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Case: 1:11-cv-00103-GHD-DAS Doc #: 270 Filed: 10/10/13 7 of 27 PageID #: 3679

The lease assigned to Kroger (hereinafter “Kroger’s Lease”) prohibited Kroger from performing any acts or carry on any practices that might injure the building. [Exhibit F at 89, exhibit 4 thereto at 3]

Kroger’s Lease further provided that the landlord would provide and

maintain proper and adequate water drainage. [Exhibit F, exhibit 4 thereto at 10] The landlord further agreed that it would be responsible for submitting plans for the construction of the development and the building to all regulating authorities for approval prior to construction. [Exhibit F, exhibit 4 thereto at 16]

The landlord also agreed that the building would be

constructed and maintained at all times so as structurally to comply with and conform to the requirements prescribed by any and all ordinances, statutes, rules or regulations of municipal or other governmental authority relating to public health and sanitation or safety and that it would promptly make any changes in the premises which might become necessary in order for the premises to conform to such requirements. [Exhibit F, exhibit 4 thereto at 23] The landlord warranted that there were no zoning or other restriction preventing or restricting the use of the premises for any lawful commercial retail business. [Exhibit F, exhibit 4 thereto at 33] Prior to the receipt of Plaintiff’s Complaint, Kroger has no records that would have placed it on notice that a portion of its retail location made the subject of this action was located in the floodway designated by map and panel number 280020003B, dated March 16, 1981. [Exhibit C at 19] Kmart’s causation expert, reviewed the original construction plans for the development in which the building housing the Kroger store is located, and he testified that those plans show that said building is not in a floodway. [Exhibit E at 241-42] The construction plans that Kmart’s causation expert reviewed showed the actual elevations of the building which houses Kroger’s store, and he testified that the construction plans were more reflective of the


270 memoinsupportmotionforsummaryjudgement kroger kmart  
270 memoinsupportmotionforsummaryjudgement kroger kmart