AGREEMENT FOR EXCLUSIVE EASEMENT FOR AIR RIGHTS OVER PUBLIC PROPERTY

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Mildred Potter
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1 AGREEMENT FOR EXCLUSIVE EASEMENT FOR AIR RIGHTS OVER PUBLIC PROPERTY THIS AGREEMENT made this day of June, 2013 by and between the CITY OF EAST LANSING, a Michigan Municipal Corporation, with its principal offices located at 410 Abbot Road, East Lansing, Michigan, 48823, (the Grantor ) and A & G PARTNERSHIP LLC, a Michigan limited liability company, with principal offices located at 117 Center Street, East Lansing, Michigan (the Grantee ). As set forth below, Grantor and Grantee agree as follows: 1. Grantor, in consideration of the performance of the covenants by Grantee set forth in this Agreement and subject to the conditions set forth in this Agreement, grants to Grantee an exclusive easement for the use of all its air rights within that volume of space above that portion of the Grove Street Parking Garage located in the City of East Lansing, Ingham County, Michigan, over that parcel of real property legally described on Exhibit A attached hereto (the Description of Easement ). Grantee's exclusive right to the use of the Easement Area shall be for a term of ninety-nine (99) years, shall run with the ownership of the West ½ of Lots 30 and 31, Plat of College Grove, City of East Lansing, County of Ingham, Michigan, as recorded in Liber 3 of Plats, page 4, Ingham County Records and shall inure to the benefit of Grantee, its successors and assigns unless terminated earlier as a result of Grantee s or Grantee s successor s failure to comply with Grantee s obligations set forth in this easement. 2. The only permitted use of the Easement Area is for the construction, maintenance and use of an exhaust system for purposes of servicing the commercial space for those purposes permissible under the Site Plan and Special Use Permits as approved by City Council on July 20, 2010 for Ann Street (The Residences) and April 2, 2013 for 300 Grove Street (HopCat), as well as any amendments to said Permits and any future Site Plan Approvals and Special Use Permits that impact the Easement Area as may be granted by City Council during the duration of this Agreement. 3. Grantee or Grantee s successor shall defend, indemnify and hold Grantor and all its elected and appointed officers, agents, contractors and employees harmless: a) From any and all claims by persons, firms or other entities for labor, services, materials or supplies provided in connection with the construction, installation and maintenance of any improvement made in the Easement Area; and b) From any and all claims arising out of the use of the easement as permitted herein including but not limited to claims for injuries to or death of any and all individuals or for loss of or damage to property from any environmental damage, degradation, response and clean up costs and all reasonable attorney fees and related costs which may be incurred by Grantor arising out of or which may arise out of any activity which may be engaged in by Grantee or its successors, assigns, agents and invitees or for which it may be responsible in connection with any activity involving the use of the Easement Area; and

2 c) Grantee shall obtain and keep in full force and effect until the completion of all improvements, a single policy of builders' risk insurance, effective as of the date of commencement of construction, naming Grantor as an additional named insured with policy limits of not less than the full replacement cost of all insurable components of all the improvements to be installed by Grantee on the real property referred to in the second sentence of Paragraph 1 of this Agreement. In addition, Grantee and its successors and assigns, shall obtain and maintain during the entire term of this easement agreement a policy or policies of general public liability insurance, including broad form enforcements, on an occurrence basis, naming Grantor as an additional insured with combined policy limits of not less than $1,000,000 for injuries, including accidental death, to any one person, and subject to the same limit for each person, not less than $2,000,000 for any one accident involving two or more persons; and property damage liability insurance shall not be less than $1,000,000, for any one accident and not less than $2,000,000 aggregate with respect to the improvements to be located within the Easement Area. Grantee shall provide Grantor with a certificate of such insurance issued by a company authorized to do business in Michigan with a Best rating of AAA naming Grantor as an additional insured with a right to not less than 30 days written notice of cancellation or nonrenewal. The above-described insurance shall be increased by 10% at the end of each five-year period during the entire term of this Agreement. d) Grantee s obligations to defend, indemnify, and hold Grantor harmless as stated herein shall survive the expiration, nonrenewal, cancellation, or earlier termination of this easement agreement for any reason. 4. Grantor shall not be subject to any obligations or liabilities by contractors of Grantee, their subcontractors or any other person not a party to this Agreement. Grantee shall not engage in any activity or conduct which arises either directly or indirectly out of its obligations, responsibilities and duties under this Agreement, which may result in a claim being asserted or a judgment being entered against Grantor relating to the Easement Area. In the event Grantee breaches any of the provisions of the preceding sentence, Grantor shall have the right to seek and obtain any necessary relief or remedy including, but not limited to, a judgment for money damage. However, Grantor shall not have the right, under any circumstances, to file a claim requesting the termination or recision of this Agreement. 5. In connection with the use of the Easement Area, Grantee shall: a) Obtain all permits which are required to be obtained before using any portion of the Easement Area; and b) Construct and maintain all improvements within Easement Area in compliance with the provisions of all applicable laws, ordinances and regulations of each governmental agency having jurisdiction over the construction and use of any improvements to be made within the Easement Area. Any improvements constructed within the Easement Area shall be maintained in good condition, both as to safety and appearance and the maintenance of all such improvements shall be accomplished in a manner so as to not interfere with the use, maintenance or 2

3 operation of the Grove Street Parking Garage located below the horizontal bottom of the Easement Area. If, in the reasonable judgment of Grantor, the use or operation of the Grove Street Parking Garage may be interfered with or jeopardized as a result of the failure of Grantee to discharge its maintenance obligations, Grantor may, but shall not be obligated to, enter onto Grantee's property and perform such work as may be reasonably necessary in order to perform Grantee's duties and obligations under this subparagraph. Grantee shall, upon written request of Grantor, promptly reimburse Grantor for any and all reasonable expenses Grantor may incur in discharging any of Grantee's duties and obligations under this subparagraph. Grantor shall provide Grantee with reasonable documentation for all such reasonable expenses incurred. c) Grantee and its successors, assigns, agents, and invitees shall not place any improvements or fixtures or conduct any activity within the Easement Area which will unreasonably interfere in any way with the use or enjoyment of the public right-of-way by Grantor, the abutting property owners or the public within that area below the horizontal bottom of the Easement Area. d) Grantee, its successors, assigns, agents and invitees shall not store, allow the storage of or discharge any radioactive, toxic, flammable, poisonous, explosive or other dangerous, hazardous materials or waste within the Easement Area. 6. The execution of this Agreement by Grantor is not a warranty of its title. It is the sole and exclusive responsibility of Grantee to secure all necessary approvals and authorizations from all parties, public and private, in order to insure that it has the exclusive right to use the Easement Area as set forth in this Agreement. Grantor represents and warrants to Grantee that it has the authority to execute this Agreement. 7. This Agreement may only be amended by a written agreement executed by both parties. This agreement and the easement may be terminated by Grantor as a result of Grantee s failure to comply with any obligation of Grantee as required by this agreement upon notice to Grantee of the same and the failure to cure the breach within 30 days. 8. The waiver of any breach of any provision of this Agreement by a party shall not operate as or construed as a waiver by the other party of any subsequent breach. Each and every right, remedy and power granted to a party under this Agreement or allowed by law shall be cumulative and not exclusive of any other. 9. If any of the provisions of this Agreement or its application to any party under any circumstances is determined to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision of this Agreement or its application. 10. This Agreement shall be binding upon the parties hereto and their heirs and successors and assigns. 11. This Agreement constitutes the entire agreement between the parties with respect to the matters set forth in this Agreement. This Agreement supersedes and terminates any and all other previous or contemporaneous communications, representations, understandings, agreements, 3

4 negotiations and discussions, whether oral or written, between the parties with respect to the Easement Area. There are no other written or oral agreements, understandings or representations directly or indirectly related to the Easement Area that are not expressly set forth in this Agreement. 12. Nothing in this Agreement shall relieve either party from performing any of their respective duties and obligations as set forth in the Ann Street Development Agreement for the development of a mixed-use commercial building in Downtown East Lansing, Michigan between the City of East Lansing, the Downtown Development Authority of the City of East Lansing, the City of East Lansing Brownfield Redevelopment Authority, and Grantee dated June 29, 2011 and amended April 3, All notices which may be sent under this Agreement shall be in writing and mailed by certified or registered mail to the address of the party set forth in the preamble of this Agreement. Either party may change its address by providing notice to the other party as set forth in this paragraph. 14. This Agreement shall be governed by the laws of the State of Michigan. 15. This Agreement may be executed in duplicate original counterparts and all copies of this Agreement so executed shall be deemed to be one agreement 16. Grantee shall, at its expense, record this Agreement with the Ingham County Register of Deeds. After this Agreement is recorded, Grantee shall provide Grantor with a copy of the recorded Agreement. This Agreement is executed as of the date set forth above and shall be effective as set forth in this Agreement. GRANTOR: CITY OF EAST LANSING By: Diane Goddeeris, Mayor GRANTEE: A & G PARTNERSHIP LLC By: David Krause, its Authorized Member 4

5 Approved as to form: Thomas M. Yeadon City of East Lansing Attorney STATE OF MICHIGAN) ) SS COUNTY OF INGHAM) On the day of June, 2013 Diane Goddeeris, Mayor of City of East Lansing, executed this Agreement for the Exclusive Easement for Air Rights over Public Right-of-Way on behalf of the City of East Lansing. Notary Public Ingham County, Michigan My Commission Expires: STATE OF MICHIGAN) ) SS COUNTY OF INGHAM) On the day of June, 2013 David Krause, Authorized Member of A&G Partnership LLC, executed this Agreement for the Exclusive Easement for Air Rights over Public Right-of-Way on behalf of A&G Partnership LLC. Notary Public Ingham County, Michigan My Commission Expires: 5

6 EXHIBIT A

AGREEMENT FOR TEMPORARY CONSTRUCTION EASEMENT OVER PUBLIC RIGHT-OF-WAY

AGREEMENT FOR TEMPORARY CONSTRUCTION EASEMENT OVER PUBLIC RIGHT-OF-WAY THIS AGREEMENT made this day of February, 2016 by and between the CITY OF EAST LANSING, a Michigan Municipal Corporation, with its