelopment Commission
MARTIN’S SUPER MARKETS, INC.
Date: ______________________, 2015
______________________________
Gregory L. Freehauf
Secretary, Vice President Finance, CFO
MARTIN’S MO LLC
Date:_______________________, 2015
_______________________________
Gregory L. Freehauf
Secretary, Vice President Finance, CFO of
Martin’s Super Markets, Inc.
Its Manager
EXHIBIT A
Legal Description
Lot Numbered 3 as shown on the Ignition Park Second Minor Subdivision recorded in
the Office of the Recorder of St. Joseph County, Indiana, as Instrument Number 1115569 (the
“Real Estate”).
EXHIBIT B
Map of
Proposed Ignition Park Major Subdivision
The City has plans to close Kendall Street from Indiana Street to the railroad tracks and
will notify Martin’s prior to closure. Closure of Kendall Street should not affect the boundaries of
the Property.
EXHIBIT C
Phase I Environmental Report
EXHIBIT D
Environmental Indemnity, Access and Remediation Agreement
EXHIBIT E
RETURN TO: AUDITOR’S RECORD
MARTIN’S SUPER MARKETS, INC. TRANSFER NO.__________
ATTENTION: PAM SMITH
PO BOX 2709 TAXING UNIT___________
SOUTH BEND, IN 46680 DATE __________________
KEY NO.
LIMITED WARRANTY DEED
THIS INDENTURE WITNESSETH, THAT
That the City of South Bend, Department of
Redevelopment, in St. Joseph County, Indiana (the “Grantor”)
CONVEYS AND WARRANTS TO MARTIN’S MO LLC (the “Grantee”)
for and in consideration of one dollar ($1.00) and other good and valuable consideration, the receipt whereof
is hereby acknowledged, the following described real estate in St. Joseph County, Indiana, to-wit:
Lot Numbered 3 as shown on the Ignition Park Second Minor Subdivision recorded in the
Office of the Recorder of St. Joseph County, Indiana, as Instrument Number 1115569 (the
“Real Estate”).
The Grantor herein and its successors shall warrant and defend the title to the real estate above-described
to said Grantee, its successors and assigns, against the lawful claims and demands of all persons claiming
by, through or under the said Grantor, but none other.
Grantor hereby conveys the above-described Real Estate subject to all easements, conditions, reservations,
leases, licenses, access agreements and restrictions as may appear of record, be apparent by an inspection
of the Real Estate, or of which the Grantee has actual or constructive knowledge.
The undersigned persons executing this deed on behalf of Grantor represent and certify that they are duly
authorized to act for the Grantor and have been fully empowered by the South Bend Redevelopment
Commission to execute and deliver this deed; that Grantor has full capacity to convey the real estate
described herein; and that all necessary action for the making of such conveyance has been taken and done.
(Remainder of page intentionally left blank)
Page 1 of 2
Dated this day of _____________, 2015.
City of South Bend, Department of
Redevelopment
ATTEST
____________________________________ _____________________________________
By: By:
Its: Its:
South Bend Redevelopment Commission South Bend Redevelopment Commission
State of Indiana, County of St. Joseph ss:
Before me, the undersigned, a Notary Public in and for said County and State, personally
appeared the within named ________________________ and ___________________, the
____________________ and ________________, respectively, of the South Bend
Redevelopment Commission, the governing body of the City of South Bend, Indiana,
Department of Redevelopment, who acknowledged the execution of the foregoing Deed and
who, having been duly sworn, stated that the representations therein contained are true.
WITNESS, my hand and Seal this _____ day of ___________, 2015.
(SEAL)
_________________, Notary Public
Commission expires: _____________ Resident of ___________ County, _______
Interests in land acquired by
MARTIN’S MO LLC
Grantee mailing address:
Martin’s MO LLC
Attention: Pam Smith
PO Box 2709
South Bend, IN 46680-2709
I affirm, under the penalties for perjury, that I have taken reasonable care to react each Social Security number in this
document, unless required by law. Daniel P. Cory
Prepared by Daniel P. Cory, Plews Shadley Racher & Braun LLP, 53732 Generations Drive, South Bend, IN 46635,
(574) 273-1010.
Page 2 of 2
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EXHIBIT F
DECLARATION OF UTILITY EASEMENTS
THIS DECLARATION OF UTILITY EASEMENTS (“Declaration”) is executed this
_____ day of ____________, 201__ by MARTIN’s MO LLC (‘‘Martin’s” or “Grantor”), having
its principal place of business located at the, having its principal place at 760 Cotter Street, South
Bend, Indiana 46601.
For valuable consideration, Grantor does hereby grant unto The City of South Bend,
Indiana and its successors and assigns (“Grantee”) a Utility Easement as provided herein for the
benefit of the City of South Bend, an Indiana Municipal Corporation.
Statement of Facts
Grantor is the owner of property legally described as follows:
(insert legal description here)
(the “Real Estate”)
Grantor desires to establish a Utility Easement for the purpose of permitting Grantee to
construct and maintain utilities and drainage facilities over, under and across a portion of the Real
Estate as more particularly described herein.
NOW, THEREFORE. Grantor hereby declares as follows:
1. Grantor, for the benefit of the Grantee and the current and future owners of the
Real Estate, declares and grants a perpetual non-exclusive easement (“Easement”) over that
portion of the Real Estate described as: [INSERT] (the “Easement Premises”)
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for the purpose of constructing, maintaining and reconstructing utilities including but not limited
to electric, water, telephone, fiber optics, drainage, sewer, and gas (collectively “Utility Services”).
This grant of Easement includes the right of any Grantee to utilize any Public Utility Companies
in order to carry out the intent of this Declaration of Utility Easements. The Easement herein
granted includes the right of ingress and egress to from and over the Easement Premises for the
purpose of maintaining said utilities and drainage facilities.
2. Grantor, its successors and assigns, retain, reserve and shall continue to enjoy the
use of the surface of the Easement Premises for any purposes which do not interfere with or prevent
the use by Grantees of the Easements described in Paragraph 1.
3. The Easements granted herein are subject at all times to Grantees’ obligation to:
(i) restore the Easement Premises to substantially its condition prior to coming upon said Real
Estate: and (ii) refrain from interfering with the intended use of the Real Estate by Grantor as
defined in: (a) a Contract for Purchase and Sale of Real Estate executed between MARTIN’S
SUPER MARKETS, INC., MARTIN’S MO LLC and the South Bend Redevelopment
Commission for the purchase and sale of the Real Estate.[A2]
4. The Easements granted shall run with the land and be binding upon the Grantor and
Grantee and their respective heirs, successors and assigns. Neither party shall interfere with the
other’s use and enjoyment of the easement rights granted and reserved hereunder.
In order to ensure the Easements granted herein do not interfere with the intended use of
the Real Estate by Grantor, permission shall be obtained from Grantor for the specific location of
the Easements granted which consent shall not be unreasonably delayed or withheld taking into
consideration the location of utility on-site laterals needed to take the shortest, most economical
path from the public right-of-way over the Real Estate.
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[SIGNATURE PAGE TO FOLLOW]
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Dated this day of _____________, 201_.
GRANTOR:
MARTIN’S MO LLC
______________________________
Gregory L. Freehauf
Secretary, Vice President Finance, CFO of
Martin’s Super Markets, Inc.
Its Manager
State of Indiana, County of St. Joseph ss:
Before me, the undersigned, a Notary Public in and for said County and State, personally appeared
the within named ________________________, the _____________ of Grantor, who
acknowledged the execution of the foregoing Declaration of Easement and who, having been duly
sworn, stated that the representations therein contained are true.
WITNESS, my hand and Seal this _____ day of ___________, 2015.
(SEAL)
_________________, Notary Public
Commission expires: _____________ Resident of ___________ County, _______
I affirm, under the penalties for perjury, that I have taken reasonable care to react each Social Security number in this
document, unless required by law. Daniel P. Cory
Prepared by Daniel P. Cory, Plews Shadley Racher & Braun LLP, 53732 Generations Drive, South Bend, IN 46635,
(574) 273-1010.
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EXHIBIT G
Map of
Ignition Drive South
EXHIBIT H
Statement of Commitments
Martin’s Super Markets, Inc. Expansion: Ignition Park Lot 3
Statement of Commitments:
1. Permitted Uses: Primary uses for the rezoned area will be limited to the following:
Educational Use: School – Commercial, Trade, Industrial or Business, limited to adults
ages 18 and over. Consistent with applicable law, this limitation regarding schools shall
not limit the Company’s ability to employ interns, from time to time, who are under age
18.
Industrial Uses: Assembly or blending of previously manufactured parts, sub-assemblies
or components; Cleaning, testing or repairing of goods, materials or products; Data
processing or analysis; Engineering or research laboratories; Manufacture, processing,
refining or fabrication of goods, materials or products; warehousing; wholesaling;
distribution centers.
Office / Professional Services / Other: Construction Companies (any type, office only);
Contractors (any type, office only); Corporate Headquarters (office only); Manufacturers
Representative; cafeteria/deli (to the extent such use is not restricted by law or by the
requirements of the Comfort Letter).
Public Facilities: Parking Lot – Commercial
Utilities: Public Utility Substation.
2. Architectural Standards:
Any addition to an existing building will utilize building materials that are compatible and
harmonious with the materials used on the existing building. Any new construction of a
primary building or major addition to an existing building will utilize building materials
and design that is compatible with buildings within Ignition Park.
For any new construction of a primary building or major addition to an existing building,
each façade will employ at least three different materials, each covering a minimum of
twenty (20%) percent of the total surface area of the façade. The three materials to be used
on the façade will be a combination of any of the following:
• Metal panel (aluminum, zinc, copper, steel, etc.),
• Solid resin material suitable for exterior construction (Trespa or similar),
• Brick or brick masonry units,
• Glazed concrete masonry units,
• Natural or cast stone (limestone, granite, marble, sandstone, etc.),
• Glass curtain wall,
• Exposed concrete (architectural precast) with architectural patterning
and/or textures,
• Terra cotta and/or clay tile rain-screen systems.
3. Building Height: The height for any building will be no more than ninety (90) feet above
grade.
4. Parking and Loading Areas: Any off-street parking or off-street loading area will be
located no less than fifty (50) feet from the right-of-way line of Ignition Circle or Ignition
Drive South. Any off-street loading area will be located no less than fifty (50) feet from
the right-of-way line of Cotter Street.
5. Screening of Parking and Loading Areas: Any parking or loading areas will be
effectively screened from view from the right-of-way line of Ignition Circle or Ignition
Drive South through the use of buildings, screen walls, landscaping, landscaping berms, or
combination thereof.
6. Mechanical Equipment: Any mechanical equipment (e.g., HVAC systems and related
components; pedestals for electrical, telephone or cable service; above-ground water and
gas utility meters; and the like) will be screened as follows:
• Roof Mounted – Any roof mounted mechanical equipment will be screened
based on an elevation view of the building on all sides.
• Ground Mounted – Any ground mounted mechanical equipment will be
screened on all sides by the building; screen walls or fences of a material and
color which is compatible with the primary building; or, evergreen or densely
twigged hedge plants (with or without mounding) of a height at time of planting
which is not less than the height of the mechanical equipment to be screened.
7. Outdoor Operations and Storage: Any uses and operations, except for off-street parking
and off-street loading and delivery, will be conducted within completely enclosed
buildings.
8. Fences: No fences will be placed between the front façade of the primary building and the
front lot line or in a required side yard. Any fences in a required rear yard will not exceed
six (6) feet in height above grade.
9. Signs: No off-premise signs will be installed. Any freestanding identification sign(s) will
be limited to a monument sign. The number, surface area, setback, height, and other
standards for any on-premise signs will be in compliance with the GI District standards in
the City of South Bend Zoning Ordinance.
10. Lighting/Dark Sky Compliance: Other than any low intensity / low output architectural
or accent lighting (including ground mounted up-lighting), any outdoor lighting fixtures,
including freestanding or wall fixtures, will be full cutoff as defined by the City of South
Bend Zoning Ordinance.
1
ENVIRONMENTAL INDEMNITY, ACCESS, AND REMEDIATION AGREEMENT
THIS ENVIRONMENTAL INDEMNITY, REMEDIATION, AND ACCESS
AGREEMENT (this “Environmental Agreement”) is made and entered into by and between the
City of South Bend, Department of Redevelopment, by and through its governing body, the South
Bend Redevelopment Commission (referred to herein as the “Commission”) and Martin’s Super
Markets, Inc., an Indiana corporation and Martin’s MO LLC (together “Martin’s” and, collectively
with the Commission, the “Parties”).
WHEREAS, the Commission and Martin’s have entered into that certain Contract for
Purchase and Sale, dated [DATE] (the “Purchase Agreement”), in which, subject to the terms and
conditions set out therein, Martin’s has agreed to purchase and the Commission has agreed to sell
certain real estate in the City of South Bend, St. Joseph County, Indiana, as more particularly
described in Exhibit A attached hereto (the “Property”);
WHEREAS, Martin’s obtained a Phase I Environmental Site Assessment (the “Phase I”)
appended as Exhibit C to the Martin’s Purchase Agreement that references certain environmental
reports (the “Environmental Reports”) indicating as stated therein that the soils and groundwater
of the Property may contain “Hazardous Substances” (as defined herein);
WHEREAS, the Commission pursuant to a March 17, 2005 Voluntary Remediation
Agreement (“VRA”) with the Indiana Department of Environmental Management (“IDEM”) has
undertaken remediation of the Property through the IDEM’s Voluntary Remediation Program
(“VRP”).
WHEREAS Martin’s will be taking steps to qualify as a Bona Fide Prospective Purchaser
(“BFPP”) under CERCLA and other Environmental Laws (as defined herein) and intends to apply
for a “comfort letter” from the Indiana Finance Authority’s Brownfields Office (the “Brownfields
Office”) that details Martin’s liability protection for Existing Environmental Conditions (as
defined herein) at the Property and the “continuing obligations” Martin’s must satisfy to maintain
its BFPP liability protections under CERCLA and other Environmental Laws (the “Comfort
Letter”); and
WHEREAS, the Commission and Martin’s each wish to conclude the sale of the Property
from the Commission to Martin’s as contemplated by the Purchase Agreement, and the entry into
this Environmental Agreement is a condition to the obligations of the Parties to conclude that sale.
NOW, THEREFORE, for and in good and valuable consideration, the receipt and legal
sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Definitions. The following definitions will apply to the listed terms wherever they
appear in this Environmental Agreement. Moreover, each defined term stated in a singular form
or plural form shall include the other. Each defined term stated in a masculine form or feminine
form shall include the other. Capitalized terms not defined in this Paragraph 1 shall have the same
meaning as defined elsewhere in the Environmental Agreement.
2
a. “Certificate of Completion” means the certification by the commissioner of IDEM
in accordance with and pursuant to IC 13-25-5-16 and the VRA.
b. “Claim” means all claims, third party claims, causes of action, lawsuits, cross-
claims, counterclaims, obligations, liabilities, rights, demands (including letter-
demands, notices, or inquiries from any person or government agency), penalties,
assessments, losses, damages, requests, suits, lawsuits, costs (including attorneys’
fees and expenses), interest of any kind, actions, administrative proceedings,
criminal proceedings, or orders, of whatever nature, character, type or description,
whenever and however occurring, whether at law or in equity, and whether
sounding in tort or contract, or any statutory, regulatory, or common law claim or
remedy of any type, arising directly or indirectly, in whole or in part, from any
action a Party may take against a person to recover the Party’s costs for the
investigation or remediation of the Property or to compel or enjoin a person to
investigate or remediate the Property.
c. “Comfort Letter” means a letter from the Indiana Finance Authority’s Brownfields
Program (the "Brownfields Program") detailing the liability exemption or
enforcement discretion policy for which the applicant has qualified and by which
IDEM has determined not to pursue a party for cleanup with respect to pre-existing
contamination at the Property under CERCLA and analogous Indiana laws, as well
as any continuing obligations the entity must satisfy or reasonable steps it must take
to maintain the protection from enforcement or liability.
d. “Engineering Controls” means Remediation Work taken to contain or control
Environmental Conditions or exposure to Environmental Conditions at, on, or
under the Property, including, but not limited to maintaining impervious caps over
portions of the Property.
e. “Environmental Conditions” means the actual, alleged, or threatened, presence,
discharge, dispersal, release, escape, migration, seepage or abandonment of any
solid, liquid, gaseous or thermal irritant or contaminant, including but not limited
to, Hazardous Substances as defined below, vapors, soot, fumes, acids, alkalis,
toxic chemicals, waste materials, including medical infectious and pathological
waste, low-level radioactive waste and material, microbial matter at, on or under
the Property, the atmosphere or any watercourse, body of water or groundwater, or
any Hazardous Substances that have migrated or are migrating or that have
emanated or are emanating from the Property in surface water or groundwater.
f. “Environmental Law” shall mean, as amended and as now in effect, any and all
federal, state, local, and foreign statutes, regulations, ordinances, and other
provisions having the force or effect of law, all judicial and administrative orders
and determinations, all contractual obligations, and all common law concerning
public health and safety, worker health and safety, pollution, or protection of the
environment, including, without limitation, all those relating to the presence, use,
production, generation, handling, transportation, treatment, storage, disposal,
3
distribution, labeling, testing, processing, discharge, release, threatened release,
control, or cleanup of any hazardous materials, substances, or wastes, chemical
substances or mixtures, pesticides, pollutants, contaminants, toxic chemicals,
petroleum products or byproducts, asbestos, polychlorinated biphenyls, noise, or
radiation.
g. “Hazardous Substance” means, without limitation, any substance, chemical,
material or waste, whether solid, liquid, gaseous or thermal, (i) the presence of
which causes a nuisance or trespass of any kind; (ii) which is regulated by any
Environmental Law as defined herein because of its toxic, flammable, corrosive,
reactive, carcinogenic, mutagenic, infectious, radioactive, or other hazardous
property or because of its effect on the environment, natural resources or human
health and safety, including, but not limited to, petroleum and petroleum products,
polychlorinated byphenyls, trichloroethylene, trichloroethane and other chlorinated
industrial solvents, and a volatile organic compounds; or (iii) which is designated,
classified, or regulated as being a hazardous or toxic substance, material, pollutant,
waste (or a similar such designation) under any federal, state or local law, regulation
or ordinance, including under any Environmental Law such as the Comprehensive
Environmental Response Compensation and Liability Act (42 U.S.C. §9601 et
seq.), the Emergency Planning and Community Right-to-Know Act (42 U.S.C.
§11001 et seq.), the Hazardous Substances Transportation Act (49 U.S.C. §1801 et
seq.), or the Clean Air Act (42 U.S.C. §7401 et seq.), or Indiana Environmental
Legal Action statute (I.C. § 13-30-0, et seq.).
h. “Institutional Controls” shall mean Remediation Work taken to restrict access to,
or use of, the Property, including but not limited to deed restrictions.
i. “Remediation Objectives” shall mean the receipt of a Certificate of Completion, or
other equivalent approval, from IDEM, finding that Remediation Work at the
Property has been satisfactorily completed to the least stringent standard that allows
Martin’s Permitted Use of the Property, as defined in Exhibit F to the Purchase
Agreement (“the Permitted Use”).
j. “Remediation Work” shall mean any and all actions needed under the VRA and
VRP or otherwise to accomplish the Remediation Objectives as defined herein,
including: (i) investigations of Environmental Conditions, such as but not limited
to assessments, risk assessments, remedial investigations, sampling, testing,
monitoring or the installation or closure of monitoring wells; and (ii) actions taken
to address Environmental Conditions, such as, but not limited to, removal or
remedial actions to address Environmental Conditions, installation and use of
sumps, trenches, barriers or other systems for long term treatment or control of
soils, surface water or groundwater, and deed and/or other use restrictions or
Institutional or Engineering Controls, as defined herein, imposed on the Property
to address Environmental Conditions.
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k. “US EPA” means the United States Environmental Protection Agency, and any
successor agency of the United States government.
l. “VRA” means that certain Voluntary Remediation Agreement dated March 17,
2005, between the Commission and IDEM with respect to the Property (and other
real property) in accordance with the Indiana Voluntary Remediation Program
pursuant to Indiana Code 13-25-5 (“VRP”).
2. Existing Environmental Conditions. The Parties acknowledge that there are certain
Hazardous Substances on, at, or under the Property which are in excess of the Indiana Department
of Environmental Management’s (“IDEM”) clean-up criteria or screening levels (“Existing
Environmental Conditions”), as described in the Phase I and the Environmental Reports.
3. Current Remediation Efforts. The Commission continues to remediate the Existing
Environmental Conditions under the oversight of IDEM pursuant to the VRA.
4. The Commission’s Indemnification. Subject to the terms of this Environmental
Agreement, the Commission agrees to release, indemnify and hold harmless Martin’s, any entity
in which Martin’s has a controlling interest, and their respective shareholders, directors, officers,
agents, employees, and any assignees under Paragraph 12 of this Agreement, against and with
respect to any and all damages, claims, losses, liabilities and expenses, including without limitation
legal fees and environmental consulting or sampling fees or expenses and/or cost of Remediation
(the “Environmental Costs”), which may be imposed upon, incurred by or asserted against any of
them pursuant to the requirements of any governmental authority, including but not limited to the
IDEM and the US EPA, and any unrelated third party, arising out of, in connection with or relating
to (i) the Existing Environmental Conditions described in Paragraph 2 above, or (ii) any other
Environmental Condition, known or unknown, existing, arising or occurring on or prior to the date
of this Environmental Agreement.
5. Martin’s Indemnification. Subject to the terms of this Environmental Agreement,
Martin’s agrees to release, indemnify and hold harmless the Commission and any subdivision or
agency thereof, including any public officials, directors, officers, agents, employees, and any
assignees under Paragraph 12 of this Agreement, against and with respect to any and all damages,
claims, losses, liabilities and expenses, including without limitation legal fees and Environmental
Costs which may be imposed upon, incurred by or asserted against any of them pursuant to the
requirements of any governmental authority, including but not limited to the IDEM and the US
EPA, and any unrelated third party, arising out of, in connection with or relating to (i) any
Environmental Conditions (including but not limited to the release of Hazardous Substances) not
existing on the date of this Environmental Agreement, but rather arising or occurring after the date
of this Environmental Agreement (excluding, however, the migration of any such Hazardous
Substances onto the Property from other sites or of existing Hazardous Substances from the
Property, provided that the Hazardous Substances have not migrated from a release first occurring
on other property owned or operated by Martin’s or a related entity during Martin’s ownership),
or (ii) any exacerbation by act or omission of Martin’s or its directors, officers, agents, employees,
contractors, or invitees, of any Environmental Condition covered by the Commission’s
Indemnification under Paragraph 4.
5
6. Claims. Each indemnified party (the “Indemnitee”) shall give the indemnifying
party (the “Indemnitor”) prompt written notice of any Claim asserted against one or more of the
indemnified persons or entities under Paragraphs 4 and 5 which may give rise to a claim of
indemnification under this Environmental Agreement. If the Claim is covered by Paragraphs 4 or
5, the Indemnitor shall undertake the defense of such claim, demand, action, controversy or suit
by counsel of its choosing at its sole cost and expense. The Indemnitee shall give the Indemnitor
and its counsel reasonable assistance and cooperation with respect to such defense. The
Indemnitor shall not be obligated to pay any legal or defense costs for Claims not covered by its
respective indemnity.
If investigative or remedial work is required to resolve any Claim covered by Paragraphs
4 or 5, the Indemnitor shall have the right to select the environmental consultant and shall pay for
such work at its sole cost and expense. The Indemnitor shall not be obligated to pay any costs for
investigative or remedial work not covered by its respective indemnity.
If the Indemnitor, within thirty days after notice of any Claim covered by Paragraphs 4 or
5, fails to undertake a defense, the Indemnitee shall have the right to undertake a defense, including
compromise or settlement thereof with counsel of their choosing, and to select an environmental
consultant to perform environmental investigation and remediation work required to address such
Claim by an applicable government authority. The Indemnitor shall be responsible for reimbursing
the Indemnitee for reasonable legal fees and Environmental Costs. The Indemnitor shall retain the
right to assume such defense and environmental work, with legal counsel and an environmental
contractor of its choosing. Except as provided in this Paragraph 6, the Indemnitee shall not hire
any legal counsel or environmental consultant to address any Claim covered by Paragraphs 4 or 5,
unless it is at the Indemnitee’s sole cost and expense.
7. Term of Indemnity. The cross-indemnifications set forth in Paragraphs 4 and 5
above shall automatically expire on the earlier of: (i) the date that is 10 years from the date of
this Environmental Agreement; or (ii) the Remediation Completion Date as referenced in
Paragraph 8 below.
8. Remediation. Subject to the terms of this Environmental Agreement, the
Indemnitor agrees to promptly perform (or cause to be promptly performed) the environmental
investigations and corrective actions necessary to remediate any Environmental Condition at the
Property covered by the Indemnitor’s indemnification, to the extent required by the IDEM and any
other governmental authorities with jurisdiction over the Hazardous Substances and contamination
at the Property. As used herein, “Remediation” means (i) performing environmental property
assessment activities (which may include taking soil borings and the installation, sampling and
maintaining of groundwater monitoring wells and/or other monitoring points and related activities)
on the Property to complete an assessment of the Property as required by IDEM or other
governmental authorities or any court of competent jurisdiction; and (ii) performing corrective
action to diligently remediate such Hazardous Substances consistent with the rules, regulations
and requirements of IDEM or other governmental authorities or any court of competent
jurisdiction.
6
Any such remediation shall be considered complete upon achievement of the Remediation
Objectives. Upon termination of the remediation, the Indemnitor shall decommission any
remaining monitoring points and other corrective action equipment and restore the surface of the
Property affected by the decommissioning to substantially the same condition which existed prior
to such decommissioning in accordance with the rules and regulations of IDEM or other applicable
government authority.
The Parties further agree and understand there is currently a voluntary remediation being
performed by the Commission pursuant to IDEM’s Voluntary Remediation Program. This
remediation shall be considered complete upon the date IDEM issues a Certificate of Completion,
or the equivalent, together with a covenant not to sue, or the equivalent that addresses all of the
Environmental Conditions identified in the VRA to IDEM’s satisfaction (the “Remediation
Completion Date”).
9. Access. Martin’s shall cooperate in allowing the Commission, as well as its
respective agents and contractors access to and use of the Property at all reasonable times to the
extent reasonably required to undertake any investigation or remediation work contemplated in
this Agreement including, but not limited to, any such work covered in Paragraphs 4 or 8. This
license to access the Property shall continue for as long as is necessary to complete the remediation.
The Commission will provide Martin’s with reasonable prior notice of its access to the Property
will make every commercially reasonable effort to limit its access to the Property to avoid
materially interfering with Martin’s conduct of its business operations on the Property and will
compensate Martin’s as set out below with respect to disruption. Martin’s will take reasonable
actions to ensure that its agents, employees, contractors, and invitees are aware of the location of
any monitoring wells or other remediation equipment in order to avoid damage thereto and
potential exacerbation of any Hazardous Substances.
Martin’s shall not intentionally or unreasonably impair the Commission’s ability to comply
with applicable environmental laws or to perform the investigation and remediation work.
Martin’s shall, at the sole cost of the party seeking such access, cooperate with and assist the
Commission in obtaining any required approvals, consents, permits or related documents required
for the performance of the investigation and Remediation work. Any costs incurred by Martin’s
for the foregoing shall be reasonable. Martin’s shall coordinate with the Commission with respect
to any construction activities conducted at the Property by Martin’s so as to minimize any
interference with the investigation and remediation work.
10. Vapor Intrusion. The Commission agrees to reimburse Martin’s up to and
including $62,500 for the cost of any vapor intrusion investigation or mitigation work required by
IDEM as part of the Comfort Letter process for the construction of new improvements at the
Property (the “Vapor Mitigation Costs”). Any Vapor Mitigation Costs in excess of $62,500 shall
be Martin’s sole responsibility. Martin’s agrees to implement the most cost-effective investigation
and mitigation options for any response related to vapor intrusion. This includes, but is not limited
to, taking steps to limit or eliminate the need for vapor intrusion mitigation, which entails accepting
any Institutional and/or Engineering Controls that limit or eliminate the need for vapor intrusion
mitigation, provided that such Engineering or Institutional Controls are consistent with any
Permitted Use. The Commission agrees that all vapor intrusion investigation and mitigation work
7
conducted shall comply with Environmental Laws, the conditions of the Comfort Letter, and any
applicable IDEM guidance. Martin’s shall submit written plans for any work that will result in
Vapor Mitigation Costs to the Commission for approval, which approval shall not be unreasonably
withheld. In the event that Martin’s submits written plan for any work that will result in Vapor
Intrusion Costs and the Commission does not provide notice of its disapproval within 30 days of
such request, the Commission’s consent shall be deemed provided.
11. Incremental Cost of Handling Contaminated Soil or Groundwater during
Construction Activities. The Commission agrees to reimburse Martin’s for the reasonable costs
related to the movement, excavation, handling, storage, sampling, treatment and/or disposal of soil
or groundwater at the Property contaminated with Hazardous Substances, removed from the
Property or relocated on the Property in the course of pre-construction or construction activities of
any improvements as necessary to comply with applicable Environmental Laws or Comfort Letter
requirements (the “Incremental Costs”), but only to the extent such Incremental Costs would not
be incurred by Martin’s for preconstruction or construction activities at another property which
has no Environmental Conditions. The Commission shall have the right to review and approve
any and all activities or plans that may result in such Incremental Costs in order to minimize such
Incremental Costs, provided that if the Commission objects to any such activities, plans or
Incremental Costs, the Commission shall propose an alternative that is consistent with: (a)
Environmental Laws, and implementing regulations and guidance; (b) Comfort Letter
requirements; and (c) Martin’s planned development and Permitted Use of the Property. The
Commission’s review of activities and plans that may result in Incremental Costs and approval
shall not be unreasonably withheld. The Commission shall not be responsible for any Incremental
Costs that result from activities or plans carried out without prior approval by the Commission. In
the event that Martin’s submits plans for any work that will result in Incremental Costs and the
Commission does not provide notice of its disapproval within 30 days of such request, the
Commission’s consent shall be deemed provided.
12. Use. The Property may be used for the Permitted Use, as defined in Exhibit F to
the Purchase Agreement (the “Permitted Use”). Martin’s agrees to accept those Engineering
Controls and Institutional Controls, including but not limited to executing and recording deed
restrictions and allowing for the capping of certain areas of the Property, needed to accomplish the
Remediation Objectives. Martin’s specifically agrees that the Property shall not be used for
purposes or activities inconsistent with attaining and maintaining the Remediation Objectives.
Without limiting the foregoing, Martin’s specifically agrees the Property shall not be used for any
other purpose other than the Permitted Use without the prior written consent of the Commission,
which Consent will not be unreasonably withheld. Notwithstanding the foregoing, Martin’s may
lease the Property to third-parties as long as lessee’s use is consistent with the Permitted Use.
Martin’s also specifically agrees not to extract or use groundwater under, in, or about the
Property for any purpose other than Remediation Work, unless the Commission in its sole
discretion consents in writing to such other use.
To the extent the Commission installs or relies on Engineering Controls at the Property
necessary to achieve the Remediation Objectives, Martin’s shall not alter, change, modify, damage
8
or disturb such Engineering Controls without the Commission’s written consent, which consent
shall not be unreasonably withheld. Martin’s request for such consent shall be in writing. In the
event Martin’s requests the Commission’s consent to Martin’s altering, changing, modifying,
damaging or disturbing an Engineering Control or Engineering Controls and the Commission does
not provide notice of its disapproval within 30 days of such request, the Commission’s consent
shall be deemed provided. In the event Martin’s alters, changes, modifies, damages or disturbs
any Engineering Controls, with or without the Commission’s consent, Martin’s shall be
responsible, at Martin’s sole cost and expense, for (i) restoring as near as reasonably possible such
Engineering Controls to their pre-existing condition, and (ii) any additional Remediation Work
necessitated by any such alteration, change, repair, modification, damage or disturbance.
13. Sampling and Tests. Martin’s agrees that it will not, directly or indirectly, either
itself or through its agents, employees or contractors, conduct, order, or permit any sampling or
tests of any kind relating to the possible presence of Hazardous Substances contamination of any
soil, water, aquifer or other environmental media in, on, or under, or in the vicinity of the Property,
except to the extent (a) required or recommended by the terms of the IDEM Comfort Letter, or (b)
as otherwise required by Environmental Law, or (c) with consent of the Commission (as provided
below). Upon written requests, the Commission may thereafter, in its reasonable sole discretion,
determine whether and how to (i) permit Martin’s to perform such sampling or testing; or (ii)
conduct any sampling or testing, using such environmental consultants of the Commission’s
choice, and provide split samples for independent analysis by Martin’s at its expense. This
paragraph notwithstanding, Martin’s may permit sampling or testing in an emergency, but must
notify the Commission in writing immediately after such sampling or testing.
14. Assignment. Upon written notice to the Commission, Martin’s may assign its
rights under this Environmental Agreement to any future interest holder in the property provided
that:
(i) The proposed assignee assumes in writing all the obligations of Martin’s under this
Environmental Agreement; and
(ii) Within fifteen (15) days of receiving written notice of the proposed assignment the
Commission does not reasonably object to the assignment.
For purposes of this Section, a reasonable objection by the Commission is one accompanied by
reasonable evidence that the proposed assignee has a history of material, unaddressed non-
compliance with Environmental Laws.
15. No Third Party Benefit. This Environmental Agreement is not intended to inure to
the benefit of any third party, against whom the Parties reserve any and all rights, claims and
defenses.
16. Notices. All notices to be given under this Environmental Agreement shall be in
writing and shall be deemed to have been given and served when delivered in person, the next
business day after being sent, charges prepaid, by Federal Express, UPS or similar overnight
carrier, or the second business day after depositing notice in the United States mail, postage pre-
paid, in each case to the address set forth below or such other address as either party may have last
specified by written notice to the other:
9
If to the Commission:
Scott Ford, Executive Director
Community Investment Department
City of South Bend, Indiana
14th Floor, County-City Bldg.
227 W. Jefferson Boulevard
South Bend, Indiana 46601
With a copy to:
Thao T. Nguyen
Plews Shadley Racher & Braun LLP
South Bend, Indiana 46637
and
Corporation Counsel of South Bend, Indiana
14th Floor, County-City Bldg.
South Bend, Indiana 46601
If to Martin’s:
Gregory L. Freehauf
Vice President Finance, CFO
Martin's Super Markets, Inc.
PO Box 2709
South Bend, Indiana 46624
With a copy to:
Barnes & Thornburg LLP
100 North Michigan, 6th Floor
South Bend, Indiana 46601
Attn: Joel Bowers
17. Multiple Counterparts. This Environmental Agreement may be executed in
multiple counterparts, each of which shall be considered an original with counterparts signed by
one party when combined with counterparts signed by other parties to this Environmental
Agreement constituting an original contract.
18. Paragraph Headings. This Environmental Agreement shall be construed without
reference to paragraph headings which are inserted only for convenience of reference.
10
19. Entire Agreement. This instrument contains the entire agreement of the parties
relating to environmental investigation, remediation, and indemnification for the Property and
supersedes all prior oral or written understandings, agreements or contracts, formal or informal,
between the parties hereto pertaining to said subject.
20. Controlling Effect of This Agreement. To the extent that any provision in this
Environmental Agreement conflicts with any provision in the Purchase Agreement or any other
agreement related to the purchase and sale of the Property described therein, this Environmental
Agreement shall control.
11
IN WITNESS WHEREOF, the undersigned executed and delivered this Environmental
Indemnity, Remediation, and Access Agreement on the date set forth below the name of each.
MARTIN'S SUPER MARKETS, INC.
______________________________________
Gregory L. Freehauf
Secretary, Vice President Finance, CFO
MARTIN’S MO LLC
______________________________________
Gregory L. Freehauf
Secretary, Vice President Finance, CFO of
Martin’s Super Markets, Inc.
Its Manager
CITY OF SOUTH BEND, DEPARTMENT OF REDEVELOPMENT
By the SOUTH BEND REDEVELOPMENT COMMISSION
By:
Its:
Dated:
ATTEST:
By:
Its:
Dated:
EXHIBIT A
DESCRIPTION OF PROPERTY