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2008 Ottawa Power Station Redevelopment Project
s Document: 2008 Ottawa Power Station Redevelopment Project �f OTTAWA POWER STATION REDEVELOPMENT PROJECT OFFICE OF THE CITY ATTORNEY MEMORANDUM TO: CHRIS SWOPE, City Clerk FROM: MARY JO POWELL, Legal Assistant DATE: May 6, 2009 RE: OTTAWA POWER STATION REDEVELOPMENT PROJECT CLOSING DOCUMENTS Pursuant to City Charter 8-402.3, please place on file the attached closing documents relative to the sale of the Ottawa Power Station to Accident Fund. It is noted that these are original signed documents. Also included in the binder are copies of the recorded (with the Register of Deeds) documents. Thank you cc: Brig Smith, City Attorney, w/o enclosure Brandie Ekren, BWL Attorney, w/o enclosure OTTAWA POWER STATION REDEVELOPMENT PROJECT SELLER: BUYER: - DATE: No. Document CITY OF LANSING PHOENIX DEVELOPMENT PARTNERS, LLC September 30, 2008 Closing Index Property Purchase and Development Agreement dated January 30, 2008, with Exhibits and Errata 2. Resolution # 11 of 2008 of the City of Lansing adopted on January 28, 2008, approving of the Property Purchase and Development Agreement and all related and necessary documents 3. Resolution # 2008-1-2 of the Lansing Board of Water and Light adopted on January 29, 2008, declaring Ottawa Station as surplus and offering the same to the City •\ of Lansing; Resolution # 2008-1-3 of the Lansing Board of Water and Light adopted on January 29, 2008, approving the Property Purchase and Development Agreement and all related and necessary documents 4. Christman Capital Development Company approval of the Property Purchase and Development Agreement and authorizing the transfer of rights to Phoenix Development Partners, LLC 5. Designation of Christman Capital Development Company designating Phoenix Development Partners, LLC as the to be formed limited liability company referenced in the Property Purchase and Development Agreement 6. Phoenix Development Partners, LLC Certificate of Manager 7. Warranty Deed from City of Lansing to Phoenix Development Partners, LLC 8. Affidavit of Title signed by Lansing Board of Water and Light 9. Closing Statement 10. Owner's Affidavit 11. Certificate of Non -Foreign Status 5657355.1 26005/ 119350 No. Document 12. Property Transfer Affidavit 13. Wire Transfer Instructions 14. Memorandum Agreement of Continuing Obligations 15. Certification of the City of Lansing 16. Certification of Phoenix Development Partners, LLC 17. Lansing Board of Water and Light Letter Agreement dated September 30, 2008, regarding Infrastructure Payment Agreement 18. Survey dated August 25, 2008, and last revised on September 25, 2008, certified on September 25, 2008 19. Owner's Policy of Title Insurance (draft) 20. Easement Agreement — Riverwalk 21. Riverwalk Use Agreement • 22. Easement Agreement — Storm Water Drainage 23. Easement Agreement — Building Maintenance 24. Easement Agreement — Shiawassee Street Storm Water 25. Easement Agreement — Retaining Wall Maintenance 26. Vacated Ottawa Street Existing Utility Easement and Pedestrian Walkway Agreement 27. Parking Ramp Agreement 28. Easement Grant for Chilled Water Lines and Steam Service Lines Facility Distribution 29. Easement Grant for Watermain Facility Distribution 30. Easement Grant for Electrical Underground Distribution 31. General All Utilities Easement Grant for All Board of Water and Light Facility Distribution 32. License Agreement between City of Lansing and Lansing Board of Water and Light 33. Memorandum of License Agreement 5657355.1 26005/ 119350 No. Document 34. Notice of Termination of Lansing Community College Agreement for Parking 35. Restrictive Covenant on property a quired b Phoenix Development Partners, LLC from Stackable -- Owe + 1a4 wL 36. Approval of the Site Plan 37. MDEQ Determination on Baseline Environmental Assessment Petition 38. MDEQ Determination on Compliance with Section 20107a (due care obligations) 39. September 30, 2008, Letter Agreement Extending the Deadline for the Lansing Board of Water and Light to obtain approval of a Remedial Action Plan from the MDEQ 40. Lender's Estoppel Certificate 41. Subtenant's Estoppel Certificate 42. Act 381 Work Plan 43. Brownfield Plan 44. Lansing Brownfield Redevelopment Authority Resolution Recommending Approval of • Plan #39 former Ottawa Power Station 45. City of Lansing Resolution # 175 of 2008 approving Brownfield Plan # 39 Former Ottawa Power Station 46. Michigan Economic Development Corporation Resolution 2008-78 authorizing the Lansing Brownfield Redevelopment Authority to capture taxes 47. Brownfield Reimbursement Agreement dated May 1, 2008 48. City of Lansing Resolution # 444 of 2008 supporting the Application to the MDEQ for Waterfront Development Grant Funds (CMI Grant) 49. EPA Brownfield Cleanup Revolving Grant 50. Brownfields Cleanup Revolving Loan Fund Agreement 51. Minutes of Lansing Brownfield Redevelopment Authority approving the Revolving Loan Fund Agreement 52. September 30, 2008, Letter Agreement regarding Loan Agreement and Loan Guaranty 53. City of L'ansing Resolution # 492 of 2008 approving the application for submission to is the Michigan Strategic Fund to approve a Renaissance Subzone 5657355.1 26005/ 119350 No. Document 4` 54. Memorandum of Lease (Phoenix Development Partners / Phoenix Master Tenant) .. 10 • PROPERTY PURCHASE AND DEVELOPMENT AGREEMENT This Property Purchase and Development Agreement is made as of -j��, , 2008 among; the City of Lansing, a Michigan municipal corporation the principal business address of which 7s 124 W. Michigan Ave., Lansing, MI 48933-1694 (the "City"), the Lansing Board of Water and Light, an administrative board and agency of the City, the principal business address of which is 1232 Haco Drive, Lansing, MI 48912 (the "BWL"), and Christman Capital Development Company, a Michigan corporation, the principal business address of which is 408 Kalamazoo Plaza, Lansing, MI 48933 ("CCDC'� on behalf of a Michigan limited liability scompany to be formed ("Developer"). RECITALS A. The City, through the BWL, owns the real property lying east of Grand Ave. at the, easterly termini of Ottawa Street and Ionia Street as more completely described in -the attached Exhibit A (the "City Property") which is a key site along the City's .riverfront and on which stands a formerly occupied generating plant with historic character (the "Power Station"). B. Much of the City Property was used for operations of the BWL and for other industrial uses by prior owners and occupants and will require measures to address environmental conditions on the City Property to make possible the uses of the City Property envisioned in this Agreement. • C. The BWL currently has steam utility lines and facilities as described on the attached Exhibit B (the "Steam, Facilities") and chilled water utility lines and facilities as described on the attached Exhibit C (the "Chilled Water Facilities") on and in portions of the City Property that will need to be removed from the City Property and relocated or replaced prior to occupancy of the City Property by another use. D. A City parking ramp that lies partially on the City Property and over Grand Ave., to other City owned property on the west side of Grand Ave. as described on the attached Exhibit D (the "Current Ramp") is also an impediment to redevelopment and reuse of the City Property requiring demolition and replacement (the "New Ramp") before the City Property can be used as envisioned in this Agreement. E. Developer has site control over adjacent property along Grand Ave. as also described on the attached Exhibit A (the "Developer Property"). F. Developer has proposed acquiring all of the City Property from the City and redeveloping the City Property together with the Developer Property (the Developer Property and City Property are referred to together as the "Site") for the national corporate headquarters of the Accident Fund Insurance Company of America ("AFICA") and for retail and other commercial and office uses as more completely described and depicted on the attached Exhibit E (the "Project") if the Steam Facilities, the Chilled Water Facilities and the Current Ramp can be removed from the City Property and if other economic development incentives are provided to make the Project economically viable. -1- G. The City wishes to preserve public access to the riverfront property that is adjacent to the Site. H. The City, in cooperation with other governmental agencies, has assembled economic development incentives in the form of the Public Support as more fully described and defined in Article V sufficient to make the Project economically viable. I. Because coordinating the activities of demolishing, relocating and/or replacing the Steam Facilities, the Chilled Water Facilities and the Current Ramp with Developer's redevelopment of the Site will follow a critical timetable and involve significant coordination of efforts, Developer desires coordinating control over that demolition, relocation and replacement and the City and BWL are amenable to allowing Developer such control provided certain bidding and other processes are maintained. I The parties have agreed that, under the terms and conditions of this Agreement, the Project can be redeveloped to meet their respective goals as generally described above. TERMS AND CONDITIONS In exchange for the consideration in and referred to by this Agreement, the parties agree: Article I: Purchase and Sale of the City Property • 1.1 Purchase and Sale. The City agrees to sell and convey or cause to be conveyed the City Property to Developer and Developer agrees to purchase the City Property from the City under the terms and conditions stated in this Article I. 1.2 Purchase Price. Developer shall pay to the City as the purchase price for the City Property, the sum of $ 275,000 (the "Purchase Price"), which shall be remitted to the BWL. (A) Developer shall pay the Purchase Price, less the Earnest Money (as defined in subsection (B) below) in full at the closing. The Purchase Price shall be allocated at the closing among the land and existing improvements as agreed upon by the City and Developer. (B) Developer has made an earnest money deposit of $50,000 (the "Earnest Money") with the Title Company (as defined below). Generally, if this Agreement is terminated through no fault of Developer or Developer is permitted to terminate this Agreement according to its terms, the Earnest Money shall be returned to Developer. However, if Developer fails to close this transaction without permissible cause according to the terms of this Agreement, the City and BWL shall retain the Earnest Money as liquidated damages. 1.3 Condition of Real Estate. (A) The following definitions shall apply in this Agreement. -2- (1) "Environmental Laws" means all federal, state and local environmental laws, including, but not limited to, Federal Water Pollution Control Act (33 U.S.C. §1251 et seq.), the Resource Conservation & Recovery Act (42 U.S.C. §6901 et seq.), Safe Drinking Water Act (42 U.S.C. §300f j-26), Toxic Substances Control Act (15 U.S.C. §2601 et seq.), Clean Air Act (42 U.S.C. §7401 et seq.), the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §9601 et seq.) ("CERCLA'), the Emergency Planning and Community Right to Know Act, 42 U.S.C. §11001 et seq., the Michigan Natural Resources and Environmental Protection Act (MCL §324.101 et seq.) the administrative rules and regulations promulgated under such statutes, or any other similar federal, state or local law or administrative rule or regulation of similar effect, each as amended and as in effect and as adopted as of the date of execution of this Agreement. (2) "Hazardous Substances" means (i) any hazardous or regulated substance as defined by Environmental Laws (ii) any other pollutant, contaminant, hazardous substance, solid waste, hazardous material, radioactive substance, toxic substance, noxious substance, hazardous waste, particulate matter, airborne or otherwise, chemical waste, medical waste, crude oil or any fraction 'thereof, radioactive waste, petroleum or petroleum -derived substance or waste, asbestos, PCBs, radon gas, all forms of natural gas, or any hazardous or toxic constituent of any of the foregoing, whether such substance is in liquid, solid or gaseous form, or (iii) any such substance the release, discharge or spill of which requires activity to achieve compliance with applicable law. (3) "Part 201" means Part 201 of Michigan's Natural Resources and Environmental Protection Act, 1994 P.A. 451, as amended, MCL §324.20101 et seq., and the rules promulgated thereunder. (B) Environmental condition. (1) Developer acknowledges that the City Property constitutes a "facility" under Part 201 because its soils or groundwater contain Hazardous Substances exceeding applicable criteria under Part 201. (2) Developer has obtained an "Environmental Due Diligence Study Report" dated April 4, 2007, prepared by NTH Consultants, Ltd. (Project No. 16-070161- 00) on the City Property identifying a number of environmental conditions on or around the City Property, including by way of example and without limitation, the presence of lead based paint and asbestos within the Power Station building, Dense Non -Aqueous Phase Liquid in groundwater perhaps presenting a volatilization concern, materials related to coal storage, metals, and PCB's. (3) Not later than May 31, 2008, Developer shall complete all additional sampling, analysis, inspection and other environmental reviews Developer wishes to make of the City Property. Developer may, not later than June 15, 2008, inform the City and the BWL in writing that Developer has determined, in -3- Developer's sole discretion, that it is not financially feasible for Developer to develop and use the City Property as provided in this Agreement. If Developer does so, the Earnest Money shall be returned to Developer and this Agreement shall terminate upon Developer's receipt of the Earnest Money. (4) Developer shall have the right to have one or more BEAs and Due Care Plans for the City Property prepared in accordance with Part 201 and to submit them to the Michigan Department of Environmental Quality ("MDEQ") with a petition for determination of adequacy pursuant to Part 201. Until the MDEQ has approved "closure" (i.e., the MDEQ no longer requires any remedial activities, monitoring, reporting or other ongoing or periodic activities related to the environmental condition of the City Property, though restrictive covenants and other limitations may remain in place) pursuant to the RAP, each party shall provide the other parties with copies of any documents submitted to, filed with, or received from the MDEQ that are related to the City Property. The BWL shall notify the other parties in writing when closure occurs. To the extent necessary under applicable law the City and the BWL, shall, at Developer's request and without expense to the City or the BWL, cooperate with Developer to submit any BEAs and Due Care Plans to the MDEQ. (5) No later than March 31, 2008, the BWL shall, after consultation with and considering the comments of Developer and the City, complete and file with the MDEQ a remedial action plan for the City Property (the "RAP") and shall diligently respond to feedback from the MDEQ and otherwise diligently pursue approval of the RAP. The RAP shall be designed to address environmental issues (except such activities as Developer is undertaking pursuant to subsection 1.3(B)(7) of this Agreement) in such a manner as to allow the uses of the City Property as contemplated in this Agreement. The parties recognize the MDEQ has the ultimate authority over the design of any remedial actions for the City Property, so if any condition is imposed as part of the MDEQ's approval of the RAP that, in Developer's determination, makes the City Property unsuitable for the uses contemplated in this Agreement, Developer may terminate this Agreement and the Earnest Money shall be returned to Developer. This Agreement shall then terminate when Developer receives the Earnest Money. Until the MDEQ has approved "closure" pursuant to the RAP, the BWL shall provide Developer with copies of any documents that are to be submitted to, to be filed with, or are received from the MDEQ that are related to the City Property. The BWL shall allow Developer a reasonable time to comment upon such proposed submissions and filings prior to making them. (6) The MDEQ's approval of the RAP shall be a condition of closing on the conveyance of the City Property to Developer. If such approval does not occur and the closing is not delayed as provided in this Agreement or the closing has been delayed and no other delay can occur consistent with the terms of this Agreement and any modification of deadlines as provided in this Agreement, then this Agreement shall terminate and the Earnest Money shall be returned to 0 • Developer. The termination shall be effective when Developer receives the Earnest Money. L� (7) Based on the information available to the parties as of the date of this Agreement, the parties anticipate that certain remedial activities will be necessary at the City Property for purposes of using the City Property as contemplated in this Agreement. The Developer has agreed: (a) to perform the remedial activities as set forth in Exhibit F, in compliance with Environmental Laws; and (b) to otherwise exercise due care responsibilities at the City Property in accordance with Environmental Laws and this Agreement ("Developer's Environmental Activities"). All other remedial activities necessary at the City Property for closure under the RAP, shall be the responsibility of the BWL unless the parties otherwise agree in writing. (8) No further information, reports or approval as to the environmental condition of the City Property, or the presence or absence of any Hazardous Substances on the City Property shall be a precondition to closing. (C) Developer has commenced its inspection of the City Property including the structural conditions of all buildings and improvements on the City Property and the character or suitability of the soils on the City Property. Not later than May 31, 2008, Developer shall complete all additional inspection Developer wishes to make of the City Property including the structural conditions of all buildings and improvements on the City Property and the character or suitability of the soils on the City Property. Developer may, not later than June 15, 2008, inform the City and the BWL in writing that Developer has determined, in Developer's sole discretion, that it is not financially feasible for Developer to develop and use the City Property as provided in this Agreement. If Developer does so, the Earnest Money shall be returned to Developer and this Agreement shall terminate upon Developer's receipt of the Earnest Money. (D) Developer is aware that portions of the Site lie within a floodplain. Not later than May 31, 2008, Developer shall complete all additional review of the impact the floodplain will have on the City Property and Developer's ability to develop and use it as provided in this Agreement. Developer may, not later than June 15, 2008, inform the City and the BWL in writing that Developer has determined, in Developer's sole discretion, that it is not financially feasible for Developer to develop and use the City Property as provided in this Agreement. If Developer does so, the Earnest Money shall be returned to Developer and this Agreement shall terminate upon Developer's receipt of the Earnest Money. (E) Except as otherwise expressly provided in this Agreement, the sale and conveyance of the City Property shall be "AS IS," "WHERE IS," and "WITH ALL FAULTS" basis without any covenants, representations or warranties of any kind. (1) The "AS IS," "WHERE IS," and "WITH ALL FAULTS" basis without any covenants, representations or warranties of any kind includes, without limitation, all of the following: -5- 0(a) The City Property's condition or any condition of any building, structure or other improvement on, under, in or above the City Property. 0 (b) The suitability of the City Property for any purpose or use. But it does not apply to the environmental condition of the Property which is addressed in subsection (2) immediately below. (2) Regardless of any other provision of this Agreement, with respect to the environmental condition of the City Property at the time of closing, the parties specifically agree: (a) Developer shall be responsible to perform only Developer's Environmental Activities. The BWL shall have the obligation to perform all activities required under the RAP and applicable Environmental Laws except to the extent they might duplicate Developer's Environmental Activities. (b) Developer shall, without cost to the City or the BWL, undertake and complete all Developer's Environmental Activities even if the cost of doing so exceeds Developer's expectations. (c) Developer shall hold the City, the BWL, and their respective officers and employees harmless from, defend them against and pay on their behalf any claims, demands, causes of action, fines, penalties, judgments, awards or other costs or losses. incurred by the City or the BWL arising from the performance or failure to perform Developer's Environmental Activities. To the extent permitted by law, the BWL shall hold the City, Developer, and their respective officers and employees harmless from, defend them against and pay on their behalf any claims, demands, causes of action, fines, penalties, judgments, awards or other costs or losses incurred by Developer arising from the performance or failure to perform. the BWL's obligations under the RAP and all applicable Environmental Laws. The City's, the BWL's and Developer's rights, duties and obligations under this subsection (c) shall survive the closing on the conveyance of the City Property to Developer. (d) All parties shall remain liable for any of their acts or omissions constituting exacerbation of any environmental condition under Environmental Laws. (d) Except as otherwise expressly provided in this Agreement, the parties otherwise retain all rights, duties and obligations they may have under Environmental Laws. (F) Regardless of any other provision of this Agreement, the BWL shall retain an easement in the City Property, for the benefit of the BWL, the City, and any M Me retain, in the deed to Developer or by a separate instrument to be executed at the closing, easements in the City Property for a Chilled Water Facilities line, a manhole and related appurtenances, serving chilled water to one or more downtown offices and a sanitary and storm sewer line, a box culvert at the north end of the City Property, a manhole, and related appurtenances in their existing locations or in such other locations as the parties may agree in writing prior to closing and such easements are Permitted Exceptions. (F) At closing, the City shall pay the cost of a title insurance policy issued pursuant to the Title Commitment as it may be modified after the actions provided in subsection (C) above. A "marked up" title commitment shall be provided at closing that will provide "gap coverage" for the period between the completion of the closing and the issuance of the title insurance policy to be issued pursuant to the Title Commitment as marked up at closing. 1.5 Survey. (A) Developer has obtained a survey of the Site (the "Survey") that is also certified to the City and the BWL without cost to the City or the BWL. (B) Developer shall have until 30 calendar days after the final execution of this Agreement to notify the City in writing of any encroachments or other matters of concern to Developer disclosed by the Survey. If Developer fails to so notify the City prior to the end that 30 day period, Developer shall be deemed to have waived all objections to any conditions disclosed by the Survey. (C) The City shall have 30 calendar days after notification from Developer to correct any such conditions disclosed by the survey to Developer's reasonable satisfaction. (D) If the City cannot or otherwise does not do so, Developer may, within 10 calendar days thereafter, terminate this Agreement and the Earnest Money shall be returned to Developer as Developer's sole remedy. This Agreement shall terminate upon Developer's receipt of the Earnest Money. (E) All conditions disclosed in the survey that (i) Developer does not raise or fails to object to pursuant to subsection (B), (ii) that are not corrected or caused to be corrected as provided in subsection (C) but Developer has not terminated this Agreement as provided in subsection (D), (iii) that are expressly provided for in this Agreement, or (iv) that Developer expressly accepts, shall be deemed to be accepted by Developer (the "Permitted Survey Conditions"). 1.6 Access. (A) Developer may, with notice and coordination with the BWL and the City, have continuing access to the City Property in order to conduct, at Developer's sole expense, surveys, inspections, soil borings, groundwater sampling, and other investigations of the City Property the Developer may wish to perform. However, Developer shall promptly provide the City a copy of any analyses and reports generated as a result of such n • governmental agency of competent jurisdiction, for purposes of fulfilling any obligations it has under the RAP. This shall be a Permitted Exception as defined in subsection 1.4(E) below. It shall be fully defined and agreed upon among the parties prior to closing on the conveyance of the City Property to Developer and may not thereafter be modified except after consultation among the parties and the MDEQ or other governmental agency of competent jurisdiction. If, due to its effect upon the intended uses of the City Property, Developer objects to the terms of this easement, Developer may elect to terminate this Agreement, in which case the Earnest Money shall be returned to Developer and this Agreement shall terminate upon Developer's receipt of the Earnest Money. In the event the MDEQ may require a revision to the easement in order for the BWL to fulfill any obligations it has under the RAP, any such revision shall require the consent of Developer, which consent shall not be unreasonably withheld, conditioned or delayed. If such an easement modification is required by the MDEQ and Developer does not accept that change, Developer may terminate this Agreement and the Earnest Money shall be returned to Developer, and this Agreement shall terminate when the Developer receives the Earnest Money. 1.4 Title Commitment. (A) The Developer has obtained a commitment for an ALTA owner's policy of title insurance without standard exceptions with respect to the City Property in the amount of the Purchase Price, from First American Title Insurance Company (the "Title Company"), commitment number NCS-325144-MICH, dated October 16, 2007 (the "Title Commitment"). (B) Developer shall have 30 calendar days after the final execution of this Agreement to notify the City in writing of any objections it has to any defects or exceptions disclosed in the Title Commitment. If Developer fails to so notify the City prior to the end of that 30 day period for review, Developer shall be deemed to have waived all objections to any defects or exceptions disclosed in the Title Commitment. (C) The City, at its sole option, shall have 30 calendar days after the notification from Developer to correct any defects or remove any exceptions to Developer's reasonable satisfaction. (D) If the City cannot or otherwise does not do so within that 30 day period, Developer may, by written notice to the City within 10 calendar days thereafter, terminate this Agreement and the Earnest Money shall be returned to Developer as Developer's sole remedy. This Agreement shall terminate upon Developer's receipt of the Earnest Money. (E) All defects or exceptions disclosed in the Title Commitment that (i) Developer does not raise or fails to object to pursuant to subsection (B), (ii) that are not corrected or caused to be corrected as provided in subsection (C) but Developer has not terminated this Agreement as provided in subsection (D), (iii) that are expressly provided for in this Agreement, or (iv) that Developer expressly accepts, shall be deemed to be accepted by Developer (the "Permitted Exceptions"). The parries agree that the City and BWL may -7- investigations. Developer shall not perform any intrusive or evasive tests or inspections, including environmental tests or inspections, without the written consent of the City and BWL, which consent shall not be unreasonably withheld, conditioned or delayed. (B) Developer shall restore the City Property to the condition it was in prior to any inspections or investigations undertaken by or on behalf of Developer pursuant to this section. (C) Developer shall hold the City and the BWL (including, for purposes of this provision, their respective officers and employees) harmless from, indemnify the City and the BWL for, and defend the City and the BWL (with attorneys reasonably acceptable to the City) against, any liability arising during such investigations or inspections performed by, for or on behalf of Developer. Developer's obligations under this subsection (C) shall survive the termination of this Agreement. At the request of either the City or the BWL, Developer shall provide the City and BWL with proof that Developer or the contractor or agent entering upon the City Property pursuant to this Section 1.6 has a commercial' liability insurance in a minimum coverage amount of $500,000 naming the City and the BWL (as well as their respective officers and employees) as named or additional insureds. 1.7 Conditions Precedent to CIosin . (A) Zoning approvals. (1) In order to construct and occupy the Project on the Site Developer will need to obtain various zoning and other land use related approvals from the City. (a) The City represents and warrants that the Site is currently zoned G- 1 Business District which currently allows the following uses so it will not need to be re -zoned and no special use approval is needed for those uses, and, because it will be part of the overall Project, no special use approval is required for the New Ramp. (i) A comparison retail store; (ii) A private club, fraternal organization or lodge hall; (ii) A restaurant, bar or tavern; (iv) A enclosed theater, assembly hall or concert hall; (v) A hotel or motel; (vi) A public park and playground, except indoor and outdoor swimming pools and golf courses; (vii) Any principal use permitted in a D-1 Professional Office District; (viii) A convenience store (ix) A post office (x) A motor vehicle service station; (xii) An office of a civic, professional, religious or charitable organization; WE (xiii) An office of an accountant, architect, artist, attorney, doctor or dentist; (xiv) An insurance agency; (xv) A real estate office; (xvi) A trade association or union office, except those with auditoriums; (xvii) Any other use which, by the decision of the Planning Board, is similar to the principally permitted uses set forth in this section; and (xviii) An accessory structure which is customarily incidental to any of the uses listed above. (b) Because of its use, its current zoning, anticipated changes to the Site and other factors, approval of an overall site plan for the Project and the Site (the "Site Plan") is required. (2) Not later than April 30, 2008, Developer shall file an application for approval of the Site Plan meeting the requirements of the City's zoning ordinance. Developer shall use its reasonable best efforts to pursue approval of the Site Plan including addressing on a timely basis (i.e., on or before agenda, notice and other deadlines set forth in the zoning ordinance, City policies or Planning Board bylaws, policies and procedures) all reasonable requests for additional information. (a) If Developer has complied with the requirements of this paragraph (2) and has not obtained the needed Site Plan by August 15, 2008, Developer may, upon written notice to the City and the BWL, terminate this Agreement and the Earnest Money shall be returned to Developer. This Agreement shall terminate when Developer receives the Earnest Money. (b) If Developer fails to comply with the requirements of this paragraph (2), either the City or the BWL may, upon written notice to Developer, terminate this Agreement and the Earnest Money shall be paid to the City and the BWL as liquidated damages. This Agreement shall terminate when the City and the BWL receive the Earnest Money. (c) If Developer has complied with the requirements of this paragraph (2) and has not obtained the needed Site Plan by August 15, 2008, and Developer has not exercised its right to terminate this Agreement as provided in subsection (a) above, either the City or the BWL may, upon notice to the other parties, terminate this Agreement and the Earnest Money shall be returned to Developer. This Agreement shall terminate when Developer receives the Earnest Money. • -10- • (B) Floodplain approvals. (1) Because a portion of the Site lies within a floodplain, construction and occupancy of the Project might require special approvals from federal, state, or local authorities and special lender approval. (2) Developer shall apply for any needed approvals prior to May 1, 2008. (3) If Developer has complied with the requirements of paragraph (B)(2) and has not obtained all required formal written approvals to construct and occupy the portion of the Project that lies within the floodplain by August 15, 2008, any parry to this Agreement may, upon written notice to the other parties, terminate this Agreement and the Earnest Money shall be returned to Developer and this Agreement shall terminate upon Developer's receipt of the Earnest Money. If Developer fails to comply with the requirements of paragraph (B)(2), the City or the BWL may, upon written notice to Developer, terminate this Agreement and the Earnest Money shall be paid to the City and the BWL as liquidated damages and this Agreement shall terminate when the City have the BWL receive the Earnest Money. (C) Other governmental approvals. (1) Not later than May 1, 2008, Developer shall notify the City and the BWL in writing whether or not any other governmental approvals are legally required under then applicable laws, rules or regulations in order to construct and occupy the Project on the Site which notification shall also provide a list of the needed approvals, a list of the steps to be taken to obtain such approvals, and the timetable for obtaining such approvals. (2) To the extent any party wishes to make any of those approvals a condition required to be met before closing on Developer's acquisition of the City Property, that party shall notify the other parties in writing not later than May 15, 2008. (3) If any party gives notification pursuant to paragraph (C)(2), such approval shall be obtained prior to August 15, 2008. Developer shall then make timely application to obtain any such required approvals prior to closing on Developer's acquisition of the City Property. However, no such approval shall be a condition of closing if it legally cannot be obtained until after closing on the conveyance of the City Property to Developer. (4) If Developer does not provide the City and the BWL with the notification required by paragraph (C)(1) and there is such an additional governmental approval that is legally required, which is known by Developer and not disclosed as required under paragraph (C)(1), either the City or the BWL, at their sole option, may upon written notice to Developer, terminate this Agreement in which case the Earnest Money shall be paid to the City and the BWL as liquidated - 11 - • damages and this Agreement shall terminate when the City have the BWL receive the Earnest Money. (5) If Developer complies with paragraph '(C)(1), but fails to make timely application. for the required approvals, then either the City or the BWL may, at their sole option, upon written notice to the other parties, terminate this Agreement in which case the Earnest Money shall be paid to the City and the BWL and this Agreement shall terminate when the Earnest Money has been paid to the City and the BWL. (6) If Developer has complied with this subsection (C) and made timely application but has been unable to obtain the required approvals within the deadline established in this Agreement for closing, the parties shall have the following options: (a) The parties may waive that condition to closing and proceed to closing. (b) The parties may extend the date for closing until such approvals can be obtained. (c) Any party may, within 10 business days after Developer gives written notice of its inability to obtain the needed approvals, terminate this Agreement and the Earnest Money shall be returned to Developer. If any party fails to give such notice in that 10-day period, it waives its right to give such notice. This Agreement shall terminate upon the return of the Earnest Money to Developer. (D) Major tenant. (1) A primary motivation for the City and the BWL to enter into this Agreement is to induce AFICA to occupy the Site as its national headquarters. The City Council and the BWL shall be informed as to whether or not that commitment exists and the nature of the commitment. Not less than 10 days prior to closing on the conveyance of the City Property to Developer, Developer shall demonstrate to the satisfaction of the City's and the BWL's attorneys that AFICA is contractually committed to long-term occupancy of the Site as its corporate headquarters. Developer shall also represent and warrant that AFICA is contractually bound to lease the Site for at least 20 years after the date of the closing subject to any right AFICA may have to purchase the Site and this representation and warranty shall survive the closing. (2) Any documents shared with the City's and the BWL's attorneys shall be solely for the purpose of providing them with information in order for them to advise their respective clients as to whether or not this condition has been met. Accordingly, except as may otherwise be required by law, such documents shall -12- 0 be kept confidential and the financial terms of that commitment shall not be publicly disclosed. (3) If Developer fails to enter into a sufficient long -terns lease or other agreement with AFICA and, as a result, closing does not occur, this Agreement shall terminate and the Earnest Money shall be returned to Developer. This Agreement shall terminate upon Developer's receipt of the Earnest Money. (E) Developer Financing. (1) The parties want to assure, prior to closing, that Developer will have the financial resources needed to complete the Project. The City Council and the BWL shall be informed as to the nature and extent of Developer financial resources for the Project. To that end, not less than 10 days prior to closing, Developer shall demonstrate to the reasonable satisfaction of the City's and the BWL's attorneys that Developer has the financing needed to construct the Project in accordance with this Agreement and the Site Plan. (2) Any documents shared with the City's and the BWL's attorneys shall be solely for the purpose of providing them with information in order for them to advise their respective clients as to whether or not this condition has been met. Accordingly, except as may otherwise be required by law, such documents shall be kept confidential and the financial terms of that commitment shall not be publicly disclosed. (3) If Developer fails to obtain sufficient financing and, as a result, closing does not occur, this Agreement shall terminate and the Earnest Money shall be paid to the City and to the BWL as liquidated damages. This agreement shall terminate when the City and the BWL have received the Earnest Money. (F) Public Support. (1) The Project can be completed and occupied as provided in this Agreement only if the public sector economic development incentives and financing are provided as detailed in Article V of this Agreement (the "Public Support"). So, the parties want to reasonably assure, prior to closing, that the Public Support will be available when needed. (2) The approvals and/or steps for the Public Support shall be completed within the times provided in Article V. Approval of the Public Support shall require compliance with certain processes, including without limitation, certain public hearings and others opportunities for public participation. Approval of the Public Support requires various public officials and bodies to make discretionary decisions, often using statutory or other criteria and considering a variety of information including information offered by the public. Nothing in this Agreement is intended to impair or limit any discretion of any public official or body. -13- (3) If the approvals have not be obtained and steps completed as required by paragraph (F)(2), the parties shall have the following options: (a) The parties may waive that condition to closing and proceed to closing. (b) The parties may extend the date for closing until such approvals can be obtained and/or steps completed. (c) Any party may terminate this Agreement and the Earnest Money shall be returned to Developer and this Agreement shall terminate upon the Developer's receipt of the Earnest Money. (G) Public facility relocation. (1) As stated in the recitals, the removals, relocations and/or replacements of the Steam Facilities and the Chilled Water Facilities are essential to the Project. The parties wish to assure prior to closing that work can be accomplished in a time and a manner that is economically viable for all parties and consistent with this Agreement. (2) The approvals and/or steps for the removals, relocations and/or replacements of the Steam Facilities and the Chilled Water Facilities shall be completed within the times provided in Articles III and IV. Those approvals and steps shall require compliance with certain processes, including without limitation, certain public hearings and others opportunities for public participation and will require various public officials and bodies to make discretionary decisions, often using statutory or other criteria and considering a variety of information including information offered by the public. Nothing in this Agreement is intended to impair or limit any discretion of any public official or body. (3) If the approvals have not been obtained and steps completed as required by paragraph (G)(2) above at least 10 days prior to the deadline for closing established in this Agreement, the parties shall have the following options: (a) The parties may waive that condition to closing and proceed to closing. (b) The parties may extend the date for closing until such approvals can be obtained and/or steps completed. (c) Any party may terminate this Agreement by written notice to the other parties and the Earnest Money shall be returned to Developer. This Agreement shall terminate upon Developer's receipt of the Earnest Money. -14- 1.8 Deed. Title to the City Property shall be transferred to Developer by a warranty deed subject to the Permitted Exceptions, to the Permitted Survey Conditions, and to the terms of this Agreement. (A) The following shall, in addition to others provided for in this Agreement, be Permitted Exceptions. (1) The City shall retain the right to construct an extension of its riverwalk on the real property owned by the City along the river front ("Riverwalk Property"), cantilevered over the River in accordance with plans and specifications to be reviewed by and reasonably acceptable to Developer. However, the City's use of the Riverwalk Property shall be subject to reasonable restrictions placed on its use by written agreement between the City and Developer, which written agreement shall be agreed upon between the City and Developer prior to the closing on the conveyance of the City Property to Developer. The nature and extent of the restrictions shall be for the purpose of limiting the City's or any subsequent owner of the Riverwalk Property from engaging in any activity on the Riverwalk Property which may adversely affect or interfere with the intended and future use and enjoyment of the Project by its owner and/or occupants. The written agreement between the City and Developer shall be in recordable form and recorded with the Ingham County Register of Deeds after the closing occurs for the conveyance of the City Property to Developer. (2) The City Property will be conveyed with the covenant that it cannot be occupied or used for "adult business" as that term is now defined in section 1296.01 of the City's zoning ordinance and Developer shall be required to impose such a covenant on the Developer Property immediately after Developer closes on the acquisition of the Developer Property which covenant shall be for the benefit of and enforceable by the City. (3) The City reserves the right to impose restrictive covenants, in the form of institutional controls, engineering controls, deed restrictions, or Notices of Approved Corrective Action as provided for under Environmental Laws on the City Property that are reasonably related to the environmental condition of the City Property consistent with the RAP including, but not limited to, prohibiting the use of groundwater, requiring the containment, analysis and proper disposal of soils on the City Property, requiring notifications to transferees, lessees and other future occupants, requiring warning to excavators and underground utility workers, limiting allowable uses of the City Property, and providing for continuing access for the BWL and the MDEQ for monitoring and remedial activities (the "Restrictive Covenants"). The City or the BWL shall, upon the MDEQ's approval of the RAP, but in any case, not later than 60 days prior to closing, provide Developer all such Restrictive Covenants on the City Property for Developer's review and approval as to form. The parties recognize that, while the City and the BWL shall make all reasonable efforts so the Restrictive Covenants will allow all the Developer's intended uses of the City Property, the -15- • MDEQ has the ultimate authority to determine the terms of such Restrictive Covenants prior to closing on the conveyance of the City Property to Developer. Developer shall be notified of and be invited to participate in all communications with the MDEQ regarding the Restrictive Covenants. (B) Any party may require that the deed or other documentation recorded at closing reflects any requirements of this Agreement that expressly or impliedly survive the closing of the conveyance of the City Property to Developer as provided in this Article I. 1.9 Taxes, Assessments, Utilities. Developer shall pay any special assessments, property taxes and any invoices for utilities levied against or for services provided to the City Property after the date of the closing. The City Property is currently exempt from property taxation and there are no outstanding special assessments levied against the City Property. The absence of special assessments shall be included in the Title Commitment and in the title insurance policy to be issued by the Title Company pursuant to the Title Commitment. 1.10 Closing. The closing on the conveyance of the City Property to Developer shall occur at the City Hall or such other place as agreed upon by the parties, no later than September 30, 2008, The City shall pay the cost for recording the deed and the title insurance costs as provided in section 1.4 above. The transaction will be exempt from transfer taxes pursuant to MCL 207.505(h) and MCL 207.526(h)(i). Developer shall pay all other closing costs and recording fees. The parties shall each pay their own attorney or other consultant fees. 1.11 Possession. Removal Activities. (A) The transfer of title to the City Property to Developer by the City shall be subject to the terms and conditions of this Section 1.11. The City shall deliver possession of the City Property to Developer at closing, subject to (i) Removal Activities ( as defined below), (ii) the right of the City to continue the use of the Current Ramp until its demolition begins as provided in Article IV of this Agreement, (iii) subject to any continuing obligations of the City and/or the BWL under the RAP, and (iv) subject to rights provided the City, the BWL or others in the Permitted Exceptions. The provisions of this Section 1.11 shall survive the closing. (B) Developer grants to the BWL an irrevocable license and right of entry (the "License") onto the City Property for the purpose of removing, relocating, demolishing, operating, maintaining, repairing, and/or disassembling the Steam Facilities and the Chilled Water Facilities for salvage, reuse, scrap or otherwise, all to the extent BWL, in its sole discretion, deems appropriate and as further described below (collectively, the "Removal Activities"). (1) The term of the License shall commence with the closing and conveyance of the City Property to Developer and shall expire 30 days after the later of the date on which both the New Steam Facilities and New Chilled Water Facilities are fully operational. During that term, BWL shall have the right to conduct the Removal Activities through its employees, agents and/or contractors at any time without obtaining any consents or authorizations and at no cost or expense to 16- BWL for such use. However, the BWL right of access shall be subject to compliance with all of Developer's and its contractor's standard procedures for access to the City Property during construction of the Project. (2) Until the License expires, title to the Steam Facilities and the Chilled Water Facilities shall be held by the BWL, including, but not limited to, all personal property, fixtures, conduit, lines, leads, connections, facilities or any other like or similar devices or any improvements or replacements of the same of every nature and kind that comprise the Steam Facilities and the Chilled Water Facilities. (3) Notwithstanding the foregoing, the BWL shall not be obligated or required to undertake or complete any Removal Activities except to the extent the BWL deems appropriate, in its sole discretion and the BWL shall not be obligated or required to make any repairs to the City Property. However, the BWL shall not cause any damage to any portion of the Power Station which may affect the ability of Developer to obtain the maximum available federal and state historic tax credits for the Project, as set forth in this Agreement. Further, from and after the expiration of said License, the BWL shall not be responsible or liable in any manner whatsoever for the Steam Facilities or the Chilled Water Facilities, except those facilities that remain within the easement provided pursuant to subsection 1.4(E) of this Agreement. From and after the expiration of the License, any remaining components of the Steam Facilities and Chilled Water Facilities shall become the property of Developer. To the extent the BWL's rights under this License are set forth in a document recorded with the Ingham County Register of Deeds, upon expiration of the License as set forth above, Developer shall have the right to prepare, execute and record with the Ingham County Register of Deeds the necessary document to terminate, of record, the License and, if requested by Developer, the BWL shall cooperate by co-signing that document. (4) Developer shall hold the BWL, the City and their engineers, officers, employees, agents, contractors and subcontractors harmless from, defend them (with legal counsel reasonably acceptable to the City and BWL) against, and pay on their behalf any amount ordered to be paid as a result of any and all demands, claims, liabilities, obligations, damages, awards, judgments or administrative losses or expenses either of them may receive or incur as a result, arising from or in connection with the Removal Activities except those resulting from the negligence or willful misconduct of BWL, the City or either of their engineers, officers, employees, agents, contractors or subcontractors. The preceding sentence shall also not apply to any environmental condition on the City Property except to the extent of any release or exacerbation resulting from the negligence or other wrongful action of Developer or Developer's contractors, employees, agents or representatives. To the extent permitted by law, the BWL shall hold Developer, the City and their engineers, officers, employees, agents, contractors and subcontractors harmless from, defend them (with legal counsel reasonably acceptable to the City and Developer) against, and pay on their behalf any amount -17- ordered to be paid as a result of any and all demands, claims, liabilities, obligations, damages, awards, judgments or administrative losses or expenses either of them may receive or incur as a result, arising from or in connection with the Removal Activities except those resulting from the negligence or willful misconduct of Developer, the City or either of their engineers, officers, employees, agents, contractors or subcontractors. The provisions of this Section shall• survive the expiration of the License, the closing on the conveyance of the City Property to Developer, and the expiration, cancellation or termination of this Agreement. (5) During the term of the License, Developer shall obtain and maintain a general liability and owner's liability insurance policy, naming the City and the BWL and their engineers, officers and employees as insureds or additional insureds and certificate holders with coverage of at least $1,000,000 per individual and $1,000,000 per occurrence. Such insurance shall provide that it may not be canceled, modified or terminated without at least 30 days prior written notice to the City and the BWL. A copy of the certificate(s) and policy(ies) of insurance shall be provided to the City and BWL prior to the closing on the City Property with Developer. (6) During the term of the License, the BWL shall obtain and maintain a general liability and owner's liability insurance policy, naming the City and Developer and their respective officers and employees as additional insured and certificate holders with coverage at least $1,000,000 per individual and $1,000,000 per occurrence, insuring all of the BWL's activities under the License. Such insurance shall provide that it may not be cancelled, modified or terminated without at least 30 days prior written notice to Developer. A copy of the certificates and policy(ies) of insurance shall be provided to Developer prior to the closing on the City Property with Developer. (7) At Developer's expense, the BWL, its employees, agents and contractors, shall have the right to use electricity and other utilities at the City Property as needed for the Removal Activities. Article II: Project Development 2.1 Pu ose. A primary purpose for the conveyance of the City Property to Developer and for the Public Support is to assure the redevelopment, use and occupancy of the Site in accordance with this Agreement. Moreover, much of the funding available for the Public Support is dependent upon the tax revenues to be generated by the redevelopment, use and occupancy of the Site as envisioned in this Agreement. 2.2 Redevelopment Required. Developer shall redevelop the Site or cause it to be redeveloped as described and depicted on the attached Exhibit E, subject to only such changes as are required by City bodies and officials in the zoning approval process and in the review of the plans by the City's building inspector and subject to AFICA's reasonable review and consent. The AFICA shall occupy the Site as its corporate headquarters as provided in the lease to be OEM disclosed to the City's and the BWL's attorneys prior to closing as provided in subsection 1.7(D)(1) above. 2.3 Compliance and Approvals. (A) Developer shall assure that the Project and its construction and use comply with all applicable laws, rules, regulations, permits, orders, decisions and directives of any governmental official, agency or entity of competent jurisdiction. (B) Developer shall be solely responsible to obtain and maintain any needed licenses, permits, certifications or other reviews and approvals from any governmental officer, agency or entity of competent jurisdiction needed to construct or use the Project. (C) Without limiting the generality of the preceding subsections, Developer shall seek approval under the City's zoning ordinance and applicable construction codes, obtaining whatever rezoning, special use approval, variances, site plan approvals, building and occupancy permits as may be required. Nothing in this Agreement shall in any way limit the discretion of those officials or bodies as they engage in the required reviews and decision making. (D) The requirements in this Section shall survive closing. 2.4 Project Timetable. The planning, pre -construction, construction and completion of the Project shall comply with the following dates and, upon the written request of either the City or the BWL, Developer shall provide a written status report on the Project's development. Event Deadline Submission of fully complete and approvable Site Plan to the City April 30, 2008 Closing September 30, 2008 Completion of and issuance of occupancy permits) for first phase of the April 1, 2011 Project Completion of Project April 1, 2011 2.5 Value. Developer represents that the Project will have a market value currently estimated to be approximately $130,000,000 and will be completed by December 31, 2011. Developer understands and agrees that the City and the Brownfield Redevelopment Authority of the City of Lansing (the "LBRA") are relying on that estimate of value and investment to generate the tax increment revenues needed to pay for publicly funded work on the Site. Payments to Developer (or its assignee) from tax increment revenues will depend on sufficient increases in the taxable value of the Site to generate sufficient tax increment revenues to pay Developer (or its assignee) after other obligations have first been paid from those tax increment revenues. -19- 9 Article III: Utility Relocations 3.1 Steam Facilities Relocation. (A) Replacements for the Steam Facilities shall be constructed in an underground vault (the "Steam Vault") to be constructed in or near Wentworth Park which is adjacent to the City Property (the "Steam Vault Location"). That relocation shall provide for a vent approximately 36 inches in diameter to extend from underground to a height of 9 feet above the ground and shall provide for access to the underground facilities. The design and configuration of the vent shall be subject to Developer's reasonable review and approval which shall not require any changes adversely affecting the use, efficacy or cost of maintaining the vent. A more particular, but nevertheless general description for the replacement to the Steam Facilities are as described in the attached Exhibit B (the "New Steam Facilities"). (B) The BWL shall, at BWL's expense, cause plans and specifications for the New Steam Facilities to be prepared consistent with the general description in Exhibit B, and such plans and specifications shall be submitted to the City and the BWL for their respective reviews and approvals not later than September 20, 2008. The BWL will be responsible for all costs it incurs for BWL staff time needed to develop the plans and specifications. The City's review and approval shall be limited to assuring the design, construction, operation, use, maintenance, and repair of the New Stearn Facilities do not unreasonably interfere with the use of Wentworth Park and that they are consistent with the aesthetic and environmental vision for the riverfront as otherwise approved by the City and in accordance with the conditions and requirements of any federal or state grants or other sources of funding for Wentworth Park and the riverfront. The BWL shall review the plans and specifications to ensure the New Steam Facilities will meet BWL's operational requirements and standards. The costs incurred by Developer to prepare the plans and specifications and obtain any needed approvals of the plans and specifications shall be included in the cost of construction of the New Steam Facilities and paid (or reimbursed) from the same funds as are used to pay for the construction and installation of the New Steam Facilities. (C) Developer shall, at its own expense to be reimbursed from tax increment revenues pursuant to subsection 5.2(B) below, cause the New Steam Facilities to be constructed in accordance with the plans and specifications approved pursuant to subsection (B). The parties agree that, in order to assure the New Steam Facilities construction and installation is coordinated with Developer's activities on the Site, The Christman Company ("Christman") shall be the general contractor for the construction and installation of the New Steam Facilities. Such construction shall begin not later than April 1, 2009 and be completed not later than September 30, 2009. (D) The City hereby gives permission to the BWL to use the Steam Vault Location for the construction, installation, use, operation, maintenance, repair, replacement and improvement of the New Steam Facilities in accordance with a License Agreement to be executed by the City and the BWL prior to closing. -20- (E) To the extent it wishes to salvage any of the Steam Facilities, the BWL shall have right to enter the City Property after the closing occurs on the City Property as set forth in the License. (F) The requirements of this Section shall survive closing on the conveyance of the City Property to Developer. 3.2 Chilled Water Facilities Relocation. (A) Replacements for the Chilled Water Facilities shall be constructed on a site to be designated and secured by the BWL (the "New Chiller Location") not later than March 30, 2008. A more particular, but nevertheless general, description for the replacement to the Chilled Water Facilities is in the attached Exhibit C (the "New Chilled Water Facilities"). (B) Developer shall, at Developer's expense to be reimbursed along with the New Chilled Water Facilities construction costs as provided below, cause plans and specifications for the New Chilled Water Facilities to be prepared by a design professional reasonably acceptable to the BWL, consistent with the general description in Exhibit C, and such plans and specifications shall be submitted to the BWL for its review and approval not later than June 30, 2008. The BWL will be responsible for all costs it incurs for BWL staff time needed to develop the plans and specifications. (C) Developer shall cause the New Chilled Water Facilities to be constructed at the is New Chiller Location in accordance with the plans and specifications approved pursuant to subsection (B). The parties agree that, in order to assure the New Chilled Water Facilities construction and installation is coordinated with Developer's activities on the Site, Christman shall be the general contractor for the construction and installation of the New Chilled Water Facilities. • (1) Developer shall order the components of the New Chilled Water Facilities as needed for timely delivery to complete their construction and installation as required by paragraph (2) below. (2) Such construction and installation shall begin not later than September 30, 2008 and be completed not later than September 30, 2009. (3) Progress payments will be made to Developer from funds available to the BWL as provided in subsection 5.2(A) of this Agreement following the BWL's standard construction draw procedures. The BWL shall provide funds from another source to provide for any costs of the New Chilled Water Facilities and New Steam Facilities that exceed $20 million. Until Developer makes the infrastructure payment funds available as provided in subsection 5.2(b) of this Agreement, neither the City nor the BWL shall have any obligations for payment for the New Chilled Water Facilities. -21 - (D) The requirements of this Section shall survive closing on the conveyance of the City Property to Developer. 3.3 Other Contract Requirements. The work provided on the New Steam Facilities and the New Chilled Water Facilities shall comply with the following contract requirements. (A) . The construction contract with Christman shall be in a form acceptable to and approved by the BWL consistent with the BWL's standard procedures for construction and installation contracts. (1) That contract shall provide for performance and payment bonds in the amount of 100% of the contract price and shall note that it is work performed on public property for a public entity such that no contractor's or material supplier liens can be placed on the utility relocation project or the Site. (2) The contract shall provide for completion and acceptance of the work in accordance with standards customarily used by the BWL and shall provide operations manuals and warranties in accordance with common standards for such equipment and in accordance with the BWL's usual practices for such equipment. (B) The BWL shall have the right, but not the obligation, to inspect and test all construction, installation, and components of all equipment and the BWL shall be contacted before any portions of the work is covered. However, the BWL will not, simply by making such inspection(s) or testing(s), or by failing to raise any objections, . relieve the Developer or Christman from any obligations they may have, or waive any warranties or guaranties covering the construction. • (C) Developer shall ensure that Christman obtains sealed bids for all subcontracted work and major components and supplies, in a manner generally in accordance with the BWL's purchasing policies, and shall open those bids in the presence of the BWL's designee. Developer shall ensure that Christman provides the bid tabulation, and, if requested by the BWL's designee, the bids, to the BWL for review and comment prior to any bid award by Christman. (D) Upon completion of the construction and installation, Developer shall provide the City and the BWL with "as built" drawings showing the exact location of the work and any deviations from the approved plans and specifications. Such drawings shall be provided to the BWL before the BWL accepts the completed New Steam Facilities or New Chilled Water Facilities. (E) Developer shall hold the BWL, the City, the LBRA, and their engineers, officers and employees harmless from, indemnify them for, and defend them (with legal counsel reasonably acceptable to the City) against any and all demands, claims, liabilities, obligations, damages, awards, judgments, administrative fines, or other losses or expenses any of them may receive or incur as a result of the construction of the work to be performed or provided by Developer under this Article and any defects in that work. During construction and installation and until construction and installation is completed, -22- I* the premises is restored and the BWL has accepted the work, Developer shall ensure that Christman obtains and maintains a general liability and owners' liability insurance policy naming the City, the BWL, the LBRA and their engineers, officers and employees as insureds or additional insureds and certificate holders with coverage of at least $5,000,000 per individual and $5,000,000 per occurrence. Such insurance shall provide that it may not be canceled, modified or terminated without at least 30 days prior written notice to the City. A copy of the certificate(s) and policy(ies) of insurance shall be provided to the BWL prior to the commencement of construction. In addition, Developer shall assure that all necessary or required workers' disability compensation, unemployment compensation and other insurance has been obtained by Christman and its contractors. Article IV: Parking Ramp 4.1 New Ramp Location and Conceit. (A) The New Ramp shall be located on a portion of the Site located to the north of the Power Station and south of Shiawassee Street which may be part of the City Property and/or all or a portion of the Developer Property as the parties may reasonably agree is necessary for the construction and operation of the New Ramp in a manner that is compatible with the development of the remainder of the Site which will be surveyed and described in detail prior to the closing (the "New Ramp Site"). (B) The City and Developer have yet to work out the exact structure of the ownership of the New Ramp. It will either (i) be constructed and owned by Developer and leased to the City with an option to purchase it for a stated value pursuant to a lease purchase agreement between Developer and the City to be entered into prior to closing on the conveyance of the City Property to Developer, or (ii) the City or the Building Authority of the City of Lansing (the "Building Authority") will issue bonds soon after the closing on the conveyance of the City Property to Developer and use the proceeds from the issuance of those bonds to pay the cost of constructing the New Ramp which, together with the New Ramp Site will be conveyed to the City as provided in a New Ramp purchase agreement between Developer and the City to be entered into prior to the closing on the conveyance of the City Property to Developer. Entry into either agreement shall be condition of closing on the conveyance of the City Property to Developer. That agreement shall, among other terms the parties may desire, address the following issues: (1) Whether any portion of the New Ramp structure will be constructed for commercial or residential uses and the terms of any such uses; (2) Any needed easements in the New Ramp or adjacent property needed to provide access to the New Ramp or any adjacent property; (3) The lease and/or purchase terms for the New Ramp, including any extensions or renewals; - 23 - • (4) Parking rights and payments for AFICA, for Developer, for the general public, and for any other parties; (5) The design requirements, plans and specifications for the New Ramp; (6) Requirements for any construction contracts for the New Ramp, including any payment and performance bond or other requirements; (7) Any rights to inspect the New Ramp's construction, to require "as built" drawings, to warranties, etc.; (8) What, if any, portion of the New Ramp will be located in or excluded from the renaissance zone to be created under Section 5.6 of this Agreement; and (9) Any operational or use requirements or limitation. (C) The Current Ramp may not be demolished prior to the time permitted under the agreement to be entered pursuant to this Section. Article V: Economic Development 5.1 Purpose. (A) When completed, the Project will vastly alter the appearance of the vicinity with the elimination of the "tunnel" that the Current Ramp gives, the demolition of the building on the Developer Property, the re -occupancy of the long vacant Power Station, the addition of retail shops, the continuation and linkage of the riverwalk, and the general beautification of the area. Finally, it will enable the City to retain 623 jobs and a major corporate headquarters and to enable the creation of up to an estimated additional 500 jobs in its downtown. The parties anticipate the estimated $130 million project will eventually add over an estimated $50 million to the City's tax base. (B) However, the parties estimate addressing the environmental issues on the City Property, removing the existing Chilled Water Facilities and constructing new Chilled. Water Facilities, relocating the Steam Facilities, and demolishing the Current Ramp will cost as much as $25 million, constructing the New Ramp will cost about $20 million and improving and enhancing the riverfront along the Site will cost upwards of $3.0 million. Therefore, to obtain the economic, aesthetic and other benefits of the Project, it is necessary to make the Project financially viable by addressing the many challenges inherent in the Site and in retaining jobs in the City. (C) Accordingly, City officials have aligned an array of Public Support for the Project. Each is interdependent on the other and each requires attention to various requirements to assure its benefits are available on a timely basis. 5.2 Brownfield Financing and Infrastructure Payments. -24- . (A) Infrastructure payment. (1) Developer shall, at or before the closing, make available to the BWL, pursuant to a written agreement among all the parties which shall, at a minimum, require the signature of a BWL official prior to the release of such funds, the amount of $20 million to be used by the BWL to pay costs incurred to construct and install the New Chilled Water Facilities and the New Steam Facilities. (2) The BWL shall from its own funds pay any amounts incurred in excess of $20 million to construct and install the New Chilled Water Facilities and the New Steam Facilities. (3) Disbursements from the funds to be provided under subsections (1) and (2) above shall be made as provided in Section 3.2 of this Agreement. (B) Reimbursements from tax increments. (1) It is intended that available tax increment revenues captured pursuant to the Brownfield Redevelopment Financing Act, 1996 PA 381, as amended ("Act 381") be used to reimburse Developer for reimbursable costs incurred by Developer for relocating the Steam Facilities, constructing the new Chilled Water Facilities, removing the existing Chilled Water Facilities, and demolishing the Current Ramp which shall be the subject of a separately negotiated brownfield plan and reimbursement agreement. • (2) Such funds can be captured only in accordance with all of the following: g • (a) A brownfield plan for the Site approved by the LBRA and the City Council which is a condition of closing under Article I. (i) The City, the BWL and Developer shall jointly prepare the brownfield plan for the Site for consideration by the LBRA not later than March 1, 2008. (ii) Provided it is approved by the LBRA by the date provided in paragraph (i) above, the brownfield plan shall be submitted to the City Council for a public hearing and approval not later than April 15, 2008. (b) In order to capture tax increment revenues generated from state educational and local school operating tax millages, a brownfield work plan must also be approved by the Michigan Economic Growth Authority ("MEGA") which is a condition of closing under Article I. The City, the BWL and the Developer shall jointly prepare the brownfield work plan. Provided it is first approved by the LBRA, the work plan shall be submitted to the MEGA for consideration by and approval of the MEGA not later than May 15, 2008. - 25 - (c) Capture of these tax increment revenues will require the City Council and the LBRA to adopt resolutions. Nothing in this Agreement shall prevent the City Council and the LBRA Board from exercising their discretion in the adoption of the needed resolutions or other actions to be taken. (d) A reimbursement agreement among the City, the LBRA, the BWL, and Developer, that provides for disbursement of the tax increment revenues pursuant to this Agreement is a condition of closing under Article I. (3) To the extent AFICA occupies the Site at the time they are available for distribution, Developer shall have the right to assign to AFICA all of Developer's rights to receive the tax increment revenues captured by the LBRA as set forth above and as provided in the reimbursement agreement to be entered into pursuant to subsection 5.2(B)(2)(d) above. Such assignment shall not take effect until the City, the LBRA, and the BWL are notified in writing of the assignment. 5.3 Brownfield Tax Credits. Act 381 also provides for state business tax credits with the approval of a brownfield plan by the LBRA and the City Council and with the approval of the amount of the tax credits by the MEGA. The brownfield plan shall be submitted to and approved by the City Council as provided in paragraph 5.2(A)(2)(a) above. Developer shall submit the appropriate application to the MEGA for its consideration and approval not later than May 15, 2008. Approval of the tax credits in the amount of at least $9.9 million is a condition of closing under Article I. 5.4 CMI Grant Funds. The parties agree that enhancement of the riverfront along the Site is essential to the success of the Project. The City has received a preliminary grant commitment from the MDEQ for a Clean Michigan Initiative ("CMI") grant of $3.2 million that are available to use for enhancement of the riverfront with public infrastructure improvements. After providing Developer an opportunity for review and comment, the City will, not later than May 1, 2008, submit an amended waterfront development plan to the MDEQ showing, at a minimum, proposed public infrastructure enhancements to the riverfront contiguous to the Site. Final approval of this CMI grant is a condition to closing under Article I. 5.5 EPA Grant Funds. The City has obtained a $600,000 grant from the United States Environmental Protection Agency ("EPA") for use for environmental remediation in connection with the Project. The City will, not later than August 30, 2008, obtain any additional needed approvals from state officials to use the funds for such purposes. This is a condition to closing under Article I. 5.6 Renaissance Zone. Property located in a "renaissance zone" created under the Michigan Renaissance Zone Act, 1996 PA 386, as amended ("Act 386") is exempt from various taxes as are those who occupy such property. The parties agree that approval of the Site as a renaissance zone is critical to the Project's viability. The parties have yet to determine what, if any, portion of the New Ramp should be within a renaissance zone and will address that as part of the agreement for the New Ramp under subsection 4.1(B) of this Agreement. Enactment of a -26- • resolution by the City Council in support of the renaissance zone prior to September 15, 2008 shall be a condition to closing under Article I_ Developer may elect the date upon which such renaissance zone application is submitted to the State, which is currently estimated to be January 1, 2009. 5.7 Historic Tax Credits. (A) The City and the BWL shall cooperate with Developer as Developer seeks creation by the City of a historic district encompassing the Power Station. Approval of the historic district is a condition for closing under Article 1. Approval of tax credits related to that designation is not a condition to closing and is solely Developer's responsibility. To the extent reasonably necessary prior to closing on the conveyance of the City Property to Developer, the City and the BWL shall execute as the owner of the City Property such documents as maybe needed to obtain such tax credits. (B) If Developer does not apply for such designation by February 1, 2008 or does not waive the approval of the historic district as a condition of closing by February 1, 2008 and, as a result, closing does not occur, either the City or the BWL may elect to terminate this Agreement. If either does so, the Earnest Money shall be paid to the City and the BWL as liquidated damages and this Agreement shall terminate upon the City's and BWL's receipt of the Earnest Money. 5.8 Failure to Obtain or Give Public Support Approvals. 40 (A) Approval of the Public Support requires various public officials and bodies to make discretionary decisions, often using statutory or other criteria and considering a variety of information including information offered by the public. Nothing in this Agreement is intended to impair or limit any discretion of any public official or body. (B) Except where another or additional remedy is expressly provided by this Agreement, if any approval that is required under this Article to be given prior to closing or any deadline under this Article is required to be met before closing is not given or met prior to the closing: • (1) The parties may waive that condition to closing and proceed to closing. (2) The parties may, without amending this Agreement but with resolution approved by the City Council and the BWL, extend the date for closing until such approvals can be obtained and/or steps completed. (3) Any party may terminate this Agreement and the Earnest Money shall be returned to Developer. This Agreement shall terminate when the Earnest Money is returned to Developer. Article VI: Miscellaneous -27- • 6.1 Fair Employment Practices. Developer agrees that in the construction of the Project and all other work Developer is to perform under this Agreement, Developer and its contractors, agents and representatives shall comply with all applicable laws, ordinances, rules, regulations and other legal requirements, whether now in effect or hereinafter taking effect with respect to equal opportunity, affirmative action, payment of prevailing wages and fringe benefits. Furthermore, Developer agrees to enter into a Project Labor Agreement in a form approved by BWL with Developer's contractors and subcontractors for the New Steam Facilities and the New Chilled Water Facilities. Finally, Developer intends to negotiate a Project Labor Agreement for any other work on the Project. Developer shall ensure that Christman and its subcontractors also comply with the provisions of the Project Labor Agreement entered into by Developer. 6.2 Remedies. • (A) Where return or retention of the Earnest Money is provided, it shall be the sole remedy available to the party. Where payment of the Earnest Money to or the retention of the Earnest Money by the City and the BWL is provided, it shall be divided and dispersed as they mutually direct in writing. If the City and the BWL do not agree on the division and dispersal of the Earnest Money between them, the Earnest Money shall be allocated between them based on invoiced and paid costs each has incurred according to the following: first to pay for the costs of obtaining the return of the Earnest Money, then to pay for the costs of preparing this Agreement, then for the costs of preparing plans and obtaining approvals as required by this Agreement, and, finally, by dividing the remainder. Otherwise, any remedies provided in this Agreement shall be cumulative of all remedies available under applicable law or in equity. (B) Where this Agreement calls for the payment of attorneys fees and transactional costs, the party required to pay such amounts may review the invoices therefore to the extent the information in those invoices is not privileged. If the parties do not agree on the amounts to be paid, they shall seek the opinion of an attorney from another Michigan based law firm who has experience with transactions of such a nature and complexity as this transaction regarding the reasonableness of such fees and costs. If the parties can agree on an attorney to review those invoices, the opinion of that attorney shall be binding on the parties. If they cannot agree, the party seeking the fees shall select an attorney, the party to pay the fees shall select an attorney and the two selected attorneys shall select a third attorney and the majority decision of the three attorneys so selected shall be binding on the parties. No selected attorney or that attorney's law firm shall have provided services for any party within the last 5 years. (C) Remedies may be exercised together or separately and the exercise of one or more remedies shall not preclude the subsequent exercise of other remedies. (D) The parties agree that some legal remedies may be inadequate and that equitable remedies are more appropriate. The parties agree that any breach of this Agreement causes irreparable harm to non -breaching parties. -28- (E) To the extent permitted by law, the parties agree that the jurisdiction and venue for any action brought pursuant to, arising from or to enforce any provision of this Agreement shall be solely in the state courts in Ingham County, Michigan. (F) To the extent permitted by law, the parties agree that in any action brought pursuant to, arising from or to enforce any provision of this Agreement the prevailing party shall, in addition to any other remedy, be entitled to recover its costs, including, without limitation, actual, reasonable filing fees, legal fees, expert fees, discovery expenses and other costs incurred to investigate, bring, maintain or defend any such action for its first accrual or first notice thereof through all appellate and collection proceedings. (G) Time is of the essence in this Agreement. The failure of any party to comply with a deadline imposed by this Agreement is a substantial breach of this Agreement. However, the parties may, by written. agreement by the Mayor and the General Manager of the BWL agree to a one-time extension of a deadline of up to 60 days and after approval by the City Council and the BWL, extend any deadline in this Agreement to whatever date is then agreed upon, without formally amending this Agreement. It is further provided, that if it is unable to meet any required deadline under Section 1.7 of this Agreement, Developer may, at its discretion extend the closing date by up to 180 days if it reasonably believes that, in doing so, it can meet the deadline. if any deadline is so extended, all subsequent deadlines in this Agreement that are established in reference or in harmony to the missed deadline shall be similarly extended. (H) If the BWL fails to perform any covenant or condition of this Agreement with regard to any of its obligations under any applicable Environmental Law and such failure continues for thirty (30) days after written notice from Developer to the BWL, Developer may pay or perform on behalf of the BWL the defaulted obligation of the BWL, in which case the BWL shall reimburse Developer on demand for all costs incurred by Developer in so doing, including, without limitation, reasonable attorney fees, together with interest at the statutory rate for a civil judgment from the date of Developer's payment or performance until paid. Notwithstanding the foregoing: (1) if any such failure cannot reasonably be cured within thirty (30) days, the BWL shall not be in default if the BWL begins to cure during such 30-day period and diligently attempts to cure thereafter; and (2) if the BWL's breach materially interferes with Developer's construction schedule for the improvements to be made to the Project, Developer may pay or perform the BWL's default obligation after three (3) days written notice. 6.3 _Entire Agreement. This is the entire agreement among the parties or any of them with respect to its subject matter. It supersedes and replaces any prior or contemporaneous agreements whether written or verbal, express or implied. It may not be amended except by a writing signed by all the parties after approval by their respective governing bodies. 6.4 Interpretation. All parties had input into the drafting of this Agreement and all had the advice of legal counsel before entering into this Agreement. Therefore, this Agreement shall be construed as if mutually drafted. The captions are only for reference and shall not affect the -29- interpretation of this Agreement. However, the recitals are an integral part of this Agreement. Several copies of this Agreement may be signed, but they shall all constitute only one agreement. A copy of this Agreement and all exhibits may be used as an original in any action or proceeding involving this Agreement. The exhibits are an integral part of this Agreement and are incorporated into this Agreement. Whenever an officer is mentioned by title in this Agreement, it shall be construed as meaning that officer or his/her designee or, if the office is abolished or duties transferred to another officer, to the officer to whom such duties are assigned. 6.5 Notices. Notices shall be complete when delivered by personal delivery, by courier or delivery service (such as UPS, FedEx or other service) or by certified mail, return receipt requested to the addresses first written above. If any party refuses to accept delivery when presented, delivery shall be deemed to have occurred at the time of such refusal. 6.6 Assignment and Benefit. No party may assign this Agreement or any rights, duties or obligations under this Agreement without the express, prior written authorization of all the other parties following action by their respective governing bodies. Such authorization shall not be unreasonably withheld, delayed or conditioned. This Agreement shall be binding on the parties and their permitted successors and assigns. However, no other parties are intended to benefit from or be beneficiaries of this Agreement. 6.7 Further Documents. Should further documentation reasonably be needed to effectuate the provisions and intent of this Agreement, each parry agrees to execute such further documents as are reasonably needed without undue delay or conditions. • 6.8 Recording. A memorandum of this Agreement may be recorded with the Ingham County Register of Deeds by and at the expense of any party wishing to do so. If requested by any party, the other parties shall cooperate in preparing and executing such a memorandum for recording in a form reasonably acceptable to all parties. .• -30- 1 0 The parties have signed this Agreement as of the date first written above CITY OF LANSING By. Virg 12krnero, Mayor Brigham C. S ith, I By: 0 Chris Swope, Clerk Clerk H' C n BOARD OF WATE , CITY "S.IN By:�. J. Lark, G By: Semone James, By: (&Z Rhonda Jones, OF THE CHRISTMAN CAPITAL DEVELOPMENT COMP By: _ y Steven F. Roznowski President By: Matthew T. Chappelle, Secretary/Treasurer -31- Willyam J. Danhof Michael J. Hodge approval as to form: Honigman, Mill c" Eric J. Eggan 11 & Stone PLC LLP LANSING PECONOMIC DEVELO v�CJRI Robe,�'t L.�I rezise, Jr�,//i�,{gsident and CEO DorsWmer, Vice President 553405]v.1 0 -32- 0 EXHIBITS 0 EXHIBIT A LEGAL DESCRIPTIONS "CITY PROPERTY" DESCRIPTION Real property in the City of Lansing, County of Ingham, State of Michigan, described as follows: COMMENCING AT THE CENTER POST OF SECTION 16, T. 4 N. R. 2 W., CITY OF LANSING, INGHAM COUNTY, MICHIGAN; THENCE ALONG THE EAST -WEST 1/4 SECTION LINE OF SECTION 16, N 89° 59' 00" E 527.87 FEET; THENCE N 00' 01' 45" W 330.00 FEET TO THE NORTHWEST CORNER OF BLOCK 99, ORIGINAL PLAT OF THE TOWN OF MICHIGAN, NOW CITY OF LANSING, AS RECORDED IN LIBER 2, PAGES 36-38, INGHAM COUNTY PLATS, AND THE POINT OF BEGINNING; THENCE ALONG THE EAST LINE OF NORTH GRAND AVENUE N 000 01' 45" W 519.77 FEET TO A FOUND R.R. SPIKE ON THE CENTERLINE OF VACATED IONIA STREET; THENCE ALONG SAID CENTERLINE DUE EAST 89.09 FEET; THENCE N 50' 05' 10" E 157.52 FEET; THENCE N 00' 29' 40" E 39.86 FEET TO A POINT ON THE CENTERLINE OF THE PARTY WALL TO THE WEST EXTENDED EASTERLY; THENCE ALONG SAID EXTENSION AND ALONG THE CENTERLINE OF THE PARTY WALL N 890 58' 00" W 210.25 FEET TO THE EAST LINE OF NORTH GRAND AVENUE; THENCE ALONG SAID EAST STREET LINE DUE NORTH 296.14 FEET TO A FOUND CUT CROSS IN THE CONCRETE SIDEWALK, SAID POINT BEING ON THE SOUTH LINE OF SHIAWASSEE • STREET; THENCE ALONG SAID SOUTH STREET LINE S 89' 58' 00" E TO THE WESTERLY EDGE OF THE GRAND RIVER; THENCE SOUTHERLY ALONG THE WESTERLY EDGE OF THE GRAND RIVER TO THE SOUTH LINE OF OTTAWA STREET; THENCE ALONG SAID SOUTH STREET LINE DUE WEST TO THE POINT .OF BEGINNING. There shall be excluded from the final legal description of the City Property that portion of the parcel legally described above which constitutes "waterfront", as defined in City Ordinance 208.10 (except for that portion of "waterfront" that is occupied by the current Power Station Building, which shall be conveyed). Also, there shall be excluded from the final legal description of the City Property any property that is south of the vacated Ottawa Street curb line. 0 • "DEVELOPER PROPERTY" DESCRIPTION City of Lansing, County of Ingham, State of Michigan, legally described as: Commencing at a point on the East side of Grand Avenue 296.1 feet South of the Southeast corner of Grand Avenue and Shiawassee Street, running thence East parallel with Shiawassee Street along the centerline of a 12 inch brick firewall whose bearing measures South 89 degrees 53 minutes 57 seconds East 210.25 feet, thence South 00 degrees 29 minutes 40 seconds West 39.74 feet, thence South 50 degrees 05 minutes 10 seconds West 157.52 feet to the centerline of the former Ionia Street now vacated, thence West along said centerline 89.09 feet to the East line of Grand Avenue, thence North 141.15 feet to the point of beginning, being a part of Lots 12 and 13 Block 66 and a part of Ionia Street between Blocks 66 and 98 of the original plat of the City of Lansing, Ingham County, IT -his exhibit is based on preliminary information currently available to the parties. It is subject to further refinement and definition prior to executing this Agreement and, following execution of this Agreement. It is specifically subject to survey verification, based on a survey to be obtained by Developer, to be prepared by C2AE. The final legal descriptions for the "CITY PROPERTY" AND "DEVELOPER PROPERTY" shall be based on the survey to be obtained by Developer from C2AE, subject to the provisions of the Agreement] • • IN t t It j EXISTING CHILLED WA TER • LINES TO REMAIN VIA EASEMENT t t 1 r I L ANSING 80ARD OF WA TER AND LIGHT 1 0TTAWA STAT/ON L J ' ' t � t, t Q � Q 4 SEE PAGES 81-SJ FOR MA✓OR EOUIPMENT i � I REMOVAL I r t� o EXISTING STEAM TO REMAIN z Jto Q 3t VIA EASEMENT • Q CUT & CAP 8 ; 12" e v & JO" STEAM PIPING Z I V W 4 to xt y W j v. � Vi f ml W r `mil j•. 'tl �r� r� �' .I• 1/5 I 24" LP ST£AM r/r it Jo_ LP STEAM ° 0TTA WA Q � STREET 3" SiM EXHIBIT B • CHILLED WA TER PLANT STEAM DISTR/BUT/ON REMOVAL PLAN SEE B-1 •. ... ....... Steam Distribution Equipment I b6i&iptjon **-'' Re !Item moval List , IMechanical 1 Steam Pressure Reducing Valves 1 2 Isolation Valves 4 IStrainers 5 SafetyValvesValves 3 4B.... Spare Parts Storre.d- on Site --.--!Eot. —7 lifistruments & Transmitters -0-t 0 19 12/14/20073:18 PM Development Agreementl.xlsExhibit B Steam MMUmam-wr" CHILLER PLANT MAJOR STEAM DISTRIBUTION EQUIPMENT REMOVAL B2 BWL 152-152 ..... ...... . .. . ........ .......... .. . .. ............ . ... ............. . ....... ...... . . ..... .... .......... ... . .. ...... • • CHILLER PLANT MAJOR STEAM DISTRIBUTION EQUIPMENT REMOVAL B3 BWL 152-358 mmmmmm WATERAIGHT 1 6iTF9:A SPAigN CP41.8 P W If .......... .... .... ... ... .1. . . ........ .......I........... ............... +. k...... I ....... ....... ,.....i.l:....: 1.... I ll: LP S7FAAf EXISTING CHIk L ED W4 TER LINES TO REMAIN VIA EASEMENT LANSING BOARD OF WA TER AND t IGH r OTTAWA STATION SEE PAGES Cl--C72 FOR IVAIOR EOUIPMENT REMOVAL CUT & CAP 36" CHILLED WA TER SUPPL Y & RETURN EXISTING STEAM TO REMAIN VIA EASEMENT ----7 30' LP STEAM OTTAWA T T REET ;`^ EXHIBI T C CHILLED WATER PLANT REMOVAL PLAN v N, SEE C- I • I f I Ottawa Chiller Plant Major Equipment: Removal List item Description Qt Mechanical j 1 [Electric Motor Driven Chiller - 2000 Ton _ j 1 2 j Steam Turbine Driven Chiller - 2000 Ton 4 _ 1 Primary Chilled Water Pumps (3 full,l half size) _ 4 Secondary Chilled Water Pum s 4 } 4 5 !Cooling Tower Pumps 3 full, 1 half size) ! 4 _ 6 ! Coolinq Tower Fans, Motors, Gear Reducers 3 _ { 7 Sand Filter with Pump — _--' --_._� — 8 ; Refrigerant Pump Down Unit 1-1 9 i Plate & Frame Heat Exchanger 1 10 -i 1 1 Exhaust Fans ;Ventllating Fans (5 & 1 spare) IT Lot j 12 i HVAC Unit - Control Room 1 _ 13 14 Expansion Tank Condensate Receiver Tank } 1Duplex Sump Pumps j 1 _1 15 16 1Steam Pressure Reducing Valves 2 17 18 Air Compressor Air Receiver 2 1 19 1 Duplex Air Dryer 1 20_]Bulk Chemical Storage Tankw/Chem Feed j 2 Booster Pumps 3 ...... _ _^21 1 22 Unit Heaters, Electric— — — ILot i 23 24 125 JUnit Heaters, Steam ILot Control Valves I Isolation Valves Lot Lot _ 26 10heck Valves Lot 27 !Strainers 28 !Unit Substation HVAC Unit Lot 2_ 29 1Spare Parts Storred on Site Lot 30 !Electric Hoist 1 31 32 115 kV Switchgear Cabinets 113.2kV/4.16kV 175KVA Transformer 12 1 _ 33 ;Double Ended Unit Substation 13.2kV/480V 2 1 34 14160V Motor Starter i 1 35 ]Motor 36 (Variable Control Centers - 480V Frequency Drives - 480V, Sec Pumps 4 4 1 37 lVariable Frequency Drives - 480V, CT Fans 3 1 38 Heat Tracing Panel 1 39 UPS. w/ Batteries, Inverter, and Panel DC Panel, Batteries, Charger - Sw(tch ear 1 1 40 f 41 1Delta V Control Termination Panel i 2 42 !Fire 43 1Refrigerant Panel _vl* I Leak Detection Panel 1 -1 44 Fiber Opt c Termonation Panel - Customer �— 1 45 46 instruments & Transmitters :Lot Transformer 2 47 15kV Switch ear Control Power ! 1 48 13ackfiow Preventer I 1 0 12M4/200711:58 AM R1 12-13-07 Development Agreement.xlsExhibit C Chilled Water -N - ----- --------- L- - - ---------- - -- 1� rm W4 gm�w mms-, mop C5 CHILLER PLANT MAJOR EQUIPMENT REMOVAL BWL 152-151 IF .1- ..1 . ... ............ -.1.....I.-I .......................... ........ ... , ... . '.. . . . .. .. . .. . ..j. . ....... - .. .. I . .. . . .. - . . ... ..... ..... ... ..... .. . . . . ... . . . . . . .. . I ... -- - 1+.14.. 0 .0 ......... ........ . ............. ........... ........ ....... .. .... ............. ............. ..... ...._....._...I.. M ' � pl - M Ifnl ' .r V.CR A 1 1 �• j � R,H ' Y1oe W IrNi4 1. Yr a e � b amn yr -- umm,wa< j� aw - wrt Rx w Y w wawa rave rs olw.ls� ,j+ 1 i r r. r r p5 O'WV _ R 6D• I rll )' m YV1� Orr R.r.f prt rtw WP7 IN OYI Q.r o 1 Eff- � rwmrr = , 'J 0 IdiiiDt6 rxx cm plumy nm C7 ' CHILLER PLANT MAJOR EQUIPMENT REMOVAL arum , n BWL 152-161 If r I..... ..—............................................ ... ........ . . ...................Y - ... ... ....... _._........_..1........_........... ...... ._..._.................11......,............ .._._......._<.... .... .... ,.............. _ ..._.:.I.....,, Iry..1_..1.._,...... R- zk sm mm MEU=L3VM2eW-am C8 CHILLER PLANT MAJOR EQUIPMENT REMOVAL BWL 152-154,1 ... ..... ................ . .............. 0 C7 t.- C9 CHILLER PLANT MAJOR EQUIPMENT REMOVAL I I i BWL 152-155 .......... .......................... .......... ..... .... ....... ... .. . . .... .... .. ....... ............ .. ..... ... ............ . ......... -, . .... .. ....... .... ........ . EXHIBIT D DESCRIPT10N " CURRENT RAMP" Description of "Current Ramp". The "Current Ramp" is shown in the attached figure and is depicted inside the red border. The structure has been generally referred to as the "expansion ramp" and is bound by Ionia Street on the north, the west side of the Grand Avenue right of way on the west, Ottawa Street on the South, and the alley west of the former Ottawa Power Station on the east. For the purposes of demolition, the Current Ramp also includes the pedestrian and vehicular connections to the original North Grand Ramp. The original North Grand Ramp shall not be demolished. [This exhibit is based on preliminary information currently available to the parties. It is subject to further refinement and definition prior to executing this .Agreement and, following execution of this Agreement.) • • EXHIBIT E DESCRIPTION AND DEPICTION OF THE "PROJECT" DESCRIPTION OF THE "PROJECT" The proposed development will involve repurposing of the historic Ottawa Power Station, a decommissioned electric power generation facility and the surrounding properties, into Class A office space to be leased on a long-term basis by Accident Fund Insurance Company of America for use as a new national corporate headquarters campus. Broadly, the project entails the following components: (1) Environmental remediation of site and building contamination, and demolition of two existing buildings to the north of the power plant; (2) Development of the approximately seven acre site, including a 25-foot wide public "linear" park along the Grand River's edge, from Wentworth Park to Shiawassee Street, to be owned by the city of Lansing; (3) Removal of an existing 10,000 ton chilled water plant and high-pressure steam distribution facility currently situated within the power plant, and development of replacement facilities, at new offsite locations, to maintain utility services; (4) Removal of an existing parking deck expansion currently spanning Grand Avenue • and partially occupying the southwest corner of the proposed site; (5) Renovation of the historic Ottawa plant, including comprehensive structural reconfiguration and abatement, to provide approximately 185,000 GSF of office space and 34,00 GSF of basement parking; (6) Development of an approximately 105,000 GSF building addition, designed to complement the historic power plant, with additional office space to house 400 employees and a central energy plant; (7) Purchase and installation of partitions, furniture, and other office equipment required for the corporate operations to be housed in the facility; (8) Development of technology and communications infrastructure, including data center facilities; (9) Development, for either city of Lansing or private ownership, of an approximately 1,000 to 1,200 car parking deck, for use by Accident Fund employees and for potential public parking. • EXHIBIT F DEVELOPER'S ENVIRONMENTAL REMEDIATION ON CITY PROPERTY [This exhibit is based on preliminary information currently available to the parties. It is subject to further refinement and definition prior to executing this Agreement and, following execution of this Agreement.] As part of the contemplated redevelopment, the following environmental remediation and other related activities are anticipated to be included as the responsibility of the Developer. The items are intended to be general in nature, as it is intended that the extent of environmental contamination will be further characterized, and the associated remediation requirements delineated, by a Baseline Environmental Assessment and Due Care Plan(s) the Developer will prepare as part of the due diligence and other investigatory activities prior to closing. For further ease of reference, please see the attached "Figure No. I" prepared by NTH Consultants, Ltd. as part of the Due Diligence Study referenced under section 1.3 (B) (2) of this agreement. A.) Removal and disposal in a Type II landfill of soils located in the northeast quadrant of Parcel A that are contaminated with petroleum compounds, specifically polynuclear aromatic (PNA) hydrocarbons, at concentrations that exceed MDEQ criteria for volatilization to ambient air. B.) Removal and disposal in a Type I landfill of lead and cadmium contaminated soils in the southwest quadrant of Parcel C. • C.) Disposal in a Type II landfill of any soils removed from site during construction. D.) Abatement and proper disposal of all asbestos -containing window caulk and/or other glazing materials from the windows of the Ottawa Power Station. E.) Abatement and proper disposal, or encapsulation, of lead -based paint within the Ottawa Power Station. F.) Abatement of hazardous materials contained within 300 North Grand Avenue ("Stackable Building") and 312 North Grand Avenue ("BVJL Building") as required from mass demolition of completed building and foundations. G.) Installation of vapor barrier in the basement of the Ottawa Power Station, including a concrete topping slab. H.) Any dewatering of site, as required for construction, will include disposal in the City of Lansing municipal sanitary sewer system, including all permits and environmental or other controls required for such disposal. • 5508361.8 26005/119350 • 0 NOTE ANY SOIL REMOVED DURING CONSTRUCTION ACTIVITIES WILL EITHER NEED TO BE REUSED APPROPRIATELY ON -SITE (mg., BERMS) OR DISPOSED OFATA TYPE If MUNICIPAL LANDFILL FACILITY. EAST 10NU STREET ESTIMATED LIMIT OF SOIL IMPACTED WITH LEAD AND CADMIUM ATA LEVEL REQUIRING DISPOSALATA TYPE I LANDFILL (DEPTH OF IMPACTED SOILS APPROXIMATELY 3 TO 7 FEET BELOW GROUND SURFACE) FORMER MANUFACTURED GAS PLANT (MGP) SEPARATE PHASE PRODUCT OBSERVED. POSSIBLE MIGRATION FROM OFFSITE SOURCE (MANUFACTURED GAS PLANT) EAST OTTAWA STREET 1 1 1 1 EAST SMA.WASSEE STREET PARCEL "A" J PARCEL "B" PARCEL. "C" 0"4w 6T,T*, il' Y ESTIMATED LIMIT OF SOIL IMPACTTHATEXCEE05 VOLATILIZATION CRITERIA (DEPTH OF IMPACTED SOI APPROXIMATELY 2 TO 4 F BELOW GROUND SURFAc OF FORMER COAL STORAGE AREA, REPORTEDLY CAPP WITH CLAYEY SOIL LEGEND ' APPROXIMATELOCATIO r!: OF MONITORING WELL INSTALLED TO ASSESS POTENTALCONTAMINA �. MIGRATIONTROM FORMERMGP GRAPHIC SCALE 120 0 1' =120' MM-07DISI 18�07D761-0D rurD7016 OD7076703 AT"1 NTH Consultants, Ltd. PARCEL LAYOUT MAP "'—'° "° ° *q BST 20 MAR 2D07 I.w,�T�1 jF10— — SHB 1'i2V FORMER COAL STORAGE SITE LANSING, MICHIGAN 'm BST mm 7SAUG2011e 0 1 1 • • 0 N t I AT -I EAST SffiAWASSEE STREET Q ESTIMATED LIMIT OF SOL IMPACTTHAT EXCEEDS VOLATILIZATION CRITERIA (DEPTH OF IMPACTED SOS c S v!1l APPROXIMATELY 2TO A FEET PARCEL "A" ; ,�{I BELOW GROUND SURFACE) NOTE ANY SOIL REMOVED DURING U �' CONSTRUCTION ACTIVITIES WILL a F Abatement and demolition EMIER NEED TO BE REUSED D' i j APPROPRIATELY ON -SITE N.p., t' BERMS( OR DISPOSED OFATA TYPE II MUNICIPAL LANDFILL APPROXIMATE LIM95 FACILITY. OF FORMER COAL STORAGEAREA. 1; REPORTEDLY CAPPED H Dewatering WITH CLAYEY SOIL J , EAST IONU STREET PARCEL "B" ESTIMATED LIMIT OF SOL IMPACTED WITH LEAD AND CADMIUM ATA LEVEL REQUIRING-_.___._J 1'1 DISPOSAL ATATYPEILANDF91 (OEM OF IMPACTED SOILS I S PARCEL-"C" 1 APPROXIMATELY3TO7FEET g 1J1>.% % i% D Asbestos Window BELOW GROUND SURFACE) Caulk and Glazing Lead -based paint FORMER MANUFACTURED { GAS PLANT (MGP) I % G Vapor Barrier I cma+aarmw /h tC %% LEGEND SEPARATE PHASEPRODUCT APPROXIMATE LOCATION OBSERVED. POSSIBLE MIGRATION OF MONITORING WELL FROM OFFSffESOURCE I r%' INSTALLED TO ASSESS (MANUFACTURED GAS PLANT) y���Y POTENTIAL CONTAMINANT i rrmriicvcxv rn�/ MIGRATIONFROM i-7• ,l ��1 FORMER MGP EAST OTTAwA STREET % L GRAPHICSCALE t - 7lj r— 120 0 120 1^=1za ieatol""o —0-07106103 NTH CwaulI&nL%Ud. PARCEL LAYOUT MAP FIGURE Nv, 1 wao BST 20 MAR 2007 FORMER COAL STORAGE SITE LANSING, MICHIGAN esT 1s'nuDz ` NOT TO SCALE *-`* ERRATA a • ERRATA TO PROPERTY PURCHASE AND DEVELOPMENT AGREEMENT The parties to Property Purchase and Development Agreement ("Agreement") have identified certain non -substantive errors in the Agreement. In the interest of precision, the parties hereby agree to the following non -substantive revisions: A. Page 10, Section 1.7(2)(a) omits a word: "approval." The parties agree that Section 1.7(2)(a) should state that: If Developer has complied with the requirements of the paragraph (2) and has not obtained the needed Site Plan Approval by August 15, 2008, Developer may, upon written notice to the City and BWL, terminate this agreement and the Earnest Money shall be returned to Developer. B. Page 19, Sections 2.4 and 2.5 provide dates for Completion of the Project. Section 2.4 provides a completion date of April 1, 2011. Section 2.5 states that the project will be completed by December 31, 2001. The parties agree that the Project shall be completed on or before December 31, 2011. C. Page 20, Section 3.1(B). The first sentence states that: "The BWL shall, at BWL's expense, cause plans and specifications for the New Steam Facilities ..." Later in the paragraph the document states that: "The costs incurred by the Developer to prepare the plans and specifications and obtain needed approvals of the plans and specifications shall be included ..." The parties agree that this • sentence should be corrected to state that: "The costs incurred by BWL to prepare the plans and specifications shall be included ..." [signatures on following pages] The parties agree to the non -substantive revisions to the Agreement as noted in this errata as of the signing date of the Agreement. CITY OF LANNSING By: L Virg B rnero, Mayor By: _ P'X�� �;_ �'— Chris Swope, Clerk BOARD OF WAT R ND LIGHT OF THE CITY OKLANS C� General Manager rate Secretary CHRISTMAN CAPITAL DEVELOPMENT COMPANY / By: *0 Steven F. Roznowski, resident By: A�'=Z Matt ew T. Chappelle, Secretary/Treasurer -2- W Brigham C. Smi , City Atto y Clark Hi Sc tt S i P 1 Mile eId, Pa do k & Stone PLC Wil ' J. Danhof Michael J. Hodge Approval as to form: Honigman, Miller, Schwartz & Cohn LLP Eric J. Eggan LANSING ONOMIC DEVELO T CDRPORATION LIM Jrl,\President and CEO By: K Dorshimer, Vice President -3- 0 • • I, CHRIS SWOPE,.CITY CLERK of the City of Lansing, Michigan, do hereby,certify that 1 have compared the annexed copy of. Resolution #11 of 2008, ACT-20-2007;. Sale, of the easterly termini of Ottawa St. and Ionia St. (Ottawa St. Power Station),�which was adopted on January 28, 2008 with the original now on file in my office, and, that it is a correct copy thereof, and the whole of such original. i SEAL IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal of the City of Lansing this 19th Day of September, A.D. 2008 CHRIS SWOPE, City Cferk 10 • RES011LUTION01.1 BY THE COMMITTEE ON DEVELOPMENT AND PLANNING RESOLVED BY THE CITY COUNCIL OF THE CITY OF LANSING WHEREAS, the Ottawa Street Power Station has sat as a vacant building in a strategically located area along the waterfront of the City of Lansing for over two decades while City officials attempted to seek alternative uses for the Power Station building and adjacent property (the "City Property"); and WHEREAS, on August 2, 2005, the voters of the City of Lansing approved a ballot question that authorized the sale of that portion of the Power Station building that is within twenty five feet of the Grand River in compliance with Section 8-403.6 of the Lansing City Charter and Section 208.10(a) of the Lansing Code of Ordinances so that the Power Station building and adjacent property could be feasibly redeveloped; and WHEREAS, the Christman. Capital. Development Company, on behalf of a. Michigan limited liability company to be formed for the purpose of redeveloping the Power Station building and adjacent property (collectively, "Christman"), has negotiated a proposed Property Purchase and Development Agreement (the "Development Agreement") with the City of Lansing, its Board of Water and Light, and the Lansing Economic Development Corporation, and such Development Agreement has been filed with the City Clerk thirty days in advance of a public hearing held on January 14, 2008 for the consideration of the sale of the City Property and the execution of the • Development Agreement; and WHEREAS, the proposed Development Agreement contemplates the redevelopment of the historic Ottawa Power Station, a decommissioned electric power generation facility and the surrounding properties, into Class A office space to be leased on a long-term basis by Accident Fund Insurance Company of America for use as a new national corporate headquarters campus and, broadly, entails the following components: (1) Environmental remediation of site and building contamination, and demolition of two existing buildings to the north of the power plant; (2) Development of the approximately seven acre site, including a 25-foot wide public "linear" park along the Grand River's edge, from Wentworth Park to Shiawassee Street, to be owned by the city of Lansing; (3) Removal of an existing 10,000 ton chilled water plant and high-pressure steam distribution facility currently situated within the power plant, and development of replacement facilities, at new offsite locations, to maintain utility services; (4) Removal of an existing parking deck expansion currently spanning Grand Avenue and' partially occupying the southwest corner of the proposed site; 0 LANSING CITY COUNCIL LEGISLATIVE ITEMS: JANUARY 28, 2008 RESOLUTIONS • (5) Renovation of the historic Ottawa plant, including comprehensive structural reconfiguration and abatement, to provide. approximately 185,000 .GSF of: office space and 34,000 GSF of basementparking; (6) Development of an approximately 105,000 GSF building addition,, designed to complement the historic power plant, with additional office space to house 400 employees and a central energy plant; (7) Purchase and installation of partitions, furniture, and other office equipment required for the corporate operations to be housed in the facility; (8) Development of technology and communications infrastructure, including data center facilities; (9) Development, for either city of Lansing or private ownership, of an approximately 1,000 to 1,200 car parking deck, for use by Accident Fund employees and for potential public parking; and WHEREAS, on January 8, 2008, the Planning Board conducted a public hearing and Act 285 review of the proposed Development Agreement as Act 20-2007, voted , unanimously (6-0) in favor of the proposal, and made the following findings as to the projected benefits of the project: • The retention of the Accident Fund national headquarters within the Lansing area, and more specifically, within downtown Lansing; • Job creation and downtown reinvestment; • Restoration of a prominent historic landmark; • Hundreds of thousands of dollars in avoided demolition costs to remove the facility; Investment that anchors a $3.2 million Clean Michigan Initiative grant for cleanup and redevelopment along the Grand River; • Synergy with the Stadium District, Capitol Club Condominiums, City Market, and Kalamazoo Gateway projects proposed by other developers; • An office anchor for the north end of downtown, with sufficient employment to increase retail demand for businesses along the new North Washington Avenue (just a block away); • Environmental remediation; • Riverfront enhancement; • Rivertrail continuity; and • Aesthetic improvements, including the removal of the N. Grand Expansion Ramp and the BWL chiller facilities; and WHEREAS, the Board of Water and Light has reviewed the proposed 0 LANSING CITY COUNCIL LEGISLATIVE ITEMS: JANUARY 28, 2008 RESOLUTIONS Development Agreement at its most recent Committee of the Whole meeting and. has • set the matter on its agenda for Board action at its next regularly, scheduled meeting;. NOW, THEREFORE BE IT RESOLVED, that the Lansing City Council hereby approves the sale of the City Property, subject to the provisions contained within the Development Agreement. The City Property which is authorized for sale -is more specifically described as follows: Real property in the City of Lansing, County of Ingham, State of Michigan, described as follows: COMMENCING AT THE CENTER POST OF SECTION 16, T. 4 N. R. 2 W., CITY OF LANSING, INGHAM COUNTY, MICHIGAN; THENCE ALONG THE EAST -WEST 1/4 SECTION LINE OF SECTION 16, N 89° 59' 00" E 527.87 FEET; THENCE N 00° 01' 45" W 330.00 FEET TO THE NORTHWEST CORNER OF BLOCK 99, ORIGINAL PLAT OF THE TOWN OF MICHIGAN, NOW CITY OF LANSING, AS RECORDED IN LIBER 2, PAGES 36-38, INGHAM COUNTY PLATS, AND THE POINT OF BEGINNING; THENCE ALONG THE EAST LINE OF NORTH GRAND AVENUE N 000 01' 45" W 519.77 FEET TO A FOUND R.R. SPIKE ON THE CENTERLINE OF VACATED IONIA STREET; THENCE ALONG SAID CENTERLINE DUE EAST 89.09 FEET; THENCE N 500 05' 10" E • 157.52 FEET; THENCE N 000 29' 40" E 39.86 FEET TO A POINT ON THE CENTERLINE OF THE PARTY WALL TO THE WEST EXTENDED EASTERLY; THENCE ALONG SAID EXTENSION AND ALONG THE CENTERLINE OF THE PARTY WALL N 890 58' 00" W 210.25 FEET TO THE EAST LINE OF NORTH GRAND AVENUE; THENCE ALONG SAID EAST STREET LINE DUE NORTH .296.14 FEET TO A FOUND CUT CROSS IN THE CONCRETE SIDEWALK, SAID POINT BEING ON THE SOUTH LINE OF SHIAWASSEE STREET; THENCE ALONG SAID SOUTH STREET LINE S 890 58' 00" E TO THE WESTERLY EDGE OF THE GRAND RIVER; THENCE SOUTHERLY ALONG THE WESTERLY EDGE OF THE GRAND RIVER TO THE SOUTH LINE OF OTTAWA STREET; THENCE ALONG SAID SOUTH STREET LINE DUE WEST TO THE POINT OF BEGINNING. There shall be excluded from the sale that portion of the parcel legally described above which constitutes "waterfront", as defined in City Ordinance 208.10 (except for that portion of "waterfront" that is occupied by the current Power Station Building, which shall be conveyed). Also, there shall be excluded from the sale any property that is south of the vacated Ottawa Street curb line; and 0 LANSING CITY COUNCIL LEGISLATIVE ITEMS: JANUARY 28, 2008 RESOLUTIONS •BE -IT -FURTHER RESOLVED, that the City Council finds -that if the provisions contained . within the Development Agreement are met, that the City Property ,is no longer needed for the City's use; and BE IT FURTHER RESOLVED, that the .City Council's approval, is subject to enactment of resolution(s) by the Board of Water .and Light that finds that the City.. Property is no longer useful or needed for the operation of the BWL, .. declares the Property surplus and transfers jurisdictional control of the Property to the. City for sale as contemplated in the Development Agreement, and BE IT FINALLY RESOLVED, that the Mayor, on behalf of the City of Lansing and its Board of Water and Light, is authorized to sign and execute all necessary documents to complete this transaction, subject to prior approval as to form by the City Attorney. By Councilmember Wood Motion Carried • 0 LANSING CITY COUNCIL LEGISLATIVE ITEMS: JANUARY 28, 2008 RESOLUTIONS 0 • • Is VKATFR&UQff HOMETOWN PEOPLE. HOMETOWN POWER. 1232 Haco Drive P.O. Box 13007 Lansing, MI 48901-3007 517•702•6000 www.lbwl.com Ottawa Station Resolution Certification I, Rhonda Jones, Corporate Secretary, with the Lansing Board of Water and Light do hereby certify that at a board meeting held January 29, 2008, the attached resolutions entitled, "Declare Ottawa Station as Surplus and Offer Said Property to City of Lansing" (Resolution #2008-1-2) and "Enter into a Property Purchase and Development Agreement" (Resolution #2008-1-3) were passed unanimously by a vote of 8-0 by the Board of Commissioners of the Lansing Board of Water and Light. Rhonda Jones / \ Corporate Secretary Lansing Board of Water and Light September 26, 2008 Date Printed on recycled pap ,99, • esolution 2008-1-2 Declare Ottawa Station as Surplus and Offer Said Property to City of Lansing WHEREAS, the City of Lansing, a Michigan municipal corporation (the "City"), the Lansing Board of Water and Light, an administrative board and agency of the City ("BWL"), and Christman Capital Development Company, a Michigan corporation on behalf of a Michigan limited liability company to be formed ("CCDC") are exploring options to redevelop the real property commonly known as the Ottawa Power Station as more completely described in the attached Exhibit A (the "Property"), and such parties upon the completion of negotiations anticipate entering into a Property Purchase and Development Agreement (the "Agreement"), which sets forth conditions and terms of redeveloping the Property; WHEREAS, the Property, except for those certain Steam Facilities and Chilled Water Facilities, is no longer useful or required for the operation of the BWL; WHEREAS, in connection with the Agreement, the Steam Facilities and Chilled Water Facilities will be exchanged and/or replaced by "New Steam Facilities" and "New Chilled Water Facilities"; WHEREAS, BWL expects that under the terms of the Agreement, any transfer of Property shall be subject to certain rights of the City and BWL to use the Property from • and after any such transfer, including without limitation, BWL shall be granted a "License" for certain "Removal Activities", which Removal Activities shall include, among other things, the right of entry onto the Property for the purpose of removing, relocating, salvaging, demolishing, operating, maintaining, repairing, and/or disassembling the Steam Facilities and the Chilled Water Facilities; WHEREAS, the License shall exist for thirty (30) days from and after the later of the date of closing or the date on which the New Steam Facilities and New Chilled Water Facilities are fully operational, and upon such operation, the Steam Facilities and Chilled Water Facilities will no longer be useful or required for the operation of the BWL or the Property; and WHEREAS, in connection with the Agreement, it is in the best interest of the BWL ratepayers that the Property be transferred to the City for public purposes, which include, among other things, the acquisition of new facilities and obtaining new customers by BWL, and the redevelopment of the Property. RESOLVED, that (a) subject to the terms and conditions of the Agreement, including but not limited to, the License and Removal Activities; and (b) contingent upon the satisfaction of the conditions precedent to the effectiveness of this Resolution which are set forth in the below paragraph, the Board finds that the Property is no longer useful or needed for the operation of the BWL and declares the same surplus and offers to transfer such surplus property and release jurisdiction of such surplus property to the City. L� • FURTHER RESOLVED, that the conditions precedent to the effectiveness of this Resolution shall include: (i) the full execution and delivery of the Agreement, which Agreement shall be in substantially such form and substance authorized and approved by the BWL; and (ii) the acquisition of an interest in land by BWL for the New Steam Facilities and New Chilled Water Facilities. FURTHER RESOLVED, in furtherance of the best interests of the BWL ratepayers and for the public purposes recited above, the surplus property shall be transferred at a future time to the jurisdiction of the City, via such documents, affidavits and/or quit claim deeds, if any, which are required or appropriate in order to vest title to the Property in the City in the manner contemplated under the Agreement, when and if the Mayor of the City accepts such transfer and the City passes a resolution accepting jurisdiction over the Property pursuant to the terms and conditions of the Agreement. FURTHER RESOLVED, that I Peter Lark, as the General Manager of BWL, is hereby authorized to execute and deliver, for and on behalf of BWL, any such documents, affidavits and/or quit claim deeds which are appropriate to complete such transfer to the City. FURTHER RESOLVED, that any proceeds which belong to BWL in connection with the above transactions shall remain with the funds and accounts of the BWL. FURTHER RESOLVED, the conveyance of the Property to the City, as set forth above, • is hereby approved. Motion by Commissioner Rodocker seconded by Commissioner Graves, to declare Ottawa Station property as surplus and offer that property to the City of Lansing. Discussion: For the record, Commissioner Peter Kramer announced that he would abstain from the discussion and vote on this item. Action: Carried unanimously. Adopted by the Board of Commissioners at a Regular Board meeting held January 29, 2008. 40 esolution, 2Q08-]� C. Enter into a Property Purchase and Development Agreement WHEREAS, the City of Lansing, a Michigan municipal corporation (the "City"), the Lansing Board of Water and Light, an administrative board and agency of the City ("BWL" ), and Christman Capital Development Company, a Michigan corporation ("CCDC") have negotiated the terms and conditions of that certain Property Purchase and Development Agreement, a copy of which is attached hereto as Exhibit C, wherein the parties have agreed, subject to the conditions and terms of the Agreement, to, among other things, redeveloping the real property lying east of Grand Avenue at the easterly termini of Ottawa Street and Ionia Street as more completely described in the attached Exhibit A. WHEREAS, all capitalized terms used but not defined herein shall have the meanings ascribed to them in the Agreement. WHEREAS, it is in the best interest of the BWL ratepayers for BWL to execute and enter into the Agreement for public purposes, which include, among other things, the acquisition of new facilities and obtaining new customers by BWL, all as set forth in the Agreement. RESOLVED, that subject to and contingent upon the execution of the Agreement by the • City, BWL shall, and is authorized and directed to enter into the Agreement. FURTHER RESOLVED, that J. Peter Lark, as the General Manager of BWL, is hereby authorized to execute and enter into the Agreement, for and on behalf of BWL, in substantially such form as is attached hereto as Exhibit C for, among other things, the purposes set forth above and to acquire the New Steam Facilities and New Chilled Water Facilities in accordance with the terms of the Agreement. FURTHER RESOLVED, that any proceeds which belong to BWL under the Agreement, shall remain with the funds and accounts of the BWL. FURTHER RESOLVED, that BWL is authorized and directed to execute, deliver and perform its obligations under the Agreement. Motion by Commissioner Graves, seconded by Commissioner DeLuca, to approve the execution of a Property Purchase and Development Agreement between City of Lansing and Christman Capital Development Company. Discussion: Commissioner Cochran advised that he noted some housekeeping things in the agreement that were passed onto Peter Lark. As such, Dick Peffley spoke to outside counsel, Eric Eggan who then met with the City Attorney. As a result, an erratum will come forth to address those minor matters. 0 • Mr. Lark concurred with Commissioner Cochran and advised that before the agreement is executed the errata will come forward and they will execute the changed agreement only. Action: Carried unanimously. Adopted by the Board of Commissioners at a Regular Board meeting held January 29, 2008. • 0 • El • C, ACTION TAKEN BY BOARD OF DIRECTORS 1• OF CHRISTMAN CAPITAL DEVELOPMENT COMPANY WITHOUT A MEETING The undersigned, being all of the members of the Board of Directors of Christman Capital Development Company ("Company") take the following action without a meeting: 1. The entering into the Property Purchase and Development Agreement ("Agreement"), dated January 30, 2008, between the City of Lansing, the Lansing Board of Water and Light and Company by Steven F. Roznowski, as President of Company and Matthew T. Chappelle, as Secretary/Treasurer of Company is ratified. 2. Company is authorized to transfer its rights under the Agreement to Phoenix Development Partners, LLC, an affiliate of Company. This Action Taken by Board of Directors of Company is effective as of March 13, is 2008. [Signature Page Attached] 0 • �l0 Steven F. Roznowski, Director es M. Cash, Director Ronald D. Staley, Director r� U 0 CHRISTMAN CAPITAL DEVELOPMENT COMPANY Matthew T. Chappelle, Director St en J. Frede is son. Director • C • � DESIGNATION OF LTMTED LIABILITY COMPANY AND .ASSIGNII+)oC1T Ci�risttnan Capital Development Company C CCDC") Qn behalf of ;the Deyelnper, as l: delined° n a Property Purchase and Development, Agreement executed by the City of Lansing, � ; ilie. Lansing Board of Watet,and Light and Developer wiffan effee6ev ,date of January 30, 2008 Y (``Agreement;') designates Phoenix DevelopmefitParfners; LLC ('iAssignee,'j) as ,the to.be formed-lVllch'gan liability e;orripany referred ton the Agreement CCDC also assigns to x z is i s % AssigneeMall of CCDC's rights,'title aiid interest'under, the Agreement. The effective- date of this s Designation czfLimited Liability Company and assignment is 1Vlarch 13,,2008. Developer has the xigbi> ,to execute this Designation.of Limited Liability Company and Assignment because } Ass' ' ec is the to be formed Mich an litnyted.lablli. com an re gn g iy p y (erred to m the Agreement . CHRIS,TMAN CA�'ITAL DEVELOPMENT COMPANY n of r V: :Dated. +Mar`ch.T3, 2008 Steven : Roznowski,;P,resident, ' I _y executing;below Ass' l npe accep,.ts this Designation. of Limited. Liability Company a► d Assignment and.shall discharge all of:the duties and obl'gataons of I)eveloget as set forth n .. . 1. the Agreement. ;- t PRQENff. DEVELOPMENT ;PAR MERS -LLC CIIRLSTMAN CAPITAL INVESTMENT - � FGROUP, Is LLC.. Dated: -.March 13, 2008 By; - Steven F'.,Roznowsk4 Manager . a . :11:11'h0onix� egalKDesi iation pf Limitetl l iabilityCompany and Assignment,051908 a.doc 4 y. .,.: ,.u.,....... .,._.i0d%. _.s.._.G-a.ww✓. .<._, a:-ea5:....._.nar.-. _ Mtn.. ...a.. .;... ...r.:. e.. rr _: _.._ +.,.._-,; '. 09/26/2008 11:37 5173368540 GBG PAGE 02/10 • PHOENIX DEVELOPMENT PARTNERS, LLC CERTIFICATE OF MANAGER The undersigned is a manager of Christman Capital Investment Group, LLC, (`°CCIG") Manager of Phoenix Development Partners, LLC ("Company") and certifies as follows: L Attached as Exhibit A is a Good Standing Certificate of Company and since the date of such Certificate there has been no change in the standing of Company. 2. Attached as Exhibit B is the Articles of Organization of Company and is in full force and effect, as of the date hereof, without modification or amendment in any respect. as Exhibit C is the Amended and R of Company and iM=T-fne ended and Restated Operating n r...�....., . 4. Attached as Exhibit D is a copy of Action Taken by Members of Company Without a Meeting dated September 23, 2008 authorizing CCIG as Manager of Company • to execute any and all documents required to be executed in connection with the Master Lease between Company, as landlord and Phoenix Master Tenant, LLC, as tenant, ail documents required to be executed in connection with the loan to be obtained by Company from Accident Fund Insurance Company of America for the development of the Ottawa Street Station and related improvemcats ("Project"), all easements and outer documents required to be executed in furtherance of a Property Purchase and Development Agreement dated January 30, 2008, regarding the Project and all other documents in connection with various agreements between Company and U.S. Bancorp Community Development Corporation ("US Bancorp, ), in connection with the development of the Project.. This Certificate of Manager is effective as of September 23, 2008. CHRISTMAN CAPITAL INVESTMENT GROUP, Manager M. Cash, Manager S;1C1'Mt5NCMK=n Campa»yT-011Wmive RtceiptlPhoerdx Development Pamurt LLC11rrrmbe1bey Cer(if4ostcaTh0cMx Aevelopment Pmficm inmr"beary C' "' 'er"mate ofManmgr7. DP.092308 (FINAL).DOC (9 09/26/2008 11:37 5173368540 GBG PAGE 03/10 • • 0 08/26/2008 2t5s:45 PM FA$COM PAGE 4 OF 5 Aitbfgou AtPartment of Mbar & etonamf; bra tip latwingr. it�i�an This is to Certify That PHoENIXDEVELOPMENTPARTNWtS, LLC was validly Organized on M&rsh 13. 2008 as a Limited L ieblilty Company. Said Limited Liability Company is validly in existence under the taws or this state and has satisfied its annual Cling obligations. This 091titPcata is issued pursuant to the provisions of 1993 PA 23, as amena0d, to attest to the fact that the company is in good standing in Michigan as of this data. This certircate is in due form, made by me as the praper officer, and is entitled to have full faith and credit given it in every court and aides within the United States, Udd`'d�� .L . Sent by Facsimile Transmission 965569 1n testlmony wheW,, t have hereunto set my hand, in the City of Lansing, this 26th day of Aug ust, 2066 "� � ,Director Bureau of Commercial services • • 09/26/2008 11:37 5173368540 GBG PAGE 04/10 03/13/2008 3:22:43 PM FAKCOM PAGE 2 OF 4 Michigan Department of Labor & Economic Growth Filing Endorsement This is to Certify that the ARTICLES OF ORGANIZATION (DOMESTIC L.L.C.) for PHOENIX DUVELOPMENr PARTNERS, I.LC ID NUMBER: E0664R received by facsimile transmission on March 13, 2009 is hereby endorsed Filed on March 13, 2008 by the Administrator. The document is effective on the date filed, unless a subsequent effective date within 90 days after received date is stated in the document. �A c Sent by Facsimila TMnMAh ssion 09C173 /n testimony whereof, I have hereunto set my hand and affixed the Seal of the Department, in the City of Lansing, this 13TH day of March, 2008. Director Bureau of Commercial Services 09/26/200B 11:37 5173368540 GBG PAGE 05/10 1• 03/13/2008 3:22:43 PM FAXCOM 03/13/2008 11:46 5173368540 GHG MICHIOAN DEPARTMENT OF LABOR & ECONOMIC GROWTH - - - -- BUREAU OF COIUINEMCteL -q=* t%va Thin doaumenr ra eta on the fate died. LrAm a teadsamav efT d�m date wriAn 90 daya after n =pmd dm is str tat In the aoamwu. PAGE 3 OF 4 PAGE 04/05 �9Oly J. Gtiggemos 4050 Hunsaker Dr., Suite 12p smte East Lensing, M1 48823 EFFEMM aaTE Damns t tali( be Peterm w to tfttp name and addrm you eMrabo"4 ,p If left blank document wOl bk nMIW m ttt■ ngftf radaffiee. ARTICLES OF ORGANIZATION For use by Domestic. Limited Liab9ity Companif3s B (Pfeasere"lnfbrmaUonan4instnlaiensonlam pbye) Pur=nt fb trre pravk*w of Ad 23, Pub8cc Acts of 199s, the uAftsfgn d execute the /ollowing Artldes: A rfTlA1 M. r The name of ttre Iimitsd liability company Is: Phoenix Development Partners, LLO ARTICLE it The PurPON or purposes for which the Umfted 6ab1 r company Is tgrttled is to engage In anY Elc&Aty within the putposes • +ahfGh a limited rabirdy company may be farmed ender the Limited 1JANRy COmperry Act of Michigan. ARTICLE III The duratlon of the Hmtted rrabi6ry wmparry if otleer than perpetual is - ARTICLE IV 1, The street ttddresa of the location of the reg"is a ofrrce is. 208 N. Capital Avenue, Lansing 48933 tw.n ,oa,an t , Michfgap 2. The majUng adatesa of the registered Ott if d-dit ant #M abuse: ,wawo-9,Qa" tcM � Michigan OPca" 3. The n2n70 of the resident agent at the rogwwed olfioe is: Stever] F. Roznowski ARTICLE V (Insert any da+s.W additicnol prwWmn out c&W by the Aot: ranch aftNnal Paget if needed.) Company is Manager Managed. See Exhibit A. Signed this.�f ttt ftof Marctl BY • (3riwoyf J. 2008 03/13/2008 12:49PM • 09/26/2008 11:37 5173368540 GBG 03/13/2000 3:22:43 PM FAXCOM 03/13/2008 11:46 5173368540 GBG 5=MN)-7WM.rM Preparers Name Gregory J. Guggemos Business Telephone Number 517.336,0127 PAGE 06/10 PAGE 4 OF A PAGE 05/05 Nam® of pe►son er organizetlon remtttIng fees. Guggerrm, Brown & Gilkey, PC 1. This form may be used to draft 1NPORMATiONN AND iNSTRUCTIONS Your minfet3 of In natation. A 44a1rrleMt r+ecOn d ar permitted to be t11ed under the act cannot it $fed unan ,� con!` o the minimum Information requires by the Act. The format provided contains only the a agency tag Cannot of provide l to make the do0Crnlent fi%able and may not meat your needs. This is 8 legal document and agency staff callnat provide legal advice. 2. Submit one original of this docurltent. Upon flung. the document weal be added to fhe records of the Bureau of Comnlemia Services. The Origin l Will be returned to your registered CNICCe adarfto, uniesa you enter a different address in the box on the front of this document Since this daeumant will be maintained on electrenlc forme!, it is important that the tiling be legible. Docurtrerr with poor black and white Contrast, or otherwise Illegible, will be rejected, 3. This document is to be used pursuant to the provisions of Ael 23, P,A, of 1993, by one or more Mans for the purport of faMling a domestic Ilrrlifred liabirdy company. Use form BCS/CD 701 if the limited Uabitity company Will b9 Providing serviclergy, or ran>iergd by a dAnffst, an oateopAthfG pf",ciain, a ph"ieian, a syr .. a doctor of dtvlrt at other clergy, or an attorney -at -law. sty 4. Article I - The norm of a domestic limited Aabilr'ty company is required to corrraln one of the following words or abbreviations: "LimrW LiabltRy Company" "L.L,C.". "L,C ", "LLC", or "i.C". 5. Article if - Under section 203(b) of the Act, It is sufficlent to state substantially, alone orwlth spectflcally enumerated Purposes, that the iiMited liability company it forMed to engage in any activity within the ith 9 es far which a iimfied fiablifty company may be fanned under the Art. S. Article V - Section 401 of the Act specif lay states the business shall be managed by members unless the Artldes of Organization state the business will be managed by managers, 0 the limited liability company Is to be managed by managers instead of by members, inm a r tOtement to that effect in Article V. 7. This clOwment is effective on the date endorsed "Red" by the Bureau. A later effective date, no more then 90 days after the date of detivery, may b& gamed as an additional article. 8. The Articles must be signed by one or more persons organidng the Limited Liablif[y Company. State name of the Organizers signing beneath heir signat<me. 9. M morn space is needed, aftaoh additional pages. All pages should be numbered. 10. NONREFUNDABLE t,E FEE: Make remittance payable to the State of Michigan. Include limited Ilabilitycompany name on chef or money order . •.............................................. ................. To submit by marl: To submit in person; Michigan Department of Labor & Economic Growth Eureau of Commercial servfW3 2801 Woodlake Circle Corporation Division Me os, Mi Q P.O. Box 30054 Lansing, Ml 44009 Fees may be paid by ViSA or Mastercard when delivered in per= to our office. LF {Michigan Electronic Flit q System): Flt*t •rime Users: C20 (517121L1-6470. or VM our vr9bprlp of TruDeo�+++raubarstanamrOrono,.mr>xa�ot —MMrmaadv - - -- Po4R�eawr.aye„rwpdMy„MO,rew,q•+mv.h.tgedua�aaAmenmvwp, OWWOMAd you OW ew,kmman N-WHY.arfraietaRw,q 4 Y4+"40{Ino.R1 b trill q�qy 03/13/2008 12:49PM • n U 09/26/2008 11:37 5173368540 GBG PAGE 07/10 08/17/2005 8:13:55 AM FAXCOM PAGE 2 OF 3 Michigan Department of Labor & Economic Growth Filing Endorsement This is to Certify that the CERTIFICATE OF AMENDMENT TO THE ARTICLES OF ORG. for PHOENIX DEVELOPMENT PARTNERS, LLC 1D NUMBER: E0664R received by facsimile transmission on September 17, 2008 is hereby endorsed Filed on September 17, 2008 by the Administrator. The document is effective on the date filed, unless a subsequent effective date within 90 days after received date is stated in the document. s � 1aP 0-7 Sent 6v FBcsfmfle Tf431smis41an 082GI In testimony whereof, I have hereunto set my hand and affixed the Seal of the Department, in the City of Lansing, this 17TH day of September, 2008. Director Bureau of Commercial Services 0- 09/26/2008 11:37 5173368540 09/17/2008 9:13:55 AM FAXCOM 09/17/2008 07:44 5173368540 GBG PAGE 08/10 PAGE 3 OF 3 GEG PAGE 02/04 M C}fMM DEPAR RMW OF LAOM S EC01tGiW GROWTH UUR M OF CONMORCIAL SERVICES This Roourrwa le &%cm an Mtr dank ftd. ur�pnpe a wfunquam suttees date veltltht 90 days amw recaW #ft l*st0letl In kw docunwnt. Ofts xy J. Gugg9srrob Add*= 4050 Huruaker Of., SOW 120 cty sense zpt:ow ant I,ansinp tdt 48m B*rj-� OkTt?: _ a, OOCunH"VMlbrrihmwdtvtJbem, arstl*owoft]ftomwebaw. a left blinkdoeumm-MHbernettedtotbatagtsfasndares. CERTIFICATE OF AMEPR11NAW TO T"E ARTICLES OF ORGANIZATION For use by Wmlted LlabilKy Compat&s tP mm read Information vW lfMructWm on mvemossidei Pmmmnt tO the PmWslano ofAct = Pc;bffc Acm of IM. fho mWdersigned lkn t d t1abmiy wnvmy exeeut&s the FC= 47r7�rlirero Or AnwnCnx M 1, Tfup oftmt mate of the Ikniled 118b9tty cm.. ry Is: Phoenix DevetopnWi Pas yw% LLC 2. The Wenillicalkm number asaignad by ma Bu mu i9: Ed6fidR 3. The Me or O of its Marsh 13. 2U08 � otiginat Aenelea s>F arysnrlation was•_ . 4. ArUCle v or the Articles of orpanizetiot, is ft mr y amended to rood as tplloaea: GoV"W Is LIWLVW hb"aytsa Extnroa A attarbW to thw ors MI Articles of Orgpnk0m filed an March 13, 2008 is romoved. a co III* *nertdment wen apvwmd by a mp)o Ry to kftn t IT an open *V *W*Mr fit oW X TiZee 9Mftiftant of Um a *ws at onlwuattbn by "Ortty rote. © Tho smatuttssw wao appfOvatl by umon'kma vat* of to Of tho mwbom w fflw to vote. TFttS Cerertrsta is h eby atgnea as rrepked by B aft 1os of the act. Sgnea thb I tilk-d'y 9k l4pa'mm 20n0 By .. ,., . �,.... - ... �,... w. stwmn F. RwaxwAL Menaper of Chrtotnan captt®t IfWCS r mt cmuo. LLC. Iftrtager of m-.r,. —W-Q .,, Romix Devolopnmt per. = 0 09/17/2008 8:48M 09/26/2008 11:37 5173368540 GBG PAGE 09/10 C7 ACTION TAKEN BY MEMBERS OF PHOENIX DEVELOPMENT PARTNERS, LLC WITHOUT A MEETING The undersigned, being all of all the members of phoenix Development Partners, LLC (`SCompany) take the following action without a meeting: I . Any manager of Christman Capital Investment Group, LLC, Manager of Company, is authorized to execute any and all documents on behalf of Company required to be executed in connection with the Master Lease between Company, as landlord and Phoenix Master Tenant, LLC, as tenant, all documents required to be executed in connection with the loan to be obtained by Company from Accident kind Insurance Company of America ("AFICA") for the development of the Ottawa Street Station and related improvements ("Project"), to be developed by Phoenix Development Partners, LLC, an affiliate of • Company, all easements and other documents required to be executed in furtherance of a Property Purchase and Development Agreement dated January 301,2008, regarding the Project and all other documents in connection with various agreements between Company and U.S. Bancorp Community Development Corporation ("US Bancorp"), in connection with the development of the Project, This Action by Members of Company is effective as of September 23, 2008. PHOENIX DEVELOPMENT PARTNERS, LLC CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, Manager e;�: �M.Cas�man�age-r r -I LJ 09/26/200B 11:37 5173368540 GBG PAGE 10/10 9-- CJ PHOENJX MASTER TENANT, LLC, Member, PHOENIX DEVELOPMENT MANAGEMENT, LLC, Manager, CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, Manager 2?ff �Manqjger S;1C"Cntslrhdstman CumMnYXCOrAtrud➢ve Rcecipt\pbmdx Dcyc"c n, Partncm 1.1.CiEnaty ResOlut'M\ActionTnkenyyMbm.PDP.092308 (FINAL).dpc • 7 • 0 Pages: 13 g: 3321 P: 1218 10/09/2008 09:41 AM \\\� Michigan ' 2008-039455 WgRR ghamDCo�untY,BlPt #47309 Paula Johnson, IlllllllllllllllllllllllllllllllllllllllllllllllllllIII,,Ito III 1111llit 1w ANUkIAdl wunf r-rxLAsuxax•b LLnubILA IL I HEREBY CERTIFY that there are no TAX LIENS or TITLES held by the state or any individual against the within description, and all TAXES on same are paid for five years previous to the date of this • instrument as appears by the records of this office except as stated. 10 Q ' 5- DI Eric Scl,,rling, Ingham County Treasurer c — r Sec. 135, Act 206, 1893 as amended iA C:I c� WARRANTY DEED cc o0 �►- I The City of Lansing, a Michigan municipal corporation, of 124 W. Michigan Avenue, Lansing, m, Michigan, 48933 ("Grantor"), conveys and warrants to Phoenix Development Partners, LLC, a a :' Michigan limited liability company, of 208 N: Capitol Ave., Lansing, Michigan, 48933 — and State of `("Grantee"), the premises situated in the City of Lansing, County of Ingham, Michigan, legally described on the attached Exhibit A (the "Pro ert "). This conveyance is exempt from state and county transfer tax pursuant to MCL 207.526(h)(i) and MCL 207.505(h)(i). o , rn- C72 This conveyance is subject to easements, restrictions, covenants and encumbrances of record. --4 t rrn-4� C 'moo, ` .'This conveyance has been approved by the City Council for the City of Lansing, pursuant to �° rno Resolution #011 of 2008 adopted on January c ,..• . - 28, 2008, and the Board of Water and Light, �f t -pursuant to Resolution #2008-1-3 of 2008 adopted on January 29, 2008. The sale of the Property-! '—� approved b a vote of the general electorate on August 2, 2005. �,w, cowas pp y _ wea-� ri S�Grantor grants to Grantee the right to make all divisions under the Michigan Land Division Act. T",•,.•_ T_his Propertymay be located within the vicinity of farmland or a farm operation. Generally accepted agriculture and management practices wfiicli may generate noise, —dust; odors; and-other-o :•,. _: associated conditions may be used and are protected by the Michigan Right to Farm Act. The Property may not be occupied or used for adult businesses as defined in the attached i tz Exhibit B. N 'C D rn�c Within fifteen (15) days of the Michigan Department of Environmental Quality's approval of a o Q i Remedial Action Plan for the Property, Grantee shall execute and record the Declaration of Restrictive Covenant against the Property substantially in the form attached as Exhibit C, subject u' to such changes as may be required by the Michigan Department of Environmental Quality in the approval of the Remedial Action Plan with respect to the Property. _F—WC C� _ (n� C� Qlt1 CD —{— rigin:: -1c) I z o C7rn�. m E5 c to c . t I 5645386.1 26005/119350 CITY OF L ING By: ---� , Virg Bemero, Mayor By: me 6" Chris Swope, Cle k 41 County Treasurer's Certificate Drafted By: STATE OF MICHIGAN) COUNTY OF INGHAM) On September 30, 2008, Virg Bernero, the Mayor, and Chris Swope, the Clerk, of the City of Lansing, who are either personally known to me or who produced their Michigan driver's license as identification, personally appeared before me and acknowledged their signatures on this document. * M. ' fYl-el n, dI>L Notary Public, County, Michigan Acting in Ingham County My commission expires: _r)/— 1 2- 14 — -* LA6ShT-e.V%" When Recorded Return To: Ingrid A. Jensen Ingrid A. Jensen Clark Hill PLC Clark Hill PLC ----"'200-0ttaai a7-NW = Suite-500— " ---- 2W0ttawa-NW-= Suite-500 Grand Rapids, M149503 Grand Rapids, MI 49503 (616)608-1100 (616)608-1100 • Tax Parcel # 3 3-01-O(- l% - %5-2-003 Recording Fee City Treasurer's Certificate Send Subsequent Tax Bills To: Transfer Tax C.ow,w,e,-,re ss : 3 I /Y orb►, G roMV2 nu e� /-S i M I 2 5645386.1 26005/ 11935 0 0 EXHIBIT A C] Legal Description Proposed Ottawa Campus (City Property): Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00°01'45"W 7.02 feet to the point of beginning of the following described parcel; thence N00°01'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50°05' 10"E 157.52 feet; thence N00°29'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89°58'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89058'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45°00'36"E, 56.87 feet; 2) S07°00'06"E, 173.32 feet; 3) S17°21'34"E, 75.69 feet; 4) S01008'14"E, 327.42 feet; 5) S 1717' 09"W, 167.17 feet; 6) S 18'04' 11 "W, 24.53 feet to a building line; thence along said building line the following five (5) courses; 1) S74°14'59"E, 16.75 feet; 2) S15°51'22"W, 63.24 feet; 3) N89°47'17"W, 11.09 feet; 4) S00°12'43"W, 14.88 feet; 5) N89053'37"W, 30.79 feet; thence S23'01'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89031' 14"W, 178.68 feet along said curb line to the point of beginning. 56453 86.1 26005/ 119350 EXHIBIT B • Definition of "Adult Business" "Adult business" means adult bookstores, adult movie theaters, adult personal service businesses, adult cabarets, adult novelty businesses, massage parlors and nude modeling studios, or any combination thereof, as defined in this section, which meets one or more of the criteria defined below as "adult business, significant portion." "Adult bookstore" means an establishment which excludes minors, as defined in MCL 722.51 et seq., and has, as a significant portion of its stock in trade, books, periodicals, magazines, newspapers, pamphlets, pictures, photographs, motion picture films and/or videotapes, or novelty items or paraphernalia which are distinguished or characterized by their emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas," or an establishment with a segment or section devoted to the sale or display of such material which exceeds 35 percent of the floor area of the establishment. "Adult business, significant portion" means a business where a significant portion of the stock in trade or services provided meets at least one of the following criteria: A. Thirty-five percent or more of the stock, materials, novelties or services provided are classified as adult materials and/or services as defined herein. B. Thirty-five percent or more of the usable floor area of the building' is used for the • sale, display and/or provision of services classified as adult materials and/or services, as defined herein. C. The advertising (on signs, in publications, on television or radio and/or other media forms) associated with the business depicts, describes or relates to specified sexual activities_and/or-specified�anaiomcal areas. "Adult cabaret" means an establishment (which may or may not include the service of food or beverages) having as an activity the presentation or display of male or female impersonators, dancers, entertainers, waiters, waitresses or employees who display specified anatomical areas, as defined herein. "Adult motion picture theater" means an establishment, in a completely enclosed building or room, which excludes minors, as defined in MCL 722.51 et seq., and offers, for an admission fee, membership fee or other valuable consideration, the viewing of motion picture films, videotapes, pictures or photographs, cable television, satellite transmissions or other visual media, which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activity or specified anatomical areas, as defined herein, for the observation of patrons therein. 1 That area used for or intended to be used for the sale of merchandise or services, or for use to serve patrons, clients or customers. Such floor area which is used or intended to be used for hallways, stairways, elevator shafts, utility or sanitary facilities or the storage or processing of merchandise shall be excluded from this computation of "usable Poor area." Measurement of usable floor area shall be the sum of the horizontal areas of each story of a structure measured from the interior faces of the exterior walls> 4 5645386.1 26005/119350 • "Adult novelties" means objects, items, and/or devices offered for sale which are designed for sexual stimulation or which simulate human genitals. "Adult personal service business" means a business having as its principal activity a person, while nude or while displaying specified anatomical areas, as defined herein, providing personal services for another person. Such businesses include, but are not limited to, modeling studios, body painting studios, wrestling studios and conversation parlors. "Buttock" includes the perineum and anus of any person. "Massage parlor" means an establishment wherein private massage is practiced, used or made available as a principal use of the premises. "Massage" means offering for sale through the use of physical, mechanical or other devices, the manipulation of body muscle or tissue by rubbing, stroking, kneading, tapping or vibrating of the body of another. "Nude modeling studio" means a place which offers as its principal activity the providing of models to display specified anatomical areas, as defined herein, for artists and photographers for a fee. "Offered for sale" means offered in exchange for money, a membership fee or any other valuable consideration. "Sodomy" means sexual bestiality. "Specified anatomical areas" means: A. Human male genitals in a discernible turgid state, even if completely and opaquely covered; or B. Less than completely and opaquely covered: 1..._ Female_breastsbelow a point immediately above the top of the areola. 2. Human genitalia and the pubic region; and 3. A buttock and anus. "Sexual intercourse" includes genital coitus, fellatio, cunnilingus, anal intercourse or any other intrusion, however slight, of any person's body, or of any object into the genital or anal openings of another's body. "Specified sexual activities" are defined as: A. Acts of human masturbation, sexual intercourse or sodomy; B. Fondling or other erotic touching of human genitalia, a pubic region, a buttock, an anus or a female breast; C. Human genitalia in a state of sexual stimulation or arousal. 5 5645386.1 26005/119350 • • • EXHIBIT C Declaration of Restrictive Covenant 0 5 645 3 8 6.1 26005/ 11935 0 x� it b', i C_ DECLARATION OF RESTRICTIVE COVENANT MDEQ Reference No.: This Declaration of Restrictive Covenant ("Restrictive Covenant") has been recorded with the Ingham County Register of Deeds for the purpose of protecting public health, safety, and welfare and the environment by prohibiting or restricting activities that could result in unacceptable exposure to environmental contamination present at the property located at 312 N. Grand Ave., In the City of Lansing, Ingham County, Michigan, and legally described as Parcel 1 in Exhibit 1 attached hereto ("Property"). The Property is associated with Lansing Board of Water and Light Ottawa Station Site, Site ID #33000008, for which a remedial action plan (RAP) is being conducted. The remedial action that is being implemented to address environmental contamination is fully described in the Limited Commercial Remedial Action Plan, Ottawa Street Station, Lansing Board of Water & Light, Lansing, Michigan, dated , 2008 ("RAP") and submitted by the Lansing Board of Water and Light ("LBWL"). The Michigan Department of Environmental Quality ("MDEQ") approved the RAP on [Insert date], pursuant to Part 201, Environmental Remediation, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended ("NREPA"), MCL 324.20101 et se . The RAP required the recording of this Restrictive Covenant with the Ingham County Register of Deeds to: 1) restrict unacceptable exposures to hazardous substances located on the Property; 2) assure that the use of Property is consistent with the exposure assumptions utilized in the • development of cleanup criteria pursuant to Sections 20120a(1)(g) and (2), Limited Commercial and Site -Specific Cleanup Categories of the NREPA and the exposure control measures relied upon in the RAP; and 3) to prevent damage or disturbance of any element of the response activity constructed on the Property. The restrictions contained in this Restrictive Covenant are based upon information available to the MDEQ at the time the RAP was approved by the �----MIDEQ-Failure of the response activities -to achieve and -maintain the criteria; exposure-coantrcls; - and requirements specified in the RAP; future changes in the environmental condition of the Property or changes in the cleanup criteria developed under Sections 201 20a(1)(g) and (2) of the NREPA; the discovery of environmental conditions at the Property that were not accounted for in the RAP; or use of the Property in a manner inconsistent with the restrictions described herein, may result in this Restrictive Covenant not being protective of public hearth, safety, and welfare, and the environment. The "Limits of Land or Resource Use Restrictions, " attached hereto as Exhibit 2, provides the legal description(s) and a survey that distinguishes those portions of the Property that are subject to land use or resource use restrictions as specified herein. Summaryof f Response Activities Hazardous substances, including volatile organic compounds ("VOCs"), polynuclear aromatic hydrocarbons ("PAHs"), metals, sulfate and chloride, and other contaminants, have been released and/or disposed of on the Property and/or have migrated onto the site. Prior to recording of this Restrictive Covenant, response activities have been undertaken to remove sources of contamination consisting of a former coal pile along the eastern Property boundary; contaminated soil and water below the basement of the former power station building on the Property contaminated soil and water along utilities west of the former power station building; contaminated soil and water in the vicinity of dosed hi -place underground storage tanks ("USTs") west of the former power station building; and contaminated soil in the vicinity of a former retail gasoline station located on the northwest corner of the Property. Hazardous substances remain present in groundwater and soils at levels that require controls to prevent unacceptable exposures. The former coal pile area contains residual hazardous substances below an elevation ranging from 815 to 820 feet above sea level. The former coal pile area has been covered with an exposure barrier consisting of at (east one foot of clay rich soil and a vegetated cover. Another impacted area, consisting of approximately 50 in -place cubic yards in an area of approximately 400 square feet from 1 to 4 feet below grade on the northern portion of the Property, has been covered by approximately 4 inches of asphalt to prevent direct contact with contaminated soils. Hazardous substances were detected in an area 20 feet below ground surface on the southwest portion of the site at levels that may present an inhalation risk if an enclosed structure were to be constructed above that area. Definitions "MDEQ" means the Michigan Department of Environmental Quality, its successor entities, and those persons or entitles acting on its behalf. "Owner" means at any given time the then current title holder of the Property or any portion • thereof. All other terms used in this document which are defined in Part 3, Defmitions, of the NREPA; Part 201 of the NREPA or the Part 201 Administrative Rules ("Part 201 Rules"), 1990 AACS R 299.5101 et seg., shall have the same meaning in this document as in Parts 3 and 201 of the N-REPA-arid-t11e-Part-201-Rules, as of -the -date -of -filing -of this-Restrictive-Covenan . NOW THEREFORE, Declaration of Land Use or Resource Use Restrictions Pursuant to the RAP Phoenix Development Partners, LLC ("PDP"), as Owner of the Property, hereby declares and covenants that the Property shall be subject to the following restrictions and Conditions: 1. The Owner shall prohibit all uses of the Property that are not compatible with the Limited Commercial category under Section 20120a(1)(g) of the NREPA and generally described in the Description of Allowable Uses, attached hereto as Exhibit 3. The following uses allowed under the City of Lansing G-1 Business District zoning code designation are prohibited on the Property, unless additional sampling and/or response activities demonstrate consistency with the applicable cleanup criteria established by MDEQ pursuant to Part 201 of the NREPA in the area(s) of the Property that will be used for those purposes: 2 a. Residential use. b. A public playground. C. An educational facility. d. A child care facility. a. A functional family. Definitions of the prohibited uses specifically listed above can be found in the City of Lansing Zoning Ordinance. Cleanup criteria for land use -based response activities are located in the Government Documents Section of the State of Michigan Library. 2. Soils and Exposure Barrier Areas. The Owner shall prohibit activities on the Property that may result in exposures to hazardous substances in soils above levels established in the RAP. These prohibited activities include: A. Any excavation or other intrusive activity that could disturb or affect the integrity of the soil and vegetated cover on the approximately 1.50 acres of property designated in Exhibit 2 as "Exposure Barrier Area 1" except as provided in this paragraph. If the exposure barrier is disturbed or removed: (i) any part of the • exposure barrier that is disturbed or removed shall be replaced with at least one foot of clay rich soil and a vegetated cover up to an elevation between 825 and 835 feet above sea level, consistent with the slope of the exposure barrier that existed before the intrusion; or (ii) the Owner shall limit exposure through other means consistent with the RAP and the requirements of Section 20107a(1)(a)-(c) of Part 201 of the NREPA: Such replacement -or -other -appropriate -measures -to -limit exposure -shall -be -- completed within fourteen (14) days of completion of the work that required the intrusion. Prior to disturbing the exposure barrier, a health and safety plan for the work shall be prepared by a qualified health and safety professional. Workers shall be properly trained in the requirements of the health and safety plan. All work shall be performed in accordance with such health and safety plan, all applicable federal Occupational Safety and Health Act and Michigan Occupational Safety and Health Act regulations, and any applicable provisions of the NREPA. B. Any excavation or other intrusive activity that could disturb or affect the integrity of the asphalt cover on the approximately 0.21 acres of property designated in Exhibit 2 as "Exposure Barrier Area 2" except as provided in this paragraph. The asphalt cover serves to prevent exposures to contaminated soils. If the exposure barrier is disturbed or removed: (i) any part of the exposure barrier that is disturbed or removed shall be replaced with at least four (4) inches of asphalt up to an elevation of 829 feet above sea level; or (ii) the Owner shall limit exposures through other means consistent with the RAP and the requirements of Section • 20107a(1)(a)-(c) of Part 201 of the NREPA. Such replacement or other appropriate measures to limit exposure shall be completed within fourteen (14) days of completion of the work that required the intrusion. Prior to disturbing the exposure barrier, a health and safety plan for the work shall be prepared by a qualified health and safety professional. Workers shall be properly trained in the requirements of the health and safety plan. All work shall be performed in accordance with such health and safety plan, all applicable federal Occupational Safety and Health Act and Michigan Occupational Safety and Health Act regulations, and any applicable provisions of the NREPA. C. Any excavation or other intrusive activity anywhere on the Property unless such activity is performed in full compliance with the requirements of Section 20107a(1)(a)-(c) of Part 201 of the NREPA, except as authorized as part of an MDEQ-approved response activity. D. The Owner covenants to manage all soils within the Property in accordance with the requirements of MCL §324.20120c and MCL §§324.11101-11152 of the NREPA, and Subtitle C of the Resource Conservation and Recovery Act, 42 USC §6901 of the Solid Waste Disposal Act, and the administrative rules promulgated thereunder, and all other relevant and applicable state end federal laws. This includes, but is not limited to, not removing soil from the facility or relocating soil within the facility without first determining whether or not such removal to an off - site location poses a threat to the public health, safety, or welfare, or the environment, or such relocation exacerbates the environmental condition of the • facility. 3. Building Restricted Area. The Owner shall not allow the construction of any buildings on the portion of the Property designated in Exhibit 2 as the `Building Restricted Area" unless a vapor intrusion barrier or other appropriate control mechanism is installed consistent witli the applicable requirements established -by MDEQ pursuant to Part 201—of the-- NREPA, or until additional sampling and/or remediation demonstrates consistency with the applicable cleanup criteria established by MDEQ pursuant to Part 201 of the NREPA. 4. Groundwater. The Owner shall prohibit activities on the Property that may result in exposures to hazardous substances in groundwater above levels established in the RAP. These prohibited activities include: A. Any construction of wells or other devices to extract groundwater for consumption, irrigation, or any other use, except for wells and devices that are part of an MDEQ-approved response activity. Short-term dewatering for construction purposes is permitted provided the dewatering, including management and disposal of the groundwater, is conducted in accordance with all applicable local, state, and federal laws and regulations and does not cause or result in a new release, exacerbation of existing contamination, or any other violation of local, state, and federal environmental laws and regulations including, but not limited to, Part 201 of the NREPA. 9 B. Any use of existing wells or other existing devices to extract groundwater for 0 consumption, Irrigation, or any other use, except as authorized as part of an . MDEQ approved response activity. 5. The Owner shall prohibit activities on the Property that may interfere with any element of the RAP, including the performance of operation and maintenance activities, monitoring, or other measures necessary to ensure the effectiveness and integrity of the RAP. These prohibited activities Include: A. Any activities that would unreasonably interfere with access to the monitoring wells identified in the RAP. B. Any activities that would unreasonably interfere with access to the exposure barriers shown in Exhibit 2. C. Any activities that would unreasonably interfere with contingency measures identified in the RAP. 6. Permanent Markers. The Owner shall not remove, cover, obscure, or otherwise alter or interfere with the permanent markers placed at the approximate locations noted in Exhibit 2. The Owner shall keep vegetation and other materials dear of the permanent markers to assure that the markers are readily visible. • 7. Contaminated Soil Management. The Owner shall manage all soils, media and/or debris located on the Property in accordance with the applicable requirements of Section 20120c of the NREP; Part 111, Hazardous Waste Management, of the NREPA; Subtitle C of the Resource Conservation and Recovery Act, 42 USC §6901 et se .; the administrative rules promulgated thereunder; and all other relevant state and federal laws. 8. Access. The Owner shall grant to the MDEQ and its designated representatives the right to enter the Property at reasonable times for the purpose of determining and monitoring compliance with the RAP, including the right to take samples, inspect the operation of the response activities and inspect any records relating thereto, and to perform any actions necessary to maintain compliance with Part 201 and the RAP. 9. Notice. The Owner shall provide notice to the MDEQ of the Owner's intent to transfer any/interest in the Property at least fourteen (14) business days prior to consummating the conveyance. A conveyance of title, easement, or other interest in the Property shall not be consummated by the Owner without adequate and complete provision for compliance with the terms and conditions of this Restrictive Covenant and the applicable provisions of Section 20116 of the NREPA. The notice required to be made to the MDEQ under this Paragraph shall be made to: Director, MDEQ, P.O. Box 30473, Lansing, Michigan 48909-7973; and shall include a statement that the notice is being made pursuant to the requirements of this Restrictive Covenant, MDEQ Reference Number number]. A copy of this Restrictive Covenant shall be provided to all future owners, heirs, successors, lessees, easement holders, assigns, and • transferees by the person transferring the interest. 10. Term and Enforcement of Restrictive Covenant. This Restrictive Covenant shall run • with the Property and shall be binding on the Owner; future owners; and all current and future successors, lessees, easement holders, their assigns, and their authorized agents, employees, or persons acting under their direction and control. This Restrictive Covenant may only be modified or rescinded with the written approval of the MDEQ. The State of Michigan, through the MDEQ, and PDP may enforce the restrictions set forth in this Restrictive Covenant by legal action in a court of competent jurisdiction. 11. Severability. If any provision of this Restrictive Covenant is held to be invalid by any court of competent jurisdiction, the invalidity of such provision shall not affect the validity of any other provisions hereof, and all other provisions shall continue unimpaired and in full and effect. 12. Authority to Execute Restrictive Covenant. The undersigned person executing this Restrictive Covenant is the Owner or has the express written permission of the Owner and all other holders of a legal interest whose interest is materially affected by this Restrictive Covenant (as documented and attached hereto as Exhibit 4), and represents and certifies that he or she is duly authorized and has been empowered to execute and deliver this Restrictive Covenant. IN WITNESS WHEREOF, LBWL has caused this Restrictive Covenant,[number], to be executed on this day of , 2008. . Phoenix Development Partners, LLC Christman Capital Investment Group, LLC, Manager By. Signature • Name: James M. Cash Print or Type Name Its: Manager Title C • STATE OF MICHIGAN COUNTY OF INGHAM The foregoing instrument was acknowledged before me this [date] by [name of officer or agent, title of officer or agent] of Lansing Board of Water and Light. Notary Public [Print or type name] Acting in [Commissioned in] County, [State) My Commission Expires: THIS DOCUMENT PREPARED BY AND WHEN RECORDED RETURN TO: H. Kirk Meadows HONIGMAN MILLER SCHWARTZ AND COHN LLP • 222 N. Washington Square Suite 400 Lansing, Michigan 48933-1800 (517) 377-0739 • SAClients\Christman Company\Constructive Receipt\Phoenix Development Partners LLC\Restrictive Covenants\Declaration of Restrictive Covenant.092908.rtf 7 • WARRANTY DEED The City of Lansing, a Michigan municipal corporation, of 124 W. Michigan Avenue, Lansing, Michigan, 48933 ("Grantor"), conveys and warrants to Phoenix Development Partners, LLC, a Michigan limited liability company, of 208 N. Capitol Ave., Lansing, Michigan, 48933 ("Grantee"), the premises situated in the City of Lansing, County of Ingham, and State of Michigan, legally described on the attached Exhibit A (the "Property"). This conveyance is exempt from state and county transfer tax pursuant to MCL 207.526(h)(i) and MCL 207.505(h)(i). This conveyance is subject to easements, restrictions, covenants and encumbrances of record. This conveyance has been approved by the City Council for the City of Lansing, pursuant to Resolution #011 of 2008 adopted on January 28, 2008, and the Board of Water and Light, • pursuant to Resolution #2008-1-3 of 2008 adopted on January 29, 2008. The sale of the Property was approved by a vote of the general electorate on August 2, 2005. Grantor grants to Grantee the right to make all divisions under the Michigan Land Division Act. This Property may be located within the vicinity of farmland or a farm operation. Generally accepted agriculture and management practices which may generate noise, dust, odors, and other associated conditions may be used and are protected by the Michigan Right to Farm Act. The Property may not be occupied or used for adult businesses as defined in the attached Exhibit B. Within fifteen (15) days of the Michigan Department of Environmental Quality's approval of a Remedial Action Plan for the Property, Grantee shall execute and record the Declaration of Restrictive Covenant against the Property substantially in the form attached as Exhibit C, subject to such changes as may be required by the Michigan Department of Environmental Quality in the approval of the Remedial Action Plan with respect to the Property. 5645386.1 26005/119350 CITY OF L ING By: , Virg Bernero, Mayor By: (,4r sn::--�Vj Chris Swope, Cle k ofCounty Treasurer's Certificate Drafted By: Ingrid A. Jensen Clark Hill PLC 200 Ottawa, NW - Suite 500 Grand Rapids, MI 49503 (616) 608-1100 Tax Parcel # • STATE OF MICHIGAN) COUNTY OF INGHAM) On September 30, 2008, Virg Bemero, the Mayor, and Chris Swope, the Clerk, of the City of Lansing, who are either personally known to me or who produced their Michigan driver's license as identification, personally appeared before me and acknowledged their signatures on this document. Notary Public, Ingham County, Michigan Acting in Ingham County My commission expires: 2%— j — 9O / 41-- When Recorded Return To: Ingrid A. Jensen Clark Hill PLC 200 Ottawa, NW - Suite 500 Grand Rapids, MI 49503 (616) 608-1100 Recording Fee 2 City Treasurer's Certificate Send Subsequent Tax Bills To: Transfer Tax 56453 86.1 26005/ 119350 • EXHIBIT A Leeal Description Proposed Ottawa Campus (City Property): Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00°01'45"W 7.02 feet to the point of beginning of the following described parcel; thence N00°01'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50°05' 10"E 157.52 feet; thence N00°29'40"E 39.86 feet to a point on the centerline of the parry wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89°58'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45°00'36"E, 56.87 feet; 2) S07000'06"E, 173.32 feet; 3) S17°21'34"E, 75.69 feet; 4) S01008'14"E, 327.42 feet; 5) S 17° 17' 09"W, 167.17 feet; 6) S 18004' 11 "W, 24.53 feet to a building line; thence .along said building line the following five (5) courses; 1) S74°14'59"E, 16.75 feet; 2) S15'51'22"W, i 63.24 feet; 3) N89047'17"W, 11.09 feet; 4) S00°12'4311W, 14.88 feet; 5) N89053137"W, 30.79 feet; thence S23001'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89°31' 14"W, 178.68 feet along said curb line to the point of beginning. • 56453 86.1 26005/ 119350 • EXHIBIT B Definition of "Adult Business" "Adult business means adult bookstores, adult movie theaters, adult personal service businesses, adult cabarets, adult novelty businesses, massage parlors and nude modeling studios, or any combination thereof, as defined in this section, which meets one or more of the criteria defined below as "adult business, significant portion." "Adult bookstore" means an establishment which excludes minors, as defined in MCL 722.51 et seq., and has, as a significant portion of its stock in trade, books, periodicals, magazines, newspapers, pamphlets, pictures, photographs, motion picture films and/or videotapes, or novelty items or paraphernalia which are distinguished or characterized by their emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas," or an establishment with a segment or section devoted to the sale or display of such material which exceeds 35 percent of the floor area of the establishment. "Adult business, significant portion" means a business where a significant portion of the stock in trade or services provided meets at least one of the following criteria: A. Thirty-five percent or more of the stock, materials, novelties or services provided are classified as adult materials and/or services as defined herein. B. Thirty-five percent or more of the usable floor area of the building' is used for the • sale, display and/or provision of services classified as adult materials and/or services, as defined herein. C. The advertising (on signs, in publications, on television or radio and/or other media forms) associated with the business depicts, describes or relates to specified sexual activities and/or specified anatomical areas. "Adult cabaret" means an establishment (which may or may not include the service of food or beverages) having as an activity the presentation or display of male or female impersonators, dancers, entertainers, waiters, waitresses or employees who display specified anatomical areas, as defined herein. "Adult motion picture theater" means an establishment, in a completely enclosed building or room, which excludes minors, as defined in MCL 722.51 et seq., and offers, for an admission fee, membership fee or other valuable consideration, the viewing of motion picture films, videotapes, pictures or photographs, cable television, satellite transmissions or other visual media, which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activity or specified anatomical areas, as defined herein, for the observation of patrons therein. 1 That area used for or intended to be used for the sale of merchandise or services, or for use to serve patrons, clients or customers. Such floor area which is used or intended to be used for hallways, stairways, elevator shafts, utility or sanitary facilities or the storage or processing of merchandise shall be excluded from this computation of "usable • floor area." Measurement of usable floor area shall be the sum of the horizontal areas of each story of a structure measured from the interior faces of the exterior walls> 0 5645386.1 26005/119350 "Adult novelties" means objects, items, and/or devices offered for sale which are designed • for sexual stimulation or which simulate human genitals. "Adult personal service business" means a business having as its principal activity a person, while nude or while displaying specified anatomical areas, as defined herein, providing personal services for another person. Such businesses include, but are not limited to, modeling studios, body painting studios, wrestling studios and conversation parlors. n "Buttock" includes the perineum and anus of any person. "Massage parlor" means an establishment wherein private massage is practiced, used or made available as a principal use of the premises. "Massage" means offering for sale through the use of physical, mechanical or other devices, the manipulation of body muscle or tissue by rubbing, stroking, kneading, tapping or vibrating of the body of another. "Nude modeling studio" means a place which offers as its principal activity the providing of models to display specified anatomical areas, as defined herein, for artists and photographers for a fee. "Offered for sale" means offered in exchange for money, a membership fee or any other valuable consideration. "Sodomy" means sexual bestiality. "Specified anatomical areas" means: A. Human male genitals in a discernible turgid state, even if completely and opaquely covered; or B. Less than completely and opaquely covered: 1. Female breasts below a point immediately above the top of the areola. 2. Human genitalia and the pubic region; and 3. A buttock and anus. "Sexual intercourse" includes genital coitus, fellatio, cunnilingus, anal intercourse or any other intrusion, however slight, of any person's body, or of any object into the genital or anal openings of another's body. "Specified sexual activities" are defined as: A. Acts of human masturbation, sexual intercourse or sodomy; B. Fondling or other erotic touching of human genitalia, a pubic region, a buttock, an anus or a female breast; C. Human genitalia in a state of sexual stimulation or arousal. W 5645386.1 26005/ 119350 • • • EXHIBIT C Declaration of Restrictive Covenant 56453 86.1 26005/ 119350 C MDEQ Reference No.: This Declaration of Restrictive Covenant ("Restrictive Covenant") has been recorded with the Ingham County Register of Deeds for the purpose of protecting public health, safety, and welfare and the environment by prohibiting or restricting activities that could result in unacceptable exposure to environmental contamination present at the property located at 312 N. Grand Ave., In the City of Lansing, Ingham County, Michigan, and legally described as Parcel 1 in Exhibit 1 attached hereto ("Property"). The Property is associated with Lansing Board of Water and Light Ottawa Station Site, Site ID #33000008, for which a remedial action plan (RAP) is being conducted. The remedial action that is being implemented to address environmental contamination is fully described in the Limited Commercial Remedial Action Plan, Ottawa Street Station, Lansing Board of Water & Light, Lansing, Michigan, dated , 2008 ("RAP") and submitted by the Lansing Board of Water and Light ("LBWL"). The Michigan Department of Environmental Quality ("MDEQ") approved the RAP on [Insert date], pursuant to Part 201, Environmental Remediation, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended ("NREPA"), MCL 324.20101 et seQ. The RAP required the recording of this Restrictive Covenant with the Ingham County Register of Deeds to: 1) restrict unacceptable exposures to hazardous substances located on the Property; 2) assure that the use of Property is consistent with the exposure assumptions utilized in the development of cleanup criteria pursuant to Sections 20120a(1)(g) and (2), Limited Commercial is and Site -Specific Cleanup Categories of the NREPA and the exposure control measures relied upon in the RAP; and 3) to prevent damage or disturbance of any element of the response activity constructed on the Property. The restrictions contained in this Restrictive Covenant are based upon information available to the MDEQ at the time the RAP was approved by the MDEQ. Failure of the response activities to achieve and maintain the criteria, exposure controls, and requirements specified in the RAP; future changes in the environmental condition of the Property or changes in the cleanup criteria developed under Sections 201 20a(1)(g) and (2) of the NREPA; the discovery of environmental conditions at the Property that were not accounted for in the RAP; or use of the Property in a manner inconsistent with the restrictions described herein, may result in this Restrictive Covenant not being protective of public hearth, safety, and welfare, and the environment. The "Limits of Land or Resource Use Restrictions, " attached hereto as Exhibit 2, provides the legal description(s) and a survey that distinguishes those portions of the Property that are subject to land use or resource use restrictions as specified herein. Summary of Response Activities Hazardous substances, including volatile organic compounds ("VOCs"), polynuclear aromatic hydrocarbons ("PAHs"), metals, sulfate and chloride, and other contaminants, have been released and/or disposed of on the Property and/or have migrated onto the site. Prior to recording of this Restrictive Covenant, response activities have been undertaken to remove sources of • contamination consisting of a former coal pile along the eastern Property boundary; • contaminated soil and water below the basement of the former power station building on the Property contaminated soil and water along utilities west of the former power station building; contaminated soil and water in the vicinity of dosed hi -place underground storage tanks ("USTs") west of the former power station building; and contaminated soil in the vicinity of a former retail gasoline station located on the northwest corner of the Property. Hazardous substances remain present in groundwater and soils at levels that require controls to prevent unacceptable exposures. The former coal pile area contains residual hazardous substances below an elevation ranging from 815 to 820 feet above sea level. The former coal pile area has been covered with an exposure barrier consisting of at (east one foot of clay rich soil and a vegetated cover. Another impacted area, consisting of approximately 50 in -place cubic yards in an area of approximately 400 square feet from 1 to 4 feet below grade on the northern portion of the Property, has been covered by approximately 4 inches of asphalt to prevent direct contact with contaminated soils. Hazardous substances were detected in an area 20 feet below ground surface on the southwest portion of the site at levels that may present an inhalation risk if an enclosed structure were to be constructed above that area. Definitions "MDEQ" means the Michigan Department of Environmental Quality, its successor entities, and those persons or entitles acting on its behalf. "Owner" means at any given time the then current title holder of the Property or any portion thereof. 49 All other terms used in this document which are defined in Part 3, Definitions, of the NREPA; Part 201 of the NREPA or the Part 201 Administrative Rules ("Part 201 Rules"), 1990 AACS R 299.5101 et sea., shall have the same meaning in this document as in Parts 3 and 201 of the NREPA and the Part 201 Rules, as of the date of filing of this Restrictive Covenant. C] NOW THEREFORE, Declaration of Land Use or Resource Use Restrictions Pursuant to the RAP Phoenix Development Partners, LLC ("PDP"), as Owner of the Property, hereby declares and covenants that the Property shall be subject to the following restrictions and Conditions: 1. The Owner shall prohibit all uses of the Property that are not compatible with the Limited Commercial category under Section 20120a(1)(g) of the NREPA and generally described in the Description of Allowable Uses, attached hereto as Exhibit 3. The following uses allowed under the City of Lansing G-1 Business District zoning code designation are prohibited on the Property, unless additional sampling and/or response activities demonstrate consistency with the applicable cleanup criteria established by MDEQ pursuant to Part 201 of the NREPA in the area(s) of the Property that will be used for those purposes: 2 • a. Residential use. b. A public playground. C. An educational facility. d. A child care facility. a. A functional family. Definitions of the prohibited uses specifically listed above can be found in the City of Lansing Zoning Ordinance. Cleanup criteria for land use -based response activities are located in the Government Documents Section of the State of Michigan Library. 2. Soils and Exposure Barrier Areas. The Owner shall prohibit activities on the Property that may result in exposures to hazardous substances in soils above levels established in the RAP. These prohibited activities include: A. Any excavation or other intrusive activity that could disturb or affect the integrity of the soil and vegetated cover on the approximately 1.50 acres of property designated in Exhibit 2 as "Exposure Barrier Area 1" except as provided in this paragraph. If the exposure barrier is disturbed or removed: (i) any part of the exposure barrier that is disturbed or removed shall be replaced with at least one foot • of clay rich soil and a vegetated cover up to an elevation between 825 and 835 feet above sea level, consistent with the slope of the exposure barrier that existed before the intrusion; or (ii) the Owner shall limit exposure through other means consistent with the RAP and the requirements of Section 20107a(1)(a)-(c) of Part 201 of the NREPA. Such replacement or other appropriate measures to limit exposure shall be completed within fourteen (14) days of completion of the work that required the intrusion. Prior to disturbing the exposure barrier, a health and safety plan for the work shall be prepared by a qualified health and safety professional. Workers shall be properly trained in the requirements of the health and safety plan. All work shall be performed in accordance with such health and safety plan, all applicable federal Occupational Safety and Health Act and Michigan Occupational Safety and Health Act regulations, and any applicable provisions of the NREPA. B. Any excavation or other intrusive activity that could disturb or affect the integrity of the asphalt cover on the approximately 0.21 acres of property designated in Exhibit 2 as "Exposure Barrier Area 2" except as provided in this paragraph. The asphalt cover serves to prevent exposures to contaminated soils. If the exposure barrier is disturbed or removed: (i) any part of the exposure barrier that is disturbed or removed shall be replaced with at least four (4) inches of asphalt up to an elevation of 829 feet above sea level; or (ii) the Owner shall limit exposures through other means consistent with the RAP and the requirements of Section 20107a(1)(a)-(c) of Part 201 of the NREPA. Such replacement or other appropriate • measures to limit exposure shall be completed within fourteen (14) days of M • completion of the work that required the intrusion. Prior to disturbing the exposure barrier, a health and safety plan for the work shall be prepared by a qualified health and safety professional. Workers shall be properly trained in the requirements of the health and safety plan. All work shall be performed in accordance with such health and safety plan, all applicable federal Occupational Safety and Health Act and Michigan Occupational Safety and Health Act regulations, and any applicable provisions of the NREPA. C. Any excavation or other intrusive activity anywhere on the Property unless such activity is performed in full compliance with the requirements of Section 20107a(1)(a)-(c) of Part 201 of the NREPA, except as authorized as part of an MDEQ-approved response activity. D. The Owner covenants to manage all soils within the Property in accordance with the requirements of MCL §324.20120c and MCL §§324.11101-11152 of the NREPA, and Subtitle C of the Resource Conservation and Recovery Act, 42 USC §6901 of the Solid Waste Disposal Act, and the administrative rules promulgated thereunder, and all other relevant and applicable state end federal laws. This includes, but is not limited to, not removing soil from the facility or relocating soil within the facility without first determining whether or not such removal to an off - site location poses a threat to the public health, safety, or welfare, or the environment, or such relocation exacerbates the environmental condition of the facility. 3. Building_ Restricted Area. The Owner shall not allow the construction of any buildings on the portion of the Property designated in Exhibit 2 as the "Building Restricted Area" unless a vapor intrusion barrier or other appropriate control mechanism is installed consistent with the applicable requirements established by MDEQ pursuant to Part 201 of the NREPA, or until additional sampling and/or remediation demonstrates consistency with the applicable cleanup criteria established by MDEQ pursuant to Part 201 of the NREPA. 4. Groundwater. The Owner shall prohibit activities on the Property that may result in exposures to hazardous substances in groundwater above levels established in the RAP. These prohibited activities include: A. Any construction of wells or other devices to extract groundwater for consumption, irrigation, or any other use, except for wells and devices that are part of an MDEQ-approved response activity. Short-term dewatering for construction purposes is permitted provided the dewatering, including management and disposal of the groundwater, is conducted in accordance with all applicable local, state, and federal laws and regulations and does not cause or result in a new release, exacerbation of existing contamination, or any other violation of local, state, and federal environmental laws and regulations including, but not limited to, Part 201 of the NREPA. 0 B. Any use of existing wells or other existing devices to extract groundwater for 11 • consumption, Irrigation, or any other use, except as authorized as part of an MDEQ approved response activity. • 5. The Owner shall prohibit activities on the Property that may interfere with any element of the RAP, including the performance of operation and maintenance activities, monitoring, or other measures necessary to ensure the effectiveness and integrity of the RAP. These prohibited activities Include: A. Any activities that would unreasonably interfere with access to the monitoring wells identified in the RAP. B. Any activities that would unreasonably interfere with access to the exposure barriers shown in Exhibit 2. C. Any activities that would unreasonably interfere with contingency measures identified in the RAP. 6. Permanent Markers. The Owner shall not remove, cover, obscure, or otherwise alter or interfere with the permanent markers placed at the approximate locations noted in Exhibit 2. The Owner shall keep vegetation and other materials dear of the permanent markers to assure that the markers are readily visible. 7. Contaminated Soil Management. The Owner shall manage all soils, media and/or debris located on the Property in accordance with the applicable requirements of Section 20120c of the NREP; Part 111, Hazardous Waste Management, of the NREPA; Subtitle C of the Resource Conservation and Recovery Act, 42 USC §6901 et seq.; the administrative rules promulgated thereunder; and all other relevant state and federal laws. 8. Access. The Owner shall grant to the MDEQ and its designated representatives the right to enter the Property at reasonable times for the purpose of determining and monitoring compliance with the RAP, including the right to take samples, inspect the operation of the response activities and inspect any records relating thereto, and to perform any actions necessary to maintain compliance with Part 201 and the RAP. 9. Notice. The Owner shall provide notice to the MDEQ of the Owner's intent to transfer any/interest in the Property at least fourteen (14) business days prior to consummating the conveyance. A conveyance of title, easement, or other interest in the Property shall not be consummated by the Owner without adequate and complete provision for compliance with the terms and conditions of this Restrictive Covenant and the applicable provisions of Section 20116 of the NREPA. The notice required to be made to the MDEQ under this Paragraph shall be made to: Director, MDEQ, P.O. Box 30473, Lansing, Michigan 48909-7973; and shall include a statement that the notice is being made pursuant to the requirements of this Restrictive Covenant, MDEQ Reference Number fnumberl. A copy of this Restrictive Covenant shall be provided to all future owners, heirs, successors, lessees, easement holders, assigns, and transferees by the person transferring the interest. E • 10. Term and Enforcement of Restrictive Covenant. This Restrictive Covenant shall run with the Property and shall be binding on the Owner; future owners; and all current and future successors, lessees, easement holders, their assigns, and their authorized agents, employees, or persons acting under their direction and control. This Restrictive Covenant may only be modified or rescinded with the written approval of the MDEQ. The State of Michigan, through the MDEQ, and PDP may enforce the restrictions set forth in this Restrictive Covenant by legal action in a court of competent jurisdiction. C] 11. Severability. If any provision of this Restrictive Covenant is held to be invalid by any court of competent jurisdiction, the invalidity of such provision shall not affect the validity of any other provisions hereof, and all other provisions shall continue unimpaired and in full and effect. 12. Authority to Execute Restrictive Covenant. The undersigned person executing this Restrictive Covenant is the Owner or has the express written permission of the Owner and all other holders of a legal interest whose interest is materially affected by this Restrictive Covenant (as documented and attached hereto as Exhibit 4), and represents and certifies that he or she is duly authorized and has been empowered to execute and deliver this Restrictive Covenant. IN WITNESS WHEREOF, LBWL has caused this Restrictive Covenant,__Inumberl, to be executed on this day of , 2008. Phoenix Development Partners, LLC Christman Capital Investment Group, LLC, Manager Lo Signature Name: James M. Cash Print or Type Name Its: Manager Title n • STATE OF MICHIGAN COUNTY OF INGHAM The foregoing instrument was acknowledged before me this [date] by [name of officer or agent, title of officer or agent] of Lansing Board of Water and Light. Notary Public [Print or type name] Acting in [Commissioned in] County, [State] My Commission Expires: THIS DOCUMENT PREPARED BY AND WHEN RECORDED RETURN TO: H. Kirk Meadows HONIGMAN MILLER SCHWARTZ AND COHN LLP 222 N. Washington Square • Suite 400 Lansing, Michigan 48933-1800 (517) 377-0739 • S:\Clients\Christman Company\Constructive Receipt\Phoenix Development Partners LLC\Restrictive Covenants\Declaration of Restrictive Covenant.092908.rtf 7 • AFFIDAVIT OF TITLE The undersigned, which has an address at 1232 Haco Drive,, P.O. Box 13007, Lansing, MI 48902, being sworn, says: 1. That pursuant to Section 5-203.2 of the Charter of the City of Lansing any property acquired by the Lansing Board of Water and Light shall be held in the name of the City of Lansing for purposes of the Lansing Board of Water and Light. 2. That, through a scrivener's error, the following deeds and order recorded in the Register of Deeds of Ingham County, Michigan (collectively, the "Deeds"): (a) Warranty Deed dated April 10, 1953 as recorded in Liber 670, Page 271; (b) Warranty Deed dated August 11, 1953 as recorded in Liber 676, Page 226; (c) Warranty Deed dated May 2, 1967 as recorded in Liber 941, Page 630; (d) Deed is dated May 10, 1982 as recorded in Liber 1396, Page 172; (e) Quit Claim Deed dated January 6, 1982 as recorded in Liber 1387, Page 938; (f) Quit Claim Deed dated January 6, 1982 as recorded in Liber 1387, Page 939; (g) Warranty Deed dated February 10, 1982 as recorded in Liber 1387, Page 940; Deed; (h) Deed dated February 13, 1962 as recorded in Liber 917, Page 1066; (i) Deed dated March 24, 1971 as recorded in Liber 1040, Page 1082; and 0) Order dated October 8, 1991 as recorded in Liber 1378, Page 805 relating to that certain real property located in the City of Lansing, Ingham County, Michigan ("Property") as such property is more particularly described on Exhibit A attached hereto and made a part hereof, erroneously listed the name of the grantee on the Deeds. 3. That, pursuant to the Deeds, the Property was intended to be conveyed to the City of Lansing, a Michigan municipal corporation for purposes of the Lansing Board of Water and Light, an administrative board and agency of the City of Lansing. 4. That, from and after the date of such conveyances, the City of Lansing and the Lansing Board of Water and Light have recognized that the Property was owned by the City of Lansing, a Michigan municipal corporation for purposes of the Lansing Board of Water and Light, an administrative board and agency of the City of Lansing. 5. This Affidavit is being recorded pursuant to MCL 565.451(a) for the purpose of correctly showing the Lansing Board of Water and Light, an administrative board • and agency of. the City of Lansing as the record owner of the Property by correcting the flaw in title which was caused by the reason(s) set forth above. • [Signature Pages Follow] 2 • BOARD OF WATER A LIGHT OF THE CITY OF NS G By: Q - Jt Piter Lark, Gener"anager Is C Rhonda Jones, STATE OF MICHIGAN ss. COUNTY OF i\ The foregoing instrument was acknowledged before me in 1-n County, Michigan, this ---3 0 day of , 2008, by i�4c-w- , the 6-&6 eW�j d%1rjns c, e A- of Lansing Board of Water and Light, an administrative board and agency of the City of Lansing, on behalf of said board and agency. STATE OF MICHIGAN ss. COUNTY OF a. f'�y - — Print name:'a, A. o?-y Notary Public, State of Michigan, County of - My commission expires 4/ -'P� Acting in the County of :%-M " The foregoing instrument was acknowledged b fore me in County, Michigan, this 3b day of b-ut , 2008, by G- LS , the Ce-pLrr&4c9C4-C1k;4 of Lansing Board of Water and Light, an administrative board and agency of the City of Lansing, on behalf of said board and agency. Print name: C,,Vn46te, CoAV Notary Public, State of Michigan, County of Win. My commission expires 4 - /P-- G0` A -a, r.o i r- 4c Go t n4-,( op T" • Drafted by: Kenneth I Wessel, Esq. Honigman Miller Schwartz and Cohn LLP 2290 First National Building 660 Woodward Avenue Detroit, Michigan 48226-3506 • • Acting in the County of After recording return to: Whitney M. Ezis Associate Attorney Lansing Board of Water & Light 1232 Haco Dr. P.O. Box 13007 Lansing, NH 48902 M • EXHIBIT A Real property in the City of Lansing, County of Ingham, State of Michigan, described as follows: Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89°59'00"E 527.87 feet; thence N00001'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00001'45"W 7.02 feet to the point of beginning of the following described parcel; thence N00001'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag /30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50°05'10"E 157.52 feet; thence N00029'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89058'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89058'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45000'36"E, 56.87 feet; 2) S07000'06"E, 173.32 feet; 3) S17021'34"E, 75.69 feet; 4) S01008'14"E, 327.42 feet; 5) S17017'09"W, 167.17 feet; 6) S18°04'11"W, 24.53 feet to a building.line; thence along said building line the following five (5) courses; 1) S74014'59"E, 16.75 feet; 2) S15°51'22"W, 63.24 feet; 3) N89047'17"W, 11.09 feet; 4) S00012'43"W, 14.88 feet; 5) N89053'37"W, 30.79 feet; isthence S23001'48"W, 82.99_feet to the Southerly curb line of Ottawa Street (vacated); thence N89031'14"W, 178.68 feet along said curb line to the point of beginning. DETROIT.3044553.2 0 • • • ayt ntf.gq�c o r. FirstAmet can Title Insurance Company National Commercial Services ��� LCLLi 1650 W Big Beaver Rd. (Main Office), Suite 156 • Troy, MI 48084 isC Final Settlement Statement Property: 312 N. Grand Ave., Lansing, MI Buyer: Phoenix Development Partners, LLC Address: , Lansing, MI Seller: City of Lansing; Board of Water and Light File No: NCS-325144-MICH Officer: Eileen Melman/em New Loan No: Settlement Date: 09/30/2008 Disbursement Date: 09/30/2008 Print Date: 9/30/2008, 9:54 AM Buyer Charge Buyer Credit Charge Description Seller Charge Seller Credit 275,000.00 _Consideration: Total Consideration 275,000.00 Adiustments: pymt to BWL 273.639.80 Title/Escrow Charges to: _ Policy -Extended ALTA 2006 Owner's - First American Title Insurance Comfy National Commercial Services 1,148.00 Endorsement-Zoning-ALTA 3.1 - First American Title Insurance Company National Commercial Services 172.20 25.00 Processing Fee - First American Title Insurance Company National Commercial Services 25.00 _ 35.00 Recording Service Fee - First American Title Insurance Company National Commercial Services _ ' 15.00 Overnight Delivery Service - First American Title Insurance Company National Commercial Services 15.00 _ __ 1_,050.00 Estimated Recording Fees - First American Title Insurance Company National Commercial Services 276,125.00 Cash (X From) ( To) Borrower Cash (To) ( From) Seller 276,125.00 276,125.00 Totals 275,000.00 ( 275,000.00 The City of Lansing and the Lansing Board of Water and Light (BWL) agree that the City is obligated to remit $275,000 to the BWL, and to the extent the $275,000 is not paid to BWL at closing (the "Shortage"), the City agrees to promptly pay the amount of the Shortage outside of closing. Initials: Page I of 2 Continued From Page 1 Final Settlement Statement .7 • • Settlement Date: 09/30/2008 Print Date: 9/30/2008 BUYER(S): Phoenix Development Partners, LLC, a Michigan limited liability company By: Christman Capital Investment Group, LLC, a Michigan limited liability company ames M. Cash, Manager File No: NCS-325144-MICH Officer: Eileen Melman/em SELLER(S): City of Lansing, a Michigan municipal corporation Michigan corporation By:Virg Ber ero, Mayor By:Chris Swope, Clerk Board o Water and Light of the City of Lan ' g is iard- -effl y, aec tive Director Special Project By:Rhonda Jones, Corporate Secretary Page 2 of 2 0 10 • • OWNER'S AFFIDAVIT • The undersigned affiant, in consideration of First American Title Insurance Company National Commercial Services and its title Insurance underwriter insuring an interest in or title to the real estate described herein, and being first duly sworn on oath, depose(s) and state(s) as follows: 1. That the affiant is the owner of the real estate legally described In commitment no. NCS-325144- MICH and commonly known as: _312 N. Grand Ave.. Lansing. MI 2. That the affiant is of legal age, and has not been divorced since acquiring an interest in said real estate and has never been known by any other name than that used herein, except as follows: 420A P NOTE: This paragraph applies only to individuals. 3. That the affiant has had an ownership interest in the real estate described herein continuously for the last . !r'�`t i 5-- years and months. 4. That no proceedings in bankruptcy or receivership have been instituted by or against the affiant within the last ten years, and the affant has never made an assignment for the benefit of creditors, except as follows: JVon e- 5. That there is no action pending in any state or federal court in the United States to which the affiant is a party nor, except as will be fully paid off at closing, is there any state or federal court judgment, state or federal lien of any kind against the affiant which would constitute a lien or charge upon the real estate, except as follows: NoAe 6. That, except as disclosed on the above commitment, there are no unrecorded easements, party walls, agreements or rights -of way which ccumr the real estate, except as follows: 7. That, except as will be fully paid off at closing, there are not any delinquent real estate taxes or unpaid current real estate taxes,'nor any pending or levied assessments on the real estate, including but not limited to those for trees, sidewalks, streets, sewers and water lines, except as follows: 8. That the affiant is in sole possession of the real estate, and that no other party has possession, or has right of possession under any tenancy, lease or other agreement, written or oral, except as follows: Nd A 9. That no labor, services or materials have been furnished in the erection, alteration, repair or removal of a building or structure upon the real estate during the last 9 months, except as follows: 10. That no improvements, repairs, alterations or charges are to be made in, on, or about the real estate, which will be financed in whole or in part by proceeds of the indebtedness secured by the mortgage to be insured; except as follows: /Ltin � U.S_WhigarLowres AffidaviLRev.(7/12/04) 0 He No.: NCS-325144-MICR 11. That, except as will be fully paid off at closing, there are not any unpaid bills or claims for labor, • services, or materials, nor any improvement or repair contracts, home improvement loans, recorded or unrecorded deeds of trust, mortgages, chattel mortgages, conditional bills of sale, retention of title agreements, security agreements, agreements not to sell or encumber, financing statements, or personal property leases which affect the real estate or which affect any fixture, appliances, or equipment now installed in or on the real estate, except as follows: N� AtO _ 12. That any Home Equity Line of Credit will no longer be used and all checks and/or credit cards associated with the amount have or will be destroyed, and that the account has been closed. 13. That the affiant has been in undisturbed possession of the insured premises and is familiar with its physical characteristics and has no knowledge or notice of any claim of ownership or other interest by any other person in all or any part of the property, including but not limited to any boundary line disputes or disagreements which may affect the size or location of improvements on the property or the size or location of improvements (e.g., fences, driveways) on neighboring property, and has no knowledge of any encroachments or improvements which affect the property or improvements thereon, except as follows: wQ ^ 14. That unlimited legal access exists to the property. 15. That there is no evidence apparent from any inspection of the property which indicates the existence of old roads, lanes, or paths crossing the property, and affiant has not observed, and is not aware of, any party who regularly cros�oveany part of the property, except as follows: 16. That there are no brooks, streams, rivers, ponds, lakes or other bodies of water located on or bordering the property, except as follows: G ,/von 17. The affiant has examined a certain survey of the premises (if applicable, a copy is attached hereto), surveyed by C2AE and dated September 22, 2008 , and: a. No exterior alterations have been made to the buildings shown on said survey. b. No additional alterations or additions or improvements have been constructed on the • premises. c. This survey reflects the current status of the premises, including fences and driveways. 18. That all common expense assessments and special assessments currently assessed against the premises•have been paid. 19. That there is no "right of first refusal" or other restriction on the sale of the premises which have not been waived. 20. That the Permit to Occupy Agreement between the City of Lansing and the Board of Water and Light dated June 14, 1985 has been terminated and is no longer in effect. 21. That the License Agreement for Parking Facilities between the City of Lansing by its Board of Water and Light and Lansing Community College dated July 17, 2003, has been terminated and is no longer in effect. U.S _Michigan_Ownees AH1davitLRev.(7/12/04) 0 He No.: NCS-325144-MICH The undersigned makes this affidavit for the purpose of inducing First American Title Insurance isCompany National Commercial Services' and Its title insurance underwriter under commitment number NCS-325144-MICH to issue a policy of title Insurance, knowing that they will rely on the truth of the statements made herein, and expressly agrees to Indemnify and hold harmless First American Title Insurance Company National Commercial Services and its title insurance underwriter from any and all loss including but not limited to attomey's fees and legal costs, arising from any Inaccuracies contained herein. City of Lansing, a Michigan municipal corporation By: V' a nero, Mayor By: Chris Swope, Clerk State of Michigan } ss. County of Ingham 11 -- `�,, �yyv. On g�j%'�� I�'l 3y&fore me personally appeared Virg Bemero, who, being by me • duly swom, did say that is the Mayor of City of Lansing and Chris Swope, who, being by me duly sworn, did say that he is the Clerk of City of Lansing, a municipal corporation of the State of Michigan, and that the said instrument was signed in behalf of said corporation, by authority of its city counsel; and said acknowledged said Instrument to be the free act and deed of said Corporation. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal at my office In the County of and State of Michigan the day and year first above written. Notary Public My term expires: Acting in County U.5 _Michigan Owners Affidavit—Rev.V/12/04) l� u Eileen M. Melman Notary Public Washtenaw County, Michigan Acting in County MY Commission Expire%�yggA_jra • n LJ L� CERTIFICATION OF NON -FOREIGN STATUS Section 1445 of the Internal Revenue Code provides that a transferee (purchaser) of a • United States real property interest must withhold tax if the transferor (seller) is a foreign person. To inform ("Transferee') that withholding of tax is not required upon the disposition of a United States real property interest by ("Transferor'), the undersigned certifies the following on behalf of Transferor. Transferor is not a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations); • C J Transferors United States employer identification number is _ 84004- 4 2- P, Transferor's office address is: a WNT mfc 6, Transferor understands that this certification may be disclosed to the Internal Revenue Service by Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both. Under penalties of perjury, I declare that I have examined this certification and to the best of my knowledge and belief it is true, correct, and complete, and further declare that I have authority to sign this document on behalf of Transferor. Transferor City of Lansina, A Municipal Corporation BY:---���' Virg Bernero, Mayor BY .rw ..lC.r W-1 hris Swope, Cleric Dated this 301N day of SQ , 2008 NotaryPublic W- VA tk W\a lv� W6Skt' � � County, State of 0 1(c � Acting in _County My Commission expires 01 I !P^ a-O ii- 7RE052 6/S199 C] • • ,2 M ONJan Department of Treasury L-4260 2766 Rev, 6-07) This form is Issued under authority of • Property Transfer Affidavit P.A. 415 of 1994. Filing is mandatory. This form must be filed whenever real estate or some types of personal property are transferred (even if you are not recording a deed). It is used by the assessor to ensure the property is assessed properly and receives the correct taxable value. It must be filed by the new owner with the assessor for the city or township where the property is located within 45 days of the transfer. If it is not filed timely, a penalty of $5/day (maximum $200) applies. The information on this form is NOT CONFIDENTIAL, 1. Street Address of Property 2. County 4. Date of Transfer (orlardoutractmsig-,4 312 N. Grand Avenue Ingham September 30, 2008 3. Cityfrownship/Village of Real Estate ® City 5. Purchase Price of Real Estate Lansing ❑ Township ❑ Village $275,000.00 6. Property Identification Number (PI. If you don't have a PIN, attach legal description, PIN. This number ranges from 10 to 25 digits. It usually Includes hypens and sometimes Includes letters. It is on See Attached Exhibit A the property tax bill and on the assessment notice. 7. Seller's (Transferor) Name 8. Buyer's (Transferee) Name and Mailing Address City of Lansing Phoenix Development Partners, LLC 208 N. Capitol Ave. Items 9 -13 are optional. However, by completing them you may avoid further correspondence. Lansing, MI 48933 Trangfers include deeds, land contracts, transfers involving trusts 9. Type of Transfer or wills, certain long-term leases and interest in a business. See the back for a complete list. ❑ Land Contract ❑ Lease ® Deed ❑ Other (specify) 10. Was this property purchased from a financial institution? ❑ No Yes ❑X 11..Is the transfer between related persons? 12. Amount of Down Payment ❑ Yes 0 No 13. If you financed the purchase, did you pay market rate of interest? 14. Amount Financed (Borrowed) ❑ Yes ❑ No . EXEMPTIONS The Michigan Constitution limits how much a property's taxable value can Increase while it is owned by the same person. Once the property is transferred, the taxable value must be adjusted by the assessor in the following year to 50 percent of the property's usual selling price (State Equalized Value). Certain types of transfers are exempt from adjustment. Below are brief descriptions of the types of exempt transfers; full descriptions are in MCL Section 211.27a(7)(a-n). If you believe this transfer is exempt, indicate below the type of exemption you are claiming. If you claim an exemption, your assessor may request more information to support your claim. ❑ transfer from one spouse to the other spouse ❑ change in ownership solely to exclude or include a spouse ❑ transfer of that portion of a property subject to a life lease or life estate (until the life lease or life estate expires) ❑ transfer to effect the foreclosure or forfeiture of real property ❑ transfer by redemption from a tax sale ❑ transfer into a trust where the settlor or the setdoes spouse conveys property to the trust and is also the sole beneficiary of the trust ❑ transfer resulting from a court order unless the order specifies a monetary payment ❑ transfer creating or ending a joint tenancy if at least one person is an original owner of the property (or his/her spouse) ❑ transfer to establish or release a security interest (collateral) ❑ transfer of real estate through normal public trading of stocks ❑ transfer between entities under common control or among members of an affiliated group ❑ transfer resulting from transactions that qualify as a tax-free reorganization ❑ transfer of qualified agricultural property when the property remains qualified agricultural property and affidavit has been filed. ❑ transfer of qualified forest property when the property remains qualified forest property and affidavit has been filed. ❑ transfer of land with qualified conservation easement (land only - not improvements) El other, specify: CERTIFICATION I certify that the information above is true and complete to the best of my knowledge. Owner's Si natu Dat If signer is other than the owner, print name and title /0 oZ OB Katie Lynwood, Law Clerk, Guggemos Brown & Gilkey, PC Daytime Phone Nufnber E-mail Address 517 336-0127 1 katie.lynwood@gbgpc.com • 2766, Page 2 • Instructions This form must be filed when there is a transfer of real property or one of the following types of personal property: • buildings on leased land. leasehold improvements (as defined in MCL Section 211.8' h ). • leasehold estates (as defined in MCL Section 211.8(i) and )�. Transfer of ownership means the conveyance of title to or a present interest in property, including the beneficial use of the property. It includes, but is not limited to, the following conveyances: • deed. • land contract. • transfer into a trust, unless the sole beneficiary is the settlor (creator of the trust), the settlor's spouse, or both. • transfer from a trust, unless the distributee is the sole present beneficiary, the spouse of the sole present beneficiary, or both. • changes in the sole present beneficiary of a trust, unless the change only adds or substitutes the spouse of the sole present beneficiary. • distributions by a will or intestate succession, unless to the decedent's spouse. • leases, if the total duration of the lease is more than 35 years, including the initial term and all options for renewal, or if the lease grants the lessee the right to purchase the property at the end of the lease for not more than 80 percent of the property's projected true cash value at the end of the lease. This only applies to the portion of the property subject to the lease described above. • transfers of more than a 50 percent interest in the ownership of a business, unless the ownership is gained through the normal public trading of shares of stock. • transfers of property held as a tenancy in common, except the portion of the property not subject to the ownership interest conveyed. • • a conveyance of an ownership interest in a cooperative housing corporation, except the portion of the property not subject to the ownership interest conveyed. For complete descriptions of qualifying transfers, please refer to MCL Section 211.27a(6)(a - j). Excerpts from Michigan Compiled Laws (MCL), Chapter 21.1 Section 211.27a(10) "... the buyer, grantee, or other transferee of the property shall notify the appropriate assessing office in the local unit of government in which the property is located of the transfer of ownership of the property within 45 days of the transfer of ownership, on a form prescribed by the state tax commission that states the parties to the transfer, the date of the transfer, the actual consideration for the transfer, and the property's parcel identification number or legal description." Section 211.27(5) "Beginning December 31, 1994, the purchase price paid in a transfer of property is not the presumptive true cash value of the property transferred. In determining the true cash value of transferred property, an assessing officer shall assess that property using the same valuation method used to value all other property of that same classification in the assessing jurisdiction." 0 • Exhibit A Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89059'00"E 527.87 feet; thence N00001'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00°01'45"W 7.02 feet to the point of beginning of the following described parcel; thence N00°01'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50°05' 10"E 157.52 feet; thence N00°29'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89058'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45°00'36"E, 56.87 feet; 2) S07°00'06"E, 173.32 feet; 3) S17°21'34"E, 75.69 feet; 4) S0l°08' 14"E, 327.42 feet; 5) S 17° 17'09"W, 167.17 feet; 6) S 18*04' 11 "W, 24.53 feet to a building line; thence along said building line the following five (5) courses; 1) S74°14'59"E, 16.75 feet; 2) S15°51'22"W, 63.24 feet; 3) N89°47'17"W, 11-.09 feet; 4) S00112'43"W, 14.88 feet; 5) N89053137"W, 30.79 feet; thence S23001'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence • N8903 1'14"W, 178.68 feet along said curb line to the point of beginning. SAClientsThristman CompanyTonstructive Receipt\Phoenix Development Partners LLOClosing with City\Exhibit A for PTA.100208.doc 0 GUGGEMOS • BROWN & GIIXEY, PC Attorneys Gregory J. Guggemos Bruce W. Brown Heather A. Gilkey October 2, 2008 Ms. Maria Irish City of Lansing Assessor 3rd Floor City Hall 124 W. Michigan Avenue Lansing, MI 48933 Re: City of Lansing to Phoenix Development Partners, LLC Property Transfer Affidavit Dear Ms. Irish: • Enclosed for filing is the Property Transfer Affidavit from the City of Lansing to Phoenix Development Partners, LLC for the property located at 312 N. Grand Avenue, Lansing, Michigan. Sincerely yours, GUGGEMOS BROWN & GILKEY, PC Katie Lynwood Law Clerk KL/eas Enclosure cc: Phoenix Development Partners, LLC Gregory J. Guggemos SAClients\Christman Company\Constructive Reeeipt\Phoenix Development Partners LLOClosing with City\Ltr to Assessor re PTA.100208.doe • 4050 Hunsaker Dr., Suite 120, East Lansing, Michigan 48823 • (517) 336-0127 • (517) 336-8540 Kewadin, Michigan Office: 292 Lakeview Trail, Kewadin, Michigan 49648 katie.lynwood@gbgpc.com • W 13 MR-1.1 �$ A of F, 9i ! r'IV FirstAmerican Title Insurance Company • National Commercial Services 1650 W Big Beaver Rd. (Main Office), Suite 156, Troy, MI 48084 Wire Transfer Instructions Date: , 2008 Wire to: First American Trust 5 First American Way Santa Ana, CA 92707 Phone: ABA Number: For Credit To: Account Number: Reference: • 122-241-255 First American Title Insurance Company 30-1742-0000 Escrow No.: NCS-325777 -MICH City of Lansing/Phoenix Developmement Attn: Eileen Melman Phone: (248) 458-7332 Should you have any questions or comments, please do not hesitate to contact your Escrow Officer. Failure to reference all of the above information may result in a de/ay of your funds being applied to your file. Page 1 of 1 em /08/06/2007 • 14 L� C] MEMORANDUM AGREEMENT OF CONTINUING OBLIGATIONS The undersigned parties are parties or assignees to a certain Property Purchase and Development Agreement, ("Development Agreement") dated January 30, 2008 that is on record with the City Clerk of the City of Lansing. The Development Agreement provides certain continuing obligations with respect to the Property that are designated to survive closing and to continue in effect. Those provisions are as follows: 1. Section 1.3(E); 2. Section 1.7(D)(1); 3. Section 1.11; 4. Section 2.3; 5. Section 2.4; 6. Section 2.5 7. Section 3.1; 8. Section 3.2; and 9. Section 6.1 In accordance with Sections 1.8(B) and 6.8 of the Development Agreement, the parties hereby acknowledge the continuing obligations identified in the above referenced sections of the Development Agreement. The undersigned executed this Memorandum Agreement of • Continuing Obligations this 30th day of September, 2008. • Approved as to form: CITY OF LANSING, a Michigan municipal corporation, RE • 0 Eileen M. Melman Notary Public Washtenaw County, Michigan Acting in County My Commissi Expires 01/12/2014 Eileen M. Melman Notary Public Washtenaw County, Michigan Acting in .GPxo, ham,,, County My Commission Expires 01/12/201 By. Virg Bemero, Mayor Subscribed and sworn to before me this day of. .Notary Public My Commission Expires: By: Chris Swope, Clerk Subscribed and sworn to before me this day of. Notary Public My Commission Expires: • CITY OF LANSING BOARD OF WATER AND LIGHT L� 0 J. Peter Lark, General Manager PHOENIX DEVELOPMENT PARTNERS, LLC, a Michigan limited liability company, CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, Manager Subscribed and sworn to before me this day of. , Notary Public My Commission Expires: By: es M. Cash s: Manager Eileen M. Melman Notary Public Subscribed and sworn to before me Washtenaw County, Michigan this day of. Acting in L,, County My Commission Expires 01/12/2014 All lk �e Notary Public My Commission Expires: • CIT OF LAN G OARD OF W TE AND IG J/Peter Lark, General Manager PHOENIX DEVELOPMENT PARTNERS, LLC, a Michigan limited liability company, CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, Manager By: es M. Cash Manager • 0 • STATE OF MICHIGAN ) )ss. COUNTY OF INGHAM ) The foregoing instrument was acknowledged before me in Ingham County, Michigan, this day of 2008 by J. Peter Lark, the General Manager of Lansing Board of Water and Light, an administrative board and agency of the City of Lansing, on behalf of said board and agency. Print Name: Notary Public, State of Michigan County of Eaton My Commission Expires: Acting in the County of Ingham • 40 • • 15 • is • CERTIFICATION OF THE CITY OF LANSING In connection with that certain Property Purchase and Development Agreement dated January 30, 2008 (the "Agreement") relating to the Power Station, the City hereby certifies that all conditions precedent to closing as set forth in Section 1.7 of the Agreement are either waived or satisfied, subject to the Memorandum Agreement of Continuing Legal Obligations, dated September 30, 2008. Dated: September 30, 2008 CITY OF LANSING By: Virg Nmero, Mayor By: Chris Swope, erk approved as to form: Brigham C. 5654805.1 26005/ 119350 • C I 16 • • CERTIFICATION OF PHOENIX DEVELOPMENT PARTNERS, LLC In connection with that certain Property Purchase and Development Agreement dated January 30, 2008 (the "Agreement') relating to the Power Station, Phoenix Development Partners, LLC, a Michigan limited liability company ("PDP"), assignee of the rights and obligations of Christman Capital Development Company in and to the Agreement, hereby certifies as follows: 1. PDP is satisfied with all inspections of the City Property as described in Section 1.3(C) of the Agreement. 2. PDP is satisfied with all reviews and findings with regard to floodplain issues as described in Section 1.3(D) of the Agreement. 3. All objections or defects with regard to the Title Commitment, as most recently revised, and the Survey dated September 25, 2008, are resolved or waived. 4. All conditions precedent to Closing set forth in Section 1.7 of the Agreement are either satisfied or waived. 5. Except as otherwise provided in correspondence of September 30, 2008 entitled Extension of Deadline in Connection with Section 6.2(G) of that Certain Property Purchase and Development Agreement dated January 30, 2008, Developer has • raised no issues under Section 1.3(B)(3) of the Agreement. This certification is subject to the Memorandum Agreement of Continuing Legal Obligations, dated September 30, 2008. n U Dated: September 30, 2008 PHOENIX DEVELOPMENT PARTNERS, LLC By Christman Capital Investment Group, LLC, Manager By: am M. Cash s Manager 5654804.1 26005/119350 • • 17 • • Lansing Board of Water & Light 1232 Haco Dr. Lansing, MI 48902 September 30, 2008 Mr. James M. Cash, Manager, Christman Capital Investment Group Phoenix Development Partners, LLC c/o Christman Capital Development Company 208 North Capitol Avenue Lansing, Michigan 48933 • Re: Acknowledgment Regarding Approval of the Infrastructure Payment Agreement for New Chilled Water and Steam Facilities Provided in Section 5.2 of the Property Purchase and Development Agreement Dear Mr. Cash: 61pP fj/litr Under the terms of/apital roperty Purchase and Development Agreement ("Development Agreement") si ed by thes on January 30, 2008, the Lansing Board of Water and Light ("Board") and Christman nve n ("Christman") had certain obligations, including approvals that were conditions to close the contemplated transaction. Among those conditions were an infrastructure payment agreement for the new chilled water and steam facilities. [see Development Agreement Section 5.2(A)] The purpose of this letter is to acknowledge and confirm that the Board and Christman have satisfied the approvals necessary to accomplish the condition in the Agreement through the execution of the attached construction management agreements signed by Christman and the Board on November 1, 2007. 0 • r� is By signing below, we hereby accept that the terms of the Development Agreement at Section 5.2(A) have been satisfied. AGREED TO AND ACCEPTED BY: PHOENIX DEVELOPMENT PARTNERS, LLC CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, Manager B y�;�me-s M. Cash, Manager Dated as of September 30, 2008 Very truly yours, BOARD OF W&TER AND LIGHT OF THE CITY'OP LANSING B y: — J. Peter Lark, General Manager 2 • • (I • 18 • 19 • ALTA Owner's Policy (6-17-06) ��. �.,�* Policy Page 1 s Policy Number: Proforma OWNER'S POLICY OF TITLE INSURANCE ISSUED BY First American Title Insurance Company Any notice of claim and any other notice or statement in writing required to be given to the Company under this policy must be given to the Company at the address shown in Section 18 of the Conditions. COVERED RISKS JECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS M COVERAGE CONTAINED IN SCHEDULE B AND THE IDITIONS, FIRST AMERICAN TITLE INSURANCE COMPANY, a `ornia corporation (the "Company") insures, as of Date of Policy to the extent stated in Covered Risks 9 and 10, after Date of .y, against loss or damage, not exceeding the Amount of trance, sustained or Incurred by the Insured by reason of: Title being vested other than as stated in Schedule A. Any defect in or lien or encumbrance on the Title. This Covered Risk includes but is not limited to insurance against loss from (a) A defect in the Title caused by (1) forgery, fraud, undue influence, duress, incompetency, Incapacity, or impersonation; (ii) failure of any person or Entity to have authorized a transfer or conveyance; (III) a document affecting Title not properly created, executed, witnessed, sealed, acknowledged, notarized, or delivered; (Iv) failure to perform those acts necessary to create a document by electronic means authorized by law; (v) a document executed under a falsified, expired, or otherwise invalid power of attorney; (vi) a document not properly filed, recorded, or indexed in the Public Records including failure to perform those acts by electronic means authorized by law; or (vii) a defective judicial or administrative proceeding. (b) The lien of real estate taxes or assessments imposed on the Title by a governmental authority due or payable, but unpaid. (c) Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land. The term "encroachment" includes encroachments of existing improvements located on the Land onto adjoining land, and encroachments onto the Land of existing improvements located on adjoining land. Unmarketable Tide. No right of access to and from the Land. The violation or enforcement of any law, ordinance, permit, or governmental regulation (Including those relating to building and zoning) restricting, regulating, prohibiting, or relating to (a) the occupancy, use, or enjoyment of the Land; (b) the character, dimensions, or location of any improvement erected on the Land; (c) the subdivision of land; or (d) environmental protection if a notice, describing any part of the Land, is recorded in the Public Records setting forth the violation or intention to enforce, but only to the extent of the violation or enforcement referred to in that notice. An enforcement action based on the exercise of a governmental (2/07) police power not covered by Covered Risk 5 if a notice of the enforcement action, describing any part of the Land, is recorded in the Public Records, but only to the extent of the enforcement referred to in that notice. 7. The exercise of the rights of eminent domain if a notice of the exercise, describing any part of the Land, is recorded In the Public Records. 3. Any taking by a governmental body that has occurred and Is binding on the rights of a purchaser for value without Knowledge. 9. Title being vested other than as stated in Schedule A or being defective (a) as a result of the avoidance in whole or in part, or from a court order providing an alternative remedy, of a transfer of all or any part of the title to or any interest in the Land occurring prior to the transaction vesting Title as shown in Schedule A because that prior transfer constituted a fraudulent or preferential transfer under federal bankruptcy, state insolvency, or similar creditors' rights laws; or (b) because the instrument of transfer vesting Title as shown in Schedule A constitutes a preferential transfer under federal bankruptcy, state insolvency, or similar creditors' rights laws by reason of the failure of its recording in the Public Records (1) to be timely, or (ii) to Impart notice of its existence to a purchaser for value or to a judgment or lien creditor. 10. Any defect In or lien or encumbrance on the Title or other matter included in Covered Risks 1 through 9 that has been created or attached or has been filed or recorded in the Public Records subsequent to Date of Policy and prior to the recording of the deed or other instrument of transfer in the Public Records that vests Title as shown in Schedule A. The Company will also pay the costs, attorneys' fees, and expenses incurred in defense of any matter Insured against by this policy, but only to the extent provided in the Conditions. FirsiAineeriicc j,t Tive z isvrmruue Cmulmmy BP errrsr �Jycn U(V/ ssauranr C Foc�1.No. 702 06'F A TA Owner's Policy (6-17 06) Po - age Policy umber: 7 • ej is EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy, and the Company will not pay loss or damage, costs, attorneys' fees, or expenses that arise by reason of: 1. (a) Any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting, regulating, prohibiting, or relating to (i) the occupancy, use, or enjoyment of the Land; (ii) the character, dimensions, or location of any Improvement erected on the Land; (III) the subdivision of land; or (iv) environmental protection; or the effect of any violation of these laws, ordinances, or governmental regulations. This Exclusion 1(a) does not modify or limit the coverage provided under Covered Risk S. (b) Any governmental police power. This Exclusion 1(b) does not modify or limit the coverage provided under Covered Risk 6. 2. Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8. 3. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed, or agreed to by the Insured Claimant; (b) not Known to the Company, not recorded in the Public Records at Date of Policy, but Known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy; (c) resulting in no loss or damage to the Insured Claimant, (d) attaching or created subsequent to Date of Policy (however, this does not modify or limit the coverage provided under Covered Risks 9 and 10); or (e) resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the Title. 4. Any claim, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that the transaction vesting the Title as shown In Schedule A, is (a) a fraudulent conveyance or fraudulent transfer; or (b) a preferential transfer for any reason not stated in Covered Risk 9 of this policy. 5. Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching between Date of Policy and the date of recording of the deed or other instrument of transfer in the Public Records that vests Title as shown in Schedule A. CONDITIONS 1. DEFINITION OF TERMS The following terms when used in this policy mean: (a) "Amount of Insurance". The amount stated in Schedule A, as may be Increased or decreased by endorsement to this policy, increased by Section 8(b), or decreased by Sections 10 and 11 of these Conditions. (b) "Date of Policy": The date designated as "Date of Policy" in Schedule A. (c) "Entity" A corporation, partnership, trust, limited liability company, or other similar legal entity. (d) "Insured": The Insured named in Schedule A. (i) The term "Insured" also includes (A) successors to the Title of the Insured by operation of law as distinguished from purchase, including heirs, devisees, survivors, personal representatives, or next of kin; (B) successors to an Insured by dissolution, merger, consolidation, distribution, or reorganization; (C) successors to an Insured by its conversion to another kind of Entity; (D) a grantee of an Insured under a deed delivered without payment of actual valuable consideration conveying the Title (1) if the stock, shares, memberships, or other equity interests of the grantee are wholly -owned by the named Insured, (2) if the grantee wholly owns the named Insured, (3) if the grantee is wholly -owned by an affiliated Entity of the named Insured, provided the affiliated Entity and the named Insured are both wholly -owned by the same person or Entity, or (4) if the grantee is a trustee or beneficiary of a trust created by a written instrument established by the Insured named In Schedule A for estate planning purposes. (11) With regard to (A), (B), (C), and (D) reserving, however, all rights and defenses as to any successor that the Company would have had against any predecessor Insured. (e) "Insured Claimant": An Insured claiming loss or damage. (f) "Knowledge" or "Known": Actual knowledge, not constructive knowledge or notice that may be imputed to an Insured by reason of the Public Records or any other records that impart constructive notice of matters affecting the Title. (g) "Land": The land described in Schedule A, and affixed improvements that by law constitute real property. The term "Land" does not include any property beyond the lines of the area described in Schedule A, nor any right, title, Interest, estate, or easement in abutting streets, roads, avenues, alleys, lanes, ways, or waterways, but this does not modify or limit the extent that a right of access to and from the Land is insured by this policy. (h) "Mortgage": Mortgage, deed of trust, trust deed, or other security Instrument, including one evidenced by electronic means authorized by law. (1) "Public Records": Records established under state statutes at Date of Policy for the purpose of Imparting constructive notice of matters relating to real property to purchasers for value and without Knowledge. With respect to Covered Risk 5(d), "Public Records" shall also Include environmental protection liens filed in the records of the clerk of the United States District Court for the district where the Land is located. (j) "Title": The estate or interest described in Schedule A. (k) "Unmarketable Title": Title affected by an alleged or apparent matter that would permit a prospective purchaser or lessee of the Title or lender on the Title to be released from the obligation to purchase, lease, or lend if there is a contractual condition requiring the delivery of marketable title. 2. CONTINUATION OF INSURANCE The coverage of this policy shall continue in force as of Date of Policy in favor of an Insured, but only so long as the Insured retains an estate or interest in the Land, or holds an obligation secured by a purchase money Mortgage given by a purchaser from the Insured, or only so long as the Insured shall have liability by reason of warranties in any transfer or conveyance of the Title. This policy shall not continue in force in favor of any purchaser from the Insured of either (1) an estate or Interest in the Land, or (11) an obligation secured by a purchase money Mortgage given to the Insured. 3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT The Insured shall notify the Company promptly in writing (i) in case of any litigation as set forth in Section 5(a) of these Conditions, (ii) in case Knowledge shall come to an Insured hereunder of any claim of title or Interest that is adverse to the Title, as Insured, and that might cause loss or damage for which the Company may be liable by virtue of this policy, or (111) if the Title, as insured, is rejected as Unmarketable Title. If the Company is prejudiced by the failure of the Insured Claimant to provide prompt notice, the Company's liability to the Insured Claimant under the policy shall be reduced to the extent of the prejudice. 4. PROOF OF LOSS In the event the Company is unable to determine the amount of loss or damage, the Company may, at its option, require as a condition of payment that the Insured Claimant furnish a signed proof of loss. The proof of loss must describe the defect, lien, encumbrance, or other matter insured against by this policy that constitutes the basis of loss or damage and shall state, to the extent possible, the basis of calculating the amount of the loss or damage. DEFENSE AND PROSECUTION OF ACTIONS (a) Upon written request by the Insured, and subject to the options contained in Section 7 of these Conditions, the Company, at Its own cost and without unreasonable delay, shall provide for the defense of an Insured in litigation in which any third party asserts a claim covered by this policy adverse to the Insured. This obligation is limited to only those stated causes of action alleging matters insured against by this policy. The Company shall have the right to select counsel of its choice (subject to the right of the Insured to object for reasonable cause) to represent the Insured as to those stated causes of action. It shall not be liable for and will not pay the fees of any other counsel. The Company will not pay any fees, costs, or expenses Incurred by the Insured in the defense of those causes of action that allege matters not Insured against by this policy. (b) The Company shall have the right, in addition to the options contained 1n �' First American Title Insurance Company ED F F A AwP0ocy (6-17-06) PoilcyNum75144~ F� • • • Section 7 of these Conditions, at Its own cost, to Institute and prosecute any action or proceeding or to do any other act that in its opinion may be necessary or desirable to establish the Title, as insured, or to prevent or reduce loss or damage to the Insured. The Company may take any appropriate action under the terms of this policy, whether or not it shall be liable to the Insured. The exercise of these rights shall not be an admission of liability or waiver of any provision of this policy. If the Company exercises Its rights under this subsection, it must do so diligently. (c) Whenever the Company brings an action or asserts a defense as required or permitted by this policy, the Company may pursue the litigation to a final determination by a court of competent jurisdiction, and it expressly reserves the right, in its sole discretion, to appeal any adverse judgment or order. DUTY OF INSURED CLAIMANT TO COOPERATE (a) In all cases where this policy permits or requires the Company to prosecute or provide for the defense of any action or proceeding and any appeals, the Insured shall secure to the Company the right to so prosecute or provide defense in the action or proceeding, Including the right to use, at its option, the name of the Insured for this purpose. Whenever requested by the Company, the Insured, at the Company's expense, shall give the Company all reasonable aid (1) in securing evidence, obtaining witnesses, prosecuting or defending the action or proceeding, or effecting settlement, and (11) in any other lawful act that in the opinion of the Company may be necessary or desirable to establish the Tide or any other matter as insured. If the Company is prejudiced by the failure of the Insured to furnish the required cooperation, the Company's obligations to the Insured under the policy shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation, with regard to the matter or matters requiring such cooperation. (b) The Company may reasonably require the Insured Claimant to submit to examination under oath by any authorized representative of the Company and to produce for examination, inspection, and copying, at such reasonable times and places as may be designated by the authorized representative of the Company, all records, in whatever medium maintained, including books, ledgers, checks, memoranda, correspondence, reports, e-mails, disks, tapes, and videos whether bearing a date before or after Date of Policy, that reasonably pertain to the loss or damage. Further, if requested by any authorized representative of the Company, the Insured Claimant shall grant Its permission, in writing, for any authorized representative of the Company to examine, inspect, and copy all of these records in the custody or control of a third party that reasonably pertain to the loss or damage. All Information designated as confidential by the Insured Claimant provided to the Company pursuant to this Section shall not be disclosed to others unless, in the reasonable judgment of the Company, it is necessary in the administration of the claim. Failure of the Insured Claimant to submit for examination under oath, produce any reasonably requested Information, or grant permission to secure reasonably necessary information from third parties as required in this subsection, unless prohibited by law or governmental regulation, shall terminate any liability of the Company under this policy as to that claim. 7. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS, TERMINATION OF LIABILITY In case of a claim under this policy, the Company shall have the following additional options: (a) To Pay or Tender Payment of the Amount of Insurance. To pay or tender payment of the Amount of Insurance under this policy together with any costs, attorneys' fees, and expenses Incurred by the Insured Claimant that were authorized by the Company up to the time of payment or tender of payment and that the Company is obligated to pay. Upon the exercise by the Company of this option, all liability and obligations of the Company to the Insured under this policy, other than to make the payment required in this subsection, shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation. (b) To Pay or Otherwise Settle With Parties Other Than the Insured or With the Insured Claimant. (1) To pay or otherwise settle with other parties for or in the name of an Insured Claimant any claim insured against under this policy. In addition, the Company will pay any costs, attorneys' fees, and expenses incurred by the Insured Claimant that were authorized by the Company up to the time of payment and that the Company is obligated to pay; or (ii) To pay or otherwise settle with the Insured Claimant the loss or damage provided for under this policy, together with any costs, attorneys' fees, and expenses Incurred by the Insured Claimant that were authorized by the Company up to the time of payment and that the Company is obligated to pay. Upon the exercise by the Company of either of the options provided for in subsections (b)(1) or (11), the Company's obligations to the Insured under this policy for the claimed loss or damage, other than the payments required to be made, shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation. 8. DETERMINATION AND EXTENT OF LIABILITY This policy is a contract of Indemnity against actual monetary loss or damage sustained or incurred by the Insured Claimant who has suffered loss or damage by reason of matters insured against by this policy. (a) The extent of liability of the Company for loss or damage under this policy shall not exceed the lesser of (1) the Amount of Insurance; or (it) the difference between the value of the Tide as Insured and the value of the Title subject to the risk insured against by this policy. (b) If the Company pursues its rights under Section 5 of these Conditions and is unsuccessful in establishing the Title, as Insured, (1) the Amount of Insurance shall be increased by 10%, and (11) the Insured Claimant shall have the right to have the loss or damage determined either as of the date the claim was made by the Insured Claimant or as of the date it is settled and paid. (c) In addition to the extent of liability under (a) and (b), the Company will also pay those costs, attorneys' fees, and expenses Incurred in accordance with Sections 5 and 7 of these Conditions. LIMITATION OF LIABILITY (a) If the Company establishes the Title, or removes the alleged defect, lien, or encumbrance, or cures the lack of a right of access to or from the Land, or cures the claim of Unmarketable Title, all as insured, in a reasonably diligent manner by any method, including litigation and the completion of any appeals, it shall have fully performed Its obligations With respect to that matter and shall not be liable for any loss or damage caused to the Insured. (b) In the event of any litigation, including litigation by the Company or with the Company's consent, the Company shall have no liability for loss or damage until there has been a final determination by a court of competent jurisdiction, and disposition of all appeals, adverse to the Title, asinsured. (c) The Company shall not be liable for loss or damage to the Insured for liability voluntarily assumed by the Insured in settling any claim or suit without the prior written consent of the Company. 10. REDUCTION OF INSURANCE; REDUCTION OR TERMINATION OF LIABILITY All payments under this policy, except payments made for costs, attorneys' fees, and expenses, shall reduce the Amount of Insurance by the amount of the payment. 11. LIABILITY NONCUMULATIVE The Amount of Insurance shall be reduced by any amount the Company pays under any policy Insuring a Mortgage to which exception is taken in Schedule B or to which the Insured has agreed, assumed, or taken subject, or which is executed by an Insured after Date of Policy and which is a charge or lien on the Title, and the amount so paid shall be deemed a payment to the Insured under this policy. 12. PAYMENT OF LOSS When liability and the extent of loss or damage have been definitely fixed in accordance with these Conditions, the payment shall be made within 30 days. 13. RIGHTS OF RECOVERY UPON PAYMENT OR SETTLEMENT (a) Whenever the Company shall have settled and paid a claim under this policy, it shall be subrogated and entitled to the rights of the Insured Claimant in the Title and all other rights and remedies in respect to the claim that the Insured Claimant has against any person or property, to the extent of the amount of any loss, costs, attorneys' fees, and expenses paid by the Company. If requested by the Company, the Insured Claimant shall execute documents to evidence the transfer to the Company of these rights and remedies. The Insured Claimant shall permit the Company to sue, compromise, or settle in the name of the Insured Claimant and to use the name of the Insured Claimant in any transaction or litigation involving these rights and remedies. If a payment on account of a claim does not fully cover the loss of the Insured Claimant, the Company shall defer the exercise of Its right to recover until after the Insured Claimant shall have recovered Its toss. F—Z,41.1./S�. F First American Title Insurance Company ID F= —F 0.1 % A A Owners Policy (6-17-06) Polim�751� 0 • (b) The Company's right of subrogation includes the rights of the Insured to Indemnities, guaranties, other policies of Insurance, or bonds, notwithstanding any terms or conditions contained in those instruments that address subrogation rights. 14. ARBITRATION Either the Company or the Insured may demand that the claim or controversy shall be submitted to arbitration pursuant to the Title Insurance Arbitration Rules of the American Land Title Association ("Rules"). Except as provided in the Rules, there shall be no joinder or consolidation with claims or controversies of other persons. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the Insured arising out of or relating to this policy, any service in connection with its issuance or the breach of a policy provision, or to any other controversy or claim arising out of the transaction giving rise to this policy. All arbitrable matters when the Amount of Insurance is $2,000,000 or less shall be arbitrated at the option of either the Company or the Insured. All arbitrable matters when the Amount of Insurance is in excess of $2,000,000 shall be arbitrated only when agreed to by both the Company and the Insured. Arbitration pursuant to this policy and under the Rules shall be binding upon the parties. Judgment upon the award rendered by the Arbitrator(s) may be entered in any court of competent jurisdiction. 15. LIABILITY LIMITED TO THIS POLICY, POLICY ENTIRE CONTRACT (a) This policy together with all endorsements, if any, attached to it by the Company is the entire policy and contract between the Insured and the Company. In interpreting any provision of this policy, this policy shall be construed as a whole. (b) Any claim of loss or damage that arises out of the status of the Title or by any action asserting such claim shall be restricted to this policy. (c) Any amendment of or endorsement to this policy must be in writing and authenticated by an authorized person, or expressly incorporated by Schedule A of this policy. (d) Each endorsement to this policy Issued at any time is made a part of this policy and is subject to all of its terms and provisions. Except as the endorsement expressly states, it does not (1) modify any of the terms and provisions of the policy, (ii) modify any prior endorsement, (III) extend the Date of Polley, or (iv) increase the Amount of Insurance. 16. SEVERABILITY In the event any provision of this policy, in whole or in part, is held invalid or unenforceable under applicable law, the policy shall be deemed not to include that provision or such part held to be invalid, but all other provisions shall remain in full force and effect. 17. CHOICE OF LAW, FORUM (a) Choice of Law: The Insured acknowledges the Company has underwritten the risks covered by this policy and determined the premium charged therefor in reliance upon the law affecting interests in real property and applicable to the interpretation, rights, remedies, or enforcement of policies of title insurance of the jurisdiction where the Land is located. Therefore, the court or an arbitrator shall apply the law of the jurisdiction where the Land is located to determine the validity of claims against the Title that are adverse to the Insured and to interpret and enforce the terms of this policy. In neither case shall the court or arbitrator apply its conflicts of law principles to determine the applicable law. (b) Choice of Forum: Any litigation or other proceeding brought by the Insured against the Company must be filed only in a state or federal court within the United States of America or its territories having appropriate jurisdiction. 18. NOTICES, WHERE SENT Any notice of claim and any other notice or statement In writing required to be given to the Company under this policy must be given to the Company at 1650 W. Big Beaver Road, P.O. Box 1289, Troy, MI 48099. POLICY OF TITLE INSURANCE 5 I AMC R I ¢ r First American Title Insurance Company I:> F—Rt ^.. F= 7F Forp�Tlo. �4�006 �` A TA owners Policy (6-17-06) Pb aPolimber: 325 0 SCHEDULE A FirstAmerican Title Insurance Company Name and Address of Title Insurance Company: First American Title Insurance Company 1650 W Big Beaver Rd Ste 156 Troy, MI 48084 File No.: NCS-325144-MICH Policy No.: Proforma Address Reference: 312 N. Grand Ave., Lansing, MI Amount of Insurance: $275,000.00 Date of Policy: Date and Time of Recording 1. Name of Insured: Phoenix Development Partners, LLC, a Michigan limited liability company 2. The estate or interest in the Land that is insured by this policy is: Fee Simple 3. Title is vested in: Phoenix Development Partners, LLC, a Michigan limited liability company is 4. The Land referred to in this policy is described as follows: Real property in the City of Lansing, County of Ingham, State of Michigan, described as follows: Proposed Ottawa Campus: Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89059'00"E 527.87 feet; thence N00001'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00001'45"W 7.02 feet to the point of beginning of the following described parcel; thence N00001'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag /30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50005'10"E 157.52 feet; thence N00029'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89058'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89058'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45000'36"E, 56.87 feet; 2) S07000'06"E, 173.32 feet; 3) S17021'34"E, 75.69 feet; 4) S01008'14"E, 327.42 feet; 5) S17017'09"W, 167.17 feet; 6) S18004'11"W, 24.53 feet to a building line; thence along said building line the following five (5) courses; 1) S74014'59"E, 16.75 feet; 2) S15051'22"W, 63.24 feet; 3) N89047'17"W, 11.09 feet; 4) S00112'43"W, 14.88.feet; 5) N89053'37"W, 30.79 feet; thence S23001'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89031'14"W, 178.68 feet along said curb line to the point of beginning. ED FZ/N, F= —F First American Tide Insurance Company E:> FZA F= —F F° - lo,. F 02,06� � ,Page 6` ALTA Owner's Policy (6-17-06) Po i'I cy Number: 325144 NOTICE: This is a pro -forma policy furnished to or on behalf of the party to be insured. It neither reflects the present status of title, nor is it intended to be a commitment to insure. The inclusion of endorsements as part of the pro -forma policy in no way evidences the willingness of the Company to provide any affirmative coverage shown therein. There are requirements which must be met before a final policy can be issued in the same form as this pro -forma policy. A commitment to insure setting forth these requirements should be obtained from the Company. • • C) F:Z. /" , F —F First American Title Insurance Company [::) /Ni, F= —F 2-10 FoiNo. 0 06� FAA Owners Policy (6-17-06) age F=-IF Policy um n 3�5144 • File No.: NCS-325144-MICH SCHEDULE B Policy No.: Proforma EXCEPTIONS FROM COVERAGE This Policy does not insure against loss or damage, and the Company will not pay costs, attorneys' fees, or expenses that arise by reason of: 1. Any lien, or right to lien for services, labor or material imposed by law and not shown by the public records. 2. Taxes and Assessments due and payable subsequent to Policy Date. 3. Easements and the terms, conditions and provisions thereof which are recited in instrument recorded in Liber 1387, page 939. 4. Rights of the United States, State of Michigan and the public for commerce, navigation, recreation and fishery, in any portion of the land bordering on or comprising the bed of the Grand River. 5. The nature, extent or lack of riparian rights, or the riparian rights of riparian owners and the . public, in and to the use of waters of the Grand River. 6. Rights, title, and interests of the other owners of portions of the building partly located on the insured land and partly located on other land in the party walls, roof, chimneys, fixtures, and other appurtenances to the building susceptible to common use, whether or not they are located in whole or in part on the insured land or other land. 7. Any rights, title, interest or claim thereof to that portion of the land taken, used or granted for North Grand Avenue and Shiawassee Streets. 8. Mortgage dated as of September 2008 from Phoenix Development Partners, LLC, a Michigan limited liability company, mortgagor, to Accident Fund Insurance Company of America, a Michigan Insurance Company, mortgagee in the principal amount of . recorded , 2008, in Liber . Page . Ingham County Records. 9. Assignment of Leases and Rents dated as of September , 2008, by Phoenix Development Partners, LLC, assignor, to Accident Fund Insurance Company of America, assignee, recorded . 2008 in Liber . Page . Ingham County Records. 10. The survey prepared by Darin L. Thelen of C2AE, being Project No. 07-0511.17, dated August 25, 2008, last revised September 25, 2008 discloses the following matters: a) location of City of Lansing North Grand Ramp parking structure on the west side of the land and onto North Grand Ave. b) location of bus stop structure near northwest corner of the land. 11. Easement Agreement - Riverwalk (1) and the terms and conditions thereof between Phoenix • Development Partners, LLC, a Michigan limited liability company and City of Lansing, a Michigan municipal corporation, dated . 2008, recorded 2008 in Liber Page Ingham County Records. �r� "� N, F= —T— First American Title Insurance Company ED F;ZA F= 7— CT7�� AOPolim A Owner's -17 06) r. 25144 12. Riverwalk Use Agreement (2) and the terms and conditions thereof between Phoenix . Development Partners, LLC, a Michigan limited liability company and City of Lansing, a Michigan municipal corporation, dated . 2008, recorded . 2008 in Liber , Page Ingham County Records. 13. Easement Agreement - Storm Water Drainage (3) and the terms and conditions thereof between Phoenix Development Partners, LLC, a Michigan limited liability company and City of Lansing, a Michigan municipal corporation, dated . 2008, recorded 2008 in Liber . Page Ingham County Records. 14. Easement Agreement - Building Maintenance (4) and the terms and conditions thereof between Phoenix Development Partners, LLC, a Michigan limited liability company and City of Lansing, a Michigan municipal corporation, dated 2008, recorded 2008 in Liber . Page . Ingham County Records. 15. Declaration of Covenants, Conditions and Restrictions of Remediation Actions (7) and the terms and conditions thereof between City of Lansing, a Michigan municipal corporation and Phoenix Development Partners, LLC, a Michigan limited liability company, pursuant to Warranty Deed dated September 30, 2008, recorded 2008 in Liber . Page . Ingham County Records. 16. Easement Grant for Chilled Water Lines and Steam Service Lines Facility Distribution by and between Phoenix Development Partners, LLC, Grantor, and City of Lansing by its Board of Water & Light, Grantee, dated September 30, 2008, recorded 2008, in Liber . Page Ingham County Records. • 17. Easement Grant for Watermain Facility Distribution by and between Phoenix Development Partners, LLC, Grantor, and City of Lansing by its Board of Water & Light, Grantee, dated September 30, 2008, recorded . 2008, in Liber Page , Ingham County Records. 18. General All Utilities Easement Grant for all Board of Water and Light Facility Distribution by and between Phoenix Development Partners, LLC, Grantor, and City of Lansing by its Board of Water & Light, Grantee, dated September 30, 2008, recorded 2008, in Liber . Page Ingham County Records. 19. Easement Agreement - Shiawassee Street Storm Sewer (19) and the terms and conditions thereof between Phoenix Development Partners, LLC, a Michigan limited liability company and City of Lansing, a Michigan municipal corporation, dated 2008, recorded 2008 in Liber . Page . Ingham County Records. 20. Easement Agreement - Retaining Wall Maintenance (20) and the terms and conditions thereof between Phoenix Development Partners, LLC, a Michigan limited liability company and City of Lansing, a Michigan municipal corporation, dated . 2008, recorded . 2008 in Liber Page . Ingham County Records. 21. Easement Grant for Electric Underground Distribution by and between Phoenix Development Partners, LLC, Grantor, and City of Lansing by its Board of Water & Light, Grantee, dated September 30, 2008, recorded . 2008, in Liber . Page . Ingham County Records. 22. Vacated Ottawa Street Utility Easement Agreement (22) and the terms and conditions thereof • between Phoenix Development Partners, LLC, a Michigan limited liability company, City of Lansing, a Michigan municipal corporation and City of Lansing by its Board of Water and Light, a municipal corporation, dated . 2008, recorded . 2008 in Liber . Page Ingham County Records. ��----^^�� F� � -F First American Title Insurance Company 1:3 F;ZAi, F F;Zo ACTA Owner oliicy (6-17-06) Po it cy TJum�er. 751 F 23. The terms and conditions of the Lease between Phoenix Development Partners, LLC, lessor, and • Phoenix Master Tenant, LLC, lessee, as evidenced by the Memorandum of Lease, recorded 2008 in Liber , Page . Ingham County Records. • • 24. Terms and conditions of the Sublease between Phoenix Master Tenant, LLC, a Michigan limited Liability Company, and Accident Fund Insurance Company of America, a Michigan insurance company, as evidenced by a Memorandum of Sublease dated . 2008, recorded . 2008, in Liber . Page------, Ingham County Records. F;;),'. /%%, F= —F First American Tide Insurance Company 1--) F�Z /S%, F= —Y �FOKA oo. �2 06� A A O`�0. s Policy (6-17-06) g �� g-ePa -- Policy um r:325144 • ENDORSEMENT Attached to Policy No. Proforma Issued by First American Title Insurance Company The Company insures against loss or damage sustained by the Insured by reason of the Land being taxed as part of a larger parcel of land or failing to constitute a separate tax parcel for real estate taxes. This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of the policy, (ii) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls. Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements. American Land Title Association Endorsement 18-06 (Single Tax Parcel) Adopted 6/17/06 • • I --::) F;Z / N. F = — I — First American Title Insurance Company F—> FZ /N., F= 7— -.. 1Fo o. 402 0 A TLner's Policy (6-17-06) Poli"cy lVum ��: 75144 C] ENDORSEMENT Attached to Policy No. Proforma Issued by FirstAmerican Title Insurance Company The Company insures against loss or damage sustained by the Insured by reason of the failure of a brick building and brick and aluminum building, known as 312 N. Grand Ave., Lansing, MI, to be located on the Land at Date of Policy. This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of the policy, (ii) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls. Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements. American Land Title Association Endorsement 22-06 (Location) Adopted 6/17/06 • r -I L ED F;Z'/X, F= —F First American Tide Insurance Company C> FZ/\, F= 7F ForAlo.A 2020 06� A A Nner s Policy (6-17-06) Policy um r: Z5144 • ENDORSEMENT Attached to Policy No. Proforma Issued by First American Title Insurance Company The Company insures against loss or damage sustained by the Insured in the event that, at Date of Policy, a. according to applicable zoning ordinances and amendments, the Land is not classified Zone G-1 Business; b. the following use or uses are not allowed under that classification: Office, retail, restaurant and banking facilities C. There shall be no liability under paragraph 1.b. if the use or uses are not allowed as the result of any lack of compliance with any conditions, restrictions, or requirements contained in the zoning ordinances and amendments, including but not limited to the failure to secure necessary consents or authorizations as a prerequisite to the use or uses. This paragraph 1.c. does not modify or limit the coverage provided in Covered Risk 5. 2. The Company further insures against loss or damage sustained by the Insured by reason of a final decree of a court of competent jurisdiction a. prohibiting the use of the Land, with any existing structure, as insured in paragraph 1.b.; or b. requiring the removal or alteration of the structure on the basis that, at Date of Policy, the zoning ordinances and amendments have been violated with respect to any of the following matters: i. Area, width, or depth of the Land as a building site for the structure ii. Floor space area of the structure iii. Setback of the structure from the property lines of the Land iv. Height of the structure, or V. Number of parking spaces. 3. There shall be no liability under this endorsement based on a. the invalidity of the zoning ordinances and amendments until after a final decree of a court of competent jurisdiction adjudicating the invalidity, the effect of which is to prohibit the use or uses; b. the refusal of any person to purchase, lease or lend money on the Title covered by this policy. This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of the policy, (ii) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls. Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements. American Land Title Association Endorsement 3.1-06 (Zoning -Completed Structure) Adopted 6/17/06 0 ED FR ®-____ —T First American Title Insurance Company ED F:;ZA 3 00 to 06`� A A Owner s Policy (6-17-06) wy Policy um r•. 25144 • ENDORSEMENT Attached to Policy No. Proforma Issued by FirstAmerican Title Insurance Company The Company insures against loss or damage sustained by the Insured by reason of: The existence, at Date of Policy, of any of the following unless expressly excepted in Schedule B: a. Present violations on the Land of any enforceable covenants, conditions, or restrictions, or any existing improvements on the Land that violate any building setback lines shown on a plat of subdivision recorded or filed in the Public Records. b. Any instrument referred to in Schedule B as containing covenants, conditions, or restrictions on the Land that, in addition, (i) establishes an easement on the Land, (ii) provides for an option to purchase, a right of first refusal, or the prior approval of a future purchaser or occupant, or (iii) provides a right of reentry, possibility of reverter, or right of forfeiture because of violations on the Land of any enforceable covenants, conditions, or restrictions. C. Any encroachment of existing improvements located on the Land onto adjoining land, or any encroachment onto the Land of existing improvements located on adjoining land. d. Any encroachment of existing improvements located on the Land onto that portion of the Land subject to any easement excepted in Schedule B. e. Any notices of violation of covenants, conditions, or restrictions relating to environmental protection recorded or filed in the Public Records. 2. Damage to existing buildings: a. That are located on or encroach upon that portion of the Land subject to any easement excepted in Schedule B, which damage results from the exercise of the right to maintain the easement for the purpose for which it was granted or reserved; b. Resulting from the future exercise of any right existing at Date of Policy to use the surface of the Land for the extraction or development of minerals excepted from the description of the Land or excepted in Schedule B. 3. Any final court order or judgment requiring the removal from any land adjoining the Land of any encroachment, other than fences, landscaping, or driveways, excepted in Schedule B. 4. Any final court order or judgment denying the right to maintain any existing building on the Land because of any violation of covenants, conditions, or restrictions, or building setback lines shown on a plat of subdivision recorded or filed in the Public Records. Wherever in this endorsement the words "covenants, conditions, or restrictions" appear, they shall not be deemed to refer to or include the terms, covenants, conditions, or limitations contained in an instrument creating a lease. As used in paragraphs 1.a. and 4, the words "covenants, conditions, or restrictions" do not include any covenants, conditions, or restrictions (a) relating to obligations of any type to perform maintenance, repair, or remediation on the Land, or (b) pertaining to environmental protection of any kind or nature, including hazardous or toxic matters, conditions, or substances, except to the extent that a notice of a violation or alleged violation affecting the Land has been recorded or filed in the Public Records at Date of Policy and is not excepted in Schedule B. • First American Title Insurance Company 1--> FZZ/N.' F= 7F F;Zo . o. 40 ,06� a icy agg ACTA Owners Policy (6-17-06) Policy um . r: 25144 • This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of the policy, (ii) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls. Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements. American Land Title Association Endorsement 9.2-06 (Restrictions, Encroachments, Minerals - Owner's Policy - Improved Land) Adopted 6/17/06 r � L • C) Fz ^ 1= —F First American Title Insurance Company [::> Fz /S..' F= —F ED F;Z�Oo. W4'2 06i�6Awners Polcy (-17-06) Po i'I cy TVur. m75144� • • ENDORSEMENT Attached to Policy No. Proforma Issued By First American Title Insurance Company The Company insures against loss or damage sustained by the Insured by reason of the failure of the Land to abut a physically open street known as North Grand Ave. This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of the policy, (ii) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls. Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements. CLTA Form 103.7-06 (03-09- 07) ALTA - Owner or Lender p First American Title Insurance Company 1:> F C) �Fo�m.No. 0'; "06� A TA Owners Policy (6-17-06) a9� T6` Policy um r: 25144 0 • C� ENDORSEMENT Attached to Policy No. Proforma Issued by First American Title Insurance Company The Company insures against loss or damage sustained by reason of the failure of the Land to be the same as that delineated on the survey made by Darin L. Theien of C2ae, dated August 25, 2008, last revised September 25, 2008, Proj No. 07-511.17. This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of the policy, (ii) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls. Otherwise, this endorsement is subject to all of the terms and provisions of the policy and of any prior endorsements. CLTA Form 116.1-06 (03-09-07) ALTA - Owner >f > F:Z ^ F= —F First American Title Insurance Company FZZ A F ■ 0 • 0 C] 20 3 r� B: 3321 P: 1220 10/09/2008 09:41 AM Pages: 17 2008-039457 MISCELLANEOUS Receipt #47309 Paula Johnson, Ingham County, Michigan o�IIIIIIIIIIIIIIIIIIIIIII{IIIIIIIIIIIIIIIIIIIIIIIIIIIIilllllllllllllllllllllllllll '�:•���' tj o?..:,. rSpm Above This Lim is for R=xding Information] EASEMENT AGREEMENT - RIVERWALK .) W~ This EASEMENT AGREEMENT-RIVERWALK ("Easement Agreement") is executed this 3e day of September, 2008, between PHOENIX DEVELOPMENT PARTNERS, LLC, a Michigan limited liability company, with a principal business address of 208 N. Capitol Ave., Lansing, Michigan 48933 (the "Grantor") and the CITY OF LANSING, a Michigan municipal corporation, with a principal business address of 124 W. Michigan Ave., Lansing, M6higan 48933-1694 ("Grantee"). RECITALS: Grantor owns a parcel of real property located in the City of Lansing, Ingham County, Michigan, legally described on the Exhibit A ("Parcel A"); and �x rT —r 2 D !ram <-nO Fri O C 17rn� v N Grantee owns a parcel of real property located in the City of Lansing, Ingham County, a Michigan, legally described on the Exhibit B ("Parcel B"); and � °,.,. oC-J 4 cs a Parcel A is located adjacent to Parcel B and along the path of a pedestrian walkway to be t n rr'�;O= constructed by Grantee, the Riverwalk Crosswalk ("Riverwalle ), which Riverwalk is to be "' located on Parcel B and on and over portions of Parcel A; Grantor is willing to extend to Grantee an easement to Grantee to enter upon Parcel A, go .s= over, under and across portions of Parcel A (i) for ingress and egress and (ii) to construct, maintain, repair and replace the Riverwalk serving Parcel B as set forth below. THIS EASEMENT AGREEMENT IS BEING EXECUTED IN FURTHERANCE OF , trr THE PROPERTY PURCHASE AND DEVELOPMENT AGREEMENT DATED JANUARY r 30, 2008 ("DEVELOPMENT AGREEMENT") AND THE PARTIES AGREE AS `� o FOLLOWS: c I. RIVERWALK EASEMENT 1. Grant. Grantor grants and conveys to Grantee an easement for ingress, egress, construction, maintenance, repair, replacement and improvement of the Riverwalk (the V-�F l �-�- ("Riverwalk Easement") on, over, across, through and under the portion of Parcel A depicted on Exhibit C reasonably necessary in order for Grantee to exercise its rights under this Agreement ("Easement Area"), together with a reasonable staging area to be used by Grantee during the initial construction of the Riverwalk. The easement granted by this Easement Agreement shall be perpetual and the terms of this Easement Agreement shall constitute covenants running with the land. (a) In order to maintain the aesthetic integrity of the project contemplated by the Development Agreement, prior to commencing any construction of the Riverwalk, Grantee shall provide Grantor with the plans and specifications for the construction of the Riverwalk. Grantee shall not commence construction of the Riverwalk until Grantor approves the plans and specifications for the Riverwalk in writing, which approval shall not be unreasonably withheld, conditioned or delayed. Grantor shall complete its review of the plans and specifications within sixty (60) days after receipt of the plans and specifications from Grantee. The final plans and specifications shall be referred to as the 'Plans". (b) Grantor shall not erect any buildings or other structures within the Easement Area or in any way interfere with Grantee's use of the Easement Area or Access Easement Area (as defined below) and Grantee's construction of the Riverwalk shall not interfere with Grantor's construction of any of the improvements to be made to Parcel A as set forth in the Development Agreement. Grantee acknowledges that the existing improvements on Parcel A shall not be subject to the provisions of the preceding •) sentence. (c) Grantor and Grantee shall make a good faith effort to coordinate all the construction of the improvements to be made on Parcel A with the construction of the Riverwalk. Grantor will provide Grantee with the construction schedule for its improvements on Parcel A in order to facilitate the coordinated construction of the Riverwalk and Grantor's improvements on Parcel A. (d) The Riverwalk Easement shall also include an easement of support and Grantor shall not allow any activity on Parcel A which will undermine or compromise the support of the Riverwalk and/or equipment located within the Easement Area. Grantee shall be responsible to construct appropriate foundations for the initial construction of the Riverwalk and equipment located in the Easement Area. Further, the Riverwalk Easement shall include the right to maintain, repair, replace and improve such foundations. Grantee shall be solely responsible for all costs and expenses to maintain, repair, replace and improve all such foundations. . (e) Access to the Easement Area shall be determined as follows: (i) during the construction of the Riverwalk, the parties shall reasonably confer and agree on the staging and access areas for purposes of constructing the Riverwalk; (ii) after the Riverwalk is constructed and access is needed for ongoing maintenance of the Riverwalk, access to the Riverwalk shall be as generally depicted on Exhibit C; and (iii) if other access is needed to perform non standard repair or replacement and access provided under (ii) is 2 insufficient to perform such repair or replacement, the parties shall reasonably confer and agree in good faith on the staging and access areas for purposes of such non standard repair or replacement. ("Access Easement Areas"). (f) Grantee shall perform or cause to be performed at its cost all construction, maintenance and repair of the Riverwalk located in the Easement Area ("Construction, Maintenance and Repair Obligations"). (i) The Construction, Maintenance and Repair Obligations include that Grantee, at its expense, shall: (A) construct, maintain, repair, replace and operate the Riverwalk in the Easement Area in a good and functional condition sufficient for intended purposes; (B) maintain any markings for the Riverwalk in good and consistent condition; (C) adequately illuminate the Riverwalk; and (D) keep the Easement Area reasonably free of trash, debris, snow and ice as required under applicable law: (ii) All work performed on the Riverwalk or at the Easement Area shall be in accordance with the following requirements: (A) Grantee may perform work on or at the Easement Area only through licensed contractors and subcontractors; (B) Grantee shall in all cases promptly pay all costs and expenses associated with work performed on or at the Easement Area; (C) Grantee shall be solely responsible for and have control over the means, methods, techniques, sequences and procedures and for coordinating all portions of such work in the Easement Area; (D) Grantee shall obtain all required governmental permits and authorizations for such work; and (E) Grantee shall cause all work to be completed in a good and workmanlike manner, free from defective materials and in compliance with all building, zoning and other laws, ordinances and governmental regulations and requirements. The construction of the Riverwalk shall be substantially completed no later than April 1, 2011. Construction shall be deemed completed when all required governmental approvals are issued authorizing the Riverwalk to be used for its intended purposes. (iii) All improvements, fixtures, equipment and furnishings must be approved by Grantor in advance of the time that such items are installed. In the event Grantor does not approve of any such item, it shall not be installed or placed in the Easement Area. All movable trade fixtures, equipment and all other similar items owned by Grantee and installed or placed in the Easement Area shall remain the property of Grantee and Grantee shall have the right to remove said property at any time during the term of this Easement Agreement provided that Grantee promptly repairs all damage to Parcel A caused by such removal and restores Parcel A to substantially the same condition it was in prior to such removal. (iv) Grantee shall comply with all applicable laws to keep Parcel A, the Easement Area and the Access Easement Areas free from any construction liens for any labor or material furnished to Grantee in connection with the Riverwalk or Easement Area. 3 (v) In exercising its rights under this Easement Agreement, Grantee shall use its best efforts to minimize any interference with the construction of Grantor's improvements to Parcel A and with any of Grantor's operations on Parcel A, including but not limited to the operations of Grantor's tenants. Upon completion by Grantee of any work within the Easement. Area or Access Easement Areas, Grantee shall restore the affected portions of such areas to a condition substantially similar to the condition existing prior to such work, taking into consideration the construction and existence of the Riverwalk. Existing drainage mechanisms traversing the Easement Area must remain intact. No ponding of water is permitted as a result of work completed by Grantee in the Easement Area. (vi) Once commenced, any maintenance, repair and replacement undertaken under this Easement Agreement shall be diligently completed so as to nLinimi�e any interference with the business of Grantor on Parcel A and its tenants, agents, contractors, subcontractors, employees and invitees. (vii) Grantee may remove the Riverwalk at any time. In the event Grantee removes the Riverwalk: (A) Grantee shall remove all property that was part of the Riverwalk and repair any damage to any portion of Parcel A, including without limitation any improvements located on Parcel A, caused by such removal; (B) Grantee shall restore Parcel A in such a manner that is consistent with the then condition of Parcel A immediately, adjacent to the Easement Area, at 40) the time the Riverwalk is removed; and (C) subject to Grantee's obligations in the preceding subsection (A) and any other obligations of Grantee intended to survive termination of this agreement, this Easement Agreement shall terminate automatically and immediately. (g) -Grantor shall maintain, in good condition, the existing building located on Parcel A providing support to the Riverwalk. Grantor shall not install any building or other structure which may encroach on to the Easement Area and the Access Easement Areas. (h) In the event Grantee needs access inside the building in order to maintain, repair or replace the portion of the Riverwalk that is connected or attached to the building located on Parcel A, upon reasonable notice to Grantor by Grantee and upon terms and conditions reasonably acceptable to both parties, Grantor shall allow Grantee access inside the building. Grantee shall use its best efforts to minimize any interference with any of Grantor's operations on Parcel A, including but not limited to the operations of Grantor's tenants. Upon completion by Grantee of any work within the building located on Parcel A, Grantee shall restore the affected areas to a condition substantially similar to the condition existing prior to the commencement of such work. (i) Grantee is responsible for obtaining all governmental and other permits and approvals necessary to construct the Riverwalk on Parcel A. Grantor shall cooperate fully and promptly with Grantee in obtaining such permits. Further, Grantee shall be - 4 responsible to design and construct the Riverwalk on the Easement Area in such a manner as to safely exist on and adjacent to the improvements on or to made to Parcel A. 2. Use. Grantee shall use the Easement Area for the sole purpose of constructing, maintaining, operating, repairing, replacing and improving the Riverwalk. (a) Grantor has granted to Grantee the rights conveyed in this Easement Agreement because Grantee is a public body and the Riverwalk shall serve and benefit the public. (b) If the Riverwalk is damaged, destroyed or rendered unusable, Grantee shall begin to reconstruct or repair the Riverwalk as soon as is practicably possible, but not later than ninety (90) days after the Riverwalk is damaged, destroyed or rendered unusable; which ninety (90) day period shall be extended due to seasonal or inclement weather conditions. If reconstruction or repair of the Riverwalk is not commenced within such ninety (90) day time period (as it may be extended as set forth above), this Easement Agreement shall terminate and Grantor shall have the right to remove the applicable portions of the Riverwalk and return the Easement Area to sightly condition. (c) Grantee's easements and rights herein granted shall be used and enjoyed by Grantee and its agents, employees, general public, contractors, subcontractors or invitees in such a manner so as not to unreasonably interfere with, obstruct or delay the conduct and operations of the business of Grantor or its tenants, agents, licensees and • employees, at any time conducted, including, without limitation, public access to and from any portion of Parcel A and the receipt or delivery of products, materials and merchandise in connection therewith. (d) Grantee shall not engage in or permit its agents, employees, contractors or subcontractors to engage in any use or activity with respect to the Easement Area or Parcel A which would cause Grantor to lose the required Public Support as that phrase is defined in Paragraph 1.7(F) of the Development Agreement ("Guidelines"). (e) Grantee shall provide its own security for the Easement Area including, but not limited to, the locking of the Easement Area when determined by Grantee. Grantor shall not be responsible for any losses which Grantee or its invitees may suffer including, but not limited to, thefts, robberies or other crimes on or about the Easement Area. 3. Heiaht Limit. Grantee shall not construct or maintain any portion of the Riverwalk in the Easement Area nor shall any equipment which shall be permanently located in the Easement Area, extend above the area as depicted on the Plans. 4. Load Limit. At no time shall Grantee place a load upon any portion of Parcel A, including improvements located on Parcel A, exceeding the load per square foot it was designed to carry and is permitted by applicable law. Grantee shall not allow any activity on the Easement Area and shall not construct any portion of the Riverwalk or its foundation in a manner which 5 will undermine or compromise the support of the improvements made or to be made to Parcel A. 5. Existing Encumbrances. Grantee's rights under this Easement Agreement shall be subject to encumbrances, conditions, covenants, easements, restrictions and rights -of -way, as set forth in the deed from Grantee to Grantor for the "City Property", as set forth in the Development Agreement. 6. Acceptance of Easement Area. Grantee accepts the Easement Area in its "as is" condition, with all faults, as of the date of this Easement Agreement. Grantee acknowledges that Grantor has made absolutely no warranties or representations regarding the condition of the Easement Area or its suitability for Grantee's intended use. 7. Compliance with Laws. Grantee shall, at its expense, comply with all governmental statutes, laws, rules, orders, regulations and ordinances regarding the Riverwalk, affecting the Easement Area or Grantee's use thereof. 8. Relocation. The parties acknowledge that upon ninety. (90) days advance written notice to Grantee, Grantor may relocate the Easement Area to a new location on Parcel A acceptable to Grantee (whose approval shall not be unreasonably withheld, delayed or conditioned) so long as: (A) Grantor is responsible for and pays all costs and expenses associated with relocating the Riverwalk and equipment located within the Easement Area to the new location; (B) Grantor obtains all required governmental permits and authorizations required for the relocation of the Riverwalk and equipment located in the Easement Area; (C) Grantor •performs all work to relocate the Riverwalk and equipment located in the Easement Area ! (including all disconnection and hook-up) in a good and workmanlike manner and in compliance with all applicable laws; (D) the new location of the Easement Area will not increase the operating cost or effectiveness (in serving the improvements located on Parcel B) of the Riverwalk and/or equipment located in the Easement Area; (E) the relocation of the Riverwalk and the equipment located in the Easement Area does not in any way interrupt any service to the improvements located on Parcel B; (F) the parties execute and record a new easement agreement (or an amendment to this Easement Agreement) in a form reasonably acceptable to Grantee under which Grantor grants to Grantee an easement (on terms substantially similar to the terms herein) with respect to the new easement area location; and (G) Grantor obtains the written consent of each party holding a lien with respect to Parcel A to any new easement agreement. II. GENERAL 1. Intesration, Exhibits, Consent to Waiver, Amendment. This Easement Agreement and all agreements arising out of the Development Agreement should be read in conjunction and harmonious with each other. All Exhibits referred to and attached to this Easement Agreement are part of this Easement Agreement. The provisions of this Easement Agreement may be amended, but only with the written consent of Grantor and Grantee, which consent shall not be unreasonably withheld, conditioned or delayed. No other persons, tenants, mortgagees or occupants of Parcel A, shall have any rights whatsoever to join in, prevent or _ otherwise affect or limit any such modification, amendment or termination. Gi 2. Authority. Grantor warrants that the individual executing this Easement Agreement on its behalf has the authority to do so. Grantee represents and warrants to Grantor St that: (A) Grantee has the right to enter into this Easement Agreement; and (B) all necessary actions have been taken by Grantee in the execution of this Easement Agreement to make this Easement Agreement a binding obligation of Grantee. 3. Assignment. Except for an assignment to another governmental entity associated with Grantee, this Easement Agreement shall not be assigned, transferred, relinquished or conveyed by Grantee without the prior written consent of Grantor, which consent may be withheld in the sole and absolute discretion of Grantor. In the case of any permitted assignment, Grantee, as well as the assignee, shall be liable for the full performance of all terms and conditions of this Easement Agreement.. Grantor's consent to any assignment of this Easement Agreement or transfer of any interest in the Easement Area shall not be deemed a consent to any further assignment of this Easement Agreement or transfer of any interest in the Easement Area. 4. No Encumbrances/Liens. Except as specifically provided herein, nothing in this Easement Agreement shall authorize Grantee to and Grantee shall not, do any act which will in any way encumber the title of Grantor in and to the Parcel A, nor shall the interest of Grantor in the Parcel A be in any way subject to any claim whatsoever by virtue of any act or omission of Grantee. Any claim to a lien upon Parcel A arising from any act or omission of Grantee shall be valid only against Grantee's interest in Parcel A. 5. Coordination. To the extent that its use of the easements described in this •Easement Agreement will materially impact operations on Parcel A, Grantee shall coordinate ' such use with Grantor to attempt to reasonably minimize such impact. Grantor and Grantee shall reasonably cooperate to address any operational and/or security issues associated with the easements created under this Easement Agreement. 6. Lateral/Subiacent Support. Any damage to Parcel A, its foundational, lateral or subjacent support or any improvement located on. Parcel A caused by Grantee or such party's agents, employees, contractors, subcontractors or invitees shall promptly be repaired by Grantee at Grantee's sole expense. If Grantee fails to commence repair of such damage within twenty (20) days after receipt of written notice of such damages from Grantor (subject to extension as a result of seasonal or inclement weather) and does not in good faith diligently pursue the repair of such damage, Grantor may do so and seek reimbursement from Grantee in a court of law for expenses Grantor establishes were reasonably incurred and necessary to fulfill Grantee's obligations or seek any other remedy in law or equity. 7. Liability Allocation. Grantee shall be responsible for any and all liabilities, claims or damages in connection with the loss of life, personal injury or damage to property arising out of any occurrence, loss, or injury suffered by any person or any damage to property, caused by the negligent or intentional acts or omissions of Grantee or Grantee's agents, employees, contractors or subcontractors on Parcel A. If within twenty (20) days of Grantor's notice of claims to Grantee, Grantee fails to assume responsibility under terms reasonably acceptable to Grantor in Grantor's sole discretion, then Grantor may undertake such defense and • the reasonable costs of doing so shall be the sole responsibility of Grantee. Said cost shall be 7 payable by Grantee within twenty (20) days of Grantor's notification of Grantor's damages and reasonable cost of defense. Grantee shall have no responsibility for claims, losses or expenses caused by the negligent or intentional acts or omissions of Grantor or Grantor's agents, employees, contractors or subcontractors on Parcel A. 8. Utility Relocation. To the extent that the exercise of Grantee's rights hereunder requires the relocation of any utility facilities located on Parcel A as of the date of Grantee's construction of the Riverwalk, Grantee shall pay the reasonable cost of such relocation. 9. Default. In the event a party shall default in its obligations hereunder and the cure for such default is not commenced in good faith and diligently pursued within twenty (20) days after written notice from the nondefaulting party to the defaulting party, the nondefaulting parry may: (A) enforce any remedies or rights of termination provided for under this Easement Agreement; (B) seek specific performance of the defaulting party's obligations; (C) perform the obligation of the defaulting party and seek reimbursement from the defaulting party in a court of law for expenses the nondefaulting party establishes were reasonably incurred and necessary to fulfill the defaulting party's obligations; or (D) seek any other remedy in law or equity. Any amount due from the defaulting party to the nondefaulting party shall bear interest at the lesser of. (i) twelve percent (12%) per annum; or (ii) the maximum rate permitted by applicable law, compounded annually. The remedies provided for under this Section are not exclusive, are in addition to and not in lieu of any other rights or remedies available at law or in equity. 10. Insurance. • ' (a) Grantee may self insure or obtain insurance coverage in such amounts as Grantee deems appropriate at its expense to protect Grantee from claims for damages due to bodily injury, loss or damage to property for which Grantee is responsible under this Easement Agreement, with such coverage in an amount determined by Grantee. Grantee shall deliver. evidence of such self insurance coverage, if any or a certificate of insurance evidencing all coverage specified in this paragraph, to Grantor upon request. The coverages to benefit Grantor shall not be canceled, cancelable or modified until at least thirty (30) days' prior written notice of intention to cancel or modify has been delivered by the insurer to Grantor. The amount of insurance coverage required hereunder shall be increased from time to time to be consistent with the amounts of such coverages reasonably maintained for similar risks. (b) Grantee shall bring or keep property upon the Easement Area solely at its own risk and Grantor shall not be liable for any damages thereto or any theft thereof. Grantee may maintain a policy of insurance with a responsible insurance company against risk of loss from any cause whatsoever to all such property and to all of Grantee's alterations, improvements or additions to the Easement Area, to the full extent of their replacement cost, which policy of insurance shall contain a clause or endorsement under which the insurer waives or permits the waiver by Grantee of all right of subrogation against Grantor and its agents, employees, customers, invitees, guests or licensees, with • respect to losses payable under such policy. To the fullest extent allowed by applicable law, Grantee waives all right of recovery which it might otherwise have against Grantor 8 and its agents, employees, customers, invitees, guests or licensees for any damage to Grantee's property, notwithstanding that such damage may result from the negligence or fault of Grantor or its agents, employees, customers, invitees, guests or licensees. 11. Captions. The captions in the paragraph headings set forth in this Easement Agreement are for convenience only and do not define, describe, extend or limit the scope or intent of this Easement Agreement or any of its provisions. 12. Severability. The provisions of this Easement Agreement are severable. Should any section, subsection or provision of this Easement Agreement be declared to be invalid or unenforceable by a court of competent jurisdiction, it shall not affect the validity or enforceability of the Easement Agreement as a whole or any part thereof, other than the part so declared invalid/unenforceable. The parties shall renegotiate, if possible, the invalid/unenforceable section, subsection or provision in a manner consistent with the original intent. 13. No Partnership. Nothing in this Easement Agreement shall be deemed or construed by Grantor, Grantee or by any third person to create the relationship of principal and agent, a partnership, joint venture or any other association between any of the parties. 14. Governing Laws. This Easement Agreement shall be construed in accordance with the laws of the State of Michigan. Nothing in this Easement Agreement shall be construed to relieve a party from obtaining any necessary governmental permits, approvals or authorizations otherwise required by law. • 15. Construction of Easement Agreement. The rule of strict construction shall not apply to the easements and agreements granted in this Easement Agreement or to the covenants set forth herein. This Easement Agreement shall be given a reasonable construction so that the intention of the Grantor to confer reasonably usable benefits and reasonably enforceable obligations are carried out. 16. Waiver of Default. No waiver of any default by any party to this Easement Agreement shall be implied from any omission by any other party to take any action in respect of such default if such default continues or is repeated. No express waiver of any default shall affect any default or cover any period of time other than the default and period of time specified in such express waiver. One or more waivers of any default in the performance of any term, provision or covenant contained in this Easement Agreement shall not be deemed to be a waiver of any subsequent default in the performance of the same term, provision or covenant or any other term, provision or covenant contained in this Easement Agreement. The consent or approval by any party to or of any act or request by any other party requiring consent or approval shall not be deemed to waive or render unnecessary the consent to or approval of any subsequent similar acts or requests. The rights and remedies given to any party to this Easement Agreement shall be deemed to be cumulative and no one of such rights and remedies shall be exclusive of any of the others or of any other right or remedy at law or in equity which any such party might otherwise have by virtue of a default under this Easement Agreement and the exercise of one such right or remedy by any such party shall not impair such parry's standing to exercise any other right or remedy. 17. Exemption from Transfer Tax. This instrument is exempt from state and county transfer tax as the consideration is less than One Hundred ($100.00) Dollars. MCLA 207.505(a); MCLA 207.526(a). 18. Force Maieure. The time within which a party shall be required to perform any act or acts under this Easement Agreement shall be extended to the extent that the performance of such act or acts shall be delayed by acts of God, fire, windstorm, flood, explosion, collapse of structures, riot, war, labor disputes, delays or restrictions by governmental bodies, inability to obtain or use necessary materials or any cause beyond the reasonable control of such party; provided, however, that the parry entitled to such extension shall give prompt notice to the other party of the occurrence causing such delay. The provisions of this Section (Force Majeure) shall not operate to excuse Grantee from prompt payment of any fees or any other payments required by the terms of this Easement Agreement. 19. No Offer. The submission of this Easement Agreement for examination does not constitute an offer to enter into an Easement Agreement and this Easement Agreement shall become effective only upon execution and delivery by Grantor and Grantee. 20. Notices. All notices, demands, and requests given or required to be given pursuant to this Easement Agreement shall be in writing. All such notices, demands and requests shall be deemed to be delivered when: (a) on the third day after deposited in any United States postal box if postage is prepaid and the notice properly addressed to the intended recipient; (b) delivered by facsimile transmission with proof of receipt of delivery; (c) delivered by email • transmission with proof of receipt; (d) personally delivered; or (e) sent by nationally recognized overnight courier service (e.g. Federal Express or UPS) in which case such notice shall be deemed given the day after the date sent with all fees paid. 21. Successors and Third Parties. This Easement Agreement shall be binding upon and inure to the benefit of each party and their respective successors and permitted assigns. Except for Grantor's parent, subsidiary and affiliated entities and their respective officers, directors, shareholders, partners, agents, and employees and the Accident Fund Insurance Company of America, while it is an occupant of Parcel A, Grantor and Grantee acknowledge and warrant and represent to each other that there are no third party beneficiaries to this Easement Agreement. 22. Obligations Survive. All obligations arising prior to the termination of this Easement Agreement and all provisions of this Easement Agreement allocating responsibility or liability between the parties shall survive the termination of this Easement Agreement. 23. Legal Expense. In any action arising out of the enforcement of this Easement Agreement, the nonprevailing party shall pay to the prevailing party all expenses reasonably incurred by the prevailing party in the action, including reasonable attorney fees. 24. Consent. Unless otherwise indicated in this Easement Agreement, where the consent of a party is required, such consent shall not be unreasonably withheld, conditioned or delayed. 10 25. Declaration of Restrictive Covenants. This Easement Agreement shall be subject to the provisions of the to be recorded Declaration of Restrictive Covenants, a specimen of which is attached as an exhibit to the Warranty Deed of even date from Grantee to Grantor. [THIS SPACE INTENTIONALLY LEFT BLANK] 11 The undersigned executed this Easement Agreement as of this 30 day of 1 Septfmbcr , 2008. Approved as to form: CITY OF LANSING By: Virg Bern", Mayor By: OJk� Chris Swope, Clerk PHOENIX DEVELOPMENT PARTNERS, LLC, a Michigan limited liability company, CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, Manager By: �'Z It . Mana STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Acknowledged before mein Ingham County, Michigan thith day of , 2008, by Virg Bernero, Mayor of the City of Lansing, a Michigan municipal corporation. Eileen M. McCman Notary Public Washtenaw County, Michigan Acting in County My Corn issi n Expires 01/12/2014 10 11 W- -9�- I WWI ff W, W Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: 12 • STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Acknowledged before me in Ingham County, Michigan this th day of 2008, by Chris Swope, Clerk of the City of Lansing, a Michigan municipal corporation. Eileen M. Melman Notary Public Washtenaw County, Michigan Acting in County My Commissi n Expires 01/12/2014 STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: Acknowledged before me in Ingham County, Michigan thi�th day o� l i!, 2008, by James M. Cash, Manager of Christman Capital Investment Group, LLC, Manager of Phoenix Development Partners, LLC, a Michigan limited liability company, on behalf of the company. Notary Public, County, MI Acting in Ingham County, Michig� i My Commission Expires: pV RECORDING FEE: $ EXHIBITS: Exhibit A: - Description of Parcel A Exhibit B: - Description of Parcel B Exhibit C: - Depiction of Riverwalk DRAFTED BY AND WHEN RECORDED RETURN TO: Gregory J. Guggemos Guggemos Brown & Gilkey, PC 4050 Hunsaker Drive, Suite 120 East Lansing, Michigan 48823 Telephone: (517) 336-0127 13 EASEMENT AGREEMENT — RIVERWALK •� ' EX�IIBIT A (Legal Description of Grantor Property - Parcel A) • Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89059'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest comer of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00'01'45"W 7.02 feet to the point of beginning of the following described parcel; thence N00'01'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50005' 10"E 157.52 feet; thence N00°29'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89°5810011W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89058'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45°00'36"E, 56.87 feet; 2) S07000'06"E, 173.32 feet; 3) S17°21'34"E, 75.69 feet; 4) S01'08'14"E, 327.42 feet; 5) SI7°17'09"W, 167.17 feet; 6) S18004' 11"W, 24.53 feet to a building line; thence along said building line the following five (5) courses; 1) S74014'59"E, 16.75 feet; 2) S15051'22"W, 63.24 feet; 3) N89°47' 17"W, 11.09 feet; 4) S00012'43"W, 14.88 feet; 5) N89053'37"W, 30.79 feet; thence S23001'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N8903l' 14"W, 178.68 feet along said curb line to the point of beginning. 14 EASEMENT AGREEMENT — RIVERWALK EXHIBIT B (Legal Description of Parcel B) Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16, N89°59'00"E 527.87 feet; thence N00'01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing N00'01'45"W, 7.02 feet; thence along the East line of North Grand Avenue N00001'45"W 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence continuing along said East street line due North 437.19 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 221.35 feet to the point of beginning of the following described parcel; thence continuing S89°58'00"E, 35.38 feet along said South line to the West line of a retaining wall; thence along the West line of said wall the following six (6) courses: 1) S45°00'36"E, 40.44 feet; 2) S0700010611E, 179.66 feet; 3) S1702.1'34"E, 76.99 feet; 4) SO1008'14"E, 335.04 feet; 5) S17°17'09"W,171.40 feet; 6) S18004'11"W, 100.23 feet to the Northerly line of vacated Ottawa Street; thence N90°00'00"W, 12.64 feet to a building line; thence along said building line the following four (4) courses 1) N00°12'43"E, 14.22 feet; thence S89047' 17"E, 11.09 feet; thence N15*51'22"E, 63.24 feet; thence N74°14'59"W, 16.75 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) N18004'11"E, 24.53 feet; 2) N17°17'09"E, 167.17 feet; 3) NO1008'14"W, 327.42 feet; 4) N17°21'34"W, 75.69 feet; 5) N07000'06"W, 173.32 feet; 6) N45°00'36"W, 56.87 feet to the point of beginning. Also Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16, N89059'00"E 527.87 feet; thence N00001'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing N00101'45"W, 7.02 feet to the Southerly curb line of Ottawa Street; thence S89031' 14"E, 178.68 feet to the point of beginning of the following described parcel; thence N23*01'48"E, 82.99 feet to a building line; thence S89°53'37"E, 27.16 feet along said wall line; thence S23*01'48"W, 83.19 feet to the said Southerly curb line of Ottawa Street; thence N89°31' 14"W, 27.09 feet to the point of beginning. 15 • EASEMENT AGREEMENT — RIVERWALK `! EXHIBIT C (Depiction of Easement Area) SAClientAChristman CompanyTonstructive Receipt\Phoenix Development Partners LLOEasement re BWL Property\City EasementsTasement Agreement.Riverwalk.Final.9.30.08.DOC 16 J� EMERGENCY SIGNAL t • EXISTING LAIN ' _ LAAH \ NEW SIDEWALK 1 ~ 350, ' �. I — IXXil11S R4 0DA f g in GROUND_ i EL ±823.0' ` RAMP. EL. BXY ' c ' G U a EL " 822s0''. ` ? :. AW — 4DEft414mix e AT Y.OL.•N.F.LA4TWx - - - - - _ t_820:01 • f r • SV/ F'� h • Above This Line is for Recording EASEMENT AGREEMENT — RIVERWALK This EASEMENT AGREEMENT-RIVERWALK ("Easement Agreement") is executed this 30a' day of September, 2008, between PHOENIX DEVELOPMENT PARTNERS, LLC, a Michigan limited liability company, with a principal business address of 208 N. Capitol Ave., Lansing, Michigan 48933 (the "Grantor") and the CITY OF LANSING, a Michigan municipal corporation, with a principal business address of 124 W. Michigan Ave., Lansing, Michigan 48933-1694 ("Grantee"). RECITALS: • Grantor owns a parcel of real property located in the City of Lansing, Ingham County, Michigan, legally described on the Exhibit A ("Parcel A"); and Grantee owns a parcel of real property located in the City of Lansing, Ingham County, Michigan, legally described on the Exhibit B ("Parcel B"); and Parcel A is located adjacent to Parcel B and along the path of a pedestrian walkway to be constructed by Grantee, the Riverwalk Crosswalk ("RiverwalW% which Riverwalk is to be located on Parcel B and on and over portions of Parcel A; Grantor is willing to extend to Grantee an easement to Grantee to enter upon Parcel A, go over, under and across portions of Parcel A (i) for ingress and egress and (ii) to construct, maintain, repair and replace the Riverwalk serving Parcel B as set forth below. THIS EASEMENT AGREEMENT IS BEING EXECUTED IN FURTHERANCE OF THE PROPERTY PURCHASE AND DEVELOPMENT AGREEMENT DATED JANUARY 30, 2008 ("DEVELOPMENT AGREEMENT") AND THE PARTIES AGREE AS FOLLOWS: I. RIVERWALK EASEMENT 0 1. Grant. Grantor grants and conveys to Grantee an easement for ingress, egress, construction, maintenance, repair, replacement and improvement of the Riverwalk (the • ("Riverwalk Easement") on, over, across, through and under the portion of Parcel A depicted on Exhibit C reasonably necessary in order for Grantee to exercise its rights under this Agreement ("Easement Area"), together with a reasonable staging area to be used by Grantee during the initial construction of the Riverwalk. The easement granted by this Easement Agreement shall be perpetual and the terms of this Easement Agreement shall constitute covenants running with the land. (a) In order to maintain the aesthetic integrity of the project contemplated by the Development Agreement, prior to commencing any construction of the Riverwalk, Grantee shall provide Grantor with the plans and specifications for the construction of the Riverwalk. Grantee shall not commence construction of the Riverwalk until Grantor approves the plans and specifications for the Riverwalk in writing, which approval shall not be unreasonably withheld, conditioned or delayed. Grantor shall complete its review of the plans and specifications within sixty (60) days after receipt of the plans and specifications from Grantee. The final plans and specifications shall be referred to as the "Plans". (b) Grantor shall not erect any buildings or other structures within the Easement Area or in any way interfere with Grantee's use of the Easement Area or Access Easement Area (as defined below) and Grantee's construction of the Riverwalk shall not interfere with Grantor's construction of any of the improvements to be made to Parcel A as set forth in the Development Agreement. Grantee acknowledges that the Is sentence. improvements on Parcel A shall not be subject to the provisions of the preceding sentence. (c) Grantor and Grantee shall make a good faith effort to coordinate all the construction of the improvements to be made on Parcel A with the construction of the Riverwalk. Grantor will provide Grantee with the construction schedule for its improvements on Parcel A in order to facilitate the coordinated construction of the Riverwalk and Grantor's improvements on Parcel A. (d) The Riverwalk Easement shall also include an easement of support and Grantor shall not allow any activity on Parcel A which will undermine or compromise the support of the Riverwalk and/or equipment located within the Easement Area. Grantee shall be responsible to construct appropriate foundations for the initial construction of the Riverwalk and equipment located in the Easement Area. Further, the Riverwalk Easement shall include the right to maintain, repair, replace and improve such foundations. Grantee shall be solely responsible for all costs and expenses to maintain, repair, replace and improve all such foundations. (e) Access to the Easement Area shall be determined as follows: (i) during the construction of the Riverwalk, the parties shall reasonably confer and agree on the staging and access areas for purposes of constructing the Riverwalk; (ii) after the Riverwalk is constructed and access is needed for ongoing maintenance of the Riverwalk, access to the Riverwalk shall be as generally depicted on Exhibit C; and (iii) if other access is needed to perform non standard repair or replacement and access provided under (ii) is 2 • insufficient to perform such repair or replacement, the parties shall reasonably confer and agree in good faith on the staging and access areas for purposes of such non standard repair or replacement. ("Access Easement Areas"). (f) Grantee shall perform or cause to be performed at its cost all construction, maintenance and repair of the Riverwalk located in the Easement Area ("Construction, Maintenance and Repair Obligations"). (i) The Construction, Maintenance and Repair Obligations include that Grantee, at its expense, shall: (A) construct, maintain, repair, replace and operate the Riverwalk in the Easement Area in a good and functional condition sufficient for intended purposes; (B) maintain any markings for the Riverwalk in good and consistent condition; (C) adequately illuminate the Riverwalk; and (D) keep the Easement Area reasonably free of trash, debris, snow and ice as required under applicable law. (ii) All work performed on the Riverwalk or at the Easement Area shall be in accordance with the following requirements: (A) Grantee may perform work on or at the Easement Area only through licensed contractors and subcontractors; (B) Grantee shall in all cases promptly pay all costs and expenses associated with work performed on or at the Easement Area; (C) Grantee shall be solely responsible for and have control over the means, methods, techniques, • sequences and procedures and for coordinating all portions of such work in the Easement Area; (D) Grantee shall obtain all required governmental permits and authorizations for such work; and (E) Grantee shall cause all work to be completed in a good and workmanlike manner, free from defective materials and in compliance with all building, zoning and other laws, ordinances and governmental regulations and requirements. The construction of the Riverwalk shall be substantially completed no later than April 1, 2011. Construction shall be deemed completed when all required governmental approvals are issued authorizing the Riverwalk to be used for its intended purposes. (iii) All improvements, fixtures, equipment and furnishings must be approved by Grantor in advance of the time that such items are installed. In the event Grantor does not approve of any such item, it shall not be installed or placed in the Easement Area. All movable trade fixtures, equipment and all other similar items owned by Grantee and installed or placed in the Easement Area shall remain the property of Grantee and Grantee shall have the right to remove said property at any time during the term of this Easement Agreement provided that Grantee promptly repairs all damage to Parcel A caused by such removal and restores Parcel A to substantially the same condition it was in prior to such removal. (iv) Grantee shall comply with all applicable laws to keep Parcel A, the Easement Area and the Access Easement Areas free from any construction liens • for any labor or material furnished to Grantee in connection with the Riverwalk or Easement Area. 3 • (v) In exercising its rights under this Easement Agreement, Grantee shall use its best efforts to minimize any interference with the construction of Grantor's improvements to Parcel A and with any of Grantor's operations on Parcel A, including but not limited to the operations of Grantor's tenants. Upon completion by Grantee of any work within the Easement Area or Access Easement Areas, Grantee shall restore the affected portions of such areas to a condition substantially similar to the condition existing prior to such work, taking into consideration the construction and existence of the Riverwalk. Existing drainage mechanisms traversing the Easement Area must remain intact. No ponding of water is permitted as a result of work completed by Grantee in the Easement Area. (vi) Once commenced, any maintenance, repair and replacement undertaken under this Easement Agreement shall be diligently completed so as to minimize any interference with the business of Grantor on Parcel A and its tenants, agents, contractors, subcontractors, employees and invitees. (vii) Grantee may remove the Riverwalk at any time. In the event Grantee removes the Riverwalk: (A) Grantee shall remove all property that was part of the Riverwalk and repair any damage to any portion of Parcel A, including without limitation any improvements located on Parcel A, caused by such removal; (B) Grantee shall restore Parcel A in such a manner that is consistent with the then condition of Parcel A immediately adjacent to the Easement Area, at Is the time the Riverwalk is removed; and (C) subject to Grantee's obligations in the preceding subsection (A) and any other obligations of Grantee intended to survive termination of this agreement, this Easement Agreement shall terminate automatically and immediately. (g) Grantor shall maintain, in good condition, the existing building located on Parcel A providing support to the Riverwalk. Grantor shall not install any building or other structure which may encroach on to the Easement Area and the Access Easement Areas. (h) In the event Grantee needs access inside the building in order to maintain, repair or replace the portion of the Riverwalk that is connected or attached to the building located on Parcel A, upon reasonable notice to Grantor by Grantee and upon terms and conditions reasonably acceptable to both parties, Grantor shall allow Grantee access inside the building. Grantee shall use its best efforts to minimize any interference with any of Grantor's operations on Parcel A, including but not limited to the operations of Grantor's tenants. Upon completion by Grantee of any work within the building located on Parcel A, Grantee shall restore the affected areas to a condition substantially similar to the condition existing prior to the commencement of such work. (i) Grantee is responsible for obtaining all governmental and other permits • and approvals necessary to construct the Riverwalk on Parcel A. Grantor shall cooperate fully and promptly with Grantee in obtaining such permits. Further, Grantee shall be C! • responsible to design and construct the Riverwalk on the Easement Area in such a manner as to safely exist on and adjacent to the improvements on or to made to Parcel A. 2. Use. Grantee shall use the Easement Area for the sole purpose of constructing, maintaining, operating, repairing, replacing and improving the Riverwalk. (a) Grantor has granted to Grantee the rights conveyed in this Easement Agreement because Grantee is a public body and the Riverwalk shall serve and benefit the public. (b) If the Riverwalk is damaged, destroyed or rendered unusable, Grantee shall begin to reconstruct or repair the Riverwalk as soon as is practicably possible, but not later than ninety (90) days after the Riverwalk is damaged, destroyed or rendered unusable, which ninety (90) day period shall be extended due to seasonal or inclement weather conditions. If reconstruction or repair of the Riverwalk is not commenced within such ninety (90) day time period (as it may be extended as set forth above), this Easement Agreement shall terminate and Grantor shall have the right to remove the applicable portions of the Riverwalk and return the Easement Area to sightly condition. (c) Grantee's easements and rights herein granted shall be used and enjoyed by Grantee and its agents, employees, general public, contractors, subcontractors or invitees in such a manner so as not to unreasonably interfere with, obstruct or delay the conduct and operations of the business of Grantor or its tenants, agents, licensees and employees, at any time conducted, including, without limitation, public access to and from any portion of Parcel A and the receipt or delivery of products, materials and merchandise in connection therewith. (d) Grantee shall not engage in or permit its agents, employees, contractors or subcontractors to engage in any use or activity with respect to the Easement Area or Parcel A which would cause Grantor to lose the required Public Support as that phrase is defined in Paragraph 1.7(F) of the Development Agreement ("Guidelines"). (e) Grantee shall provide its own security for the Easement Area including, but not limited to, the locking of the Easement Area when determined by Grantee. Grantor shall not be responsible for any losses which Grantee or its invitees may suffer including, but not limited to, thefts, robberies or other crimes on or about the Easement Area. 3. Height Limit. Grantee shall not construct or maintain any portion of the Riverwalk in the Easement Area nor shall any equipment which shall be permanently located in the Easement Area, extend above the area as depicted on the Plans. 4. Load Limit. At no time shall Grantee place a load upon any portion of Parcel A, including improvements located on Parcel A, exceeding the load per square foot it was designed to carry and is permitted by applicable law. Grantee shall not allow any activity on the Easement • Area and shall not construct any portion of the Riverwalk or its foundation in a manner which 5 • will undermine or compromise the support of the improvements made or to be made to Parcel A. 5. Existing Encumbrances. Grantee's rights under this Easement Agreement shall be subject to encumbrances, conditions, covenants, easements, restrictions and rights -of -way, as set forth in the deed from Grantee to Grantor for the "City Property", as set forth in the Development Agreement. 6. Acceptance of Easement Area. Grantee accepts the Easement Area in its "as is" condition, with all faults, as of the date of this Easement Agreement. Grantee acknowledges that Grantor has made absolutely no warranties or representations regarding the condition of the Easement Area or its suitability for Grantee's intended use. 7. Compliance with Laws. Grantee shall, at its expense, comply with all governmental statutes, laws, rules, orders, regulations and ordinances regarding the Riverwalk, affecting the Easement Area or Grantee's use thereof. 8. Relocation. The parties acknowledge that upon ninety (90) days advance written notice to Grantee, Grantor may relocate the Easement Area to a new location on Parcel A acceptable to Grantee (whose approval shall not be unreasonably withheld, delayed or conditioned) so long as: (A) Grantor is responsible for and pays all costs and expenses associated with relocating the Riverwalk and equipment located within the Easement Area to the new location; (B) Grantor obtains all required governmental permits and authorizations required for the relocation of the Riverwalk and equipment located in the Easement Area; (C) Grantor performs all work to relocate the Riverwalk and equipment located in the Easement Area (including all disconnection and hook-up) in a good and workmanlike manner and in compliance with all applicable laws; (D) the new location of the Easement Area will not increase the operating cost or effectiveness (in serving the improvements located on Parcel B) of the Riverwalk and/or equipment located in the Easement Area; (E) the relocation of the Riverwalk and the equipment located in the Easement Area does not in any way interrupt any service to the improvements located on Parcel B; (F) the parties execute and record a new easement agreement (or an amendment to this Easement Agreement) in a form reasonably acceptable to Grantee under which Grantor grants to Grantee an easement (on terms substantially similar to the terms herein) with respect to the new easement area location; and (G) Grantor obtains the written consent of each party holding a lien with respect to Parcel A to any new easement agreement. II. GENERAL 1. Integration, Exhibits, Consent to Waiver, Amendment. This Easement Agreement and all agreements arising out of the Development Agreement should be read in conjunction and harmonious with each other. All Exhibits referred to and attached to this Easement Agreement are part of this Easement Agreement. The provisions of this Easement Agreement may be amended, but only with the written consent of Grantor and Grantee, which consent shall not be unreasonably withheld, conditioned or delayed. No other persons, tenants, mortgagees or occupants of Parcel A, shall have any rights whatsoever to join in, prevent or • otherwise affect or limit any such modification, amendment or termination. 2 2. Authority. Grantor warrants that the individual executing this Easement Agreement on its behalf has the authority to do so. Grantee represents and warrants to Grantor that: (A) Grantee has the right to enter into this Easement Agreement; and (B) all necessary actions have been taken by Grantee in the execution of this Easement Agreement to make this Easement Agreement a binding obligation of Grantee. 3. Assignment. Except for an assignment to another governmental entity associated with Grantee, this Easement Agreement shall not be assigned, transferred, relinquished or conveyed by Grantee without the prior written consent of Grantor, which consent may be withheld in the sole and absolute discretion of Grantor. In the case of any permitted assignment, Grantee, as well as the assignee, shall be liable for the full performance of all terms and conditions of this Easement Agreement. Grantor's consent to any assignment of this Easement Agreement or transfer of any interest in the Easement Area shall not be deemed a consent to any further assignment of this Easement Agreement or transfer of any interest in the Easement Area. 4. No Encumbrances/Liens. Except as specifically provided herein, nothing in this Easement Agreement shall authorize Grantee to and Grantee shall not, do any act which will in any way encumber the title of Grantor in and to the Parcel A, nor shall the interest of Grantor in the Parcel A be in any way subject to any claim whatsoever by virtue of any act or omission of Grantee. Any claim to a lien upon Parcel A arising from any act or omission of Grantee shall be valid only against Grantee's interest in Parcel A. 5. Coordination. To the extent that its use of the easements described in this • Easement Agreement will materially impact operations on Parcel A, Grantee shall coordinate such use with Grantor to attempt to reasonably minimize such impact. Grantor and Grantee shall reasonably cooperate to address any operational and/or security issues associated with the easements created under this Easement Agreement. 6. Lateral/Subiacent Support. Any damage to Parcel A, its foundational, lateral or subjacent support or any improvement located on Parcel A caused by Grantee or such party's agents, employees, contractors, subcontractors or invitees shall promptly be repaired by Grantee at Grantee's sole expense. If Grantee fails to commence repair of such damage within twenty (20) days after receipt of written notice of such damages from Grantor (subject to extension as a result of seasonal or inclement weather) and does not in good faith diligently pursue the repair of such damage, Grantor may do so and seek reimbursement from Grantee in a court of law for expenses Grantor establishes were reasonably incurred and necessary to fulfill Grantee's obligations or seek any other remedy in law or equity. 7. Liability Allocation. Grantee shall be responsible for any and all liabilities, claims or damages in connection with the loss of life, personal injury or damage to property arising out of any occurrence, loss, or injury suffered by any person or any damage to property, caused by the negligent or intentional acts or omissions of Grantee or Grantee's agents, employees, contractors or subcontractors on Parcel A. If within twenty (20) days of Grantor's notice of claims to Grantee, Grantee fails to assume responsibility under terms reasonably • acceptable to Grantor in Grantor's sole discretion, then Grantor may undertake such defense and the reasonable costs of doing so shall be the sole responsibility of Grantee. Said cost shall be 7 payable by Grantee within twenty (20) days of Grantor's notification of Grantor's damages and reasonable cost of defense. Grantee shall have no responsibility for claims, losses or expenses caused by the negligent or intentional acts or omissions of Grantor or Grantor's agents, employees, contractors or subcontractors on Parcel A. 8. Utility Relocation. To the extent that the exercise of Grantee's rights hereunder requires the relocation of any utility facilities located on Parcel A as of the date of Grantee's construction of the Riverwalk, Grantee shall pay the reasonable cost of such relocation. 9. Default. In the event a parry shall default in its obligations hereunder and the cure for such default is not commenced in good faith and diligently pursued within twenty (20) days after written notice from the nondefaulting parry to the defaulting party, the nondefaulting parry may: (A) enforce any remedies or rights of termination provided for under this Easement Agreement; (B) seek specific performance of the defaulting parry's obligations; (C) perform the obligation of the defaulting parry and seek reimbursement from the defaulting parry in a court of law for expenses the nondefaulting parry establishes were reasonably incurred and necessary to fulfill the defaulting party's obligations; or (D) seek any other remedy in law or equity. Any amount due from the defaulting parry to the nondefaulting parry shall bear interest at the lesser of. (i) twelve percent (12%) per annum; or (ii) the maximum rate permitted by applicable law, compounded annually. The remedies provided for under this Section are not exclusive, are in addition to and not in lieu of any other rights or remedies available at law or in equity. • 10. Insurance. (a) Grantee may self insure or obtain insurance coverage in such amounts as Grantee deems appropriate at its expense to protect Grantee from claims for damages due to bodily injury, loss or damage to property for which Grantee is responsible under this Easement Agreement, with such coverage in an amount determined by Grantee. Grantee shall deliver evidence of such self insurance coverage, if any or a certificate of insurance evidencing all coverage specified in this paragraph, to Grantor upon request. The coverages to benefit Grantor shall not be canceled, cancelable or modified until at least thirty (30) days' prior written notice of intention to cancel or modify has been delivered by the insurer to Grantor. The amount of insurance coverage required hereunder shall be increased from time to time to be consistent with the amounts of such coverages reasonably maintained for similar risks. (b) Grantee shall bring or keep property upon the Easement Area solely at its own risk and Grantor shall not be liable for any damages thereto or any theft thereof. Grantee may maintain a policy of insurance with a responsible insurance company against risk of loss from any cause whatsoever to all such property and to all of Grantee's alterations, improvements or additions to the Easement Area, to the full extent of their replacement cost, which policy of insurance shall contain a clause or endorsement under which the insurer waives or permits the waiver by Grantee of all right of subrogation against Grantor and its agents, employees, customers, invitees, guests or licensees, with respect to losses payable under such policy. To the fullest extent allowed by applicable IS law, Grantee waives all right of recovery which it might otherwise have against Grantor 8 • and its agents, employees, customers, invitees, guests or licensees for any damage to Grantee's property, notwithstanding that such damage may result from the negligence or fault of Grantor or its agents, employees, customers, invitees, guests or licensees. 11. Cautions. The captions in the paragraph headings set forth in this Easement Agreement are for convenience only and do not define, describe, extend or limit the scope or intent of this Easement Agreement or any of its provisions. 12. Severability. The provisions of this Easement Agreement are severable. Should any section, subsection or provision of this Easement Agreement be declared to be invalid or unenforceable by a court of competent jurisdiction, it shall not affect the validity or enforceability of the Easement Agreement as a whole or any part thereof, other than the part so declared invalid/unenforceable. The parties shall renegotiate, if possible, the invalid/unenforceable section, subsection or provision in a manner consistent with the original intent. 13. No Partnership. Nothing in this Easement Agreement shall be deemed or construed by Grantor, Grantee or by any third person to create the relationship of principal and agent, a partnership, joint venture or any other association between any of the parties. 14. Governing Laws. This Easement Agreement shall be construed in accordance with the laws of the State of Michigan. Nothing in this Easement Agreement shall be construed to relieve a party from obtaining any necessary governmental permits, approvals or authorizations otherwise required by law. 15. Construction of Easement Agreement. The rule of strict construction shall not apply to the easements and agreements granted in this Easement Agreement or to the covenants set forth herein. This Easement Agreement shall be given a reasonable construction so that the intention of the Grantor to confer reasonably usable benefits and reasonably enforceable obligations are carried out. 16. Waiver of Default. No waiver of any default by any party to this Easement Agreement shall be implied from any omission by any other party to take any action in respect of such default if such default continues or is repeated. No express waiver of any default shall affect any default or cover any period of time other than the default and period of time specified in such express waiver. One or more waivers of any default in the performance of any term, provision or covenant contained in this Easement Agreement shall not be deemed to be a waiver of any subsequent default in the performance of the same term, provision or covenant or any other term, provision or covenant contained in this Easement Agreement. The consent or approval by any party to or of any act or request by any other party requiring consent or approval shall not be deemed to waive or render unnecessary the consent to or approval of any subsequent similar acts or requests. The rights and remedies given to any party to this Easement Agreement shall be deemed to be cumulative and no one of such rights and remedies shall be exclusive of any of the others or of any other right or remedy at law or in equity which any such party might otherwise have by virtue of a default under this Easement Agreement and the exercise of one such right or remedy by any such party shall not impair�such party's standing to exercise any other right or • remedy. 9 17. Exemption from Transfer Tax. This instrument is exempt from state and • county transfer tax as the consideration is less than One Hundred ($100.00) Dollars. MCLA 207.505(a); MCLA 207.526(a). 18. Force Majeure. The time within which a parry shall be required to perform any act or acts under this Easement Agreement shall be extended to the extent that the performance of such act or acts shall be delayed by acts of God, fire, windstorm, flood, explosion, collapse of structures, riot, war, labor disputes, delays or restrictions by governmental bodies, inability to obtain or use necessary materials or any cause beyond the reasonable control of such parry; provided, however, that the parry entitled to such extension shall give prompt notice to the other party of the occurrence causing such delay. The provisions of this Section (Force Majeure) shall not operate to excuse Grantee from prompt payment of any fees or any other payments required by the terms of this Easement Agreement. 19. No Offer. The submission of this Easement Agreement for examination does not constitute an offer to enter into an Easement Agreement and this Easement Agreement shall become effective only upon execution and delivery by Grantor and Grantee. 20. Notices. All notices, demands, and requests given or required to be given pursuant to this Easement Agreement shall be in writing. All such notices, demands and requests shall be deemed to be delivered when: (a) on the third day after deposited in any United States postal box if postage is prepaid and the notice properly addressed to the intended recipient; (b) delivered by facsimile transmission with proof of receipt of delivery; (c) delivered by email is transmission with proof of receipt; (d) personally delivered; or (e) sent by nationally recognized overnight courier service (e.g. Federal Express or UPS) in which case such notice shall be deemed given the day after the date sent with all fees paid. 21. Successors and Third Parties. This Easement Agreement shall be binding upon and inure to the benefit of each parry and their respective successors and permitted assigns. Except for Grantor's parent, subsidiary and affiliated entities and their respective officers, directors, shareholders, partners, agents, and employees and the Accident Fund Insurance . Company of America, while it is an occupant of Parcel A, Grantor and Grantee acknowledge and warrant and represent to each other that there are no third parry beneficiaries to this Easement Agreement. 22. Obligations Survive. All obligations arising prior to the termination of this Easement Agreement and all provisions of this Easement Agreement allocating responsibility or liability between the parties shall survive the termination of this Easement Agreement. 23. Legal Expense. In any action arising out of the enforcement of this Easement Agreement, the nonprevailing parry shall pay to the prevailing parry all expenses reasonably incurred by the prevailing parry in the action, including reasonable attorney fees. 24. Consent. Unless otherwise indicated in this Easement Agreement, where the consent of a parry is required, such consent shall not be unreasonably withheld, conditioned or • delayed. 10 • 25. Declaration of Restrictive Covenants. This Easement Agreement shall be subject to the provisions of the to be recorded Declaration of Restrictive Covenants, a specimen of which is attached as an exhibit to the Warranty Deed of even date from Grantee to Grantor. • • [THIS SPACE INTENTIONALLY LEFT BLANK] 11 The undersigned executed this Easement Agreement as of this 304h day of SteptcMb(-r , 2008. Approved as to form: Lo STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) CITY OF LANSING By: c' Virg Bern", Mayor By: Ojll'� 91104'-1 Chris Swope, Clerk PHOENIX DEVELOPMENT PARTNERS, LLC, a Michigan limited liability company, CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, Manager By: es M. Cash It . Manager Acknowledged before mein Ingham County, Michigan thOUh day of 2008, by Virg Bernero, Mayor of the City of Lansing, a Michigan municipal corporation. Eileen M. Melman Notary Public Washtenaw County, Michigan Acting in 7 County My Commissi n Expires 01/12/2014 • 12 Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: STATE OF MICHIGAN ) • ) ss COUNTY OF INGHAM ) Acknowledged before me in Ingham County, Michigan this"o th day of S - , 2008, by Chris Swope, Clerk of the City of Lansing, a Michigan municipal corporation. Eileen M. Melman Notary Public Washtenaw County, Michigan Acting inc,� County My Commission Expires 01/12/2014 STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: Acknowledged before me in Ingham County, Michigan thiR)th day o _ r, 2008, by James M. Cash, Manager of Christman Capital Investment Group, LLC, Manager of Phoenix Development Partners, LLC, a Michigan limited liability company, on behalf of the company. Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: 3` Ala RECORDING FEE: $ EXHIBITS: Exhibit A: - Description of Parcel A Exhibit B: - Description of Parcel B Exhibit C: - Depiction of Riverwalk DRAFTED BY AND WHEN RECORDED RETURN TO: Gregory J. Guggemos Guggemos Brown & Gilkey, PC 4050 Hunsaker Drive, Suite 120 East Lansing, Michigan 48823 • Telephone: (517) 336-0127 13 EASEMENT AGREEMENT — RIVERWALK EXHIBIT A (Legal Description of Grantor Property - Parcel A) Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00'01'45"W 7.02 feet to the point of beginning of the following described parcel; thence N00001'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50005' 10"E 157.52 feet; thence N00°29'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89°58'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45000'36"E, 56.87 feet; 2) S07°00'06"E, 173.32 feet; 3) S17°21'34"E, 75.69 feet; 4) S01'08'14"E, 327.42 feet; 5) S17°17'09"W, 167.17 feet; 6) S18'04' 11"W, 24.53 feet to a building line; thence along said building line the following five (5) courses; 1) S74°14'59"E, 16.75 feet; 2) S15°51'22"W, 63.24 • feet; 3) N89°47' 17"W, 11.09 feet; 4) S00012'43"W, 14.88 feet; 5) N89°53'37"W, 30.79 feet; thence S23001'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89031' 14"W, 178.68 feet along said curb line to the point of beginning. C] IV • EASEMENT AGREEMENT — RIVERWALK EXII-IBIT B (Legal Description of Parcel B) Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16, N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing N00°O1'45"W, 7.02 feet; thence along the East line of North Grand Avenue N00001'45"W 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence continuing along said East street line due North 437.19 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 221.35 feet to the point of beginning of the following described parcel; thence continuing S89058'00"E, 35.38 feet along said South line to the West line of a retaining wall; thence along the West line of said wall the following six (6) courses: 1) S45000'36"E, 40.44 feet; 2) S07°00'06"E, 179.66 feet; 3) S17°21'34"E, 76.99 feet; 4) SO1°08'14"E, 335.04 feet; 5) S17°17'09"W, 171.40 feet; 6) S18°04'11"W, 100.23 feet to the Northerly line of vacated Ottawa Street; thence N90°00'00"W, 12.64 feet to a building line; thence along said building line the following four (4) courses 1) N00°12'43"E, 14.22 feet; thence S89047' 17"E, 11.09 feet; thence N15°51'22"E, 63.24 feet; thence N74°14'59"W, 16.75 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six • (6) courses: 1) N18004'11"E, 24.53 feet; 2) N17°17'09"E, 167.17 feet; 3) NOI008'14"W, 327.42 feet; 4) N17021'34"W, 75.69 feet; 5) N07000'06"W, 173.32 feet; 6) N45°00'36"W, 56.87 feet to the point of beginning. • Also Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16, N89°59'00"E 527.87 feet; thence N00001'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing N00°01'45"W, 7.02 feet to the Southerly curb line of Ottawa Street; thence S89°31' 14"E, 178.68 feet to the point of beginning of the following described parcel; thence N23°01'48"E, 82.99 feet to a building line; thence S89053'37"E, 27.16 feet along said wall line; thence S23°01'48"W, 83.19 feet to the said Southerly curb line of Ottawa Street; thence N89°31' 14"W, 27.09 feet to the point of beginning. 15 • EASEMENT AGREEMENT — RIVERWALK EXHIBIT C (Depiction of Easement Area) • • SAClients\Christman Company\Constructive Receipt\Phoenix Development Partners LLC\Easement re BWL Property\City Easements\Easement Agreement.Riverwalk.Final.9.30.08.DOC 16 EMERGENCY SIGNAL EXISTING: • LAIN Lolaw NEW SIDEWALK I - WRW RDMA I RAMP. EL.:E834.0' U c- I - LOWS FLOODA El 1200 - HEDERA 43.D( AT 5' Or-, IN F.1 ANTM .......... • 0 21 40, RA B: 3321 P: 1221 10/09/2008 09:41 AM Pages: 10 2008-039458 MISCELLANEOUS Receipt #47309 Paula Johnson, Ingham County, Michigan !• 111111 IN 111111111 HE 111111111111111111111111 IIII fSpaee Above This Line is for Recording Information] RIVERWALK USE AGREEMENT This RIVERWALK USE AGREEMENT ("Agreement") is executed this 30th day of September, 2008, between PHOENIX DEVELOPMENT PARTNERS, LLC, a Michigan limited liability company, 208 N. Capitol Ave., Lansing, Michigan 48933 ("Phoenix") and the CITY OF LANSING, a Michigan municipal corporation, 124 W. Michigan Ave.s Lansing, Michigan 48933 ("City"). City and Phoenix are collectively referred to as the "Parties" or singularly as a "Party." RECITALS: Phoenix owns a certain parcel of real property located in the City of Lansing, Ingham County, Michigan, legally described on Exhibit A ("Parcel A"); and City owns a certain parcel of real property located in the City of Lansing, Ingham County, Michigan, legally described on Exhibit B ("Parcel B"); and C= CES o . rri �n rnv dam D frog w Parcel A is located adjacent to Parcel B and along the path of a pedestrian walkway to be a+.s • a o �Z constructed by City ("RiverwalW ), which Riverwalk is to be located on Parcel B; and Phoenix is redeveloping Parcel A for office, retail and other uses which will directly t" <•:,'S benefit the City; and D 0n= 4 rn 4 0 The Riverwalk shall be used by the City in its capacity as a public body to serve and w ' La benefit the public; and The Parties desire to enter into an agreement to address certain issues associated with the Riverwalk and to place certain reasonable restrictions on the use of Parcel B. THIS AGREEMENT IS BEING EXECUTED IN FURTHERANCE OF THE - . L �v PROPERTY PURCHASE AND DEVELOPMENT AGREEMENT DATED JANUARY 30, .n=� 2008 ("DEVELOPMENT AGREEMENT") AND THE PARTIES AGREE AS FOLLOWS: m n _/ o � • J CA T_ 5 ►y. a--`; — I. USES 1. Uses Permitted and Prohibited. The Riverwalk is intended for use as a public linear park and pathway. (a) The City shall not use or permit the Riverwalk to be used in a manner that would result in excess sound or noise, as defined by Section 654.07 of the Codified Ordinances of Lansing, Michigan, except as allowed in Section 654.08. (b) Any organized walks, runs, parades or similar activities shall comply with the City's Special Event Permit process or other established procedures. (c) Activities on the Riverwalk shall not violate any laws, ordinances, rules, regulations, permit or license requirements, orders of a governmental official, agency or court of competent jurisdiction or other governmental requirements or prohibitions. (d) No activity on the Riverwalk that causes the City or Phoenix to lose any of the "Public Support" as defined in paragraph 1.7(F) of the Development Agreement shall be allowed. 2. View. Unless the prior written consent is first obtained from Phoenix and Accident Fund Insurance Company of America ("AFICA"), so long as AFICA is an occupant of Parcel A, which consent may be withheld in the sole and absolute discretion of Phoenix and AFICA, City shall not construct or operate any portion of the Riverwalk in such a manner that would materially or permanently obstruct the view of the occupants of Parcel A of the Grand River. 3. Load Limit. City shall not allow any activity on the Riverwalk, which will undermine or compromise the foundational, lateral or subjacent support of the improvements made or to be made to Parcel A. II. VIOLATION OF PROVISIONS 1. Default. In the event City shall default in its obligations under this Agreement and the cure for such default is not commenced and in good faith diligently pursued within twenty (20) days after written notice from Phoenix, then Phoenix may: (A) enforce any remedies or rights of termination provided for under this Agreement; (B) seek specific performance of City's obligations; (C) perform the obligation of the City and seek reimbursement from the City in a court of law for expenses that Phoenix established were reasonably incurred and necessary to fulfill City's obligation; or (D) seek any other available remedy in law or equity. Any amount due hereunder from City to Phoenix shall bear interest at the lesser of (i) twelve percent (12%) per annum or (ii) the maximum rate permitted by applicable law, compounded annually. The remedies provided for under this Section are not exclusive, are in addition to and not in lieu of any other rights or remedies available at law or in equity. • 2 2. Waiver of Default. No waiver of any default by Phoenix shall be implied from �) any omission by Phoenix to take any action in respect of such default if such default continues or is repeated. No express waiver of any default shall affect any default or cover any period of time other than the default and period of time specified in such express waiver. One or more waivers of any default in the performance of any term, provision or covenant contained in this Agreement shall not be deemed to be a waiver of any subsequent default in the performance of the same term, provision or covenant or any other term, provision or covenant contained in this Agreement. The consent or approval by Phoenix to or of any act or request by any City requiring consent or approval shall not be deemed to waive or render unnecessary the consent to or approval of any subsequent similar acts or requests. The rights and remedies given to Phoenix shall be cumulative and no one such right and remedy shall be exclusive of any of the others or of any other right or remedy at law or in equity which Phoenix might otherwise have by virtue of a default under this Agreement and the exercise of one such right or remedy by Phoenix shall not impair its standing to exercise any other right or remedy. III. GENERAL 1. Integration, Exhibits, Consent to Waiver, Amendment. This Agreement and all agreements arising out of the Development Agreement should be read in conjunction and harmonious with each other. All Exhibits referred to in this Agreement are part of this Agreement. This Agreement may only be amended by an agreement signed by the City. 2. Compliance with Laws. (a) City and its agents, employees and successors shall, at its expense, comply with all applicable laws, rules, orders, regulations and ordinances regarding the use of the Riverwalk. (b) City shall diligently enforce all laws applicable to the Riverwalk and its permitted use. The provision of this subparagraph (b) shall only be enforceable by Phoenix and/or any tenant occupying greater than fifty percent (50%) of the office space to be constructed on Parcel A. 3. Authority. Phoenix warrants that the individual executing this Agreement on its behalf has the authority to do so. City represents and warrants to Phoenix that: (A) City has the right to enter into this Agreement; and (B) all necessary actions have been taken by City in the execution of this Agreement to make this Agreement a binding obligation of City. 4. Covenants Run With the Land. All the covenants, agreements, conditions and restrictions set forth in this Agreement are intended to be and shall be construed as covenants running with the land, binding upon, inuring to the benefit of and enforceable against the Parcel A and Parcel B by the Parties, their respective successors and assigns, upon the terms, provisions and conditions in this Agreement. 5. Liability Allocation. City shall be responsible for any and all liabilities, claims • or damages in connection with the loss of life, personal injury, or damage to property caused by 4,44.01 ._:. the negligent or intentional acts or omissions of City or City's agents, employees, contractors or subcontractors on Parcel B. If within twenty (20) days of Phoenix's written notice of claims to i City, City fails to assume responsibility under terms reasonably acceptable to Phoenix in Phoenix's sole discretion, then Phoenix may undertake such defense and the reasonable costs of doing so, together with any liability or damages of Phoenix, shall be the sole responsibility of City. Said cost shall be payable by City within twenty (20) days of Phoenix's notification of Phoenix's damages and reasonable cost of defense. City shall have no responsibility for claims, losses or expenses caused by the negligent or intentional acts or omissions of Phoenix or Phoenix's agents, employees, contractors or subcontractors on Parcel B. 6. Self Insurance/Insurance. (a) City may self insure or obtain insurance coverage in such amounts as the City deems appropriate at its expense to protect City from claims for damages due to bodily injury, loss or damage to property for which City is responsible under this Agreement, with such coverage in an amount determined by the City. City shall deliver evidence of such self insurance coverage, if any or a certificate of insurance evidencing all coverage specified in this paragraph, to Phoenix upon request. The coverages to benefit Phoenix shall not be canceled, cancelable or modified until at least twenty (20) days prior written notice of intention to cancel or modify has been delivered by the insurer to Phoenix. Notwithstanding the foregoing, the amounts of insurance coverage required hereunder shall be increased from time to time to be consistent with the amounts of such coverages reasonably maintained for similar risks. (b) City shall bring or keep property upon Parcel B solely at its own risk and Phoenix shall not be liable for any damages thereto or any theft thereof. City may maintain a policy of insurance with a responsible insurance company against risk of loss from any cause whatsoever to all such property and to all of City's alterations, improvements or additions to the Riverwalk, to the full extent of their replacement cost, which policy of insurance shall contain a clause or endorsement under which the insurer waives or permits the waiver by City of, all right of subrogation against Phoenix and its agents, employees, customers, invitees, guests or licensees, with respect to losses payable under such policy. To the fullest extent allowed by applicable law, City hereby waives all right of recovery which it might otherwise have against Phoenix and its agents, employees, customers, invitees, guests or licensees, for any damage to City's property, notwithstanding that such damage may result from the negligence or fault of Phoenix or its agents, employees, customers, invitees, guests or licensees. 7. Captions. The captions in the paragraph headings set forth in this Agreement are for convenience only and do not define, describe, extend or limit the scope or intent of this Agreement or of any of its provisions. 8. Severability. The provisions of this Agreement are severable. Should any section, subsection, paragraph or provision of this Agreement be declared to be invalid or • unenforceable by a court of competent jurisdiction, it shall not affect the validity or enforceability of the Agreement as a whole or any part thereof, other than the part declared invalid or 4 unenforceable. The Parties shall renegotiate, if possible, the invalid or unenforceable section, subsection, paragraph or provision in a manner consistent with the original intent of this Agreement. 9. No Partnership. Nothing in this Agreement shall be deemed or construed by Phoenix, City or by any third person to create the relationship of principal and agent, a partnership, joint venture or any other association between the parties. 10. Governing Law. This Agreement shall be construed in accordance with the laws of the State of Michigan. Nothing in this Easement Agreement shall be construed to relieve a party from obtaining any necessary governmental permits, approvals or authorizations otherwise required by law. 11. Construction of Agreement. The rule of strict construction shall not apply to the agreements granted in this Agreement or to the covenants set forth herein. This Agreement shall be given a reasonable construction so that the intention of the Parties to place reasonable restrictions on the use of the Riverwalk is carried out. 12. Force Maieure. The time within which a Party shall be required to perform any act or acts under this Agreement shall be extended to the extent that the performance of such act or acts shall be delayed by acts of God, fire, windstorm, flood, explosion, collapse of structures, riot, war, labor disputes, delays or restrictions by governmental bodies, inability to obtain or use necessary materials or any cause beyond the reasonable control of such Party; provided that the Party entitled to such extension shall give prompt notice to the other Party of the occurrence causing such delay. The provisions of this Section (Force Majeure) shall not operate to excuse a Party from prompt payment of any fees or any other payments required by the terms of this Agreement. 13. No Offer. The submission of this Agreement for examination does not constitute an offer to enter into an agreement and this Agreement shall become effective only upon execution and delivery by Phoenix and City. 14. Notices. All notices, demands and requests given or required to be given pursuant to this Agreement shall be in writing. All such notices, demands and requests shall be deemed to be delivered when: (a) received within three (3) days after deposited in any United States postal box if postage is prepaid and the notice properly addressed to the intended recipient; (b) delivered by facsimile transmission with proof of receipt of delivery; (c) delivered by email transmission with proof of receipt; (d) personally delivered; or (e) sent by nationally recognized overnight courier service (e.g. Federal Express or UPS), in which case such notice shall be deemed given the day after the date sent with all fees paid. 15. Successors. This Agreement shall be binding upon and inure to the benefit of each Party and their respective successors and permitted assigns. Except for Phoenix's parent, subsidiary and affiliated entities and their respective officers, directors, shareholders, partners, agents, and employees and AFICA while it is an occupant of Parcel A, Phoenix and City • acknowledge and warrant and represent to each other that there are no third party beneficiaries to 5 this Agreement. Additionally, as long as AFICA is an occupant of Parcel A, City acknowledges • that AFICA has the right to enforce the provisions of Paragraph I.1 of this Agreement. 16. Legal Expense. In any action arising out of the enforcement of this Agreement, the nonprevailing Party shall pay to the prevailing Parry all expenses reasonably incurred by the prevailing Parry in the action, including reasonable attorney fees. • • 17. Consent. Unless otherwise indicated in this Agreement, where the consent of a Party is required, such consent shall not be unreasonably withheld, conditioned or delayed. 18. Declaration of Restrictive Covenants. This Agreement shall be subject to the provisions of the to be recorded Declaration of Restrictive Covenants, a specimen of which is attached as an exhibit to the Warranty Deed of even date from City to Phoenix. [THIS SPACE INTENTIONALLY LEFT BLANK] T 0-) • • The undersigned executed this Agreement as of this �%41,' day of S I et'4tmbf., 2008. Approved as to form: STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) CITY OF LANSING By: Virg Berne o, Mayor By: �� <�� hris Swope, Cler PHOENIX DEVELOMENT PARTNERS, LLC, a Michigan limited liability company, CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, Manager By: es M. Cash I Manager Acknowledged before me in Ingham County, Michigan this3Dth day of ggj&4* ' , 2008, by Virg Bernero, Mayor of the City of Lansing, a Michigan municipal corporation. Eileen M. Merman lic Washt nawryCoun y, Acting in County, Michigan My Commisslon Ex ires r ��-Mdp-(z 12. I M • Wi4.l tea.' Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: o I_ I �L- 2 o f 4- 7 •) n f� STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Acknowledged before me in Ingham County, Michigan this 30th day of September, 2008, by Chris Swope, Clerk of the City of Lansing, a Michigan municipal corporation. Eileen M. Melman Notary Public Washtenaw County, Michigan Acting in �� H.� aCounty My Commission Expires 01/12/2014 STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: Acknowledged before me in Ingham County, Michigan this 30th day of September, 2008, by James M. Cash, Manager of Christman Capital Investment Coup, LLC, Manager of Phoenix Development Partners, LLC, a Michigan limited liability co 17 y. �i6tary Irublie-,-T ` VWQaunty, MI Acting in Ingham County, Michigan My Commission Expires: RECORDING FEE: $ EXHIBITS: Exhibit A: - Legal Description of Parcel A Exhibit B: - Legal Description of Parcel B DRAFTED BY AND AFTER RECORDING RETURN TO: Gregory J. Guggemos Guggemos Brown & Gilkey, PC 4050 Hunsaker Drive, Suite 120 East Lansing, MI 48823 Telephone: (517) 336-0127 8 e RIVERWALK USE AGREEMENT EX 11BIT A (Legal Description of Phoenix Property - Parcel A) Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89059'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00101'45"W 7.02 feet to the point of beginning of the following described parcel; thence N00101'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50°05' 10"E 157.52 feet; thence N00°29'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89058'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45000'36"E, 56.87 feet; 2) S07°00'06"E, 173.32 feet; 3) S17021'34"E, 75:69 feet; 4) S01°08'14"E, 327.42 feet; 5) S 17° 17'09"W, 167.17 feet; 6) S 18'04' 11 "W, 24.53 feet to a building line; thence along said building line the following five (5) courses; 1) S74°14159"E, 16.75 feet; 2) S1505112211W, 63.24 • feet; 3) N89047' 17"W, 11.09 feet; 4) S00012'43"W, 14.88 feet; 5) N89053'37"W, 30.79 feet; thence S23'01'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89.31' 14"W, 178.68 feet along said curb line to the point of beginning. • 0 RIVERWALK USE AGREEMENT . J EXHIBIT B (Legal Description of Parcel B) Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16, N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest comer of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing N00°01'45"W, 7.02 feet; thence along the East line of North Grand Avenue N00°O1'45"W 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence continuing along said East street line due North 437.19 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 221.35 feet to the point of beginning of the following described parcel; thence continuing S89°58'00"E, 35.38 feet along said South line to the West line of a retaining wall; thence along the West line of said wall the following six (6) courses: 1) S45000'36"E, 40.44 feet; 2) S07°00'06"E, 179.66 feet; 3) S17021'34"E, 76.99 feet; 4) S01 °08' 14"E, 335.04 feet; 5) S 17° 17'09"W, 171.40 feet; 6) S 18°04' 11 "W, 100.23 feet to the Northerly line of vacated Ottawa Street; thence N90000'00"W, 12.64 feet to a building line; thence along said building line the following four (4) courses 1) N00012'43"E, 14.22 feet; thence S89047' 17"E, 11.09 feet; thence N15051'22"E, 63.24 feet; thence N74°14'59"W, 16.75 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) N18°04'11"E, 24.53 feet; 2) N17*17'09"E, 167.17 feet; 3) N01°08'14"W, 327.42 • feet; 4) N17°21'34"W, 75.69 feet; 5) N07100'06"W, 173.32 feet; 6) N45°00'36"W, 56.87 feet to the point of beginning. Also Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16, N89059'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing N00001'45"W, 7.02 feet to the Southerly curb line of Ottawa Street; thence S89031' 14"E, 178.68 feet to the point of beginning of the following described parcel; thence N23001'48"E, 82.99 feet to a building line; thence S89°53'37"E, 27.16 feet along said wall line; thence S23001'48"W, 83.19 feet to the said Southerly curb line of Ottawa Street; thence N89031' 14"W, 27.09 feet to the point of beginning. SAClients\Christman Company\Constructive Receipt\Phoenix Development Partners LLC\Easement re BWL Property\City Easements\Easement . Agreement. Riverwalk Use.Final.9.30.08.doc 10 Above This Line is for Recording RIVERWALK USE AGREEMENT This RIVERWALK USE AGREEMENT ("Agreement") is executed this 3Wh day of September, 2008, between PHOENIX DEVELOPMENT PARTNERS, LLC, a Michigan limited liability company, 208 N. Capitol Ave., Lansing, Michigan 48933 ("Phoenix") and the CITY OF LANSING, a Michigan municipal corporation, 124 W. Michigan Ave., Lansing, Michigan 48933 ("City"). City and Phoenix are collectively referred to as the "Parties" or singularly as a "Parry." RECITALS: Phoenix owns a certain parcel of real property located in the City of Lansing, Ingham County, Michigan, legally described on Exhibit A ("Parcel A"); and City owns a certain parcel of real property located in the City of Lansing, Ingham County, Michigan, legally described on Exhibit B ("Parcel B"); and Parcel A is located adjacent to Parcel B and along the path of a pedestrian walkway to be constructed by City ("Riverwalk'), which Riverwalk is to be located on Parcel B; and Phoenix is redeveloping Parcel A for office, retail and other uses which will directly benefit the City; and The Riverwalk shall be used by the City in its capacity as a public body to serve and benefit the public; and The Parties desire to enter into an agreement to address certain issues associated with the Riverwalk and to place certain reasonable restrictions on the use of Parcel B. THIS AGREEMENT IS BEING EXECUTED IN FURTHERANCE OF THE PROPERTY PURCHASE AND DEVELOPMENT AGREEMENT DATED JANUARY 30, 2008 ("DEVELOPMENT AGREEMENT") AND THE PARTIES AGREE AS FOLLOWS: 40 • I. USES 1. Uses Permitted and Prohibited. The Riverwalk is intended for use as a public linear park and pathway. (a) The City shall not use or permit the Riverwalk to be used in a manner that would result in excess sound or noise, as defined by Section 654.07 of the Codified Ordinances of Lansing, Michigan, except as allowed in Section 654.08. (b) Any organized walks, runs, parades or similar activities shall comply with the City's Special Event Permit process or other established procedures. (c) Activities on the Riverwalk shall not violate any laws, ordinances, rules, regulations, permit or license requirements, orders of a governmental official, agency or court of competent jurisdiction or other governmental requirements or prohibitions. (d) No activity on the Riverwalk that causes the City or Phoenix to lose any of the "Public Support" as defined in paragraph 1.7(F) of the Development Agreement shall be allowed. 2. View. Unless the prior written consent is first obtained from Phoenix and Accident Fund Insurance Company of America ("AFICA"), so long as AFICA is an occupant of • Parcel A, which consent may be withheld in the sole and absolute discretion of Phoenix and AFICA, City shall not construct or operate any portion of the Riverwalk in such a manner that would materially or permanently obstruct the view of the occupants of Parcel A of the Grand River. 3. Load Limit. City shall not allow any activity on the Riverwalk, which will undermine or compromise the foundational, lateral or subjacent support of the improvements made or to be made to Parcel A. II. VIOLATION OF PROVISIONS 1. Default. In the event City shall default in its obligations under this Agreement and the cure for such default is not commenced and in good faith diligently pursued within twenty (20) days after written notice from Phoenix, then Phoenix may: (A) enforce any remedies or rights of termination provided for under this Agreement; (B) seek specific performance of City's obligations; (C) perform the obligation of the City and seek reimbursement from the City in a court of law for expenses that Phoenix established were reasonably incurred and necessary to fulfill City's obligation; or (D) seek any other available remedy in law or equity. Any amount due hereunder from City to Phoenix shall bear interest at the lesser of (i) twelve percent (12%) per annum or (ii) the maximum rate permitted by applicable law, compounded annually. The remedies provided for under this Section are not exclusive, are in addition to and not in lieu of any other rights or remedies available at law or in equity. • 2 2. Waiver of Default. No waiver of any default by Phoenix shall be implied from • any omission by Phoenix to take any action in respect of such default if such default continues or is repeated. No express waiver of any default shall affect any default or cover any period of time other than the default and period of time specified in such express waiver. One or more waivers of any default in the performance of any term, provision or covenant contained in this Agreement shall not be deemed to be a waiver of any subsequent default in the performance of the same term, provision or covenant or any other term, provision or covenant contained in this Agreement. The consent or approval by Phoenix to or of any act or request by any City requiring consent or approval shall not be deemed to waive or render unnecessary the consent to or approval of any subsequent similar acts or requests. The rights and remedies given to Phoenix shall be cumulative and no one such right and remedy shall be exclusive of any of the others or of any other right or remedy at law or in equity which Phoenix might otherwise have by virtue of a default under this Agreement and the exercise of one such right or remedy by Phoenix shall not impair its standing to exercise any other right or remedy. M. GENERAL 1. Integration, Exhibits, Consent to Waiver, Amendment. This Agreement and all agreements arising out of the Development Agreement should be read in conjunction and harmonious with each other. All Exhibits referred to in this Agreement are part of this Agreement. This Agreement may only be amended by an agreement signed by the City. 2. Compliance with Laws. (a) City and its agents, employees and successors shall, at its expense, comply with all applicable laws, rules, orders, regulations and ordinances regarding the use of the Riverwalk. (b) City shall diligently enforce all laws applicable to the Riverwalk and its permitted use. The provision of this subparagraph (b) shall only be enforceable by Phoenix and/or any tenant occupying greater than fifty percent (50%) of the office space to be constructed on Parcel A. 3. Authority. Phoenix warrants that the individual executing this Agreement on its behalf has the authority to do so. City represents and warrants to Phoenix that: (A) City has the right to enter into this Agreement; and (B) all necessary actions have been taken by City in the execution of this Agreement to make this Agreement a binding obligation of City. 4. Covenants Run With the Land. All the covenants, agreements, conditions and restrictions set forth in this Agreement are intended to be and shall be construed as covenants running with the land, binding upon, inuring to the benefit of and enforceable against the Parcel A and Parcel B by the Parties, their respective successors and assigns, upon the terms, provisions and conditions in this Agreement. 5. Liability Allocation. City shall be responsible for any and all liabilities, claims • or damages in connection with the loss of life, personal injury, or damage to property caused by 01 the negligent or intentional acts or omissions of City or City's agents, employees, contractors or subcontractors on Parcel B. If within twenty (20) days of Phoenix's written notice of claims to City, City fails to assume responsibility under terms reasonably acceptable to Phoenix in Phoenix's sole discretion, then Phoenix may undertake such defense and the reasonable costs of doing so, together with any liability or damages of Phoenix, shall be the sole responsibility of City. Said cost shall be payable by City within twenty (20) days of Phoenix's notification of Phoenix's damages .and reasonable cost of defense. City shall have no responsibility for claims, losses or expenses caused by the negligent or intentional acts or omissions of Phoenix or Phoenix's agents, employees, contractors or subcontractors on Parcel B. 6. Self Insurance/Insurance. (a) City may self insure or obtain insurance coverage in such amounts as the City deems appropriate at its expense to protect City from claims for damages due to bodily injury, loss or damage to property for which City is responsible under this Agreement, with such coverage in an amount determined by the City. City shall deliver evidence of such self insurance coverage, if any or a certificate of insurance evidencing all coverage specified in this paragraph, to Phoenix upon request. The coverages to benefit Phoenix shall not be canceled, cancelable or modified until at least twenty (20) days prior written notice of intention to cancel or modify has been delivered by the insurer to Phoenix. Notwithstanding the foregoing, the amounts of insurance coverage required hereunder shall be increased from time to time to be consistent with the amounts of such coverages reasonably maintained for similar risks. (b) City shall bring or keep property upon Parcel B solely at its own risk and Phoenix shall not be liable for any damages thereto or any theft thereof. City may maintain a policy of insurance with a responsible insurance company against risk of loss from any cause whatsoever to all such property and to all of City's alterations, improvements or additions to the Riverwalk, to the full extent of their replacement cost, which policy of insurance shall contain a clause or endorsement under which the insurer waives or permits the waiver by City of, all right of subrogation against Phoenix and its agents, employees, customers, invitees, guests or licensees, with respect to losses payable under such policy. To the fullest extent allowed by applicable law, City hereby waives all right of recovery which it might otherwise have against Phoenix and its agents, employees, customers, invitees, guests or licensees, for any damage to City's property, notwithstanding that such damage may result from the negligence or fault of Phoenix or its agents, employees, customers, invitees, guests or licensees. 7. Cautions. The captions in the paragraph headings set forth in this Agreement are for convenience only and do not define, describe, extend or limit the scope or intent of this Agreement or of any of its provisions. 8. Severability. The provisions of this Agreement are severable. Should any section, subsection, paragraph or provision of this Agreement be declared to be invalid or unenforceable by a court of competent jurisdiction, it shall not affect the validity or enforceability • of the Agreement as a whole or any part thereof, other than the part declared invalid or M unenforceable. The Parties shall renegotiate, if possible, the invalid or unenforceable section, 41 subsection, paragraph or provision in a manner consistent with the original intent of this Agreement. 9. No Partnership. Nothing in this Agreement shall be deemed or construed by Phoenix, City or by any third person to create the relationship of principal and agent, a partnership, joint venture or any other association between the parties. 10. Governing Law. This Agreement shall be construed in accordance with the laws of the State. of Michigan. Nothing in this Easement Agreement shall be construed to relieve a parry from obtaining any necessary governmental permits, approvals or authorizations otherwise required by law. 11. Construction of Agreement. The rule of strict construction shall not apply to the agreements granted in this Agreement or to the covenants set forth herein. This Agreement shall be given a reasonable construction so that the intention of the Parties to place reasonable restrictions on the use of the Riverwalk is carried out. 12. Force Maieure. The time within which a Parry shall be required to perform any act or acts under this Agreement shall be extended to the extent that the performance of such act or acts shall be delayed by acts of God, fire, windstorm, flood, explosion, collapse of structures, riot, war, labor disputes, delays or restrictions by governmental bodies, inability to obtain or use necessary materials or any cause beyond the reasonable control of such Parry; provided that the • Parry entitled to such extension shall give prompt notice to the other Parry of the occurrence causing such delay. The provisions of this Section (Force Majeure) shall not operate to excuse a Parry from prompt payment of any fees or any other payments required by the terms of this Agreement. 13. No Offer. The submission of this Agreement for examination does not constitute an offer to enter into an agreement and this Agreement shall become effective only upon execution and delivery by Phoenix and City. 14. Notices. All notices, demands and requests given or required to be given pursuant to this Agreement shall be in writing. All such notices, demands and requests shall be deemed to be delivered when: (a) received within three (3) days after deposited in any United States postal box if postage is prepaid and the notice properly addressed to the intended recipient; (b) delivered by facsimile transmission with proof of receipt of delivery; (c) delivered by email transmission with proof of receipt; (d) personally delivered; or (e) sent by nationally recognized overnight courier service (e.g. Federal Express or UPS), in which case such notice shall be deemed given the day after the date sent with all fees paid. 15. Successors. This Agreement shall be binding upon and inure to the benefit of each Party and their respective successors and permitted assigns. Except for Phoenix's parent, subsidiary and affiliated entities and their respective officers, directors, shareholders, partners, agents, and employees and AFICA while it is an occupant of Parcel A, Phoenix and City • acknowledge and warrant and represent to each other that there are no third party beneficiaries to 5 this Agreement. Additionally, as long as AFICA is an occupant of Parcel A, City acknowledges • that AFICA has the right to enforce the provisions of Paragraph I.1 of this Agreement. G C, 16. Legal Expense. In any action arising out of the enforcement of this Agreement, the nonprevailing Parry shall pay to the prevailing Parry all expenses reasonably incurred by the prevailing Party in the action, including reasonable attorney fees. 17. Consent. Unless otherwise indicated in this Agreement, where the consent of a Party is required, such consent shall not be unreasonably withheld, conditioned or delayed. 18. Declaration of Restrictive Covenants. This Agreement shall be subject to the provisions of the to be recorded Declaration of Restrictive Covenants, a specimen of which is attached as an exhibit to the Warranty Deed of even date from City to Phoenix. [THIS SPACE INTENTIONALLY LEFT BLANK] T • r� u • The undersigned executed this Agreement as of this -1 ' day of 2008. 1 Approved as to form: STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) CITY OF LANSING By: !�; Virg Berne o, Mayor By: kris Swope, Clerk( PHOENIX DEVELOMENT PARTNERS, LLC, a Michigan limited liability company, CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, Manager By: es M. Cash I s: Manager Acknowledged before me in Ingham County, Michigan this Dth day of ie — , 2008, by Virg Bernero, Mayor of the City of Lansing, a Michigan municipal corporation. Eileen MMelmannounheWashtew Notary Michigan Acting in My Commission Expires r r. ; 7 v Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: o I_ t X- g G iL�- • • 0 STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Acknowledged before me in Ingham County, Michigan this 30th day of September, 2008, by Chris Swope, Clerk of the City of Lansing, a Michigan municipal corporation. Eileen M. Melman Notary Public Washtenaw County, Michigan Acting in T�%!3 ip� County My Commission Expire 0 /12/2014 STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: Acknowledged before me in Ingham County, Michigan this 30th day of September, 2008, by James M. Cash, Manager of Christman Capital Investment 91oup, LLC, Manager of Phoenix Development Partners, LLC, a Michigan limited liability cogUfany. z Y,6tary P'ublie—,��` Z/W-County, MI Acting in Ingham County, Michigan My Commission Expires: 7�1���� RECORDING FEE: $ EXHIBITS: Exhibit A: - Legal Description of Parcel A Exhibit B: - Legal Description of Parcel B DRAFTED BY AND AFTER RECORDING RETURN TO: Gregory J. Guggemos Guggemos Brown & Gilkey, PC 4050 Hunsaker Drive, Suite 120 East Lansing, MI 48823 Telephone: (517) 336-0127 RIVERWALK USE AGREEMENT • EX 11BIT A (Legal Description of Phoenix Property - Parcel A) Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89°59'00"E 527.87 feet; thence N00*01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00'01'45"W 7.02 feet to the point of beginning of the following described parcel; thence N00001'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50°05' 10"E 157.52 feet; thence N00029'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89°58'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89058'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45°00'36"E, 56.87 feet; 2) S07°00'06"E, 173.32 feet; 3) S17°21'34"E, 75.69 feet; 4) S01'08'14"E, 327.42 feet; 5) S17017'09"W, 167.17 feet; 6) S18004'11"W, 24.53 feet to a building line; thence along said building line the following five (5) courses; 1) S74014'59"E, 16.75 feet; 2) S15°51'22"W, 63.24 •feet; 3) N89°47'17"W, 11.09 feet; 4) S00012'43"W, 14.88 feet; 5) N89°53'37"W, 30.79 feet; thence S23001'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89031' 14"W, 178.68 feet along said curb line to the point of beginning. • 0 RIVERWALK USE AGREEMENT • EXHIBIT B (Legal Description of Parcel B) Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16, N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing N00°01'45"W, 7.02 feet; thence along the East line of North Grand Avenue N00001'45"W 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence continuing along said East street line due North 437.19 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 221.35 feet to the point of beginning of the following described parcel; thence continuing S89°58'00"E, 35.38 feet along said South line to the West line of a retaining wall; thence along the West line of said wall the following six (6) courses: 1) S45°00'36"E, 40.44 feet; 2) S07°00'06"E, 179.66 feet; 3) S17°21'34"E, 76.99 feet; 4) SO 1 °08' 14"E, 335.04 feet; 5) S 17° 17'09"W, 171.40 feet; 6) S 18°04' 11 "W, 100.23 feet to the Northerly line of vacated Ottawa Street; thence N90°00'00"W, 12.64 feet to a building line; thence along said building line the following four (4) courses 1) N00°12'43"E, 14.22 feet; thence S89°47'17"E, 11.09 feet; thence N15°51'22"E, 63.24 feet; thence N74°14'59"W, 16.75 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six • (6) courses: 1) N18°04'11"E, 24.53 feet; 2) N17°17'09"E, 167.17 feet; 3) N01°08'14"W, 327.42 feet; 4) N17021'34"W, 75.69 feet; 5) N07000'06"W, 173.32 feet; 6) N45°00'36"W, 56.87 feet to the point of beginning. Also Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16, N89059'00"E 527.87 feet; thence N00001'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing N00°01'45"W, 7.02 feet to the Southerly curb line of Ottawa Street; thence S89°31' 14"E, 178.68 feet to the point of beginning of the following described parcel; thence N23°01'48"E, 82.99 feet to a building line; thence S89°53'37"E, 27.16 feet along said wall line; thence S23°01'48"W, 83.19 feet to the said Southerly curb line of Ottawa Street; thence N89°31' 14"W, 27.09 feet to the point of beginning. SAClients\Christman CompanyTonstructive Receipt\Phoenix Development Partners LLC\Easement re BWL Property\City Easements\Easement • Agreement.Riverwalk Use.Final.9.30.08.doc 10 • �-6 C. 22 c j B: 3321 P: 1226 10/09/2008 09:41 AM Pages: 18 r 'C 2008-039463 MISCELLANEOUS Receipt #47309 QS Paula Johnson, Ingham County, Michigan �a r- rA(3, �� 1111111111111111111111 IN 1111111111111 IN 111111111111111111111111111111111111111111 rSpace Above This Line is for Recording Information) EASEMENT AGREEMENT — STORM WATER DRAINAGE This EASEMENT AGREEMENT -STORM WATER DRAINAGE ("Easement I Agreement") is executed this 30t' day of September, 2008, between PHOENIX limited liability company, 208 N. Capitol 1 DEVELOPMENT PARTNERS, LLC, a Michigan 48933 ("PDP") and the CITY OF LANSING, a Michigan municipal ; Ave., Lansing, Michigan 124 W. Michigan Ave., Lansing, Michigan 48933 ("City"). PDP and City are o :z corporation, collectively referred to as the "parties" or singularly as a "party" rr, v RECITALS: ! > X -c`;� City owns a parcel of real property located in the City of Lansing, Ingham County, o� I Michigan, legally described on Exhibit A (Riverwalk Parcel"); and , PDP owns a parcel of real property located in the City of Lansing, Ingham County, Michigan, legally described on Exhibit B ("Parcel B"); and ' �n z;; _ fTl —Iq The Riverwalk Parcel is located east and immediately adjacent to Parcel B and is 3 bounded on its east by the Grand River ("Grand River") and is to be improved by a pedestrian �m4 walkway to be constructed by the City, ("Riverwalle ); and o C-c City is willing to extend to PDP, its successors and assigns, for the benefit of Parcel B, a w perpetual and exclusive right and easement on, over, across and under that portion of the C Rlverw alk parcel shown in the areas depicted on Exhibit C ("Easement Area") for the purposes o of installation, repair, maintenance and replacement of the necessary piping in order to discharge Drainage System") as set forth i ,y storm water from Parcel B into the Grand River ("Storm Water below.`' AGREEMENTDEVELOPMENEXECUTEDFURTHERANCE r� THIS EASEMENT AND AGREEMENT ATED JANUARY r THE PROPERTY PURCHASE AGREEMENT") AND THE PARTIES AGREE AS FOLLOW 30, 2008 ("DEVELOPMENT • �5 3 � 5 4- 4— I. STORM WATER EASEMENT 1. Grant. Subject to the terms and conditions of.this Easement Agreement, City grants to PDP, its successors and assigns, for the benefit of Parcel B, a perpetual, exclusive right and easement on, over, across and under the Easement Area for the purpose of installation, repair, maintenance and replacement of the Storm Water Drainage System ("Storm Water Easement"). (a) Except for the construction of the Riverwalk, as set forth in the Development Agreement, City shall not construct other structures within the Easement Area or in any way interfere with PDP's use of the Easement Area. (b) The Storm Water Easement shall also include an easement of support and City shall not allow any activity on the Riverwalk Parcel which will undermine or compromise the support of the Storm Water Drainage System located within the Easement Area. (c) PDP shall contract for and shall pay all costs associated with the installation, maintenance and replacement of the Storm Water Drainage System ("Operational Obligations"). (i) As part of the Operational Obligations, the Storm Water Easement shall include an easement over, under and across the following portions of the 1 Riverwalk Parcel: (A) a path to be reasonably determined by City over and under i • the Riverwalk Parcel to the Easement Area; (B) the areas adjacent to and within ten feet (10') of the Easement Area on the Riverwalk Parcel; necessary to install, maintain, repair and replace the Storm Water Drainage System in the Easement i I -- - Area-("-Access-Easement-Areas°). - -- ---� (ii) The Operational Obligations include, without limitation, that PDP i shall: install, maintain, repair and replace the Storm Water Drainage System in the Easement Area in a good and functional condition sufficient for its intended i purposes. (iii) All work performed on the Storm Water Drainage System or in the Easement Area shall be in accordance with the following requirements: (A) PDP may perform work on the Storm Water Drainage System or in the Easement Area only through licensed contractors and subcontractors; (B) PDP shall be solely responsible for and have control over the means, methods, techniques, sequences and procedures and for coordinating all portions of such work on the Storm Water Drainage System and in the Easement Area; (C) PDP shall obtain all required governmental permits and authorizations for such work; (D) PDP shall cause all work to be completed in a good and workmanlike manner, free from defective materials and in compliance with all applicable laws; and (E) PDP shall be solely responsible for all costs and expenses for all work to be performed on the Storm Water Drainage System. 2 (iv) PDP shall include all components required by and shown on the site plan approved by the City of Lansing. The construction shall be in substantial • compliance with plans and specifications approved by all governmental authorities at the time PDP receives all necessary governmental approvals for the Project, as defined in the Agreement (the "Plans"), as such Plans may be modified by agreement of each party or by the requirements of the City and in either case, which modifications are approved by the City. PDP shall commence such construction as soon as is possible following the date of this Agreement and shall substantially complete all such construction no later than April 1, 2011 subject to the provisions of Article II, Section 16 (Force Majeure) provided PDP exercises diligent efforts to complete the construction. (v) Nothing in this Easement Agreement shall authorize PDP to do any act which will in any way encumber the title of City in the Riverwalk Parcel nor shall the interest of City in the Riverwalk Parcel be in any way subject to any claim whatsoever by virtue of any act or omission of PDP. Any claim to a lien upon the Riverwalk Parcel arising from any act or omission of PDP shall pertain only against PDP's interest in the Riverwalk Parcel. (vi) PDP shall keep the Riverwalk Parcel and the Easement Area free from all construction liens for any labor or material furnished to PDP in connec- tion with the Storm Water Drainage System. However, PDP shall have the right to contest the validity or amount of any such lien, provided that PDP shall either: (a) first post any bond or make any deposits required by City or the terms of any mortgage affecting the Easement Area to assure the discharge of such lien; or (b) furnish such security as may be required to and for the benefit of City or any title insurance company designated by City, to permit a report of title to be issued --" _relating to the Easement Area without 'showing -the -existence -of such lien. - -- (vii) PDP and its agents, employees, contractors, subcontractors or invitees shall exercise its rights under this Easement Agreement in such a manner so as not to unreasonably interfere with, obstruct or delay the City's operations of the Riverwalk. Upon completion by PDP of any work within the Easement Area or Access Easement Areas, PDP shall restore the affected portions of such areas to a condition substantially similar to the condition existing prior to such work. Existing drainage mechanisms traversing the Easement Area as set forth on an ALTA Survey prepared by ME, Project No: 07-511.17, dated August 25, 2008 as revised on September 25, 2008 ("Survey"), must remain intact. PDP and City acknowledge receipt of a copy of the Survey. No ponding of water is permitted as a result of work completed by PDP in the Easement Area. (viii) Once commenced, any installation, maintenance, repair and replacement of the Storm Water Drainage System pursuant to this Easement Agreement shall be diligently prosecuted to completion. 0 (d) PDP shall be responsible to design and install the Storm Water Drainage System on the Easement Area in such a manner as to safely exist on and adjacent to the I* improvements on or to be made to the Riverwalk Parcel. • 2. Use. PDP shall use the Easement Area for the sole purpose of installing, maintaining, repairing and replacing the Storm Water Drainage System. 3. Existing Encumbrances. PDP's rights under this Easement Agreement shall be subject to encumbrances, conditions, covenants, easements, restrictions and rights -of -way, as set forth in the deed from Grantor to Grantee for the "City Property", as set forth in the Development Agreement. 4. Acceptance of Easement Area. PDP accepts the Easement Area in its "as is" condition, with all faults as of the date of this Easement Agreement. PDP further acknowledges that City has made absolutely no warranties or representations regarding the condition of the Easement Area or its suitability for PDP's intended use. 5. Relocation. The City shall not relocate any part of the Storm Water Drainage System without the prior written consent of PDP, which consent shall not be unreasonably, withheld, conditioned or delayed. Any relocation of any portion of the Storm Water Drainage System shall be done at the sole expense of City and further provided that such relocation: (a) shall not diminish the flow or reduce the capacity of the storm water drainage available to Parcel B; (b) shall not unreasonably interfere with the conduct or operation of the business conducted on Parcel B; (c) shall be done in an expeditious and good and workmanlike manner, free of all liens and encumbrances; and (d) . shall be evidenced by an amendment to this Agreement executed by PDP and City and recorded with the Ingham County Register of Deeds. The City shall not relocate all or any part of the Storm Water Drainage System unless approved by all appropriate governmental authorities in accordance with the applicable ordinances. The parties acknowledge that relocation of all or a part of the Storm Water Drainage System implicates both the continuing validity of the site plan approval granted to PDP by the City and effective storm water drainage for Parcel B. 6. Covenants Run With the Land. All the covenants, agreements, conditions and restrictions set forth in this Easement Agreement are intended to be and shall be construed as covenants running with the land, binding upon, inuring to the benefit of and enforceable against the Riverwalk Parcel and Parcel B by the parties, their respective successors and permitted assigns, upon the terms, provisions and conditions of this Easement Agreement. 4 H. GENERAL 1. Inte ration, Exhibits, Consent to Waiver, Amendment. This Easement Agreement and all the agreements arising out of the Development Agreement should be read in conjunction and harmonious with each other. All Exhibits referred to in this Easement Agreement are part of this Easement Agreement. The provisions of this Easement Agreement may be amended, but only with the written consent of City and PDP, which consent shall not be unreasonably withheld, conditioned or delayed. No other persons shall have any rights whatsoever to join in, prevent or otherwise affect or limit any such modification, amendment or termination. 2. Authority. (a) PDP represents and warrants to City that the individual executing this Easement Agreement on its behalf has the authority to do so. (b) City represents and warrants to PDP that: (1) City has the right to enter into this Easement Agreement; and (2) all necessary actions have been taken by City in the execution of this Easement Agreement to make this Easement Agreement a binding obligation of City and it was approved by City. 3. Exemption from Transfer Tax. This instrument is exempt from state and county transfer tax as the consideration is less than One Hundred ($100.00) Dollars. MCLA 207.505(a); MCLA 207.526(a). 4. Assignment. PDP shall have the right to sell, convey, assign or transfer (whether by operation of law or otherwise) (collectively "Transfer") all or any part of its interest in Parcel B. Upon -any -such Transfer,_the-rights-and-obligations of this Agreement_shall automatically pasI to the transferee. Upon a Transfer of the fee interest in Parcel B, PDP shall be relieved of its obligations to perform under this Easement Agreement. 5. Lateral/Subiacent Support. Any damage to the Riverwalk Parcel, its foundational, lateral or subjacent support or any improvement located on the Riverwalk Parcel caused by PDP or PDP's agents, employees, contractors, subcontractors or invitees shall promptly be repaired by PDP at PDP's sole expense. If PDP fails to commence repair of such damage within twenty (20) days after receipt of written notice of such damages from the City (subject to extension as a result of seasonal or inclement weather) and does not in good faith diligently pursue the repair of such damage, the City may do so and the reasonable costs of repair shall be the responsibility of PDP. Said cost shall be payable by PDP within twenty (20) days of City's written notification to PDP of City's reasonable cost of repair. 6. Liability Allocation. PDP shall be responsible for any and all liabilities, claims or damages in connection with the loss of life, personal injury or damage to property caused by the negligent or intentional acts or omissions of PDP or PDP's agents, employees, contractors or subcontractors on the Riverwalk Parcel. If within twenty (20) days of City's notice of such • claims to PDP, PDP fails to assume responsibility under terms reasonably acceptable to City in 5 City's sole discretion, then City may undertake suchxesponsibility and the reasonable costs of doing so, together with any damages of City, shall be the sole responsibility of PDP. Said cost shall be payable by PDP within twenty (20) days of City's notification of City's reasonable costs. PDP shall have no responsibility for claims, losses or expenses caused by the negligent or intentional acts or omissions of City or City's agents, employees, contractors or subcontractors on the Riverwalk Parcel. 7. Utility Relocation. To the extent that the exercise of PDP's rights hereunder requires the relocation of any utility facilities located on the Riverwalk Parcel as of the date of PDP's construction of the Storm Water Drainage System, PDP may relocate such utilities at its sole cost. 8. Default. In the event that a party defaults in its obligations hereunder and the cure for such default is not commenced in good faith and diligently pursued within twenty (20) days after written notice from the nondefaulting party to the defaulting party, the nondefaulting party may: (A) enforce any remedies or rights of termination provided for under this Easement Agreement; (B) seek specific performance of the defaulting party's obligations; (C) perform the obligation of the defaulting party and seek reimbursement from the nondefaulting party in a court i of law for expenses the nondefaulting party establishes were reasonably incurred and necessary to fulfill the defaulting parry's obligations ; or (D) seek any other available remedy in law or equity. Any amount due from the defaulting party to the nondefaulting party shall bear interest at the lesser of (i) twelve percent (12%) per annum or (ii) the maximum rate permitted by applicable law, compounded annually. The remedies provided for under this Section are not exclusive, are in addition to and not in lieu of any other rights or remedies available at law or in equity. 9. Self Insurance/Insurance. ' (a`) PDP may -self insure-or-obtain-insurance-coverage-in-such-amounts-asPDP— deems appropriate at its expense to protect PDP from claims for damages due to bodily injury, loss or damage to property for which PDP is responsible under this Easement Agreement, with such coverage in an amount determined by the PDP. PDP shall deliver evidence of such self insurance coverage, if any or a certificate of insurance evidencing all coverage specified in this paragraph, to City upon request. The coverages to benefit i City shall not be canceled, cancelable or modified until at least thirty (30) days prior written notice of intention to cancel or modify has been delivered by the insurer to City. The amounts of insurance coverage required hereunder shall be increased from time to time to be consistent with the amounts of such coverages reasonably maintained for I similar risks. (b) PDP shall bring or keep property upon the Easement Area solely at its own risk and City shall not be liable for any damages thereto or any theft thereof. PDP shall maintain a policy of insurance with a responsible insurance company satisfactory to City against risk of loss from any cause to all such property and to all of PDP's alterations, improvements or additions to the Easement Area, to the full extent of their replacement cost, which policy of insurance shall contain a clause or endorsement under which the . insurer waives or permits the waiver by PDP of, all right of subrogation against City and its employees with respect to losses payable under such policy. The City shall be responsible for any losses incurred by PDP as a result of any act or omission by City not payable under such policy to the extent recoverable under applicable law. . 10. Captions. The captions in the paragraph headings set forth in this Easement Agreement are for convenience only and do not define, describe, extend or limit the scope or intent of this Easement Agreement or any of its provisions. 11. Severability. The provisions of this Easement Agreement are severable. Should any section, subsection, paragraph or provision of this Easement Agreement be declared to be invalid or unenforceable by a court of competent jurisdiction, it shall not affect the validity or enforceability of the Easement Agreement as a whole or any part thereof, other than the part declared invalid or unenforceable. The parties shall renegotiate, if possible, the invalid or unenforceable section, subsection, paragraph or provision in a manner consistent with the original intent. 12. No Partnership. Nothing in this Easement Agreement shall be deemed or construed by City, PDP or by any third person to create the relationship of principal and agent, a partnership, joint venture or any other association between the parties. 13. Governing Law. This Easement Agreement shall be construed in accordance with the laws of the State of Michigan. PDP shall comply with the laws of the State of Michigan with regard to all of its activities under this Easement Agreement. Nothing in this Easement Agreement shall be construed to relieve a party from obtaining any necessary governmental permits, approvals or authorizations otherwise required by law. 14. Construction of Easement Agreement. The rule of strict construction shall not i applyto-the-easements-and-agreements-granted-in-this Easement_Agreement-or to_the co_v_enants set forth herein. This Easement Agreement shall be given a reasonable construction so that the intention of the City to confer reasonably usable benefits and reasonably enforceable obligations are carried out. 15. Waiver of Default. No waiver of any default by any party to this Easement Agreement shall be implied from any omission by any other party to take any action in respect of such default if such default continues or is repeated. No express waiver of any default shall affect any default or cover any period of time other than the default and period of time specified in such express waiver. One or more waivers of any default in the performance of any term, provision or covenant contained in this Easement Agreement shall not be deemed to be a waiver of any subsequent default in the performance of the same term, provision or covenant or any other term, provision or covenant contained in this Easement Agreement. The consent or approval by any party to or of any act or request by any other party requiring consent or approval shall not be deemed to waive or render unnecessary the consent to or approval of any subsequent similar acts or requests. The rights and remedies given to any party to this Easement Agreement shall be deemed to be cumulative and no single right or remedy shall be exclusive of any of the others or of any other right or remedy at law or in equity which any such party might otherwise • have by virtue of a default under this Easement Agreement and the exercise of one such right or 7 • remedy by any such parry shall not impair such party's standing to exercise any other right or remedy. 16. Force Maieure. The time within which a party shall be required to perform any act or acts under this Easement Agreement shall be extended to the extent that the performance of such act or acts shall be delayed by acts of God, fire, windstorm, flood, explosion, collapse of structures, riot, war, labor shortages, labor disputes, delays or restrictions by governmental bodies, inability to obtain or use necessary materials or any cause beyond the reasonable control of such party. The party entitled to such extension shall give prompt notice to the other party of the occurrence causing such delay. The provisions of this Section (Force Majeure) shall not operate to excuse PDP from prompt payment of any fees or any other payments required by the terms of this Easement Agreement. 17. No Offer. The submission of this Easement Agreement for examination does not constitute an offer to enter into an Easement Agreement and this Easement Agreement shall become effective only upon execution and delivery by City and PDP. 18. Notices. All notices, demands and requests given or required to be given pursuant to this Easement Agreement shall be in writing. All such notices, demands and requests shall be deemed to be delivered when: (a) received within three (3) days after deposited in any United States postal box if postage is prepaid and the notice properly addressed to the intended recipient; (b) delivered by facsimile transmission with proof of receipt of delivery; (c) delivered by email transmission with proof of receipt; (d) personally delivered; or (e) sent by nationally recognized overnight courier service (e.g. Federal Express or UPS) in which case such notice shall be deemed given the day after the date sent with all fees paid. 19. Successors and Third Parties. This Easement Agreement shall be binding upon and-inure-to,the-benefit of each -party and-its-respective.successors-and.permitted_assigns—Except for PDP's parent, subsidiary and affiliated entities and their respective officers, directors, shareholders, partners,. agents, and employees and Accident Fund Insurance Company of America while it is an occupant of Parcel B, City and PDP acknowledge, warrant and represent to the other that there are no third party beneficiaries to this Easement Agreement. ! 20. Obligations Survive. All obligations arising prior to the termination of this Easement Agreement and all provisions of this Easement Agreement allocating responsibility or liability between the parties shall survive the termination of this Easement Agreement. No obligation which survives the term of this Easement Agreement shall give PDP any interest in the Riverwalk Parcel, possessory or otherwise, nor have the effect of extending the term of this Easement Agreement. 21. Record of Termination. If this Easement Agreement is terminated for any reason, City shall record a termination of this Easement Agreement with the Ingham County Register of Deeds. 8 L' • 22. Legal Expense. In any action arising out of the enforcement of this Easement Agreement, the nonprevailing Party shall pay to the prevailing Party all expenses reasonably incurred by the prevailing Party in the action, including reasonable attorney fees. 23. Consent. Unless otherwise indicated in this Easement Agreement, where the consent of a Party is required, such consent shall not be unreasonably withheld, conditioned or delayed. 24. Declaration of Restrictive Covenants. This Easement Agreement shall be subject to the provisions of the to be recorded Declaration of Restrictive Covenants, a specimen of which is attached as an exhibit to the Warranty Deed of even date from City to PDP. [THIS SPACE INTENTIONALLY LEFT BLANK] E The undersigned executed this Easement Agreement this 04%k day of j,1,,, , 2008. Approved as to form: CITY OF LANSING By. Brigham C. S ith, Ci Atto y Virg Berne o, Mayor By: s Swope, Clerk PHOENIX DEVELOMENT PARTNERS, LLC, a Michigan limited liability company, CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, Manager n -11-001 esM. Cash anager STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Acknowledged before me in Ingham County, Michigan thi�h day of en jbR " , 2008, by Virg Bernero, Mayor of the City of Lansing, a Michigan municipal corporation. Eileen M. Melman Notary Public Washtenaw County, Michigan Acting in J {�� County My Commission Expires 01/12/2014 • 10 Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: STATE OF MICHIGAN ) ) ss • COUNTY OF INGHAM ) is • Acknowledged before me in Ingham County, Michigan thiaLth day of 2008, by Chris Swope, Clerk of the City of Lansing, a Michigan municipal corporation. We a n Notary Public,ul i _uXounty, MI Acting in Ingham County, Michigan My Commission Expires:14- STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Acknowledged before me in Ingham County, Michigan thit day o , 2008, by James M. Cash, Manager of Christman Capital Investment Group, LLC, Manager of Phoenix Development Partners, LLC, a Michigan limited liability company. Notary Public, County, MI Acting in Ingham County, Michmig My Commission Expires: S RECORDING FEE: $ EXHIBITS: Exhibit A: Legal Description of the Riverwalk Parcel Exhibit B: Legal Description of Parcel B Exhibit C: Depiction of the Riverwalk Exhibit D: Depiction of Easement Area DRAFTED BY AND AFTER RECORDING RETURN TO: Gregory J. Guggemos Guggemos Brown & Gilkey, PC 4050 Hunsaker Drive, Suite 120 East Lansing, MI 48823 Telephone: (517) 336-0127 11 EASEMENT AGREEMENT — STORM WATER DRAINAGE EXHIBIT A (Legal Description of the Riverwalk Parcel) Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16, N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing N00°01'45"W, 7.02 feet; thence along the East line of North Grand Avenue N00001'45"W 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence continuing along said East street line due North 437.19 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 221.35 feet to the point of beginning of the following described parcel; thence continuing S89058'00"E, 35.38 feet along said South line to the West line of a retaining wall; thence along the West line of said wall the following six (6) courses: 1) S45°00'36"E, 40.44 feet; 2) S07°00'06"E, 179.66 feet; 3) S17021'34"E, 76.99 feet; 4) S01008'14"E, 335.04 feet; 5) S17017'09"W, 171.40 feet; 6) S18°04'11"W, 100.23 feet to the Northerly line of vacated Ottawa Street; thence N90°00'00"W, 12.64 feet to a building line; thence along said building line the following four (4) courses 1) N00°12'43"E, 14.22 feet; thence S89047' 17"E, 11.09 feet; thence N15051'22"E, 63.24 feet; thence N74°14'59"W, 16.75 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) N18°04'11"E, 24.53 feet; 2) N17017'09"E, 167.17 feet; 3) N01008'14"W, 327.42 • feet; 4) N17021'34"W, 75.69 feet; 5) N07000'06"W, 173.32 feet; 6) N45°00'36"W, 56.87 feet to the point of beginning. E Also -Commencing -at the -center -post of Section 1.6; T4N,-R2W,-now_City_of_Lansing,-Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16, N89059'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded'in Liber 2, Pages 36-38, Ingham County Plats; thence continuing N00001'45"W, 7.62 feet to the Southerly curb line of Ottawa Street; thence S89°31' 14"E, 178.68 feet to the point of beginning of the following described parcel; thence N23001'48"E, 82.99 feet to a building line; thence S89153'37"E, 27.16 feet along i said wall line; thence S23*01'48"W, 83.19 feet to the said Southerly curb line of Ottawa Street; thence N89031' 14"W, 27.09 feet to the point of beginning. 12 EASEMENT AGREEMENT — STORM WATER DRAINAGE 0 EXHIBIT B (Legal Description of PDP Property - Parcel B) Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00°01'45"W 7.02 feet to the point of beginning of the following described parcel; thence N00°01'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50°05' 10"E 157.52 feet; thence N00°29'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89°58'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 221.35 feet; thence ninning parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45°00'36"E, 56.87 feet; 2) S07°00'06"E, 173.32 feet; 3) S17°21'34"E, 75.69 feet; 4) S01°08'14"E, 327.42 feet; 5) S 17017' 09"W, 167.17 feet; 6) S 18'04' 11 "W, 24.53 feet to a building line; thence along said building line the following five (5) courses; 1) S74°14'59"E, 16.75 feet; 2) S15'51'22"W, 63.24 feet; 3) N89°47' 17"W, 11.09 feet; 4) S00°12'43"W, 14.88 feet; 5) N89°53'37"W, 30.79 feet; • thence S23'01'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89031' 14"W, 178.68 feet along said curb line to the point of beginning. • 1191 • • • EASEMENT AGREEMENT — STORM WATER DRAINAGE EXHIBIT C (Depiction of the Easement Area) S:\Clients\Christman Company\Constructive ReceiptThoenix Development Partners LLC\Easement re BWL Property\City Easements\Easement Agreement.Storm Water Drainage System.Final.9.30.08.doc 14 D co I� �ro v f• . ICI � 24" TORM CID CEN DST I^ - SEC. 6 rn T.4N, R2W. 1 1 all ZJJ ❑ ❑ ❑ ❑ ❑ ❑ t • S i S S p I — —�' GAS TAT - fL000 I — O , • I STEAK I — �— — — - •-, — — ` —T— — N00'O1'45*W 7.02' - - - -s: m UGI ELgCTRI ❑ �� m ELEC13IC - - -- -� — - - N00'01'45'W 330.00`_ -'- - 1 j- D Z. EAST LINE N. G"D AVE. SITE .BENCHM K 10 I I FD CUT CROSS I N A © I AREA A USE AGREEMENT I I`.. QI •41� [11 ..r FD. MAC NAIL IN Jo^ rwLcr 1 ' I Ny POINT OF BEGINNING PAVEMENT 0.08' SOUTH A R i �t I �E G E -' HISTORIC DISTRICT - NORTHWEST CORNER BLOCK 99 t is • POINT OF BEGINNING PROPOSED OTTAWA CAMPUS ' o k OFFICE BUILDING PROPERTY co '" S a� 1 ©AREA C USE -AGREEMENT _ 16' CHILLED WATER _ :METH_—�_ t 236.2' BLOCK 99 i 8' 3TEAM I t r NL to t I .I ? - t N to NLn I i t t L -� II< I — I I ` I •, �- � G� I EAST Y CORNER 1 T 82' m\ 0 SEC. 16 °f 5 • I� E ; T.4N, R.2W POINT OF BEGINNING I I n t I S\G FINISHED F RIVERFRONT PROPERTY �. cni q'S ° S89'53'37'E 27.16 o� �~ N89'53'37'W 30.79' J.I �2 4B r I • FO CUT CROSS IN *�301 , w SEAWALL 0.29' SW. 0o e I Ln 78' CULVERT END INV.=816.45 4 42.4' 12' CULVERT END IN%/ —R17 Z: I 01• ... .. ... r 'GA'S )cUr W-W-1-1 ER STORM Q ZONE!: 7-� 6- WATER 0 0 0 00 0 0 11 dDt 0 3 0 0 0 c C191C cTRIr. EAST LINE N. GRAND AVE. I kQl'45 2!— 'L D -CUT CROSS \ L Zx IN LUNLKtIt AREA A USE 'AGREEMENT �N()Rt GRAND RA POINT OF BEGINNING (CI OF LANSING /-HISTORIC DISTRICT 830— Ui ©AREA C USE AGREEMENT I s/ 16' CHILLED WATER ON9( ELECTRIC— X 236.2 ] Ln C:) 20.4 OTTAWA STATION BRICK BUILDING FINISHED FLOOR ELEVATION 835.50 co Ln 1 CA 00 S89'53'37'E 27.16- N89*53 37W 30.79' m 211.8' >c3c N, UO I CA\ LOCK 98 C-0 01 8*04'1 jr ZONE 8 CONTOUR 63-2- Zo 18,04, WY 11 -C 15 � ?k N89*4717*W 11.09, 09* S89'47'17"E 11.09' 16� 17' -16-7 77 SG(Tl2'43'W 14.88' 0 N00r12'43'E 14.22' S74! 14'5 9 - ..... . . .. 16.75 iitment N74* 1 4'59'W 7 16.75' 0 tobty of S15*51'22*W 63-24' 171.40, N15'51'22"E 63.24' 20-x20- CULVERT END WICAP 96" TALL 72—MC -ed June 14, INV.=818.94 -ement areas. FD CUT CROSS IN WALL t for parking GENERAL NOTES: y College is W/ 16' Ll ER'STORM 6"'WATER K� / 0100 m 0 /❑ 003 UG EL XTRIC j I S DR�H GRAND RA CIV..OF LANSING) 830— C% - - - - - - m ca - - - - STATION UILDING LEVATION = 835.50 98 ZONE 8 T CULVERT END W/CAP 110 0 I EX I AREA D USE AGREEMENT \_'."' I- z ©AREA A USE AGREEMENT Z Z I -:z Z_ Z F; I AA: ca Cr to — — — — — — — — — — 7-7 1:12". NE 0 RKING I A-60D[IONE:Al2.---. 'z 7: F -A� P A - OVLRHEAD E 177 FLOOD ZONE 0 F)OPOSED OTTAWA CAMPUS FLOOD ZONE 57 ACRES 10 INGRESS-EGRES! EASEMENT '17 RWROSE-'-RIVERFRONT— PROPEI�-T L x 72-MOE C0F=L1BA§CHARCE- East—West 1/4 line .as shown on the survey L..-:-- monrnInn"c _ GRAND RIVER I P ('-\ A I n CQ t\D 10 T1 n K I Q - IN R STORM <C�AN071 AVE FLOOD ZONE Al2 WIDE PUBLIC` R 0 W.)' r UG ELE = NORTH n 141.05' - - o M= NORTH 296.14' _ LaPOINT OF BEGINNING r4 o PARKING GARAGE FD CUT CROSS , Fp, L &TAG 30897 IN CONCRETE 0. iW �\ EAST POINT OF BEGIN G 4 0° OFFICE BUILD NG PARCEL 2 ; 1 BRICK & ALUMIN M BUILDING - s ` FINISHED FLOOR ELEVATION = 829.70 :i -tpZ zz [s� a 4 PARCEL 2 $ C f0.54 ACRES :�== �.;�: ``' zz ❑m = ,:Z 6 II II ro 6NE•-Al2co co �. cn Z m ;AGREEMENT=� Z. F0. NAIL be TAG 130897 o l 0.03' SOUTH = BLOC K • 66 I 1 SDO'29140 1F===9VERHEAO::�I£CTR: 39.a6' - F 3.- �T_ IRON_ Z. � 0.14' EAST ��— '- - ---------- - _ � - -- - - - - _POINT- PROPC I ZONE Al2 OUR 17 f -EG ENT° 5 FO CUT CROSS IN WALL FD CUT CRO IN WALL 12' CULVERT END INV=820.43 Above This Line is for Recording Information] EASEMENT AGREEMENT - STORM WATER DRAINAGE This EASEMENT AGREEMENT -STORM WATER DRAINAGE ("Easement Agreement") is executed this 30`h day of September, 2008, between PHOENIX DEVELOPMENT PARTNERS, LLC, a Michigan limited liability company, 208 N. Capitol Ave., Lansing, Michigan 48933 ("PDP") and the CITY OF LANSING, a Michigan municipal corporation, 124 W. Michigan Ave., Lansing, Michigan 48933 ("City"). PDP and City are collectively referred to as the "parties" or singularly as a "party." RECITALS: •City owns a parcel of real property located in the City of Lansing, Ingham County, Michigan, legally described on Exhibit A ("Riverwalk Parcel'); and PDP owns a parcel of real property located in the City of Lansing, Ingham County, Michigan, legally described on Exhibit B ("Parcel 11"); and The Riverwalk Parcel is located east and immediately adjacent to Parcel B and is bounded on its east by the Grand River ("Grand River") and is to be improved by a pedestrian walkway to be constructed by the City, ("Riverwalle ); and City is willing to extend to PDP, its successors and assigns, for the benefit of Parcel B, a perpetual and exclusive right and easement on, over, across and under that portion of the Riverwalk Parcel shown in the areas depicted on Exhibit C ("Easement Area") for the purposes of installation, repair, maintenance and replacement of the necessary piping in order to discharge storm water from Parcel B into the Grand River ("Storm Water Drainage System") as set forth below. THIS EASEMENT AGREEMENT IS BEING EXECUTED IN FURTHERANCE OF THE PROPERTY PURCHASE AND DEVELOPMENT AGREEMENT DATED JANUARY 30, 2008 ("DEVELOPMENT AGREEMENT") AND THE PARTIES AGREE AS FOLLOWS: • I. STORM WATER EASEMENT 1. Grant. Subject to the terms and conditions of this Easement Agreement, City grants to PDP, its successors and assigns, for the benefit of Parcel B, a perpetual, exclusive right and easement on, over, across and under the Easement Area for the purpose of installation, repair, maintenance and replacement of the Storm Water Drainage System ("Storm Water Easement"). (a) Except for the construction of the Riverwalk, as set forth in the Development Agreement, City shall not construct other structures within the Easement Area or in any way interfere with PDP's use of the Easement Area. (b) The Storm Water Easement shall also include an easement of support and City shall not allow any activity on the Riverwalk Parcel which will undermine or compromise the support of the Storm Water Drainage System located within the Easement Area. (c) PDP shall contract for and shall pay all costs associated with the installation, maintenance and replacement of the Storm Water Drainage System ("Operational Obligations"). (i) As part of the Operational Obligations, the Storm Water Easement shall include an easement over, under and across the following portions of the -- -- • Riverwalk Parcel: (A) a path to be reasonably determined by City over and under the Riverwalk Parcel to the Easement Area; (B) the areas adjacent to and within ten feet (101) of the Easement Area on the Riverwalk Parcel; necessary to install, maintain, repair and replace the Storm Water Drainage System in the Easement Area ("Access Easement Areas"). (ii) The Operational Obligations include, without limitation, that PDP shall: install, maintain, repair and replace the Storm Water Drainage System in the Easement Area in a good and functional condition sufficient for its intended purposes. (iii) All work performed on the Storm Water Drainage System or in the Easement Area shall be in accordance with the following requirements: (A) PDP may perform work on the Storm Water Drainage System or in the Easement Area only through licensed contractors and subcontractors; (B) PDP shall be solely responsible for and have control over the means, methods, techniques, sequences and procedures and for coordinating all portions of such work on the Storm Water Drainage System and in the Easement Area; (C) PDP shall obtain all required governmental permits and authorizations for such work; (D) PDP shall cause all work to be completed in a good and workmanlike manner, free from defective materials and in compliance with all applicable laws; and (E) PDP shall be solely responsible for all costs and expenses for all work to be performed on the Storm • Water Drainage System. K • (iv) PDP shall include all components required by and shown on the site plan approved by the City of Lansing. The construction shall be in substantial compliance with plans and specifications approved by all governmental authorities at the time PDP receives all necessary governmental approvals for the Project, as defined in the Agreement (the "Plans"), as such Plans may be modified by agreement of each party or by the requirements of the City and in either case, which modifications are approved by the City. PDP shall commence such construction as soon as is possible following the date of this Agreement and shall substantially complete all such construction no later than April 1, 2011 subject to the provisions of Article II, Section 16 (Force Majeure) provided PDP exercises diligent efforts to complete the construction. (v) Nothing in this Easement Agreement shall authorize PDP to do any act which will in any way encumber the title of City in the Riverwalk Parcel nor shall the interest of City in the Riverwalk Parcel be in any way subject to any claim whatsoever by virtue of any act or omission of PDP. Any claim to a lien upon the Riverwalk Parcel arising from any act or omission of PDP shall pertain only against PDP's interest in the Riverwalk Parcel. (vi) PDP shall keep the Riverwalk Parcel and the Easement Area free from all construction liens for any labor or material furnished to PDP in connec- tion with the Storm Water Drainage System. However, PDP shall have the right to contest the validity or amount of any such lien, provided that PDP shall either: • (a) first post any bond or make any deposits required by City or the terms of any mortgage affecting the Easement Area to assure the discharge of such lien; or (b) furnish such security as may be required to and for the benefit of City or any title insurance company designated by City, to permit a report of title to be issued relating to the Easement Area without showing the existence of such lien. • (vii) PDP and its agents, employees, contractors, subcontractors or invitees shall exercise its rights under this Easement Agreement in such a manner so as not to unreasonably interfere with, obstruct or delay the City's operations of the Riverwalk. Upon completion by PDP of any work within the Easement Area or Access Easement Areas, PDP shall restore the affected portions of such areas to a condition substantially similar to the condition existing prior to such work. Existing drainage mechanisms traversing the Easement Area as set forth on an ALTA Survey prepared by C2AE, Project No: 07-511.17, dated August 25, 2008 as revised on September 25, 2008 ("Survey"), must remain intact. PDP and City acknowledge receipt of a copy of the Survey. No ponding of water is permitted as a result of work completed by PDP in the Easement Area. (viii) Once commenced, any installation, maintenance, repair and replacement of the Storm Water Drainage System pursuant to this Easement Agreement shall be diligently prosecuted to completion. 3 • (d) PDP shall be responsible to design and install the Storm Water Drainage System on the Easement Area in such a manner as to safely exist on and adjacent to the improvements on or to be made to the Riverwalk Parcel. 2. Use. PDP shall use the Easement Area for the sole purpose of installing, maintaining, repairing and replacing the Storm Water Drainage System. 3. Existing Encumbrances. PDP's rights under this Easement Agreement shall be subject to encumbrances, conditions, covenants, easements, restrictions and rights -of -way, as set forth in the deed from Grantor to Grantee for the "City Property", as set forth in the Development Agreement. 4. Acceptance of Easement Area. PDP accepts the Easement Area in its "as is" condition, with all faults as of the date of this Easement Agreement. PDP further acknowledges that City has made absolutely no warranties or representations regarding the condition of the Easement Area or its suitability for PDP's intended use. 5. Relocation. The City shall not relocate any part of the Storm Water Drainage System without the prior written consent of PDP, which consent shall not be unreasonably, withheld, conditioned or delayed. Any relocation of any portion of the Storm Water Drainage System shall be done at the sole expense of City and further provided that such relocation: (a) shall not diminish the flow or reduce the capacity of the storm water • drainage available to Parcel B; • (b) shall not unreasonably interfere with the conduct or operation of the business conducted on Parcel B; (c) shall be done in an expeditious and good and workmanlike manner, free of all liens and encumbrances; and (d) . shall be evidenced by an amendment to this Agreement executed by PDP and City and recorded with the Ingham County Register of Deeds. The City shall not relocate all or any part of the Storm Water Drainage System unless approved by all appropriate governmental authorities in accordance with the applicable ordinances. The parties acknowledge that relocation of all or a part of the Storm Water Drainage System implicates both the continuing validity of the site plan approval granted to PDP by the City and effective storm water drainage for Parcel B. 6. Covenants Run With the Land. All the covenants, agreements, conditions and restrictions set forth in this Easement Agreement are intended to be and shall be construed as covenants running with the land, binding upon, inuring to the benefit of and enforceable against the Riverwalk Parcel and Parcel B by the parties, their respective successors and permitted assigns, upon the terms, provisions and conditions of this Easement Agreement. 0 • II. GENERAL 1. Integration, Exhibits, Consent to Waiver, Amendment. This Easement Agreement and all the agreements arising out of the Development Agreement should be read in conjunction and harmonious with each other. All Exhibits referred to in this Easement Agreement are part of this Easement Agreement: The provisions of this Easement Agreement may be amended, but only with the written consent of City and PDP, which consent shall not be unreasonably withheld, conditioned or delayed. No other persons shall have any rights whatsoever to join in, prevent or otherwise affect or limit any such modification, amendment or termination. 2. Authority. (a) PDP represents and warrants to City that the individual executing this Easement Agreement on its behalf has the authority to do so. (b) City represents and warrants to PDP that: (1) City has the right to enter into this Easement Agreement; and (2) all necessary actions have been taken by City in the execution of this Easement Agreement to make this Easement Agreement a binding obligation of City and it was approved by City. 3. Exemption from Transfer Tax. This instrument is exempt from state and county transfer tax as the consideration is less than One Hundred ($100.00) Dollars. MCLA . 207.505(a); MCLA 207.526(a). 4. Assignment. PDP shall have the right to sell, convey, assign or transfer (whether by operation of law or otherwise) (collectively "Transfer") all or any part of its interest in Parcel B. Upon any such Transfer, the rights and obligations of this Agreement shall automatically pass to the transferee. Upon a Transfer of the fee interest in Parcel B, PDP shall be relieved of its obligations to perform under this Easement Agreement. 5. Lateral/Subiacent Support. Any damage to the Riverwalk Parcel, its foundational, lateral or subjacent support or any improvement located on the Riverwalk Parcel caused by PDP or PDP's agents, employees, contractors, subcontractors or invitees shall promptly be repaired by PDP at PDP's sole expense. If PDP fails to commence repair of such damage within twenty (20) days after receipt of written notice of such damages from the City (subject to extension as a result of seasonal or inclement weather) and does not in good faith diligently pursue the repair of such damage, the City may do so and the reasonable costs of repair shall be the responsibility of PDP. Said cost shall be payable by PDP within twenty (20) days of City's written notification to PDP of City's reasonable cost of repair. 6. Liability Allocation. PDP shall be responsible for any and all liabilities, claims or damages in connection with the loss of life, personal injury or damage to property caused by the negligent or intentional acts or omissions of PDP or PDP's agents, employees, contractors or subcontractors on the Riverwalk Parcel. If within twenty (20) days of City's notice of such • claims to PDP, PDP fails to assume responsibility under terms reasonably acceptable to City in F • City's sole discretion, then City may undertake such responsibility and the reasonable costs of doing so, together with any damages of City, shall be the sole responsibility of PDP. Said cost shall be payable by PDP within twenty (20) days of City's notification of City's reasonable costs. PDP shall have no responsibility for claims, losses or expenses caused by the negligent or intentional acts or omissions of City or City's agents, employees, contractors or subcontractors on the Riverwalk Parcel. 7. Utility Relocation. To the extent that the exercise of PDP's rights hereunder requires the relocation of any utility facilities located on the Riverwalk Parcel as of the date of PDP's construction of the Storm Water Drainage System, PDP may relocate such utilities at its sole cost. 8. Default. In the event that a party defaults in its obligations hereunder and the cure for such default is not commenced in good faith and diligently pursued within twenty (20) days after written notice from the nondefaulting party to the defaulting party, the nondefaulting party may: (A) enforce any remedies or rights of termination provided for under this Easement Agreement; (B) seek specific performance of the defaulting party's obligations; (C) perform the obligation of the defaulting party and seek reimbursement from the nondefaulting party in a court of law for expenses the nondefaulting party establishes were reasonably incurred and necessary to fulfill the defaulting parry's obligations ; or (D) seek any other available remedy in law or equity. Any amount due from the defaulting party to the nondefaulting party shall bear interest at the lesser of (i) twelve percent (12%) per annum or (ii) the maximum rate permitted by applicable law, compounded annually. The remedies provided for under this Section are not exclusive, are in addition to and not in lieu of any other rights or remedies available at law or in equity. 9. Self Insurance/Insurance. (a) PDP may self insure or obtain insurance coverage in such amounts as PDP deems appropriate at its expense to protect PDP from claims for damages due to bodily injury, loss or damage to property for which PDP is responsible under this Easement Agreement, with such coverage in an amount determined by the PDP. PDP shall deliver evidence of such self insurance coverage, if any or a certificate of insurance evidencing all coverage specified in this paragraph, to City upon request. The coverages to benefit City shall not be canceled, cancelable or modified until at least thirty (30) days prior written notice of intention to cancel or modify has been delivered by the insurer to City. The amounts of insurance coverage required hereunder shall be increased from time to time to be consistent with the amounts of such coverages reasonably maintained for similar risks. (b) PDP shall bring or keep property upon the Easement Area solely at its own risk and City shall not be liable for any damages thereto or any theft thereof. PDP shall maintain a policy of insurance with a responsible insurance company satisfactory to City against risk of loss from any cause to all such property and to all of PDP's alterations, improvements or additions to the Easement Area, to the full extent of their replacement. cost, which policy of insurance shall contain a clause or endorsement under which the • insurer waives or permits the waiver by PDP of, all right of subrogation against City and 2 • its employees with respect to losses payable under such policy. The City shall be responsible for any losses incurred by PDP as a result of any act or omission by City not payable under such policy to the extent recoverable under applicable law. 10. Captions. The captions in the paragraph headings set forth in this Easement Agreement are for convenience only and do not define, describe, extend or limit the scope or intent of this Easement Agreement or any of its provisions. 11. Severability. The provisions of this Easement Agreement are severable. Should any section, subsection, paragraph or provision of this Easement Agreement be declared to be invalid or unenforceable by a court of competent jurisdiction, it shall not affect the validity or enforceability of the Easement Agreement as a whole or any part thereof, other than the part declared invalid or unenforceable. The parties shall renegotiate, if possible, the invalid or unenforceable section, subsection, paragraph or provision in a manner consistent with the original intent. 12. No Partnership. Nothing in this Easement Agreement shall be deemed or construed by City, PDP or by any third person to create the relationship of principal and agent, a partnership, joint venture or any other association between the parties. 13. Governing Law. This Easement Agreement shall be construed in accordance with the laws of the State of Michigan. PDP shall comply with the laws of the State of Michigan with regard to all of its activities under this Easement Agreement. Nothing in this Easement Agreement shall be construed to relieve a party from obtaining any necessary governmental permits, approvals or authorizations otherwise required by law. 14. Construction of Easement Agreement. The rule of strict construction shall not apply to the easements and agreements granted in this Easement Agreement or to the covenants set forth herein. This Easement Agreement shall be given a reasonable construction so that the intention of the City to confer reasonably usable benefits and reasonably enforceable obligations are carried out. 15. Waiver of Default. No waiver of any default by any party to this Easement Agreement shall be implied from any omission by any other party to take any action in respect of such default if such default continues or is repeated. No express waiver of any default shall affect any default or cover any period of time other than the default and period of time specified in such express waiver. One or more waivers of any default in the performance of any term, provision or covenant contained in this Easement Agreement shall not be deemed to be a waiver of any subsequent default in the performance of the same term, provision or covenant or any other term, provision or covenant contained in this Easement Agreement. The consent or approval by any party to or of any act or request by any other party requiring consent or approval shall not be deemed to waive or render unnecessary the consent to or approval of any subsequent similar acts or requests. The rights and remedies given to any party to this Easement Agreement shall be deemed to be cumulative and no single right or remedy shall be exclusive of any of the • others or of any other right or remedy at law or in equity which any such party might otherwise have by virtue of a default under this Easement Agreement and the exercise of one such right or 7 • remedy by any such parry shall not impair such party's standing to exercise any other right or remedy. • 16. Force Maieure. The time within which a parry shall be required to perform any act or acts under this Easement Agreement shall be extended to the extent that the performance of such act or acts shall be delayed by acts of God, fire, windstorm, flood, explosion, collapse of structures, riot, war, labor shortages, labor disputes, delays or restrictions by governmental bodies, inability to obtain or use necessary materials or any cause beyond the reasonable control of such party. The party entitled to such extension shall give prompt notice to the other party of the occurrence causing such delay. The provisions of this Section (Force Majeure) shall not operate to excuse PDP from prompt payment of any fees or any other payments required by the terms of this Easement Agreement. 17. No Offer. The submission of this Easement Agreement for examination does not constitute an offer to enter into an Easement Agreement and this Easement Agreement shall become effective only upon execution and delivery by City and PDP. 18. Notices. All notices, demands and requests given or required to be given pursuant to this Easement Agreement shall be in writing. All such notices, demands and requests shall be deemed to be delivered when: (a) received within three (3) days after deposited in any United States postal box if postage is prepaid and the notice properly addressed to the intended recipient; (b) delivered by facsimile transmission with proof of receipt of delivery; (c) delivered by email transmission with proof of receipt; (d) personally delivered; or (e) sent by nationally recognized overnight courier service (e.g. Federal Express or UPS) in which case such notice shall be deemed given the day after the date sent with all fees paid. 19. Successors and Third Parties. This Easement Agreement shall be binding upon and inure to the benefit of each party and its respective successors and permitted assigns. Except for PDP's parent, subsidiary and affiliated entities and their respective officers, directors, shareholders, partners,agents, and employees and Accident Fund Insurance Company of America while it is an occupant of Parcel B, City and PDP acknowledge, warrant and represent to the other that there are no third party beneficiaries to this Easement Agreement. 20. Obligations Survive. All obligations arising prior to the termination of this Easement Agreement and all provisions of this Easement Agreement allocating responsibility or liability between the parties shall survive the termination of this Easement Agreement. No obligation which survives the term of this Easement Agreement shall give PDP any interest in the Riverwalk Parcel, possessory or otherwise, nor have the effect of extending the term of this Easement Agreement. 21. Record of Termination. If this Easement Agreement is terminated for any reason, City shall record a termination of this Easement Agreement with the Ingham County Register of Deeds. 8 • 22. Legal Expense. In any action arising out of the enforcement of this Easement Agreement, the nonprevailing Parry shall pay to the prevailing Parry all expenses reasonably incurred by the prevailing Parry in the action, including reasonable attorney fees. • • 23. Consent. Unless otherwise indicated in this Easement Agreement, where the consent of a Parry is required, such consent shall not be unreasonably withheld, conditioned or delayed. 24. Declaration of Restrictive Covenants. This Easement Agreement shall be subject to the provisions of the to be recorded Declaration of Restrictive Covenants, a specimen of which is attached as an exhibit to the Warranty Deed of even date from City to PDP. [THIS SPACE INTENTIONALLY LEFT BLANK] W The undersigned executed this Easement Agreement this dday of 2008. Approved as to form: LM CITY OF LANSING By: Brigham C. S 'th, Ci Atto y Virg Bern ero, Mayor By: OL s Swope, Clerk PHOENIX DEVELOMENT PARTNERS, LLC, a Michigan limited liability company, CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, Manager B eeranagZ . Cash STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Acknowledged before me in Ingham County, Michigan thi�h day of 2008, by Virg Bernero, Mayor of the City of Lansing, a Michigan municipal corporation. Eileen M. Melman Notary Public Washtenaw County, Michigan Acting inCounty My Commission Expires 01/12/2014 Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: 10 STATE OF MICHIGAN ) 0 ) ss COUNTY OF INGHAM ) Acknowledged before me in Ingham County, Michigan this5_ h day of , 2008, by Chris Swope, Clerk of the City of Lansing, a Michigan municipal corporation. Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Acknowledged before me in Ingham County, Michigan thin day o Rr � 2008, by James M. Cash, Manager of Christman Capital Investment Group, LLC, Manager of Phoenix Development Partners, LLC, a Michigan limited liability company. Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: aooei RECORDING FEE: $ EXHIBITS: Exhibit A: Legal Description of the Riverwalk Parcel Exhibit B: Legal Description of Parcel B Exhibit C: Depiction of the Riverwalk Exhibit D: Depiction of Easement Area DRAFTED BY AND AFTER RECORDING RETURN TO: Gregory J. Guggemos Guggemos Brown & Gilkey, PC 4050 Hunsaker Drive, Suite 120 East Lansing, MI 48823 is Telephone: (517) 336-0127 11 9 EASEMENT AGREEMENT — STORM WATER DRAINAGE • EXHIBIT A (Legal Description of the Riverwalk Parcel) Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16, N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing N00°01'45"W, 7.02 feet; thence along the East line of North Grand Avenue N00°O1'45"W 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence continuing along said East street line due North 437.19 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89058'00"E, 221.35 feet to the point of beginning of the following described parcel; thence continuing S89058'00"E, 35.38 feet along said South line to the West line of a retaining wall; thence along the West line of said wall the following six (6) courses: 1) S45000'36"E, 40.44 feet; 2) S07°00'06"E, 179.66 feet; 3) S17°21'34"E, 76.99 feet; 4) S01 °08' 14"E, 335.04 feet; 5) S 17° 17'09"W, 171.40 feet; 6) S 18°04' 11 "W, 100.23 feet to the Northerly line of vacated Ottawa Street; thence N90°00'00"W, 12.64 feet to a building line; thence along said building line the following four (4) courses 1) N00012'43"E, 14.22 feet; thence S89047' 17"E, 11.09 feet; thence N15051'22"E, 63.24 feet; thence N74014'59"W, 16.75 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) N18004'11"E, 24.53 feet; 2) N17017'09"E, 167.17 feet; 3) NO1°08'14"W2 327.42 feet; 4) N17021'34"W, 75.69 feet; 5) N07000'06"W, 173.32 feet; 6) N45°00'36"W, 56.87 feet to the point of beginning. Also Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16, N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing N00°01'45"W, 7.02 feet to the Southerly curb line of Ottawa Street; thence S89°31' 14"E, 178.68 feet to the point of beginning of the following described parcel; thence N23°01'48"E, 82.99 feet to a building line; thence S89°53'37"E, 27.16 feet along said wall line; thence S23°01'48"W, 83.19 feet to the said Southerly curb line of Ottawa Street; thence N89°31' 14"W, 27.09 feet to the point of beginning. 12 9 EASEMENT AGREEMENT — STORM WATER DRAINAGE • EXHIBIT B (Legal Description of PDP Property - Parcel B) Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89°59'00"E 527.87 feet; thence N00001'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00°01'45"W 7.02 feet to the point of beginning of the following described parcel; thence N00°01'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50°05' 10"E 157.52 feet; thence N00°29'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89°58'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45°00'36"E, 56.87 feet; 2) S07°00'06"E, 173.32 feet; 3) S17°21'34"E, 75.69 feet; 4) S01'08'14"E, 327.42 feet; 5) S 17° 17' 09"W, 167.17 feet; 6) S 18°04' 11 "W, 24.53 feet to a building line; thence along said building line the following five (5) courses; 1) S74°14'59"E, 16.75 feet; 2) S15'51'22"W, 63.24 feet; 3) N89°47' 17"W, 11.09 feet; 4) S00°12'43"W, 14.88 feet; 5) N89053'37"W, 30.79 feet; thence S23'01'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89.31' 14"W, 178.68 feet along said curb line to the point of beginning. IN • EASEMENT AGREEMENT — STORM WATER DRAINAGE • • EXMBIT C (Depiction of the Easement Area) SAClients\Christman Company\Constructive Receipt\Phoenix Development Partners LLC\Easement re BWL Property\City Easements\Easement Agreement.Storm Water Drainage System.Final.9.30.08.doc 14 O 0 N U� lol m D CENTER POST SEC. 16 T.4N, R2W. M 00 i Iz I `D CD V Ico os N00'01'45"W 7.02' �.\ N00'01'45'W 330.00" —__ I I. l ` n '� SITE BENCHM K 1 i FD. MAG NAIL IN � JO" % PAVEMENT 0.08' SOUTH 0 NORTHWEST CORNER BLOCK 99 POINT OF BEGINNING PROPOSED OTTAWA CAMPUS I & OFFICE BUILDING PROPERTY Z' EAST Y CORNER } SEC. 16 T.4N, R.2W 11 BLOCK 99 POINT OF BEGINNING — RIVERFRONT PROPERTY FD CUT CROSS IN SEAWALL 0.29' SW� 78' CULVERT END INV.=816.45 12' CULVERT END —� iNV.=817.33 c c ❑ GAS TA-B-WTT-- ILOOD x S89'53'37"E 27.16' N89'53'37"W 30.79' ►M O FINISHED F ( 2 cAs T MIY)— 83j ZONE. B. s-122- D.xiui' W/ 16-11NER STORM �- - 6- WATER - 0 0 0 00 ❑ ❑ �i ❑ ❑. �• m ❑ ❑ ELECHIC - - -� - \� _ _ _ — LIG CTRIC \-3''- _ I - - ❑ -. £I m m EAST LINE N. GRAND AVE. 00 QL'45'+K ,- ,Z5' ` — `-- -- y — — - - FD CUT CROSS / g� - �g S I \ ©AREA A USE AGREEMENT NORj H GRAND RA POINT OF BEGINNING (Cl-W.OF LANSING) E HISTORIC DISTRICT :�� 830 w_,- @AREA C USE AGREEMENT •� c: y�o _ _ / 16" CHILLED WATER �-�_- m� , m m 9 UG ELECTRI -- \ 236.2' Ui I OTTAWA STATION' ! j p� BRICK BUILDING I N �\G FINISHED FLOOR ELEVATION = 835.50 I `\ N � I S89'53'37'E 27.16' i I N89'53'37'1V 30.79' r r" R 21 1.8' NLi ; O CO I i 1 It i 42.4. ® 835 �i--9LOCK 98C. i I ' 63 2 ZONE 8 CONTO(!Rco N7�04 •, x _ — _ _ — --• -- -- _ c� S"9 04 . Z4_ .. , 00 -CUI N89'47'17'W 11.09' _ 16j S89'47' 17"E 1 1.09' - 7, S00'12'43-W 14.88' S-..16�17 N00'12'43'E 14.22' S74'14'59 m i tm en t 16.75 N74' 14'591H S». w�� -- 16.75' 1�Og� E �o°CiN I th City of S15'51'22 w 63.24' r - �y N15'51'22'E 63.24' 1j1. — — Ited June 14, 20"x2O" CULVERT ENO W/CAP 40, O 96 TALL x 72 WC -eement areas. INV.=818.94 FD CUT CROSS IN WALL it for parking GENERAL NOTES: :y College is -NOR I G M M M ^_Y7 milli L I .LQ _ -, ^' J o Q - S (DAREA D USE AGREEMENT •AND RA ©AREA A USE AGREEMENT � ` `� • �,.. LANSING) z :P:' tj: 830 A..: ` s m•4 00 cQa ---------- ---_�- - = - - ---- -. - - -. : 12' NE . . :Q PARKIIJG ;} I �- -=AGREE T: l=1— r :FLOODt.ZONE Al2 �. �: o•; I- i �• s I — — QV�HEr EL - I---=------------= - ----- ---------------- FLOOD ZONE B '.1 OPOSED OTTAWA CAMPUS' r FLOOD ZONE � I t5.57 ACRES I i L x 72 WOE C LIN�C_S C 20.4' a STATION BUILDING ELWTION = 835.50 �j0 98 D ZONE 6 CONTOURS WE y,V 'x20'�ERT END W/CAP o �>> 81 .m ' 10 INGRESS-EGRES' + EASEMENT I FRONT PROPERT GRAND RIVER e East—West 1 /4 line as shown on the survey LEGAL DESCRIPTIONS: bearing being N89'59'00"E. r`/Yh f.. x 1�C" IN R STORM .. ' - 2 x FLOOD ONE A1A7I2T�- X PUBLIC R.O.W) — - v, = NORTH 0 141.05' M= NORTH - 296.14' 77 1 178.0' w POINT OF BEGINNING o PARKING GARAGE 7FDCROSS TAG 30897RETE 0. WEST FD. L & POINT OF BEGIN G = _ 0.0 EAST PARCEL 2 • OFFICE BUILD NG , BRICK & ALUMIN M BUILDING FINISHED FLOOR ELEVATION = 829.70 • . - � � zz 6 'Cot 21 PARCEL 2 I'l,� \ ❑ 4 $ o f 0.54 ACRES = _ ZZ im m 19 g Z 6 \\\ PARKING; ` \� AGREEMENT; \l \♦ O O FD. NAIL & TAG J30897 :I �• os_ \ ,� _ 0.03' SOUTH BLOCK ¢B'. \ :•_.:.. ,. .moo ��� � ,.:�;�:•� '. ,1 \' -==UVERNEAO '�IECTF: --39-k- F-0-IRON_ -- _ - _ J_- �. 0.14' EAST PROPC )OD ZONE Al2 OUR 17 '' ,--- SOT00' 17 ' 14OT0006"W _--- SS-EGRESS EMENT 36'-- 26 S07*00106"E I� g25 FD CUT CROSS 16 9g IN WALL ' FD CUT CRO ' IN WALL 12' CULVERT END INV=820.43 • C J 23 4 vv) :41 AM Pages: 13 • ; <'� rf+> B: 3321 P: 1224 10/09/2008 09 77 2008-039461 MISCELLANEOUS ReoeMPt igan09 Paula Johnson, Ingham CountY, 111111111111111111111111111111111111111Jill 111131111111$1111Ill 111111111111111111 Above This Line is for Recording Information] EASEMENT AGREEMENT — BUILDING MAINTENANCE This EASEMENT AGREEMENT -BUILDING MAINTENANCE ("Easement Agreement") is executed this 30th day of September, 2008, between PHOENIX DEVELOPMENT PARTNERS, LLC, a Michigan limited liability company, 208 N. Capitol Ave., Lansing, Michigan 48933 ("PDP") and the CITY OF LANSING, a Michigan municipal corporation, 124 W. Michigan Ave., Lansing, Michigan 48933 ("City"). In this Easement Agreement PDP and City are collectively referred to as the "parties" or singularly as a "party." cc—== ; crn-, z ` RECITALS: -' fr'�"" rt ' Al of real ro erty located in the City of Lansing, Ingham County, f 9 City owns a ce am parc p p Michigan, legally described on Exhibit A ("Riverwalk Parcel"); and D ��? PDP owns a certain parcel of real property located in the City of Lansing, Ingham County, Michigan, legally described on Exhibit B ("Parcel B"). Parcel B is improved with a brick ___._bui'lding-which PDP will-renovate.and_improve-(`_`Building"); and ry 0 The Riverwalk Parcel is located east and immediately adjacent to Parcel B and is C=. o ; bounded on its east by the Grand River ("Grand River") and is to be improved by a pedestrian m walkway to be constructed by the City, to be known as the Riverwalk ("Riverwalle ); and Iv. � D me c: The City is willing to extend to PDP, its successors and assigns, for the benefit of Parcel o Om d d that ortion of the U) B, a perpetual, exclusive right and easement on, over, across an un er p , Riverwalk Parcel depicted on Exhibit C for the purpose of PDP's maintenance, repair and w replacement of any portion of the Building located adjacent to or in close proximity to the Riverwalk and the Riverwalk Parcel ("Easement Area"). THIS EASEMENT AGREEMENT IS BEING EXECUTED IN FURTHERANCE OF � : M THE PROPERTY PURCHASE AND DEVELOPMENT AGREEMENT DATED JANUARY s M: cn 30 2008 "DEVELOPMENT AGREEMENT") AND THE PARTIES AGREE AS FOLLOWS: —'� PDP has granted to City an easement over Parcel B in connection with the construction of the Riverwalk, as set forth in an Easement Agreement — Riverwalk of even date. M1,v Cn tics 3 ;� 5 I .y= I. BUILDING MAINTENANCE EASEMENT 1. Grant. Subject to the terms and conditions of this Easement Agreement, City grants to PDP, its successors and assigns, for the benefit of Parcel B, a perpetual, exclusive right and easement on, over, across and under that portion of the Riverwalk Parcel as described in Exhibit D for the purpose of PDP's maintenance, repair and replacement of any portion of the Building located on or proximate to the Easement Area. (a) City shall not construct buildings or other structures within the Easement Area or in any way interfere with PDP's use of the Easement Area, as defined below. (b) PDP shall contract for and shall pay all costs associated with the maintenance, repair and replacement of any portion of the Building located on the Easement Area ("Operational Obligations"). (i) The Operational Obligations include, without limitation, that PDP, at its expense, shall: construct, maintain, repair and replace the Building located adjacent to the Easement Area in a good and functional condition sufficient for its intended purposes. (ii) All work performed on the Building or at the Easement Area shall be in accordance with the following requirements: (A) PDP shall be solely responsible for and have control over the means, methods, techniques, sequences and procedures and for coordinating all portions of such work on the Building and in the Easement Area; (B) PDP shall obtain all required governmental permits and authorizations for such work; and (C) PDP shall cause all work to be completed in j a good and workmanlike manner, free from defective materials and in compliance i _____ _._._--with.all_applicable laws. 3 (iii) Except as -specifically provided herein, nothing in this Easement Agreement shall authorize PDP to do any act which will in any way encumber the title of City in and to the Riverwalk Parcel nor shall the interest of City in the Riverwalk Parcel be in any way subject to any claim whatsoever by virtue of any act or omission of PDP. i • (iv) PDP shall keep the Riverwalk Parcel and the Easement Area free from any construction liens for any labor or material furnished to PDP in connec- tion with this Easement Agreement, except that PDP shall have the right to contest the validity or amount of any such lien, provided that PDP shall either: (A) first post any bond or make any deposits required by City or the terms of any mortgage affecting the Easement Area to assure the discharge of such lien; or (B) furnish such security as may be required, to and for the benefit of City or any title insurance company designated by City, to permit a report of title to be issued relating to the Easement Area without showing thereon the existence of such lien. 2 (v) PDP and its agents, employees, contractors, subcontractors or invitees shall exercise its rights under this Easement Agreement in such a manner so as not to unreasonably interfere with, obstruct or delay the City's conduct and operations of the Riverwalk. City acknowledges that the Riverwalk may be required to be temporarily closed in order for PDP to exercise its rights under this Easement Agreement. Upon completion by PDP of any work within the Easement Area, PDP shall restore the affected portions of such areas to a condition substantially similar to the condition existing prior to such work. Existing drainage mechanisms traversing the Easement Area must remain intact. No ponding of water is permitted as a result of work completed by PDP in the Easement Area. (vi) Once commenced, any maintenance, repair, improvement and replacement undertaken under this Easement Agreement shall be diligently completed. 2. Use. PDP shall use the Easement Area for the sole purpose of PDP's maintenance, repair and replacement of any portion of the Building located adjacent to the Easement Area. 3. Existing Encumbrances. PDP's rights under this Easement Agreement shall be subject to encumbrances, conditions, covenants, easements, restrictions and rights -of -way, as set forth in the deed from City to PDP` for the "City Property", as set forth in the Development Agreement. • 4. Acceptance of Easement Area. PDP accepts the Easement Area in its "as is" condition, with all faults, as of the date of this Easement Agreement. PDP acknowledges that ._._.__.__City_has_made_absolutely no warranties or representations regarding the condition of the Easement Area or its suitability for PDP's intended use. • 5. Covenants Run With the Land. All the covenants, agreements, conditions and restrictions set forth in this Easement Agreement are intended to be and shall be construed as covenants running with the land, binding upon, inuring to the benefit of and enforceable against the Riverwalk Parcel and Parcel B by the parties, their respective successors and assigns, upon the terms, provisions and conditions in this Easement Agreement. II. GENERAL 1. Inteizration, Exhibits, Consent to Waiver, Amendment. This Easement Agreement and all agreements arising out of the Development Agreement should be read in conjunction and harmonious with each other. All Exhibits referred to in and attached to this Easement Agreement are part of this Easement Agreement. The provisions of this Easement Agreement may be amended only with the written consent of City and PDP, which consent shall not be unreasonably withheld, conditioned or delayed. No other persons shall have any rights whatsoever to join in, prevent or otherwise affect or limit any such modification, amendment or termination. 3 2. Authority. (a) PDP represents and warrants to City that the individual executing this Easement Agreement on its behalf has the authority to do so. (b) City represents and warrants to PDP that: (1) City has the right to enter into this Easement Agreement; and (2) all necessary actions have been taken by City in the execution of this Easement Agreement to make this Easement Agreement a binding obligation of City and it was approved by City. 3. Exemption from Transfer Tax. This instrument is exempt from state and county transfer tax as the consideration is less than One Hundred ($100.00) Dollars. MCLA 207.505(a); MCLA 207.526(a). 4. Assignment. PDP shall have the right to sell, convey, assign or transfer (whether by operation of law or otherwise) ("Transfer") all or any part of its interest in Parcel B. Upon any such Transfer, the rights and obligations of this Easement Agreement shall automatically pass to the transferee. Upon a Transfer of the fee interest in Parcel B, PDP shall be relieved of its obligations to perform under this Easement Agreement as of the date of closing of the Transfer. 5. Lateral/Subiacent Support. Any damage to the Riverwalk Parcel, its foundational, lateral or subjacent support caused by PDP or PDP's agents, employees, contractors, subcontractors or invitees shall promptly be repaired by PDP at PDP's sole expense. PDP shall also be obligated to maintain that portion of the east side of the Building which serves • as flood protection for the Grand River. If PDP fails to commence to repair such damage or maintain the east side of the Building as set forth above within twenty (20) days after receipt of written notice of such damages or need for maintenance (subject to extension as a result of _seasonal or inclement weather conditions), City may do so and the reasonable costs of doing so T_ shall be the sole responsibility of PDP. Said cost shall be payable by PDP within twenty (20) ' days of City's written notification to PDP of City's reasonable cost of repair. I 6. Liability Allocation. PDP shall have no responsibility for claims, losses or expenses caused by the negligent or intentional acts or omissions of City or City's agents, employees, contractors or subcontractors on the Riverwalk and the Riverwalk Parcel and the City shall have no responsibility for claims, losses or expenses caused by the negligent or intentional acts or omissions of PDP or PDP's agents, employees, contractors or subcontractors within the Easement Area. 7. Utility Relocation. To the extent that the exercise of PDP's rights under this Easement Agreement requires the relocation of any utility facilities located on the Riverwalk Parcel, PDP shall pay the reasonable cost of such relocation. 8. Default. In the event a party shall default in its obligations hereunder and the cure for such default is not commenced in good faith and diligently pursued within twenty (20) days after written notice from the nondefaulting party to the defaulting party, then the nondefaulting party may: (A) enforce any remedies or rights of termination provided for in this Easement 4 • Agreement; (B) seek specific performance of the defaulting party's obligations; (C) seek reimbursement from the defaulting party in a court of law for expenses the nondefaulting parry establishes were reasonably incurred and necessary to fulfill the defaulting party's obligations; or (D) seek any other available remedy in law or equity. Any amount due hereunder from the defaulting party to the nondefaulting party shall bear interest at the lesser of (i) twelve percent (12%) per annum or (ii) the maximum rate permitted by applicable law, compounded annually. The remedies provided for under this Section are not exclusive, are in addition to and not in lieu of any other rights or remedies available at law or in equity. 9. Self Insurance/Insurance. (a) PDP may self insure or obtain insurance coverage in such amounts as PDP deems appropriate at its expense to protect PDP from claims for damages due to bodily injury, loss, or damage to property for which PDP is responsible under this Easement Agreement, with such coverage in an amount determined by PDP. PDP shall deliver evidence of such self insurance coverage, if any or a certificate of insurance evidencing all coverage specified in this paragraph, to City upon request. The coverages to benefit City shall not be canceled, cancelable or modified until at least twenty (20) days prior written notice of intention to cancel or modify has been delivered by the insurer to City. The amounts of insurance coverage required hereunder shall be increased from time to time to be consistent with the amounts of such coverages reasonably maintained for similar risks. (b) PDP shall bring or keep property upon the Easement Area solely at its own risk and City shall not be liable for any damages thereto or any theft thereof. PDP shall maintain a policy of insurance with a responsible insurance company satisfactory to City against risk of loss from any cause whatsoever to all such property and to all of PDP's -- alterations,_improuements_or_additions to_the_Easement_Area, to the fiill extent of their ^; replacement cost, which policy of insurance shall contain a clause or endorsement under ` which the insurer waives or permits the waiver by PDP of all right of subrogation against City and its employees with respect to losses payable under such policy. The City shall be responsible for any losses incurred by PDP as a result of any act or omission by City not payable under such policy to the extent recoverable under applicable law. 10. Captions. The captions in the paragraph headings set forth in this Easement Agreement are for convenience only and do not define, describe, extend or limit the scope or intent of this Easement Agreement or of any provision hereof. 11. Severability. The provisions of this Easement Agreement are severable. Should any section, subsection, paragraph or provision of this Easement Agreement be declared to be invalid or unenforceable by a court of competent jurisdiction, it shall not affect the validity or enforceability of the Easement Agreement as a whole or any part thereof, other than the part so declared invalid or unenforceable. The parties shall renegotiate, if possible, the invalid or unenforceable section, subsection, paragraph or provision in a manner consistent with the original intent. 5 12. No Partnership. Nothing in this Easement Agreement shall be deemed or construed by City, PDP or by any third person to create the relationship of principal and agent, a 40. partnership, joint venture or any other association between the parties. 13. Governing Laws. This Easement Agreement shall be construed in accordance with the laws of the State of Michigan. Nothing in this Easement Agreement shall be construed to relieve a party from obtaining any necessary governmental permits, approvals or authorizations otherwise required by law. 14. Construction of Easement Agreement. The rule of strict construction shall not apply to the easements and agreements granted in this Easement Agreement or to the covenants set forth herein. This Easement Agreement shall be given a reasonable construction so that the intention of the City to confer reasonably usable benefits and reasonably enforceable obligations are carried out. 15. Waiver of Default. No waiver of any default by any party to this Easement Agreement shall be implied from any omission by any other party to take any action in respect of such default if such default continues or is repeated. No express waiver of any default shall affect any default or cover any period of time other than the default and period of time specified in such express waiver. One or more waivers of any default in the performance of any term, provision or covenant contained in this Easement Agreement shall not be deemed to be a waiver of any subsequent default in the performance of the same term, provision or covenant or any other term, provision or covenant contained in this Easement Agreement. The consent or approval by any party to or of any act or request by any other party requiring consent or approval • shall not be deemed to waive or render unnecessary the consent to or approval of any subsequent similar acts or requests. The rights and remedies given to any party to this Easement Agreement shall be deemed to be cumulative and no one of such rights and remedies shall be exclusive of — - ------any-of-the-others-or-of-any-other-right or remedy at law or in -equity- which-any_such.party_might— otherwise have by virtue of a default under this Easement Agreement and the exercise of one such right or remedy by any such party shall not impair such party's standing to exercise any other right or remedy. { 16. Force Majeure. The time within which a party shall be required to perform any act or acts under this Easement Agreement shall be extended to the extent that the performance j of such act or acts shall be delayed by acts of God, fire, windstorm, flood, explosion, collapse of i structures, riot, war, labor shortages, labor disputes, delays or restrictions by governmental bodies, inability to obtain or use necessary materials or any cause beyond the reasonable control of such party; provided, however, that the party entitled to such extension shall give prompt notice to the other party of the occurrence causing such delay. The provisions of this Section { (Force Majeure) shall not operate to excuse PDP from prompt payment of any fees or any other { payments required by the terms of this Easement Agreement. • 17. No Offer. The submission of this Easement Agreement for examination does not constitute an offer to enter into an Easement Agreement and this Easement Agreement shall become effective only upon execution and delivery by City and PDP. R 18. Notices. All notices, demands, and requests given or required to be given pursuant to this Easement Agreement shall be in writing. All such notices, demands and requests shall be deemed to be delivered when: (a) received within three (3) days after deposited in any United States postal box if postage is prepaid and the notice properly addressed to the intended recipient; (b) delivered by facsimile transmission with proof of receipt of delivery; (c) delivered by email transmission with proof of receipt; (d) personally delivered; or (e) sent by nationally recognized overnight courier service (e.g. Federal Express or UPS) in which case such notice shall be deemed given the day after the date sent with all fees paid. 19. Successors and Third Parties. This Easement Agreement shall be binding upon and inure to the benefit of each party and their respective successors and permitted assigns. Except for PDP's parent, subsidiary, and affiliated entities and their respective officers, directors, shareholders, partners, agents and employees and Accident Fund Insurance Company of America while it is an occupant of Parcel B, City and PDP acknowledge and warrant and represent to each other that there are no third party beneficiaries to this Easement Agreement. 20. Obligations Survive. All obligations arising prior to the termination of this Easement Agreement and all provisions of this Easement Agreement allocating responsibility or liability between the parties shall survive the termination of this Easement Agreement. No obligation which survives the term of this Easement Agreement shall give PDP any interest in the Riverwalk Parcel, possession or otherwise nor have the effect of extending the term of this Easement Agreement. 21. Record of Termination. If this Easement Agreement is terminated for any • reason, City shall be entitled to record a termination of this Easement Agreement with the Ingham County Register of Deeds. --- 22: Legal-Expense._In_any action_arising_out of_the enforcement of this Easement Agreement, the nonprevailing Party shall pay to the prevailing Party all expenses reasonably incurred by the prevailing Party in the action, including reasonable attorney fees. i • 23. Consent. Unless otherwise indicated in this Easement Agreement, where the consent of a Party is required, such consent shall not be unreasonably withheld, conditioned or delayed. 24. Declaration of Restrictive Covenants. This Easement Agreement shall be subject to the provisions of the to be recorded Declaration of Restrictive Covenants, a specimen of which is attached as an exhibit to the Warranty Deed of even date from City to PDP. [THIS SPACE INTENTIONALLY LEFT BLANK] 7 • • The undersigned executed this Easement Agreement this SO ba. day of 2008. Approved as to form: CITY OF LANSING By: /f Brigham C. mith, ity Att ey Virg BerWro, Mayor By: Ojlx� ":�� kris Swope, Clerk PHOENIX DEVELOMENT PARTNERS, LLC, a Michigan limited liability company, CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, Manager By: es M. Cas s: Manager STATE OF MICIRGAN ) ) ss COUNTY OF INGHAM ) Acknowledged before me in Ingham County, Michigan thiD th day of _ t!!, 2008, by Virg Bernero, Mayor of the City of Lansing, a Michigan municipal corporation. Eileen M. Melman Notary Public WashtMaw ounty, Michigan Acting in County My Commissi n Expires 01/12/2014 Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: 6 • • STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Acknowledged before me in Ingham County, Michigan this 30th day of September, 2008, by Chris Swope, Clerk of the City of Lansing, a Michigan municipal corporation. Eileen M. Melman Notary Public Washtenaw County, Michigan Acting in County My Cornmissicii Expires 01/12/2014 STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: Acknowledged before me in Ingham County, Michigan this 30th day of September, 2008, by James M. Cash, Manager of Christman Capital Investment Group, LLC, Manager of Phoenix Development Partners, LLC, a Michigan limited liability c'p Zdpany. Uttsl u ot P i unty, MI Acting -in -Ingham -County; Michigan ----- My Commission Expires: RECORDING FEE: $ EXHIBITS: Exhibit A: Legal Description of Riverwalk Parcel Exhibit B: Legal Description of Parcel B Exhibit C: Depiction of Easement Area DRAFTED BY AND AFTER RECORDING RETURN TO: Gregory J. Guggemos Guggemos Brown & Gilkey, PC 4050 Hunsaker Drive, Suite 120 East Lansing, MI 48823 Telephone: (517) 336-0127 0 EASEMENT AGREEMENT — BUILDING MAINTENANCE • EXHIBIT A (Legal Description of Riverwalk Parcel) Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16, N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing N00°01'45"W, 7.02 feet; thence along the East line of North Grand Avenue N00001'45"W 512.75 feet to a found R.R. spike (now Nail and Tag 430897) on the centerline of vacated Ionia Street; thence continuing along said East street line due North 437.19 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89058'00"E, 221.35 feet to the point of beginning of the following described parcel; thence continuing S89°58'00"E, 35.38 feet along said South line to the West line of a retaining wall; thence along the West line of said wall the following six (6) courses: 1) S45°00'36"E, 40.44 feet; 2) S07°00'06"E, 179.66 feet; 3) S1702113411E, 76.99 feet; 4) S01008'14"E, 335.04 feet; 5) S17°17'09"W, 171.40 feet; 6) S18°04'11"W, 100.23 feet to the Northerly line of vacated Ottawa Street; thence N90°00'00"W, 12.64 feet to a building line; thence along said building line the following four (4) courses 1) N00°12'43"E, 14.22 feet; thence S89047'l7"E, 11.09 feet; thence N15°51'22"E, 63.24 feet; thenceN74°14'59"W, 16.75 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) N1.8°04'l1"E, 24.53 feet; 2) N17°17'09"E, 167.17 feet; 3) N01008'14"W, 327.42 feet; 4) N17021'34"W, 75.69 feet; 5) N07000'06"W, 173.32 feet; 6) N45°00'36"W, 56.87 feet to • the point of beginning. • Also Commencing at the center post of Section 16, T4N, R2W, now City of County, Michigan; thence along the East-West 1/4 section line of Section 16, N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing N00°01'45"W, 7.02 feet to the Southerly curb line of Ottawa Street; thence S89°31' 14"E, 178.68 feet to the point of beginning of the following described parcel; thence N23'01'48"E, 82.99 feet to a building line; thence S89°53'37"E, 27.16 feet along said wall line; thence S23'01'48"W, 83.19 feet to the said Southerly curb line of Ottawa Street; thence N89°31' 14"W, 27.09 feet to the point of beginning. 10 EASEMENT AGREEMENT — BUILDING MAINTENANCE EXHIBIT B (Legal Description of PDP Property -Parcel B) Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89059'00"E 527.87 feet; thence N00001'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00'01'45"W 7.02 feet to the point of beginning of the following described parcel; thence N00'01'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50°05' 10"E 157.52 feet; thence N00°29'40"E 39.86 feet to a point on the centerline of the parry wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89°58'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) -S45°00'36"E, 56.87 feet; 2) S07°00'06"E, 173.32 feet; 3) S17°21'34"E, 75.69 feet; 4) S01'08'14"E, 327.42 feet; 5) S1701'7'09"W, 167.17 feet; 6) S18°04' 11"W, 24.53 feet to a building line; thence along said building line the following five (5) courses; 1) S74°14'59"E, 16.75 feet; 2) S15051'22"W, 63.24 feet; 3) N89047' 17"W, 11.09 feet; 4) S00°12'43"W, 14.88 feet; 5) N89°53'37"W, 30.79 feet; •thence S23001'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89031' 14"W, 178.68 feet along said curb line to the point of beginning. • 11 r • • • EASEMENT AGREEMENT — BUILDING MAINTENANCE - EXHIBIT C (Depiction of Easement Area) SAClients\Christman Company\Constructive Receipt\Phoenix Development Partners LLC\Easement re BWL Properly\City Easements\Easement Agreement.Building Maintenance.Final.9.30.08.doc 12 Fri ! —8` GAS TT8W — FLOOD ZONE B 6' ' Q 7Z"x,�, " W 16" / R� LINER 5 D i ' ---- —. ----------.18' ------ — 1 STEA11 i — — 6' WATER -- rn U ELICTRI I ❑ O ❑ ❑ ❑ ❑ ❑ H ❑ CD ❑ rn I� I rn G ELEC&IC O - - -- - — - - -�-` • -- - - L - — UC EL CTRIC —`3J - r I: D Z - 91 j EAST LINE N. GRAND AVE. ,1`I0.�01_'45'10L.,,• 'AA ,Z5_ FD CUT CROSS Z° S :j ti II `CAREA A USE AGREEMENT NOR H GRAND RAMP POINT OF BEGINNING (CITj(1' OF LANSING) I 6 IARLA - HISTORIC DISTRICT I N � c c���a I CARER C USE AGREEMENT Ui "� F j s 1 y9 I - - j �•P 16' CHIU.ED NATER —a>— —� m = m m } 8 iTEAM C ' j II 0 i 20.4' ii m rr OTTAWA STATION 82' BRICK BUILDING i J ��G FINISHED FLOOR ELEVATION = 835.50 - lb e� ( S89'53'37'E 27.16' ' p1'48I N89'53'37 H 30.79' Sip ,E .'� 211 8 6 .99, .ti ` 42.4' 835 -BLOCK 98 .4 . _ 1 •Sl&p4;1 FLOOD ZONE B CONTOUR—' 03 40 T �63.2 Nl . p4'1 w1 --- - ORNERS S18p4•3,1'6. - _ 12CONTOUR --1 OR IN RIVER 4 11' S,� - = EL __—• N90'00'00'W 1p CU7 CR055 r1'7'pg 1 N89'47'17''H _— 9� 167 17' 3 S89.47' 17"E 11.09' 825 16;� 77' S0712'WW 14.88' N00'12'43'E 14.22' S74'14'59"E 16.75 American Title Commitment N74'14'59'V S1?1l7' "` 16.75' S15'51'22'NN 63.24' 177 4,0, to Occupy between the City of. N15'51'22"E 63.24 20"x20" CULVERT END W/CAP t u orded but dated June 14, INV.=818.94 n hon as use agreement areas. • ed License agreement for parking GENERAL NOTES: 1d Lansing Community College is 1. Bearings are based upon the East—West 1 /4 line as shown Ll Above This Line is for Recording Information] EASEMENT AGREEMENT - BUILDING MAINTENANCE This EASEMENT AGREEMENT -BUILDING MAINTENANCE ("Easement Agreement") is executed this 301h day of September, 2008, between PHOENIX DEVELOPMENT PARTNERS, LLC, a Michigan limited liability company, 208 N. Capitol Ave., Lansing, Michigan 48933 ("PDP") and the CITY OF LANSING, a Michigan municipal corporation, 124 W. Michigan Ave., Lansing, Michigan 48933 ("City"). In this Easement Agreement PDP and City are collectively referred to as the "parties" or singularly as a "party." RECITALS: City owns a certain parcel of real property located in the City of Lansing, Ingham County, Michigan, legally described on Exhibit A ("Riverwalk Parcel'); and PDP owns a certain parcel of real property located in the City of Lansing, Ingham County, Michigan, legally described on Exhibit B ("Parcel B"). Parcel B is improved with a brick building which PDP will renovate and improve ("Building"); and The Riverwalk Parcel is located east and immediately adjacent to Parcel B and is bounded on its east by the Grand River ("Grand River") and is to be improved by a pedestrian walkway to be constructed by the City, to be known as the Riverwalk ("Riverwalk'); and The City is willing to extend to PDP, its successors and assigns, for the benefit of Parcel B, a perpetual, exclusive right and easement on, over, across and under that portion of the Riverwalk Parcel depicted on Exhibit C for the purpose of PDP's maintenance, repair and replacement of any portion of the Building located adjacent to or in close proximity to the Riverwalk and the Riverwalk Parcel ("Easement Area"). THIS EASEMENT AGREEMENT IS BEING EXECUTED IN FURTHERANCE OF THE PROPERTY PURCHASE AND DEVELOPMENT AGREEMENT DATED JANUARY 30, 2008 ("DEVELOPMENT AGREEMENT") AND THE PARTIES AGREE AS FOLLOWS: PDP has granted to City an easement over Parcel B in connection with the construction of is the Riverwalk, as set forth in an Easement Agreement — Riverwalk of even date. • I. BUILDING MAINTENANCE EASEMENT 1. Grant. Subject to the terms and conditions of this Easement Agreement, City grants to PDP, its successors and assigns, for the benefit of Parcel B, a perpetual, exclusive right and easement on, over, across and under that portion of the Riverwalk Parcel as described in Exhibit D for the purpose of PDP's maintenance, repair and replacement of any portion of the Building located on or proximate to the Easement Area. (a) City shall not construct buildings or other structures within the Easement Area or in any way interfere with PDP's use of the Easement Area, as defined below. (b) PDP shall contract for and shall pay all costs associated with the maintenance, repair and replacement of any portion of the Building located on the Easement Area ("Operational Obligations"). (i) The Operational Obligations include, without limitation, that PDP, at its expense, shall: construct, maintain, repair and replace the Building located adjacent to the Easement Area in a good and functional condition sufficient for its intended purposes. (ii) All work performed on the Building or at the Easement Area shall be in accordance with the following requirements: (A) PDP shall be solely responsible for and have control over the means, methods, techniques, sequences • and procedures and for coordinating all portions of such work on the Building and in the Easement Area; (B) PDP shall obtain all required governmental permits and authorizations for such work; and (C) PDP shall cause all work to be completed in a good and workmanlike manner, free from defective materials and in compliance with all applicable laws. • (iii) Except as specifically provided herein, nothing in this Easement Agreement shall authorize PDP to do any act which will in any way encumber the title of City in and to the Riverwalk Parcel nor shall the interest of City in the Riverwalk Parcel be in any way subject to any claim whatsoever by virtue of any act or omission of PDP. (iv) PDP shall keep the Riverwalk Parcel and the Easement Area free from any construction liens for any labor or material furnished to PDP in connec- tion with this Easement Agreement, except that PDP shall have the right to contest the validity or amount of any such lien, provided that PDP shall either: (A) first post any bond or make any deposits required by City or the terms of any mortgage affecting the Easement Area to assure the discharge of such lien; or (B) furnish such security as may be required, to and for the benefit of City or any title insurance company designated by City, to permit a report of title to be issued relating to the Easement Area without showing thereon the existence of such lien. 2 • (v) PDP and its agents, employees, contractors, subcontractors or invitees shall exercise its rights under this Easement Agreement in such a manner so as not to unreasonably interfere with, obstruct or delay the City's conduct and operations of the Riverwalk. City acknowledges that the Riverwalk may be required to be temporarily closed in order for PDP to exercise its rights under this Easement Agreement. Upon completion by PDP of any work within the Easement Area, PDP shall restore the affected portions of such areas to a condition substantially similar to the condition existing prior to such work. Existing drainage mechanisms traversing the Easement Area must remain intact. No ponding of water is permitted as a result of work completed by PDP in the Easement Area. (vi) Once commenced, any maintenance, repair, improvement and replacement undertaken under this Easement Agreement shall be diligently completed. 2. Use. PDP shall use the Easement Area for the sole purpose of PDP's maintenance, repair and replacement of any portion of the Building located adjacent to the Easement Area. 3. Existing Encumbrances. PDP's rights under this Easement Agreement shall be subject to encumbrances, conditions, covenants, easements, restrictions and rights -of -way, as set forth in the deed from City to PDP for the "City Property", as set forth in the Development • Agreement. 4. Acceptance of Easement Area. PDP accepts the Easement Area in its "as is" condition, with all faults, as of the date of this Easement Agreement. PDP acknowledges that City has made absolutely no warranties or representations regarding the condition of the Easement Area or its suitability for PDP's intended use. 5. Covenants Run With the Land. All the covenants, agreements, conditions and restrictions set forth in this Easement Agreement are intended to be and shall be construed as covenants running with the land, binding upon, inuring to the benefit of and enforceable against the Riverwalk Parcel and Parcel B by the parties, their respective successors and assigns, upon the terms, provisions and conditions in this Easement Agreement. H. GENERAL 1. Integration, Exhibits, Consent to Waiver, Amendment. This Easement Agreement and all agreements arising out of the Development Agreement should be read in conjunction and harmonious with each other. All Exhibits referred to in and attached to this Easement Agreement are part of this Easement Agreement. The provisions of this Easement Agreement may be amended only with the written consent of City and PDP, which consent shall not be unreasonably withheld, conditioned or delayed. No other persons shall have any rights whatsoever to join in, prevent or otherwise affect or limit any such modification, amendment or • termination. 3 • 2. Authority. (a) PDP represents and warrants to City that the individual executing this Easement Agreement on its behalf has the authority to do so. (b) City represents and warrants to PDP that: (1) City has the right to enter into this Easement Agreement; and (2) all necessary actions have been taken by City in the execution of this Easement Agreement to make this Easement Agreement a binding obligation of City and it was approved by City. 3. Exemption from Transfer Tax. This instrument is exempt from state and county transfer tax as the consideration is less than One Hundred ($100.00) Dollars. MCLA 207.505(a); MCLA 207.526(a). 4. Assignment. PDP shall have the right to sell, convey, assign or transfer (whether by operation of law or otherwise) ("Transfer") all or any part of its interest in Parcel B. Upon any such Transfer, the rights and obligations of this Easement Agreement shall automatically pass to the transferee. Upon a Transfer of the fee interest in Parcel B, PDP shall be relieved of its obligations to perform under this Easement Agreement as of the date of closing of the Transfer. 5. Lateral/Subiacent Support. Any damage to the Riverwalk Parcel, its foundational, lateral or subjacent support caused by PDP or PDP's agents, employees, contractors, subcontractors or invitees shall promptly be repaired by PDP at PDP's sole expense. Is PDP shall also be obligated to maintain that portion of the east side of the Building which serves as flood protection for the Grand River. If PDP fails to commence to repair such damage or maintain the east side of the Building as set forth above within twenty (20) days after receipt of written notice of such damages or need for maintenance (subject to extension as a result of seasonal or inclement weather conditions), City may do so and the reasonable costs of doing so shall be the sole responsibility of PDP. Said cost shall be payable by PDP within twenty (20) days of City's written notification to PDP of City's reasonable cost of repair. 6. Liability Allocation. PDP shall have no responsibility for claims, losses or expenses caused by the negligent or intentional acts or omissions of City or City's agents, employees, contractors or subcontractors on the Riverwalk and the Riverwalk Parcel and the City shall have no responsibility for claims, losses or expenses caused by the negligent or intentional acts or omissions of PDP or PDP's agents, employees, contractors or subcontractors within the Easement Area. 7. Utility Relocation. To the extent that the exercise of PDP's rights under this Easement Agreement requires the relocation of any utility facilities located on the Riverwalk Parcel, PDP shall pay the reasonable cost of such relocation. 8. Default. In the event a party shall default in its obligations hereunder and the cure for such default is not commenced in good faith and diligently pursued within twenty (20) days after written notice from the nondefaulting party to the defaulting party, then the nondefaulting • party may: (A) enforce any remedies or rights of termination provided for in this Easement 0 • Agreement; (B) seek specific performance of the defaulting parry's obligations; (C) seek reimbursement from the defaulting party in a court of law for expenses the nondefaulting parry establishes were reasonably incurred and necessary to fulfill the defaulting party's obligations; or (D) seek any other available remedy in law or equity. Any amount due hereunder from the defaulting party to the nondefaulting party shall bear interest at the lesser of (i) twelve percent (12%) per annum or (ii) the maximum rate permitted by applicable law, compounded annually. The remedies provided for under this Section are not exclusive, are in addition to and not in lieu of any other rights or remedies available at law or in equity. 9. Self Insurance/Insurance. (a) PDP may self insure or obtain insurance coverage in such amounts as PDP deems appropriate at its expense to protect PDP from claims for damages due to bodily injury, loss, or damage to property for which PDP is responsible under this Easement Agreement, with such coverage in an amount determined by PDP. PDP shall deliver evidence of such self insurance coverage, if any or a certificate of insurance evidencing all coverage specified in this paragraph, to City upon request. The coverages to benefit City shall not be canceled, cancelable or modified until at least twenty (20) days prior written notice of intention to cancel or modify has been delivered by the insurer to City. The amounts of insurance coverage required hereunder shall be increased from time to time to be consistent with the amounts of such coverages reasonably maintained for similar risks. • (b) PDP shall bring or keep property upon the Easement Area solely at its own risk and City shall not be liable for any damages thereto or any theft thereof. PDP shall maintain a policy of insurance with a responsible insurance company satisfactory to City against risk of loss from any cause whatsoever to all such property and to all of PDP's alterations, improvements or additions to the Easement Area, to the full extent of their replacement cost, which policy of insurance shall contain a clause or endorsement under which the insurer waives or permits the waiver by PDP of all right of subrogation against City and its employees with respect to losses payable under such policy. The City shall be responsible for any losses incurred by PDP as a result of any act or omission by City not payable under such policy to the extent recoverable under applicable law. 10. Captions. The captions in the paragraph headings set forth in this Easement Agreement are for convenience only and do not define, describe, extend or limit the scope or intent of this Easement Agreement or of any provision hereof. 11. Severability. The provisions of this Easement Agreement are severable. Should any section, subsection, paragraph or provision of this Easement Agreement be declared to be invalid or unenforceable by a court of competent jurisdiction, it shall not affect the validity or enforceability of the Easement Agreement as a whole or any part thereof, other than the part so declared invalid or unenforceable. The parties shall renegotiate, if possible, the invalid or unenforceable section, subsection, paragraph or provision in a manner consistent with the • original intent. 5 • 12. No Partnership. Nothing in this Easement Agreement shall be deemed or construed by City, PDP or by any third person to create the relationship of principal and agent, a partnership, joint venture or any other association between the parties. 13. Governing Laws. This Easement Agreement shall be construed in accordance with the laws of the State of Michigan. Nothing in this Easement Agreement shall be construed to relieve a party from obtaining any necessary governmental permits, approvals or authorizations otherwise required by law. 14. Construction of Easement Agreement. The rule of strict construction shall not apply to the easements and agreements granted in this Easement Agreement or to the covenants set forth herein. This Easement Agreement shall be given a reasonable construction so that the intention of the City to confer reasonably usable benefits and reasonably enforceable obligations are carried out. 15. Waiver of Default. No waiver of any default by any party to this Easement Agreement shall be implied from any omission by any other party to take any action in respect of such default if such default continues or is repeated. No express waiver of any default shall affect any default or cover any period of time other than the default and period of time specified in such express waiver. One or more waivers of any default in the performance of any term, provision or covenant contained in this Easement Agreement shall not be deemed to be a waiver of any subsequent default in the performance of the same term, provision or covenant or any other term, provision or covenant contained in this Easement Agreement-. The consent -or is approval by any party to or of any act or request by any other party requiring consent or approval shall not be deemed to waive or render unnecessary the consent to or approval of any subsequent similar acts or requests. The rights and remedies given to any party to this Easement Agreement shall be deemed to be cumulative and no one of such rights and remedies shall be exclusive of any of the others or of any other right or remedy at law or in equity which any such party night otherwise have by virtue of a default under this Easement Agreement and the exercise of one such right or remedy by any such party shall not impair such parry's standing to exercise any other right or remedy. 16. Force Majeure. The time within which a party shall be required to perform any act or acts under this Easement Agreement shall be extended to the extent that the performance of such act or acts shall be delayed by acts of God, fire, windstorm, flood, explosion, collapse of structures, riot, war, labor shortages, labor disputes, delays or restrictions by governmental bodies, inability to obtain or use necessary materials or any cause beyond the reasonable control of such party; provided, however, that the party entitled to such extension shall give prompt notice to the other party of the occurrence causing such delay. The provisions of this Section (Force Majeure) shall not operate to excuse PDP from prompt payment of any fees or any other payments required by the terms of this Easement Agreement. 17. No Offer. The submission of this Easement Agreement for examination does not constitute an offer to enter into an Easement Agreement and this Easement Agreement shall • become effective only upon execution and delivery by City and PDP. • 18. Notices. All notices, demands, and requests given or required to be given pursuant to this Easement Agreement shall be in writing. All such notices, demands and requests shall be deemed to be delivered when: (a) received within three (3) days after deposited in any United States postal box if postage is prepaid and the notice properly addressed to the intended recipient; (b) delivered by facsimile transmission with proof of receipt of delivery; (c) delivered by email transmission with proof of receipt; (d) personally delivered; or (e) sent by nationally recognized overnight courier service (e.g. Federal Express or UPS) in which case such notice shall be deemed given the day after the date sent with all fees paid. 19. Successors and Third Parties. This Easement Agreement shall be binding upon and inure to the benefit of each party and their respective successors and permitted assigns. Except for PDP's parent, subsidiary, and affiliated entities and their respective officers, directors, shareholders, partners, agents and employees and Accident Fund Insurance Company of America while it is an occupant of Parcel B, City and PDP acknowledge and warrant and represent to each other that there are no third party beneficiaries to this Easement Agreement. 20. Obliltations Survive. All obligations arising prior to the termination of this Easement Agreement and all provisions of this Easement Agreement allocating responsibility or liability between the parties shall survive the termination of this Easement Agreement. No obligation which survives the term of this Easement Agreement shall give PDP any interest in the Riverwalk Parcel, possession or otherwise nor have the effect of extending the term of this Easement Agreement. • 21. Record of Termination. If this Easement Agreement is terminated for any reason, City shall be entitled to record a termination of this Easement Agreement with the Ingham County Register of Deeds. 22. Legal Expense. In any action arising out of the enforcement of this Easement Agreement, the nonprevailing Party shall pay to the prevailing Party all expenses reasonably incurred by the prevailing Party in the action, including reasonable attorney fees. 23. Consent. Unless otherwise indicated in this Easement Agreement, where the consent of a Party is required, such consent shall not be unreasonably withheld, conditioned or delayed. 24. Declaration of Restrictive Covenants. This Easement Agreement shall be subject to the provisions of the to be recorded Declaration of Restrictive Covenants, a specimen of which is attached as an exhibit to the Warranty Deed of even date from City to PDP. • [THIS SPACE INTENTIONALLY LEFT BLANK] 7 The undersigned executed this Easement Agreement this day of 2008. Approved as to form: CITY OF LANSING <� I - Q.$-- By: /f Brigham C.(mith, ity Att ey Virg BerWro, Mayor • By:/I P kris Swope, Clerk PHOENIX DEVELOMENT PARTNERS, LLC, a Michigan limited liability company,. CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, Manager By: es M. Cas s: Manager STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Acknowledged before me in Ingham County, Michigan th2D_th day of 2008, by Virg Bernero, Mayor of the City of Lansing, a Michigan municipal corporation. Eileen M. Melman Notary Public WashteP_aw qounty, Michigan Acting in " A 4,t, _ County My Commission Expires 01/12/2014 r1 LJ 0 Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: C] • STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Acknowledged before me in Ingham County, Michigan this 30th day of September, 2008, by Chris Swope, Clerk of the City of Lansing, a Michigan municipal corporation. Eileen M. Melman Notary Public Washtenaw County, Michigan Acting in County My Commissio6 Expires 01/12/2014 STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: Acknowledged before me in Ingham County, Michigan this 30th day of September, 2008, by James M. Cash, Manager of Christman Capital Investment Group, LLC, Manager of Phoenix Development Partners, LLC, a Michigan limited liability c9pipany. Acting in Ingham'Count3 My Commission Expires RECORDING FEE: $ EXHIBITS: Exhibit A: Legal Description of Riverwalk Parcel Exhibit B: Legal Description of Parcel B Exhibit C: Depiction of Easement Area DRAFTED BY AND AFTER RECORDING RETURN TO: Gregory J. Guggemos Guggemos Brown & Gilkey, PC 4050 Hunsaker Drive, Suite 120 East Lansing, MI 48823 Telephone: (517) 336-0127 9 !m b5 )unty, MI Michigan • EASEMENT AGREEMENT — BUILDING MAINTENANCE EXHIBIT A (Legal Description of Riverwalk Parcel) Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16, N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing N00°01'45"W, 7.02 feet; thence along the East line of North Grand Avenue N00001'45"W 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence continuing along said East street line due North 437.19 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 221.35 feet to the point of beginning of the following described parcel; thence continuing S89°58'00"E, 35.38 feet along said South line to the West line of a retaining wall; thence along the West line of said wall the following six (6) courses: 1) S45°00'36"E, 40.44 feet; 2) S07°00'06"E, 179.66 feet; 3) S17°21'34"E, 76.99 feet; 4) S01 °08' 14"E, 335.04 feet; 5) S 17° 17' 09"W, 171.40 feet; 6) S 18°04' 11 "W, 100.23 feet to the Northerly line of vacated Ottawa Street; thence N90000'00"W, 12.64 feet to a building line; thence along said building line the following four (4) courses 1) N00°12'43"E, 14.22 feet; thence S89047' 17"E, 11.09 feet; thence N15°51'22"E, 63.24 feet; thence N74°14'59"W, 16.75 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six • (6) courses: 1) N18°04'11"E,-24.53 feet; 2) N17°17'09"E, 167.17 feet; 3) N01°08'14"W, 327.42 feet; 4) N17021'34"W, 75.69 feet; 5) N07°00'06"W, 173.32 feet; 6) N45000'36"W, 56.87 feet to the point of beginning. • Also Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16, N89059'00"E 527.87 feet; thence N00001'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing N00001'45"W, 7.02 feet to the Southerly curb line of Ottawa Street; thence S89°31' 14"E, 178.68 feet to the point of beginning of the following described parcel; thence N23001'48"E, 82.99 feet to a building line; thence S89053'37"E, 27.16 feet along said wall line; thence S23'01'48"W, 83.19 feet to the said Southerly curb line of Ottawa Street; thence N899 I' 14"W, 27.09 feet to the point of beginning. 10 • EASEMENT AGREEMENT — BUILDING MAINTENANCE EXHIBIT B (Legal Description of PDP Property -Parcel B) Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along, the East-West 1/4 section line of Section 16 N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00°01'45"W 7.02 feet to the point of beginning of the following described parcel; thence N00°O 1'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50°05' 10"E 157.52 feet; thence N00°29'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89°58'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45°00'36"E, 56.87 feet; 2) S07°00'06"E, 173.32 feet; 3) S17°21'34"E, 75.69 feet; 4) S01°08'14"E, 327.42 feet; 5) S 170 1"7'09"W, 167.17 feet; 6) S 18'04' 11 "W, 24.53 feet to a building line; thence along said building line the following five (5) courses; 1) S74°14'59"E, 16.75 feet; 2) S15'51'22"W, 63.24 • feet; 3) N89°47' 17"W, 11.09 feet; 4) S00°12'43"W, 14.88 feet; 5) N89°53'37"W, 30.79 feet; thence S23°01'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89031' 14"W, 178.68 feet along said curb line to the point of beginning. C 11 • EASEMENT AGREEMENT — BUILDING MAINTENANCE EXHIBIT C (Depiction of Easement Area) • • SAClients\Christman Company\Constructive Receipt\Phoenix Development Partners LLC\Easement re BWL Property\City Easements\Easement Agreement. Bu i Wing Maintenance.Final.9.30.08.doc 12 • • 24 V • 1223 10/09/2008 09:41 AM P89eSi 14 g: 3321 P: •tt^���� 2008-039460 MISCELLANEOUS RaoaMPch#9an09 �' t. Paula Johnson, Ingham CountY, , 11113111111111111111111111il111111111,111111 tIII,,It llIIIIm,I1U,III,III, ;'�•a:�: � Above This Line is for Recording Information) EASEMENT AGREEMENT - SHIAWASSEE STREET STORM WATER This EASEMENT AGREEMENT- SHIAWASSEE STREET STORM WATER ("Easement Agreement") is executed this 30th day of September, 2008, between PHOENIX DEVELOPMENT PARTNERS, LLC, a Michigan limited liability company, 208 N. Capitol Ave., Lansing, Michigan 48933 ("Grantor") and the CITY OF LANSING, a Michigan C municipal corporation, 124 W. Michigan Ave., Lansing, Michigan 48933 ("Grantee"). Grantor o , Mz and Grantee are collectively referred to as the "Parties" or singularly as a "Party." � t r� -t— I __j hn v RECITALS: <q� r.JmZ Grantor owns a parcel of real property located in the City of Lansing, Ingham County, o Michigan, legally described on Exhibit A ("Parcel A"); and u, Located within Parcel A, immediately South of the South line of Shiawassee Street are existing storm water lines and related appurtenances with an outlet to the Grand River generally depicted on Exhibit B ("Storm Water Dines"); and r= ; m— c= ' M x Grantor is willing to grant to Grantee an easement to go on, over, under and across those �_ portions of Parcel A located South of the South Right of Way line of Shiawassee Street and I ' n z North of the North face of the new ramp as depicted on the approved site plan as depicted on '" n C Exhibit B ("Easement Area") to allow Grantee to operate, construct, maintain, improve, repair Do CDo --4 i or replace the Storm Water Lines. u' THIS EASEMENT AGREEMENT IS BEING EXECUTED OGRE AGREEMENT DATEDRJf�NUARY NCE OF THE PROPERTY PURCHASE AND DEVELOPMENT 30, 2008 ("DEVELOPMENT AGREEMENT") AND THE PARTIES AGREE AS FOLLOWS: I. STORM WATER LINES EASEMENT 1. Grant. Grantor grants to Grantee an exclusive easement to go on, over, across, through, above and under the Easement Area for the operation, construction, maintenance, repair, replacement and improvement of the Storm Water Lines ("Storm Water Lines Easement"). N65-3S 144' 1 (a) The Storm Water Lines Easement shall also include an easement of • support and Grantor shall not allow any activity on Parcel A which will interfere with or compromise the support of the Storm Water Lines located within the Easement Area. Grantee shall be responsible to construct appropriate structural support for the Storm Water Lines located in the Easement Area. Further, the Storm Water Lines Easement shall include, subject to the terms and conditions of this Easement Agreement, the right to maintain such structural support. (b) Grantee shall pay all costs associated with the operation, construction, maintenance, repair, replacement and improvement of the Storm Water Lines located in the Easement Area and the Access Easement Areas (as defined below) ("Operational Obligations"). (i) As part of the Operational Obligations, the Storm Water Lines Easement shall include an easement over and through the following portions of Parcel A: (A) a path to be reasonably determined by Grantor from the improved portions of Parcel A to the Easement Area; and (B) the necessary air space located above and adjacent to the Storm Water Lines required for the Grantee to perform its Operation Obligations. Grantee acknowledges that a portion of the air rights granted to it by this easement are limited due to the improvements Grantor will place on Parcel A as part of the Project as that term is defined in the Development Agreement necessary to operate, construct, maintain, repair, improve and replace the Storm Water Lines in the Easement Area ("Access Easement Areas"). (ii) The Operational Obligations include, without limitation, that Grantee, at its sole expense, shall: (A) operate, construct, maintain, repair, replace andamprove_the Storm Water Lines in the Easement Area in a good and T functional condition sufficient for its intended purposes; and(B) mainfdin any markings for the Storm Water Lines in good and consistent condition. (iii) All work performed within the Easement Area shall be in accordance with the following requirements: (A) Grantee shall be solely responsible for and have control over the means, methods, techniques, sequences, and procedures and for coordinating all portions of work in the Easement Area; (B) Grantee shall obtain all required governmental permits and authorizations for such work; and (C) Grantee shall cause all work to be completed in a good and workmanlike manner, free from defective materials and in compliance with all applicable laws. (iv) All movable trade fixtures, equipment, and all other similar items owned by Grantee and installed or placed in the Easement Area shall remain the property of Grantee and Grantee retains the right to remove said property at any time during the term of this Easement Agreement; provided Grantee promptly repairs all damage caused by such removal and restores the Easement Area to a condition reasonably acceptable to Grantor. 2 (v) Nothing in this Easement Agreement shall authorize Grantee to and Grantee shall not do any act which will in any way encumber the title of Grantor in and to Parcel A nor shall the interest of Grantor in the Parcel A be in any way subject to any claim whatsoever by virtue of any act or omission of Grantee. Any claim to a lien upon Parcel A arising from any act or omission of Grantee shall apply only against Grantee's interest in Parcel A. (vi) Grantee shall keep Parcel A and the Easement Area free from any construction liens for any labor or material furnished to Grantee in connection with the Storm Water Lines or Easement Area. (vii) Any operation, construction, renovation, improvement, maintenance or reconstruction of the Storm Water Lines within the Easement Area shall be at Grantee's expense. (viii) In exercising its rights under this Easement Agreement, Grantee, and its agents, employees, contractors and subcontractors shall use their best efforts to not unreasonably interfere with, obstruct or delay the conduct and operations of the business of Grantor or its tenants, agents, employees and invitees, at any time conducted, including, without limitation, public access to and from any portion to Parcel A and the receipt or delivery of products, materials and merchandise. (ix) Upon completion by Grantee of any work within the Easement Area or Access Easement Areas, Grantee shall restore the affected portions of such areas to a condition substantially similar to the condition existing prior to such work. The line and grade of the existing grade shall equal the line and grade of the finishe—lc grade EEkisting drainage -mechanisms -traversing -the -Easement Area must remain intact. No ponding of water is permitted as a result of work completed by Grantee in the Easement Area. (x) Once commenced, any maintenance, repair, improvement or replacement undertaken in reliance upon this Easement Agreement shall be diligently completed, so as to minimize any interference with the business of Grantor and its tenants, agents, contractors, subcontractors, employees and invitees. (xi) Grantee may remove the Storm Water Lines at any time. In the event Grantee removes the Storm Water Lines: (A) Grantee shall remove all property that was part of the Storm Water Lines and repair any damage to any portion of Parcel A, including any improvements located on Parcel A, caused by such removal and restore the Easement Area to a condition reasonably acceptable to Grantor; and (B) subject to Grantee's obligations in the preceding subsection (A) and any other obligations of Grantee intended to survive termination of this agreement, this Easement Agreement shall terminate automatically and • immediately. 3 2. Use. Grantee shall use the Easement Area for the sole purpose of operating, repairing, improving, replacing and maintaining its Storm Water Lines. (a) Grantor has granted to Grantee the rights conveyed in this Easement Agreement because Grantee is a public body and the Storm Water Lines shall serve and benefit the public. (b) Grantee shall not engage in or permit its agents, employees, contractors, subcontractors or invitees to engage in any use or activity with respect to the Easement Area or Parcel A which would cause Grantor to lose the required Public Support as that phrase is defined in Paragraph 1.7(F) of the Development Agreement. 3. Load Limit. At no time shall Grantee place a load upon any portion of Parcel A, including improvements located on Parcel A, exceeding the load per square foot it was designed to carry or is permitted by applicable law. Grantee shall not allow any activity within -the Easement Area and shall not construct or maintain any portion of the Storm Water Lines or its foundation in a manner which will undermine or compromise the support of the improvements made or to be made to Parcel A. 4. Existing Encumbrances. Grantee's rights under this Easement Agreement shall be subject to encumbrances, conditions, covenants, easements, restrictions and rights -of -way as set forth in the deed from Grantee to Grantor, for the "City Property", as set forth in the • Development Agreement. 5. Acceptance of Easement Area. Grantee accepts the Easement Area in its "as is" condition, with all faults as of the date of this Easement Agreement. Grantee acknowledges that Grantor has made absolutely no warranties or representations regarding the condition of the Easement Area or its suitaliility for Grantee's -intended -use. • 6. Relocation. The parties acknowledge that upon ninety (90) days advance written notice to Grantee, Grantor may, at its sole cost, relocate the Storm Water Lines and Easement Area to a new location on Parcel A acceptable to Grantee (whose approval shall not be unreasonably withheld, delayed or conditioned) so long as: (A) Grantor is responsible for and pays all costs and expenses associated with relocating the Storm Water Lines and equipment located within the Easement Area to the new location; (B) Grantor obtains all required governmental permits and authorizations required for the relocation of the Storm Water Lines and equipment located in the Easement Area; (C) Grantor performs all work to relocate the Storm Water Lines and equipment located in the Easement Area (including all disconnection and hook-up) in a good and workmanlike manner and in compliance with all applicable laws; (D) Grantor obtains the written consent of each party holding a lien with respect to Parcel A to any new easement agreement; and (E) in such event, the parties shall execute and record a new easement agreement in a form reasonably acceptable to Grantor and Grantee under which Grantor grants to Grantee an easement (on terms substantially similar to the terms of this Easement Agreement) with respect to the new Easement Area location. 4 7. Covenants Run With the Land. The covenants, agreements, conditions and restrictions of Grantor are intended to be and shall be construed as covenants running with the land, binding upon, inuring to the benefit of and enforceable against Parcel A by the Parties, their respective successors and assigns, upon the terms, provisions and conditions in this Easement Agreement. II. GENERAL 1. Integration, Exhibits, Consent to Waiver, Amendment. This Easement Agreement and all agreements arising out of the Development Agreement should be read in conjunction and harmonious with each other. All Exhibits referred to in this Easement Agreement are part of this Easement Agreement. The provisions of this Easement Agreement may be amended, but only with the written consent of Grantor and Grantee, which consent shall not be unreasonably withheld, conditioned or delayed. No other persons, tenants, mortgagees or occupants of Parcel A, shall have any rights whatsoever to join in, prevent or otherwise affect or limit any such modification, amendment or termination. 2. Exemption from Transfer Tax. This instrument is exempt from state and county transfer tax as the consideration is less than One Hundred ($100.00) Dollars. MCLA 207.505(a); MCLA 207.526(a). 3. Authori . Grantor represents and warrants to Grantee that the individual executing this Easement Agreement on its behalf has the authority to do so. Grantee represents and warrants to Grantor that: (1) Grantee has the right to enter into this Easement Agreement; and (2) all necessary actions have been taken by Grantee in the execution of this Easement Agreement to make this Easement Agreement a binding obligation of Grantee. 4. Assignment: Except -for -an -assignment to-a-governmental-entity_asso.riated_w.itl��..._ Grantee, this Easement Agreement shall not be assigned, transferred, relinquished or conveyed by Grantee without the prior written consent of Grantor, which consent may be withheld in the sole and absolute discretion of Grantor. In case of any permitted assignment, Grantee and assignee shall be liable for the full performance of all terms and conditions of this Easement Agreement. Grantor's consent to any assignment of this Easement Agreement shall not be deemed a consent to any further assignment of this Easement Agreement. W 5. Lateral/Subiacent Support. Any damage to Parcel A, its foundational, lateral or subjacent support or any improvement located on Parcel A caused by Grantee or such party's agents, employees, contractors, subcontractors or invitees shall promptly be repaired by Grantee at Grantee's sole expense. If Grantee fails to commence repair of such damage within twenty (20) days after receipt of written notice of such damages from Grantor (subject to extension as a result of seasonal or inclement weather) and does not diligently pursue the repair of such damage, Grantor may do so and the reasonable costs of doing so shall be the sole responsibility of Grantee. Said cost shall be payable by Grantee within twenty (20) days of Grantor's notification to Grantee of Grantor's reasonable cost of repair. 5 6. Liability Allocation. Grantee shall be responsible for any and all liabilities, iclaims or damages in connection with the loss of life, personal injury or damage to property caused by the negligent or intentional acts or omissions of Grantee or Grantee's agents, employees, contractors or subcontractors on Parcel A. If within twenty (20) days of Grantor's notice of such claims to Grantee, Grantee fails to assume responsibility under terms reasonably acceptable to Grantor in Grantor's sole discretion, then Grantor may undertake such defense and the reasonable costs of doing so, together with any liability or damages of Grantor, shall be the sole responsibility of Grantee. Said cost shall be payable by Grantee within twenty (20) days of Grantor's notification of Grantor's damages and reasonable cost of defense. Grantee shall have no responsibility for claims, losses or expenses caused by the negligent or intentional acts or omissions of Grantor or Grantor's agents, employees, contractors or subcontractors on Parcel A. 7. Utility Relocation. To the extent that the exercise of Grantee's rights hereunder requires the relocation of any utility facilities located on Parcel A as of the date of this Easement Agreement, Grantee shall pay the reasonable cost of such relocation. 8. Default. In the event a Parry shall default in its obligations hereunder and the cure for such default is not commenced in good faith and diligently pursued within twenty (20) days after written notice from the nondefaulting Party to the defaulting Party, the nondefaulting Party may: (A) enforce any remedies or rights of termination provided for under this Easement Agreement; (B) seek specific performance of the defaulting Parry's obligations; (C) seek reimbursement from the nondefaulting Party in a court of law for expenses the nondefaulting Party establishes were reasonably incurred and necessary to fulfill the defaulting Party's 40 obligations; or (D) seek any other available remedy in law or equity. Any amount due hereunder from the defaulting Party to the nondefaulting Party shall bear interest at the lesser of (i) twelve percent (12%) per annum or (ii) the maximum rate permitted by applicable law, compounded annually. The_remedies,provided for under this Section are not exclusive, are in addition to and not in lieu of any other rights or remedies available at law or in equity. 9. Self Insurance/Insurance. (a) Grantee may self insure or obtain insurance coverage in such amounts as Grantee deems appropriate at its expense to protect Grantee from claims for damages due to bodily injury, loss, or damage to property for which Grantee is responsible under this Easement Agreement, with such self insurance coverage in an amount determined by Grantee. Grantee shall deliver evidence of such coverage, if any or a certificate of insurance evidencing all coverage specified in this paragraph, to Grantor upon request. The coverages to benefit Grantor shall not be canceled, cancelable or modified until at least thirty (30) days' prior written notice of intention to cancel or modify has been delivered by the insurer to Grantor. Notwithstanding the foregoing, the amounts of insurance coverage required hereunder shall be increased from time to time to be consistent with the amounts of such coverages reasonably maintained for similar risks. (b) Grantee shall bring or keep property upon the Easement Area solely at its own risk and Grantor shall not be liable for any damages thereto or any theft thereof. • Grantee may maintain a policy of insurance with a responsible insurance company against .:, risk of loss from any cause whatsoever to all such property and to all of Grantee's • alterations, improvements or additions to the Easement Area, to the full extent of their replacement cost, which policy of insurance shall contain a clause or endorsement under which the insurer waives or permits the waiver by Grantee of all right of subrogation against Grantor and its agents, employees, customers, invitees, guests or licensees, with respect to losses payable under such policy. To the fullest extent allowed by applicable law, Grantee waives all right of recovery which it might otherwise have against Grantor and its agents, employees, customers, invitees, guests or licensees for any damage to Grantee's property, notwithstanding that such damage may result from the negligence or fault of Grantor or its agents, employees, customers, invitees, guests or licensees. 10. Cautions. The captions in the paragraph headings in this Easement Agreement are for convenience only and do not define, describe, extend or limit the scope or intent of this Easement Agreement or of any of its provisions. 11. Severability. The provisions of this Easement Agreement are severable. Should any section, subsection, paragraph or provision of this Easement Agreement be declared to be invalid or unenforceable by a court of competent jurisdiction, it shall not affect the validity or enforceability of the Easement Agreement as a whole or any part thereof, other than the part so declared invalid or unenforceable. The parties shall renegotiate, if possible, the invalid or unenforceable section, subsection, paragraph or provision in a manner consistent with the original intent of this Easement Agreement. . 12. No Partnership. Nothing in this Easement Agreement shall be deemed or construed by Grantor, Grantee or by any third person to create the relationship of principal and agent, a partnership, joint venture or any other association between any of the parties. 13. Governing Laws. This Easeme Agreement shall -be construed -in -accordance trued with the laws of the State of Michigan. Nothing in this Easement Agreement shall be cons to relieve a party from obtaining any necessary governmental permits, approvals or authorizations otherwise required by law. 14. Construction of Easement Agreement. The rule of strict construction shall not apply to the easements and agreements granted in this Easement Agreement or to the covenants set forth herein. This Easement Agreement shall be given a reasonable construction so that the intention of the Grantor to confer reasonably usable benefits and reasonably enforceable obligations are carried out. 15. Waiver of Default. No waiver of any default by any Party to this Easement Agreement shall be implied from any omission by any other Party to take any action in respect of such default if such default continues or is repeated. No express waiver of any default shall affect any default or cover any period of time other than the default and period of time specified in such express waiver. One or more waivers of any default in the performance of any term, provision or covenant contained in this Easement Agreement shall not be deemed to be a waiver of any subsequent default in the performance of the same term, provision or covenant or any • other term, provision or covenant contained in this Easement Agreement. The consent or 7 approval by any Parry to or of any act or request by any other Parry requiring consent or approval •shall not be deemed to waive or render unnecessary the consent to or approval of any subsequent similar acts or requests. The rights and remedies given to any Party to this Easement Agreement are cumulative and no one rights and or remedy shall be exclusive of any other or of any other right or remedy at law or in equity which any such Party might otherwise have by virtue of a default under this Easement Agreement and the exercise of one such right or remedy by any such Party shall not impair such Parry's standing to exercise any other right or remedy. 16. No Offer. The submission of this Easement Agreement for examination does not constitute an offer to enter into a Easement Agreement and this Easement Agreement shall become effective only upon execution and delivery by Grantor and Grantee. 17. Notice_s. All notices, demands and requests given or required to be given pursuant to this Easement Agreement shall be in writing. All such notices, demands and requests shall be deemed to be delivered when: (a) received within three (3) days after deposited in any United States postal box if postage is prepaid and the notice properly addressed to the intended recipient; (b) delivered by facsimile transmission with proof of receipt of delivery; (c) delivered by email transmission with proof of receipt; (d) personally delivered; or (e) sent by nationally recognized overnight courier service (e.g. Federal Express or UPS) in which case such notice shall be deemed given the day after the date sent with all fees paid. 18. Successors and Third Parties. This Easement Agreement shall be binding upon and inure to the benefit of each Party and their respective successors and permitted assigns. • Except for Grantor's parent, subsidiary and affiliated entities and their respective officers, directors, shareholders, partners, agents and employees and Accident Fund Insurance Company of America while it is an occupant of Parcel A, Grantor and Grantee acknowledge and warrant and_represent_to each other that there are no third parry beneficiaries to this Easement Agreement. 19. Obligations Survive. All obligations arising prior to the termination of this Easement Agreement and all provisions of this Easement Agreement allocating responsibility or liability between the parties shall survive the termination of this Easement Agreement. No i obligation which survives the term of this Easement Agreement shall give Grantee any interest in Parcel A, possession or otherwise, nor have the effect of extending the term of this Easement Agreement. 20. Record of Termination. If this Easement Agreement is terminated for any reason, Grantor shall be entitled to record a termination.of this Easement Agreement with the Ingham County Register of Deeds. 21. Legal Expense. In any action arising out of the enforcement of this Easement Agreement, the nonprevailing Parry shall pay to the prevailing Party all reasonable expenses incurred by the prevailing Parry in the action, including reasonable attorney fees. 22. Consent. Unless otherwise indicated in this Easement Agreement, where the consent of a party is required, such consent shall not be unreasonably withheld, conditioned or • delayed. 8 23. Declaration of Restrictive Covenants. This Easement Agreement shall be ISsubject to the provisions of the to be recorded Declaration of Restrictive Covenants, a specimen of which is attached as an exhibit to the Warranty Deed of even date from Grantee to Grantor. • • [THIS SPACE INTENTIONALLY LEFT BLANK] E • 0 The undersigned executed this Easement Agreement this d day of S , 2008. Approved as to form: STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) CITY OF LANSING, a Michigan municipal corporation, By: Virg Ze�me, Mayor By: an�� Chris Swope, Clerk PHOENIX DEVELOPMENT PARTNERS, LLC, a Michigan limited liability company, CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, Manager LE M. Cash Acknowledged before me in Ingham County, Michigan thWth day o 2008, by Virg Bernero, Mayor of the City of Lansing, a Michigan municipal corporation. Notary Public,"shdCounty, MI Acting in Ingham County, Michigan My Commission Expires: 01- ! 4- 10 STATE OF MICHIGAN ) • ) ss COUNTY OF INGHAM ) Acknowledged before me in Ingham County, Michigan this 30th day of September, 2008, by Chris Swope, Clerk of the City of Lansing, a Michigan municipal corporation. �i I-e-p—y1 Mm�. ►"1 � Notary Public,u4jht4n_WCounty, MI Acting in Ingham County, Michigan My Commission Expires: 01-1 P— 2014- STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Acknowledged before me in Ingham County, Michigan this 30th day of September, 2008, by James M. Cash, Manager of Christman Capital Investment Group, LLC, Manager of Phoenix Development Partners, LLC, a Michigan limited liability comp /l • Ac ' g in Ingham County, M' hi My Commission Expires: la RECORDING FEE: $ EXHIBITS: Exhibit A: - Legal Description of Parcel A Exhibit B: - Depiction of Existing Storm Water Lines and Easement Area DRAFTED BY AND AFTER RECORDING RETURN TO: Gregory J. Guggemos Guggemos Brown & Gilkey, PC 4050 Hunsaker Drive, Suite 120 East Lansing, MI 48823 Telephone: (517) 336-0127 • 11 EASEMENT AGREEMENT — SHIAWASSEE STREET STORM WATER • EXHIBIT A (Legal Description of Grantor Property - Parcel A) Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89059'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36- 8, Ingham 7.County f eto the thence continuing along the East line of North Grand Avenue N00 0 point of beginning of the following described parcel; thence N00°01'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence NSOal°O o'the'West extended Easterlence y; 39.86 feet to a point on the centerline of the party w wall N89°58'00"W 210.25 feet to the along said extension and along the centerline of the party East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89 58 00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45100'36"E, 56.87 feet; 2) S07°00'06"E, 173.32 feet; 3) S17021'34"E, 75.69 feet; 4) S01008'14"E, 327.42 feet; 5) S17017'09"W, 167.17 feet; 6) S18°04'11"W, 24.53 feet to abuilding line; thence along said building line the following five (5) courses; 1) S74014'59"E, 16.75 feet; 2) S15051'22"W, 63.24 feet; 3) N8904711711W, 11.09 feet; 4) S00012'43"W, 14.88 feet; 5) N89053'37"W, 30.79 feet; • thence S23°01'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89031' 14"W, 178.68 feet along said curb line to the point of beginning. • 12 EASEMENT AGREEMENT — SHIAWASSEE STREET STORM WATER • EXHIBIT B (Depiction of Existing Storm Water Lines and Easement Area) SAClients\Christman Company\Constructive Receipt\Phoenix Development Partners LLC\Easement re BWL Property\City Easements\Easement • Agreement.Shiawasee Street Storm Water.Final.9.30.08.doc 13 EMERGENCY SIGNAL WA m BUS SHEL EXISTING: NEW SIDEWALK 350, i 1 - CaI8il9 q OfdDA / • B._..,.:_..:. w ...-p_ -� r- ... -�Ef•- -- _., „p...__._._.____....El_ _..._.._... _...--f�-• ._----•-- -ROUND EL +823 U' RAMP • 1 - coatis I-LOODA EL' 822:0''. • � • ' � ' ' a2mD - FEDERA+EL•Dc • • � • � � ' . . ' '� •• t , . . . 'AT 9'.mG.•AJ.F,LLaMMIdCs 3 L MCK E � l Above This Line is for Recording Information) EASEMENT AGREEMENT - SHIAWASSEE STREET STORM WATER This EASEMENT AGREEMENT- SHIAWASSEE STREET STORM WATER ("Easement Agreement") is executed this 30'' day of September, 2008, between PHOENIX DEVELOPMENT PARTNERS, LLC, a Michigan limited liability company, 208 N. Capitol Ave., Lansing, Michigan 48933 ("Grantor") and the CITY OF LANSING, a Michigan municipal corporation, 124 W. Michigan Ave., Lansing, Michigan 48933 ("Grantee"). Grantor and Grantee are collectively referred to as the "Parties" or singularly as a "Parry." RECITALS: • Grantor owns a parcel of real property located in the City of Lansing, Ingham County, Michigan, legally described on Exhibit A ("Parcel A"); and Located within Parcel A, immediately South of the South line of Shiawassee Street are existing storm water lines and related appurtenances with an outlet to the Grand River generally depicted on Exhibit B ("Storm Water Lines"); and Grantor is willing to grant to Grantee an easement to go on, over, under and across those portions of Parcel A located South of the South Right of Way line of Shiawassee Street and North of the North face of the new ramp as depicted on the approved site plan as depicted on Exhibit B ("Easement Area") to allow Grantee to operate, construct, maintain, improve, repair or replace the Storm Water Lines. THIS EASEMENT AGREEMENT IS BEING EXECUTED IN FURTHERANCE OF THE PROPERTY PURCHASE AND DEVELOPMENT AGREEMENT DATED JANUARY 30, 2008 ("DEVELOPMENT AGREEMENT") AND THE PARTIES AGREE AS FOLLOWS: I. STORM WATER LINES EASEMENT 1. Grant. Grantor grants to Grantee an exclusive easement to go on, over, across, through, above and under the Easement Area for the operation, construction, maintenance, repair, replacement and improvement of the Storm Water Lines ("Storm Water Lines Easement"). is • (a) The Storm Water Lines Easement shall also include an easement of support and Grantor shall not allow any activity on Parcel A which will interfere with or compromise the support of the Storm Water Lines located within the Easement Area. Grantee shall be responsible to construct appropriate structural support for the Storm Water Lines located in the Easement Area. Further, the Storm Water Lines Easement shall include, subject to the terms and conditions of this Easement Agreement, the right to maintain such structural support. (b) Grantee shall pay all costs associated with the operation, construction, maintenance, repair, replacement and improvement of the Storm Water Lines located in the Easement Area and the Access Easement Areas (as defined below) ("Operational Obligations"). (i) As part of the Operational Obligations, the Storm Water Lines Easement shall include an easement over and through the following portions of Parcel A: (A) a path to be reasonably determined by Grantor from the improved portions of Parcel A to the Easement Area; and (B) the necessary air space located above and adjacent to the Storm Water Lines required for the Grantee to perform its Operation Obligations. Grantee acknowledges that a portion of the air rights granted to it by this easement are limited due to the improvements Grantor will place on Parcel A as part of the Project as that term is defined in the Development Agreement necessary to operate, construct, maintain, repair, improve and replace is the Storm Water Lines in the Easement Area ("Access Easement Areas"). (ii) The Operational Obligations include, without limitation, that Grantee, at its sole expense, shall: (A) operate, construct, maintain, repair, replace and improve the Storm Water Lines in the Easement Area in a good and functional condition sufficient for its intended purposes; and (B) maintain any markings for the Storm Water Lines in good and consistent condition. (iii) All work performed within the Easement Area shall be in accordance with the following requirements: (A) Grantee shall be solely responsible for and have control over the means, methods, techniques, sequences, and procedures and for coordinating all portions of work in the Easement Area; (B) Grantee shall obtain all required governmental permits and authorizations for such work; and (C) Grantee shall cause all work to be completed in a good and workmanlike manner, free from defective materials and in compliance with all applicable laws. (iv) All movable trade fixtures, equipment, and all other similar items owned by Grantee and installed or placed in the Easement Area shall remain the property of Grantee and Grantee retains the right to remove said property at any time during the term of this Easement Agreement; provided Grantee promptly repairs all damage caused by such removal and restores the Easement Area to a • condition reasonably acceptable to Grantor. F) • (v) Nothing in this Easement Agreement shall authorize Grantee to and Grantee shall not do any act which will in any way encumber the title of Grantor in and to Parcel A nor shall the interest of Grantor in the Parcel A be in any way subject to any claim whatsoever by virtue of any act or omission of Grantee. Any claim to a lien upon Parcel A arising from any act or omission of Grantee shall apply only against Grantee's interest in Parcel A. - (vi) Grantee shall keep Parcel A and the Easement Area free from any construction liens for any labor or material furnished to Grantee in connection with the Storm Water Lines or Easement Area. (vii) Any operation, construction, renovation, improvement, maintenance or reconstruction of the Storm Water Lines within the Easement Area shall be at Grantee's expense. (viii) In exercising its rights under this Easement Agreement, Grantee, and its agents, employees, contractors and subcontractors shall use their best efforts to not unreasonably interfere with, obstruct or delay the conduct and operations of the business of Grantor or its tenants, agents, employees and invitees, at any time conducted, including, without limitation, public access to and from any portion to Parcel A and the receipt or delivery of products, materials and merchandise. . (ix) Upon completion by Grantee of any work within the Easement Area or Access Easement Areas, Grantee shall restore the affected portions of such areas to a condition substantially similar to the condition existing prior to such work. The line and grade of the existing grade shall equal the line and grade of the finished grade. Existing drainage mechanisms traversing the Easement Area must remain intact. No ponding of water is permitted as a result of work completed by Grantee in the Easement Area. (x) Once commenced, any maintenance, repair, improvement or replacement undertaken in reliance upon this Easement Agreement shall be diligently completed, so as to minimize any interference with the business of Grantor and its tenants, agents, contractors, subcontractors, employees and invitees. (xi) Grantee may remove the Storm Water Lines at any time. In the event Grantee removes the Storm Water Lines: (A) Grantee shall remove all property that was part of the Storm Water Lines and repair any damage to any portion of Parcel A, including any improvements located on Parcel A, caused by such removal and restore the Easement Area to a condition reasonably acceptable to Grantor; and (B) subject to Grantee's obligations in the preceding subsection (A) and any other obligations of Grantee intended to survive termination of this agreement, this Easement Agreement shall terminate automatically and • immediately. 3 2. Use. Grantee shall use the Easement Area for the sole purpose of operating, repairing, improving, replacing and maintaining its Storm Water Lines. (a) Grantor has granted to Grantee the rights conveyed in this Easement Agreement because Grantee is a public body and the Storm Water Lines shall serve and benefit the public. (b) Grantee shall not engage in or permit its agents, employees, contractors, subcontractors or invitees to engage in any use or activity with respect to the Easement Area or Parcel A which would cause Grantor to lose the required Public Support as that phrase is defined in Paragraph 1.7(F) of the Development Agreement. 3. Load Limit. At no time shall Grantee place a load upon any portion of Parcel A, including improvements located on Parcel A, exceeding the load per square foot it was designed to carry or is permitted by applicable law. Grantee shall not allow any activity within the Easement Area and shall not construct or maintain any portion of the Storm Water Lines or its foundation in a manner which will undermine or compromise the support of the improvements made or to be made to Parcel A. 4. Existing Encumbrances. Grantee's rights under this Easement Agreement shall be subject to encumbrances, conditions, covenants, easements, restrictions and rights -of -way as set forth in the deed from Grantee to Grantor, for the "City Property", as set forth in the • Development Agreement. 5. Acceptance of Easement Area. Grantee accepts the Easement Area in its "as is" condition, with all faults as of the date of this Easement Agreement. Grantee acknowledges that Grantor has made absolutely no warranties or representations regarding the condition of the Easement Area or its suitability for Grantee's intended use. • 6. Relocation. The parties acknowledge that upon ninety (90) days advance written notice to Grantee, Grantor may, at its sole cost, relocate the Storm Water Lines and Easement Area to a new location on Parcel A acceptable to Grantee (whose approval shall not be unreasonably withheld, delayed or conditioned) so long as: (A) Grantor is responsible for and pays all costs and expenses associated with relocating the Storm Water Lines and equipment located within the Easement Area to the new location; (B) Grantor obtains all required governmental permits and authorizations required for the relocation of the Storm Water Lines and equipment located in the Easement Area; (C) Grantor performs all work to relocate the Storm Water Lines and equipment located in the Easement Area (including all disconnection and hook-up) in a good and workmanlike manner and in compliance with all applicable laws; (D) Grantor obtains the written consent of each party holding a lien with respect to Parcel A to any new easement agreement; and (E) in such event, the parties shall execute and record a new easement agreement in a form reasonably acceptable to Grantor and Grantee under which Grantor grants to Grantee an easement (on terms substantially similar to the terms of this Easement Agreement) with respect to the new Easement Area location. 0 • 7. Covenants Run With the Land. The covenants, agreements, conditions and restrictions of Grantor are intended to be and shall be construed as covenants running with the land, binding upon, inuring to the benefit of and enforceable against Parcel A by the Parties, their respective successors and assigns, upon the terms, provisions and conditions in this Easement Agreement. II. GENERAL 1. InteLyration. Exhibits. Consent to Waiver. Amendment. This Easement Agreement and all agreements arising out of the Development Agreement should be read in conjunction and harmonious with each other. All Exhibits referred to in this Easement Agreement are part of this Easement Agreement. The provisions of this Easement Agreement may be amended, but only with the written consent of Grantor and Grantee, which consent shall not be unreasonably withheld, conditioned or delayed. No other persons, tenants, mortgagees or occupants of Parcel A, shall have any rights whatsoever to join in, prevent or otherwise affect or limit any such modification, amendment or termination. 2. Exemption from Transfer Tax. This instrument is exempt from state and county transfer tax as the consideration is less than One Hundred ($100.00) Dollars. MCLA 207.505(a); MCLA 207.526(a). 3. Authority. Grantor represents and warrants to Grantee that the individual executing this Easement Agreement on its behalf has the authority to do so. Grantee represents and warrants to Grantor that: (1) Grantee has the right to enter into this Easement Agreement; and (2) all necessary actions have been taken by Grantee in the execution of this Easement Agreement to make this Easement Agreement a binding obligation of Grantee. 4. Assignment. Except for an assignment to a governmental entity associated with Grantee, this Easement Agreement shall not be assigned, transferred, relinquished or conveyed by Grantee without the prior written consent of Grantor, which consent may be withheld in the sole and absolute discretion of Grantor. In case of any permitted assignment, Grantee and assignee shall be liable for the full performance of all terms and conditions of this Easement Agreement. Grantor's consent to any assignment of this Easement Agreement shall not be deemed a consent to any further assignment of this Easement Agreement. 5. Lateral/Subiacent Support. Any damage to Parcel A, its foundational, lateral or subjacent support or any improvement located on Parcel A caused by Grantee or such party's agents, employees, contractors, subcontractors or invitees shall promptly be repaired by Grantee at Grantee's sole expense. If Grantee fails to commence repair of such damage within twenty (20) days after receipt of written notice of such damages from Grantor (subject to extension as a result of seasonal or inclement weather) and does not diligently pursue the repair of such damage, Grantor may do so and the reasonable costs of doing so shall be the sole responsibility of Grantee. Said cost shall be payable by Grantee within twenty (20) days of Grantor's notification to Grantee of Grantor's reasonable cost of repair. 5 6. Liability Allocation. Grantee shall be responsible for any and all liabilities, claims or damages in connection with the loss of life, personal injury or damage to property caused by the negligent or intentional acts or omissions of Grantee or Grantee's agents, employees, contractors or subcontractors on Parcel A. If within twenty (20) days of Grantor's notice of such claims to Grantee, Grantee fails to assume responsibility under terms reasonably acceptable to Grantor in Grantor's sole discretion, then Grantor may undertake such defense and the reasonable costs of doing so, together with any liability or damages of Grantor, shall be the sole responsibility of Grantee. Said cost shall be payable by Grantee within twenty (20) days of Grantor's notification of Grantor's damages and reasonable cost of defense. Grantee shall have no responsibility for claims, losses or expenses caused by the negligent or intentional acts or omissions of Grantor or Grantor's agents, employees, contractors or subcontractors on Parcel A. 7. Utility Relocation. To the extent that the exercise of Grantee's rights hereunder requires the relocation of any utility facilities located on Parcel A as of the date of this Easement Agreement, Grantee shall pay the reasonable cost of such relocation. 8. Default. In the event a Party shall default in its obligations hereunder and the cure for such default is not commenced in good faith and diligently pursued within twenty (20) days after written notice from the nondefaulting Party to the defaulting Party, the nondefaulting Party may: (A) enforce any remedies or rights of termination provided for under this Easement Agreement; (B) seek specific performance of the defaulting Parry's obligations; (C) seek reimbursement from the nondefaulting Party in a court of law for expenses the nondefaulting • Party establishes were reasonably incurred and necessary to fulfill the defaulting Party's obligations; or (D) seek any other available remedy in law or equity. Any amount due hereunder from the defaulting Party to the nondefaulting Party shall bear interest at the lesser of (i) twelve percent (12%) per annum or (ii) the maximum rate permitted by applicable law, compounded annually. The remedies provided for under this Section are not exclusive, are in addition to and not in lieu of any other rights or remedies available at law or in equity. 9. Self Insurance/Insurance. (a) Grantee may self insure or obtain insurance coverage in such amounts as Grantee deems appropriate at its expense to protect Grantee from claims for damages due to bodily injury, loss, or damage to property for which Grantee is responsible under this Easement Agreement, with such self insurance coverage in an amount determined by Grantee. Grantee shall deliver evidence of such coverage, if any or a certificate of insurance evidencing all coverage specified in this paragraph, to Grantor upon request. The coverages to benefit Grantor shall not be canceled, cancelable or modified until at least thirty (30) days' prior written notice of intention to cancel or modify has been delivered by the insurer to Grantor. Notwithstanding the foregoing, the amounts of insurance coverage required hereunder shall be increased from time to time to be consistent with the amounts of such coverages reasonably maintained for similar risks. (b) Grantee shall bring or keep property upon the Easement Area solely at its own risk and Grantor shall not be liable for any damages thereto or any theft thereof. Grantee may maintain a policy of insurance with a responsible insurance company against n • risk of loss from any cause whatsoever to all such property and to all of Grantee's alterations, improvements or additions to the Easement Area, to the full extent of their replacement cost, which policy of insurance shall contain a clause or endorsement under which the insurer waives or permits the waiver by Grantee of all right of subrogation against Grantor and its agents, employees, customers, invitees, guests or licensees, with respect to losses payable under such policy. To the fullest extent allowed by applicable law, Grantee waives all right of recovery which it might otherwise have against Grantor and its agents, employees, customers, invitees, guests or licensees for any damage to - Grantee's property, notwithstanding that such damage may result from the negligence or fault of Grantor or its agents, employees, customers, invitees, guests or licensees. 10. Captions. The captions in the paragraph headings in this Easement Agreement are for convenience only and do not define, describe, extend or limit the scope or intent of this Easement Agreement or of any of its provisions. 11. Severability. The provisions of this Easement Agreement are severable. Should any section, subsection, paragraph or provision of this Easement Agreement be declared to be invalid or unenforceable by a court of competent jurisdiction, it shall not affect the validity or enforceability of the Easement Agreement as a whole or any part thereof, other than the part so declared invalid or unenforceable. The parties shall renegotiate, if possible, the invalid or unenforceable section, subsection, paragraph or provision in a manner consistent with the original intent of this Easement Agreement. • 12. No Partnership. Nothing in this Easement Agreement shall be deemed or construed by Grantor, Grantee or by any third person to create the relationship of principal and agent, a partnership, joint venture or any other association between any of the parties. 13. Governing Laws. This Easement Agreement shall be construed in accordance with the laws of the State of Michigan. Nothing in this Easement Agreement shall be construed to relieve a party from obtaining any necessary governmental permits, approvals or authorizations otherwise required by law. 14. Construction of Easement Agreement. The rule of strict construction shall not apply to the easements and agreements granted in this Easement Agreement or to the covenants set forth herein. This Easement Agreement shall be given a reasonable construction so that the intention of the Grantor to confer reasonably usable benefits and reasonably enforceable obligations are carried out. 15. Waiver of Default. No waiver of any default by any Party to this Easement Agreement shall be implied from any omission by any other Party to take any action in respect of such default if such default continues or is repeated. No express waiver of any default shall affect any default or cover any period of time other than the default and period of time specified in such express waiver. One or more waivers of any default in the performance of any term, provision or covenant contained in this Easement Agreement shall not be deemed to be a waiver of any subsequent default in the performance of the same term, provision or covenant or any other term, provision or covenant contained in this Easement Agreement. The consent or 7 • approval by any Party to or of any act or request by any other Parry requiring consent or approval shall not be deemed to waive or render unnecessary the consent to or approval of any subsequent similar acts or requests. The rights and remedies given to any Party to this Easement Agreement are cumulative and no one rights and or remedy shall be exclusive of any other or of any other right or remedy at law or in equity which any such Parry might otherwise have by virtue of a default under this Easement Agreement and the exercise of one such right or remedy by any such Parry shall not impair such Parry's standing to exercise any other right or remedy. 16. No Offer. The submission of this Easement Agreement for examination does not constitute an offer to enter into a Easement Agreement and this Easement Agreement shall become effective only upon execution and delivery by Grantor and Grantee. 17. Notices. All notices, demands and requests given or required to be given pursuant to this Easement Agreement shall be in writing. All such notices, demands and requests shall be deemed to be delivered when: (a) received within three (3) days after deposited in any United States postal box if postage is prepaid and the notice properly addressed to the intended recipient; (b) delivered by facsimile transmission with proof of receipt of delivery; (c) delivered by email transmission with proof of receipt; (d) personally delivered; or (e) sent by nationally recognized overnight courier service (e.g. Federal Express or UPS) in which case such notice shall be deemed given the day after the date sent with all fees paid. 18. Successors and Third Parties. This Easement Agreement shall be binding upon and inure to the benefit of each Party and their respective successors and permitted assigns. 10 Except for Grantor's parent, subsidiary and affiliated entities and their respective officers, directors, shareholders, partners, agents and employees and Accident Fund Insurance Company of America while it is an occupant of Parcel A, Grantor and Grantee acknowledge and warrant and represent to each other that there are no third party beneficiaries to this Easement Agreement. 19. Obligations Survive. All obligations arising prior to the termination of this Easement Agreement and all provisions of this Easement Agreement allocating responsibility or liability between the parties shall survive the termination of this Easement Agreement. No obligation which survives the term of this Easement Agreement shall give Grantee any interest in Parcel A, possession or otherwise, nor have the effect of extending the term of this Easement Agreement. 20. Record of Termination. If this Easement Agreement is terminated for any reason, Grantor shall be entitled to record a termination of this Easement Agreement with the Ingham County Register of Deeds. 21. Legal Expense. In any action arising out of the enforcement of this Easement Agreement, the nonprevailing Parry shall pay to the prevailing Parry all reasonable expenses incurred by the prevailing Party in the action, including reasonable attorney fees. 22. Consent. Unless otherwise indicated in.this Easement Agreement, where the consent of a parry is required, such consent shall not be unreasonably withheld, conditioned or • delayed. 8 • 23. Declaration of Restrictive Covenants. This Easement Agreement shall be subject to the provisions of the to be recorded Declaration of Restrictive Covenants, a specimen of which is attached as an exhibit to the Warranty Deed of even date from Grantee to Grantor. • [THIS SPACE INTENTIONALLY LEFT BLANK] E The undersigned executed this Easement Agreement this d 11, day of 0t, 2008. • • Approved as to form: STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) CITY OF LANSING, a Michigan municipal corporation, By: Virg Berne , Mayor By: Chris Swope, Clerk PHOENIX DEVELOPMENT PARTNERS, LLC, a Michigan limited liability company, CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, Manager aBy: J esger . Cash . ana Acknowledged before me in Ingham County, Michigan thiibth day o T 2008, by Virg Bemero, Mayor of the City of Lansing, a Michigan municipal corporation. Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: 10 . STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Acknowledged before me in Ingham County, Michigan this 30th day of September, 2008, by Chris Swope, Clerk of the City of Lansing, a Michigan municipal corporation. Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Acknowledged before me in Ingham County, Michigan this 30th day of September, 2008, by James M. Cash, Manager of Christman Capital Investment Group, LLC, Manager of Phoenix Development Partners, LLC, a Michigan limited liability co o :ub 1 oZ y, MI Ac 'ng ngham County, higan My Commission Expires: � la -'::z'-&/ RECORDING FEE: $ EXHIBITS: Exhibit A: - Legal Description of Parcel A Exhibit B: - Depiction of Existing Storm Water Lines and Easement Area DRAFTED BY AND AFTER RECORDING RETURN TO: Gregory J. Guggemos Guggemos Brown & Gilkey, PC 4050 Hunsaker Drive, Suite 120 East Lansing, MI 48823 Telephone: (517) 336-0127 • 11 0 EASEMENT AGREEMENT — SHIAWASSEE STREET STORM WATER • EXHIBIT A (Legal Description of Grantor Property - Parcel A) Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89°5910011E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00°01'45"W 7.02 feet to the point of beginning of the following described parcel; thence N00°01'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50°05' 10"E 157.52 feet; thence N00°29'40"E 3 9.8 6 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89°58'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45°00'36"E, 56.87 feet; 2) S07°00'06"E, 173.32 feet; 3) S17°21'34"E, 75.69 feet; 4) S01008114"E, 327.42 feet; 5) S 17° 17' 09"W, 167.17 feet; 6) S 18'04' 11 "W, 24.53 feet to a building line; thence along said building line the following five (5) courses; 1) S74°14'59"E, 16.75 feet; 2) S15051'22"W, 63.24 feet; 3) N89°47'17"W, 11.09 feet; 4) S00012'43"W, 14.88 feet; 5) N89°53'37"W, 30.79 feet; thence S23'01'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89031' 14"W, 178.68 feet along said curb line to the point of beginning. 12 • EASEMENT AGREEMENT — SHIAWASSEE STREET STORM WATER EXHIBIT B (Depiction of Existing Storm Water Lines and Easement Area) • S:\Clients\Christman Company\Constructive Receipt\Phoenix Development Partners LLC\Easement re BWL Property\City Easements\Easement • Agreement. Shiawasee Street Storm Water.Final.9.30.08.doc 13 EMERGENCY SIGNAL EXISTING: - im,"m ffj�Wl�lm BUS SHEL i• • • 25 • 0 4 N ` I T. .. r- fin' •i C�J��r +► �'`«: OF DEEDS a FY.. .r 41 AM Pages B: 3321 P: 1222 10/09/2008 09:: 11 2008-039459 MISCELLANEOUS Receipt *47309 Ti Paula Johnson. Ingham County, Michigan • ��������I������������I���I����I��I��I�II���I������II��I����������'III�I�����������I�I �"�"��;:•i� 44 (Space Above This Line is for Recording Information EASEMENT AGREEMENT - RETAINING WALL MAINTENANCE This EASEMENT AGREEMENT -RETAINING WALL MAINTENANCE ("Easement Agreement") is executed this 30th day of September, 2008, between PHOENIX — DEVELOPMENT PARTNERS, LLC, a Michigan limited liability company, 208 N. Capitol a Ave., Lansing, Michigan 48933 ("PDP") and the CITY OF LANSING, a Michigan municipal corporation, 124 W. Michigan Ave., Lansing, Michigan 48933 ("City"). PDP and City are �m collectively referred to as the "parties" or singularly as a "party." __J ` T, o <-�o RECITALS: 0 0-� N City owns a certain parcel of real property located in the City of Lansing, Ingham County, W Michigan, legally described on Exhibit A ("Riverwalk Parcel"); and PDP owns a certain parcel of real property located in the City of Lansing, Ingham County, Michigan, legally described on Exhibit B ("Parcel B ), The Riverwalk Parcel is located east and immediately adjacent to Parcel B and is bounded on its east by the Grand River ("Grand River"). The Riverwalk Parcel and Parcel B enjoy lateral and sub -lateral support to the east by way of the existing retaining wall located on o the east boundary of the Riverwalk Parcel, embedded in the west bank of the Grand River, running the entire length of the Riverwalk Parcel and a rock style retaining wall approximately five (5) feet in height located on the west boundary of the Riverwalk Parcel ("Retaining Wall"). The City is willing to extend to PDP, its successors and assigns, for the benefit of Parcel B, a perpetual, non-exclusive right and easement on, over, across and under that portion of the Riverwalk Parcel for the purpose of PDP's maintenance, repair and replacement of any portion of � the Retaining Wall ("Easement Area"). -0 i THIS EASEMENT AGREEMENT IS BEING EXECUTED IN FURTHERANCE OF < � THE PROPERTY PURCHASE AND DEVELOPMENT AGREEMENT DATED JANUARY 04 30, 2008 ("DEVELOPMENT AGREEMENT") AND THE PARTIES AGREE AS FOLLOWS: _ N-` e0L5 I. RETAINING WALL MAINTENANCE EASEMENT • 1. Grant. Subject to the terms and conditions of this Easement Agreement, City grants to PDP, its successors and assigns, for the benefit of Parcel B, a perpetual, non-exclusive right and easement on, over, across and under the Easement Area for the purpose of allowing PDP to maintain, repair and replace any portion of the Retaining Wall located adjacent to the Easement Area. (a) Nothing in this Easement Agreement shall require or obligate PDP to undertake any maintenance, repair or replacement of any portion of the Retaining Wall. The City acknowledges it is responsible to maintain, repair or replace any portion of the Retaining Wall except that portion which serves as the foundation of the Power Station as that term is defined in the Development Agreement. In the event PDP believes the structural integrity of the portion of the Retaining Wall for which the City is responsible is compromised and repairs are necessary to restore its integrity, PDP shall provide written notice to the City that the Retaining Wall's structural integrity is compromised and if the City agrees with PDP, the City shall repair the portion of the Retaining Wall for which it is responsible. If the City disagrees with PDP, PDP reserves the right to repair the portion of the Retaining Wall for which the City is responsible and seek reimbursement from the City in a court of law for expenses PDP establishes were . reasonably incurred and necessary to restore the structural integrity of the Retaining Wall for which the City is responsible. • (i) If PDP performs any maintenance, repair or replacement of any portion of the Retaining Wall, PDP shall maintain, repair and replace the Retaining Wall in a good and functional condition sufficient for its intended purposes. (ii) If PDP performs any such maintenance, repair or replacement of any portion of the Retaining Wall: (A) PDP shall be solely responsible for and have control over the means, methods, techniques, sequences and procedures and for coordinating all portions of such work in the Easement Area; (B) PDP shall obtain all required governmental permits and authorizations for such work; and (C) PDP shall cause all work to be completed in a good and workmanlike manner, free from defective materials and in compliance with all applicable laws. (iii) Nothing in this Easement Agreement shall authorize PDP to do any act which will in any way encumber the title of City in and to the Riverwalk Parcel nor shall the interest of City in the Riverwalk Parcel be in any way subject to any claim whatsoever by virtue of any act or omission of PDP. (iv) If PDP performs the maintenance, repair or replacement of any portion of the Retaining Wall, PDP and its agents, employees, contractors, subcontractors or invitees shall exercise its rights under this Easement Agreement in such a manner so as not to unreasonably interfere with, obstruct or delay the • City's conduct and operations of the Riverwalk. Upon completion by PDP of any 2 work within the Easement Area, PDP shall restore the affected portions of such • areas to a condition substantially similar to the condition existing prior to such work. Existing drainage mechanisms traversing the Easement Area must remain intact. (v) If PDP performs any such maintenance, repair or replacement of any portion of the Retaining Wall, once commenced, any maintenance, repair and replacement under this Easement Agreement shall be diligently completed. 2. Use. PDP shall use the Easement Area for the sole purpose of performing maintenance, repair or replacement of any portion of the Retaining Wall. 3. Existing Encumbrances. PDP's rights under this Easement Agreement shall be subject to encumbrances, conditions, covenants, easements, restrictions and rights -of -way as set forth in the deed from City to PDP, for the "City Property", as set forth in the Development Agreement. 4. Acceptance of Easement Area. PDP accepts the Easement Area in its "as is" condition, with all faults, as of the date of this Easement Agreement. PDP acknowledges that City has made absolutely no warranties or representations regarding the condition of the Easement Area or its suitability for PDP's intended use. 5. Covenants Run With the Land. All the covenants, agreements, conditions and is restrictions set forth in this Easement Agreement are intended to be and shall be construed as covenants running with the land, binding upon, inuring to the benefit of and enforceable against the Riverwalk Parcel and Parcel B by the parties, their respective successors and permitted assigns, upon the terms, provisions and conditions of this Easement Agreement. • II. GENERAL 1. Integration, Exhibits Consent to Waiver Amendment. This Easement Agreement and all agreements arising out of the Development Agreement should be read in conjunction and harmonious with each other. All Exhibits referred to in this Easement Agreement are part of this Easement Agreement. The provisions of this Easement Agreement may be amended, but only with the written consent of City and PDP, which consent shall not be unreasonably withheld, conditioned or delayed. No other persons shall have any rights whatsoever to join in, prevent or otherwise affect or limit any such modification, amendment or termination. 2. Authority . PDP represents and warrants to City that the individual executing this Easement Agreement on its behalf has the authority to do so. City represents and warrants to PDP that: (1) City has the right to enter into this Easement Agreement; and (2) all necessary actions have been taken by City in the execution of this Easement Agreement to make this Easement Agreement a binding obligation of City and it was approved by City. W 3. Exemption from Transfer Tax. This instrument is exempt from state and • county transfer tax as the consideration is less than One Hundred ($100.00) Dollars. MCLA 207.505(a); MCLA 207.526(a). 4. Assignment. PDP shall have the right to sell, convey, assign or transfer (whether by operation of law or otherwise) ("Transfer' obligations all or anYOf t�.his Easemof its tentst in Parcel Agreeme Agreement the closing on any such Transfer, the rights and g automatically pass to the transferee. 5. Lateral/Subiacent Support. If PDP performs any such maintenance, repair and replacement of any portion of the Retaining Wall, any damage to the Riverwalk Parcel, its foundational, lateral or subjacent support or any improvement located on the Riverwalk Parcel caused by PDP or PDP's agents, employees, contractors, subcontractors or invitees shall promptly be repaired by PDP at PDP's sole expense. If PDP fails to commence repair of such damage within twenty (20) days after receipt of written notice of such damages from the City (subject to extension as a result of seasonal or inclement weather) and does not in good faith diligently pursue the repair of such damage, City may do so and the reasonable costs of doing so shall be the sole responsibility of PDP. Said cost shall be payable by PDP within twenty (20) days of City's notification to PDP of City's reasonable cost of repair. 6. Liability Allocation. (a) If PDP performs any maintenance, repair or replacement of any portion of • the Retaining Wall, PDP shall defend, indemnify and hold City harmless from any and all liability, damage, expense, including reasonable attorneys' fees, action, suit, claim or judgment arising from bodily injury, death or property damage in, under or on the Easement Area arising out of PDP's maintenance, repair or replacement of the Retaining Wall. (b) City shall be responsible for any and all liabilities, claims or damages in connection with the loss of life, personal injury or damage to property caused by the negligent or intentional acts or omissions of City or City's agents, employees, contractors or subcontractors on the Riverwalk Parcel. If within twenty (20) days of PDP's notice of such claims to City, City fails to assume responsibility under terms reasonably acceptable to PDP in PDP's reasonable discretion, then PDP may undertake such defense and the reasonable costs of doing so, together with any liability or damages of PDP, shall be the sole responsibility of City. Said cost shall be payable by City within twenty (20) days of PDP's written notification of PDP's damages and reasonable cost of defense. City shall have no -responsibility for claims, losses or expenses caused by the negligent or intentional acts or omissions of PDP or PDP's agents, employees, contractors or subcontractors on the Riverwalk Parcel which may occur under the provisions of this Easement Agreement. 7. Utility Relocation. To the extent that the exercise of PDP's rights requires the relocation of any utility facilities located on the Riverwalk Parcel, PDP may relocate such • utilities and PDP shall pay the reasonable cost of relocation. 4 8. Default. In the event a party shall default in its obligations hereunder and the cure • for such default is not commenced in good faith and diligently pursued within twenty (20) days after written notice from the nondefaulting party to the defaulting party, the nondefaulting party may: (A) enforce any remedies or rights of termination provided for under this Easement Agreement; (B) seek specific performance of the defaulting parry's obligations; (C) seek reimbursement from the nondefaulting party in a court of law for expenses the nondefaulting party establishes were reasonably incurred and necessary to fulfill the defaulting party's obligations; or (D) seek any other available remedy in law or equity. Any amount due hereunder from the defaulting party to the nondefaulting party shall bear interest at the lesser of (i) twelve percent (12%) per annum, or (ii) the maximum rate permitted by applicable law, compounded annually. The remedies provided for under this Section are not exclusive, are in addition to and not in lieu of any other rights or remedies available at law or in equity. 9. Self Insurance/Insurance. (a) City may self insure or obtain insurance coverage in such amounts as City deems appropriate at its expense to protect City from claims for damages due to bodily injury, loss or damage to property for which City is responsible under this Easement Agreement, with such coverage in an amount determined by the City. City shall deliver evidence of such self insurance coverage, if any or a certificate of insurance evidencing all coverage specified in this paragraph, to PDP upon request. The coverages to benefit PDP shall not be canceled, cancelable or modified until at least thirty (30) days prior written notice of intention to cancel has been delivered by the insurer to PDP. The • amounts of insurance coverage required hereunder shall be increased from time to time to be consistent with the amounts of such coverages reasonably maintained for similar risks. (b) PDP shall bring or keep property upon the Easement Area solely at its own risk and City shall not be liable for any damages thereto or any theft thereof. PDP shall maintain a policy of insurance with a responsible insurance company satisfactory to City against risk of loss from any cause whatsoever to all such property and to all of PDP's alterations, improvements or additions to the Easement Area, to the full extent of their replacement cost, which policy of insurance shall contain a clause or endorsement under which the insurer waives or permits the waiver by PDP of, all right of subrogation against City and its agents, employees, customers, invitees, guests or licensees, with respect to losses payable under such policy. To the fullest extent allowed by applicable law, PDP waives all right of recovery which it might otherwise have against City and its agents, employees, customers, invitees, guests or licensees, for any damage to PDP's property, notwithstanding that such damage may result from the negligence or fault of City or its agents, employees, customers, invitees, guests or licensees. 10. Captions. The captions in the paragraph headings set forth in this Easement Agreement are for convenience only and do not define, describe, extend or limit the scope or intent of this Easement Agreement or of any of its provisions. • 11. Severability. The provisions of this Easement Agreement are severable. Should • any section, subsection, paragraph or provision of this Easement Agreement be declared to be invalid or unenforceable by a court of competent jurisdiction, it shall not affect the validity or enforceability of the Easement Agreement as a whole or any part thereof, other than the part so declared invalid or unenforceable. The parties shall renegotiate, if possible, the invalid or unenforceable section, subsection, paragraph or provision in a manner consistent with the original intent. 12. No Partnership. Nothing in this Easement Agreement shall be deemed or construed by City, PDP or by any third person to create the relationship of principal and agent, a partnership, joint venture or any other association between the parties. 13. Governing Law. This Easement Agreement shall be construed in accordance with the laws of the State of Michigan. Nothing in this Easement Agreement shall be construed to relieve a party from obtaining any necessary governmental permits, approvals or authorizations otherwise required by law. 14. Construction of Easement Agreement. The rule of strict construction shall not apply to the easements and agreements granted in this Easement Agreement or to the covenants set forth herein. This Easement Agreement shall be given a reasonable construction so that the intention of the City to confer reasonably usable benefits and reasonably enforceable obligations are carried out. • 15. Waiver of Default. No waiver of any default by any party to this Easement Agreement shall be implied from any omission by any other party to take any action in respect of such default if such default continues or is repeated. No express waiver of any default shall affect any default or cover any period of time other than the default and period of time specified in such express waiver. One or more waivers of any default in the performance of any term, provision or covenant contained in this Easement Agreement shall not be deemed to be a waiver of any subsequent default in the performance of the same term, provision or covenant or any other term, provision or covenant contained in this Easement Agreement. The consent or approval by any party to or of any act or request by any other party requiring consent or approval shall not be deemed to waive or render unnecessary the consent to or approval of any subsequent similar acts or requests. The rights and remedies given to any party to this Easement Agreement shall be deemed to be cumulative and no one of such rights and remedies shall be exclusive of any of the others or of any other right or remedy at law or in equity which any such party might otherwise have by virtue of a default under this Easement Agreement and the exercise of one such right or remedy by any such party shall not impair such party's standing to exercise any other right or remedy. 16. Force Maieure. The time within which a party shall be required to perform any act or acts under this Easement Agreement shall be extended to the extent that the performance of such act or acts shall be delayed by acts of God, fire, windstorm, flood, explosion, collapse of structures, riot, war, labor shortages, labor disputes, delays or restrictions by governmental • bodies, inability to obtain or use necessary materials or any cause beyond the reasonable control of such party. The party entitled to such extension shall give prompt notice to the other party of 2 the occurrence causing delay. The provisions of this Section (Force Majeure) shall not operate to • excuse PDP from prompt payment of any fees or any other payments required by the terms of this Easement Agreement. 17. No Offer. The submission of this Easement Agreement for examination does not constitute an offer to enter into an Easement Agreement and this Easement Agreement shall become effective only upon execution and delivery by City and PDP. 18. Notices. All notices, demands and requests given or required to be given pursuant to this Easement Agreement shall be in writing. All such notices, demands and requests shall be deemed delivered when: (a) received within three (3) days after deposited in any United States postal box if postage is prepaid and the notice properly addressed to the intended recipient; (b) delivered by facsimile transmission with proof of receipt of delivery; (c) delivered by email transmission with proof of receipt; (d) personally delivered; or (e) sent by nationally recognized overnight courier service (e.g. Federal Express or UPS) in which case such notice shall be deemed given the day after the date sent with all fees paid. 19. Successors and Third Parties. This Easement Agreement shall be binding upon and inure to the benefit of each party and their respective successors and permitted assigns. Except for PDP's parent, subsidiary and affiliated entities and their respective officers, directors, shareholders, members, partners, agents and employees and Accident Fund Insurance Company of America while it is an occupant of Parcel B, City and PDP acknowledge and warrant and represent to each other that there are no third party beneficiaries to this Easement Agreement. • 20. Obligations Survive. All obligations arising prior to the termination of this Easement Agreement and all provisions of this Easement Agreement allocating responsibility or liability between the parties shall survive the termination of this Easement Agreement. No obligation which survives the term of this Easement Agreement shall give PDP any interest in the Riverwalk Parcel, possession or otherwise, nor have the effect of extending the term of this Easement Agreement. 21. Record of Termination. If this Easement Agreement is terminated for any reason, City shall be entitled to record a termination of this Easement Agreement with the Ingham County Register of Deeds. 22. Lesal Expense. In any action arising out of the enforcement of this Easement Agreement, the nonprevailing Party shall pay to the prevailing Party all reasonable expenses incurred by the prevailing Party in the action, including reasonable attorney fees. 23. Consent. Unless otherwise indicated in this Easement Agreement, where the consent of a Party is required, such consent shall not be unreasonably withheld, conditioned or delayed. 24. Declaration of Restrictive Covenants. This Easement Agreement shall be subject to the provisions of the to be recorded Declaration of Restrictive Covenants, a specimen • of which is attached as an exhibit to the Warranty Deed of even date, from City to PDP. 7 The undersigned executed this Easement Agreement this 3d' day of • .Sf �tMir 2008. C] Approved as to form: STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) CITY OF LANSING By: Virg Bern ro, Mayor By: V Chris Swope, Clerk PHOENIX DEVELOMENT PARTNERS, LLC, a Michigan limited liability company, CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, Manager B?Manag�er . Cash t Acknowledged before me in Ingham County, Michigan thi2M day of , 2008, by Virg Bernero, Mayor of the City of Lansing, a Michigan municipal corporation. Eileen M. Mefman Notary Public Washtenaw County, Michigan Acting in T41 County My commis si n Expires 01/12/2014 i Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: 0 STATE OF MICHIGAN • ) ss COUNTY OF INGHAM ) Acknowledged before me in Ingham County, Michigan this 30th day of September, 2008, by Chris Swope, Clerk of the City of Lansing, a Michigan municipal corporation. Eileen M. Melman Notary Public Washtenaw County, Michigan Acting in d_ County My Commissi n Expires 01/1212014 STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: Acknowledged before me in Ingham County, Michigan this 30th day of September, 2008, by James M. Cash, Manager of Christman Capital Investment Group, LLC, Manager of Phoenix Development Partners, LLC, a Michigan limited liability compare%� • �6�fIS Pub ' ounty, MI ictt*gin Ingham ounty, Michi n My Commission Expires: 3 / RECORDING FEE: $ EXHIBITS: Exhibit A: Legal Description of the Riverwalk Parcel Exhibit B: Legal Description of Parcel B DRAFTED BY AND AFTER RECORDING RETURN TO: Gregory J. Guggemos Guggemos Brown & Gilkey, PC 4050 Hunsaker Drive, Suite 120 East Lansing, MI 48823 Telephone: (517) 336-0127 • z EASEMENT AGREEMENT — RETAINING WALL MAINTENANCE • EXHIBIT A (Legal Description of the Riverwalk Parcel) Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16, N89059'00"E 527.87 feet; thence N00001'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing N00°01'45"W, 7.02 feet; thence along the East line of North Grand Avenue N00°O1'45"W 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence continuing along said East street line due North 437.19 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 221.35 feet to the point of beginning of the following described parcel; thence continuing S89°58'00"E, 35.38 feet along said South line to the West line of a retaining wall; thence along the West line of said wall the following six (6) courses: l) S45100'36"E, 40.44 feet; 2) S07°00'06"E, 179.66 feet; 3) S17°21'34"E, 76.99 feet; 4) S01°08'14"E, 335.04 feet; 5) S17°17'09"W, 171.40 feet; 6) S18°04'11"W, 100.23 feet to the Northerly line of vacated Ottawa Street; thence N90°00'00"W, 12.64 feet to a building line; thence along said building line the following four (4) courses 1) N00°12'43"E, 14.22 feet; thence S89047' 17"E, 11.09 feet; thence N15151'22"E, 63.24 feet; thence N74°14'59"W, 16.75 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six • (6) courses: 1) N18004' 11"E, 24.53 feet; 2) N17°17'09"E, 167.17 feet; 3) NO1°08' 14"W, 327.42 feet; 4) N17021'34"W, 75.69 feet; 5) N07°00'06"W, 173.32 feet; 6) N45000'36"W, 56.87 feet to the point of beginning. E Also Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16, N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing N00°O1'45"W, 7.02 feet to the Southerly curb line of Ottawa Street; thence S89°31' 14"E, 178.68 feet to the point of beginning of the following described parcel; thence N23°01'48"E, 82.99 feet to a building line; thence S89°53'37"E, 27.16 feet along said wall line; thence S23°01'48"W, 83.19 feet to the said Southerly curb line of Ottawa Street; thence N89°31' 14"W, 27.09 feet to the point of beginning. 10 EASEMENT AGREEMENT — RETAINING WALL MAINTENANCE • EXHIBIT B (Legal Description of PDP Property- Parcel B) Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00°01'45"W 7.02 feet to the point of beginning of the following described parcel; thence N00°01'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50°05' 10"E 157.52 feet; thence N00129'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89°58'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45°00'36"E, 56.87 feet; 2) S07°00'06"E, 173.32 feet; 3) S17°21'34"E, 75.69 feet; 4) S01108'14"E, 327.42 feet; 5) S17017'09"W, 167.17 feet; 6) S18004'11"W, 24.53 feet to a building line; thence along said building line the following five (5) courses; 1) S74°14'59"E, 16.75 feet; 2) S15°51'22"W, 63.24 • feet; 3) N89°47' 17"W, 11.09 feet; 4) S00012'43"W, 14.88 feet; 5) N89053'37"W, 30.79 feet; thence S23001'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N8903l' 14"W, 178.68 feet along said curb line to the point of beginning. SAClients\Christman Company\Constructive Receipt\Phoenix Development Partners LLC\Easement re BWL Property\City Easements\Easement Agreement.Retaining Wall Maintenance.Final.9.30.08.doc 10 11 • Above This Line is for Recording Information] EASEMENT AGREEMENT - RETAINING WALL MAINTENANCE This EASEMENT AGREEMENT -RETAINING WALL MAINTENANCE ("Easement Agreement") is executed this 30th day of September, 2008, between PHOENIX DEVELOPMENT PARTNERS, LLC, a Michigan limited liability company, 208 N. Capitol Ave., Lansing, Michigan 48933 ("PDP") and the CITY OF LANSING, a Michigan municipal corporation, 124 W. Michigan Ave., Lansing, Michigan 48933 ("City"). PDP and City are collectively referred to as the "parties" or singularly as a "parry." RECITALS: City owns a certain parcel of real property located in the City of Lansing, Ingham County, Is Michigan, legally described on Exhibit A ("Riverwalk Parcel"); and PDP owns a certain parcel of real property located in the City of Lansing, Ingham County, Michigan, legally described on Exhibit B ("Parcel B"); The Riverwalk Parcel is located east and immediately adjacent to Parcel B and is bounded on its east by the Grand River ("Grand River"). The Riverwalk Parcel and Parcel B . enjoy lateral and sub -lateral support to the east by way of the existing retaining wall located on the east boundary of the Riverwalk Parcel, embedded in the west bank of the Grand River, running the entire length of the Riverwalk Parcel and a rock style retaining wall approximately five (5) feet in height located on the west boundary of the Riverwalk Parcel ("Retaining Wall"). The City is willing to extend to PDP, its successors and assigns, for the benefit of Parcel B, a perpetual, non-exclusive right and easement on, over, across and under that portion of the Riverwalk Parcel for the purpose of PDP's maintenance, repair and replacement of any portion of the Retaining Wall ("Easement Area"). THIS EASEMENT AGREEMENT IS BEING EXECUTED IN FURTHERANCE OF THE PROPERTY PURCHASE AND DEVELOPMENT AGREEMENT DATED JANUARY 30, 2008 ("DEVELOPMENT AGREEMENT") AND THE PARTIES AGREE AS FOLLOWS: 0 I. RETAINING WALL MAINTENANCE EASEMENT • 1. Grant. Subject to the terms and conditions of this Easement Agreement, City grants to PDP, its successors and assigns, for the benefit of Parcel B, a perpetual, non-exclusive right and easement on, over, across and under the Easement Area for the purpose of allowing PDP to maintain, repair and replace any portion of the Retaining Wall located adjacent to the Easement Area. (a) Nothing in this Easement Agreement shall require or obligate PDP to undertake any maintenance, repair or replacement of any portion of the Retaining Wall. The City acknowledges it is responsible to maintain, repair or replace any portion of the Retaining Wall except that portion which serves as the foundation of the Power Station as that term is defined in the Development Agreement. In the event PDP believes the structural integrity of the portion of the Retaining Wall for which the City is responsible is compromised and repairs are necessary to restore its integrity, PDP shall provide written notice to the City that the Retaining Wall's structural integrity is compromised and if the City agrees with PDP, the City shall repair the portion of the Retaining Wall for which it is responsible. If the City disagrees with PDP, PDP reserves the right to repair the portion of the Retaining Wall, for which the City is responsible and seek reimbursement from the City in a court of law for expenses PDP establishes were reasonably incurred and necessary to restore the structural integrity of the Retaining Wall for which the City is responsible. is (i) If PDP performs any maintenance, repair or replacement of any portion of the Retaining Wall, PDP shall maintain, repair and replace the Retaining Wall in a good and functional condition sufficient for its intended purposes. (ii) If PDP performs any such maintenance, repair or replacement of any portion of the Retaining Wall: (A) PDP shall be solely responsible for and have control over the means, methods, techniques, sequences and procedures and for coordinating all portions of such work in the Easement Area; (B) PDP shall obtain all required governmental permits and authorizations for such work; and (C) PDP shall cause all work to be completed in a good and workmanlike manner, free from defective materials and in compliance with all applicable laws. (iii) Nothing in this Easement Agreement shall authorize PDP to do any act which will in any way encumber the title of City in and to the Riverwalk Parcel nor shall the interest of City in the Riverwalk Parcel be in any way subject to any claim whatsoever by virtue of any act or omission of PDP. (iv) If PDP performs the maintenance, repair or replacement of any portion of the Retaining Wall, PDP and its agents, employees, contractors, subcontractors or invitees shall exercise its rights under this Easement Agreement in such a manner so as not to unreasonably interfere with, obstruct or delay the • City's conduct and operations of the Riverwalk. Upon completion by PDP of any 2 • work within the Easement Area, PDP shall restore the affected portions of such areas to a condition substantially similar to the condition existing prior to such work. Existing drainage mechanisms traversing the Easement Area must remain intact. C: (v) If PDP performs any such maintenance, repair or replacement of any portion of the Retaining Wall, once commenced, any maintenance, repair and replacement under this Easement Agreement shall be diligently completed. 2. Use. PDP shall use the Easement Area for the sole purpose of performing maintenance, repair or replacement of any portion of the Retaining Wall. 3. Existing Encumbrances. PDP's rights under this Easement Agreement shall be subject to encumbrances, conditions, covenants, easements, restrictions and rights -of -way as set forth in the deed from City to PDP, for the "City Property", as set forth in the Development Agreement. 4. Acceptance of Easement Area. PDP accepts the Easement Area in its "as is" condition, with all faults, as of the date of this Easement Agreement. PDP acknowledges that City has made absolutely no warranties or representations regarding the condition of the Easement Area or its suitability for PDP's intended use. 5. Covenants Run With the Land. All the covenants, agreements, conditions and restrictions set forth in this Easement Agreement are intended to be and shall be construed as covenants running with the land, binding upon, inuring to the benefit of and enforceable against the Riverwalk Parcel and Parcel B by the parties, their respective successors and permitted assigns, upon the terms, provisions and conditions of this Easement Agreement. II. GENERAL 1. Integration, Exhibits, Consent to Waiver, Amendment. This Easement Agreement and all agreements arising out of the Development Agreement should be read in conjunction and harmonious with each other. All Exhibits referred to in this Easement Agreement are part of this Easement Agreement. The provisions of this Easement Agreement may be amended, but only with the written consent of City and PDP, which consent shall not be unreasonably withheld, conditioned or delayed. No other persons shall have any rights whatsoever to join in, prevent or otherwise affect or limit any such modification, amendment or termination. 2. Authority. PDP represents and warrants to City that the individual executing this Easement Agreement on its behalf has the authority to do so. City represents and warrants to PDP that: (1) City has the right to enter into this Easement Agreement; and (2) all necessary actions have been taken by City in the execution of this Easement Agreement to make this Easement Agreement a binding obligation of City and it was approved by City. 3 • 3. Exemption from Transfer Tax. This instrument is exempt from state and county transfer tax as the consideration is less than One Hundred ($100.00) Dollars. MCLA 207.505(a); MCLA 207.526(a). 4. Assignment. PDP shall have the right to sell, convey, assign or transfer (whether by operation of law or otherwise) ("Transfer") all or any part of its interest in Parcel B. Upon the closing on any such Transfer, the rights and obligations of this Easement Agreement shall automatically pass to the transferee. 5. Lateral/Subjacent Support. If PDP performs any such maintenance, repair and replacement of any portion of the Retaining Wall, any damage to the Riverwalk Parcel, its foundational, lateral or subjacent support or any improvement located on the Riverwalk Parcel caused by PDP or PDP's agents, employees, contractors, subcontractors or invitees shall promptly be repaired by PDP at PDP's sole expense. If PDP fails to commence repair of such damage within twenty (20) days after receipt of written notice of such damages from the City (subject to extension as a result of seasonal or inclement weather) and does not in good faith diligently pursue the repair of such damage, City may do so and the reasonable costs of doing so shall be the sole responsibility of PDP. Said cost shall be payable by PDP within twenty (20) days of City's notification to PDP of City's reasonable cost of repair. 6. Liability Allocation. (a) If PDP performs any maintenance, repair or replacement of any portion of is the Retaining Wall, PDP shall defend, indemnify and hold City harmless from any and all liability, damage, expense, including reasonable attorneys' fees, action, suit, claim or judgment arising from bodily injury, death or property damage in, under or on the Easement Area arising out of PDP's maintenance, repair or replacement of the Retaining Wall. (b) City shall be responsible for any and all liabilities, claims or damages in connection with the loss of life, personal injury or damage to property caused by the negligent or intentional acts or omissions of City or City's agents, employees, contractors or subcontractors on the Riverwalk Parcel. If within twenty (20) days of PDP's notice of such claims to City, City fails to assume responsibility under terms reasonably acceptable to PDP in PDP's reasonable discretion, then PDP may undertake such defense and the reasonable costs of doing so, together with any liability or damages of PDP, shall be the sole responsibility of City. Said cost shall be payable by City within twenty (20) days of PDP's written notification of PDP's damages and reasonable cost of defense. City shall have no responsibility for claims, losses or expenses caused by the negligent or intentional acts or omissions of PDP or PDP's agents, employees, contractors or subcontractors on the Riverwalk Parcel which may occur under the provisions of this Easement Agreement. 7. Utility Relocation. To the extent that the exercise of PDP's rights requires the relocation of any utility facilities located on the Riverwalk Parcel, PDP may relocate such • utilities and PDP shall pay the reasonable cost of relocation. M 8. Default. In the event a parry shall default in its obligations hereunder and the cure • for such default is not commenced in good faith and diligently pursued within twenty (20) days after written notice from the nondefaulting parry to the defaulting party, the nondefaulting parry may: (A) enforce any remedies or rights of termination provided for under this Easement Agreement; (B) seek specific performance of the defaulting parry's obligations; (C) seek reimbursement from the nondefaulting parry in a court of law for expenses the nondefaulting party establishes were reasonably incurred and necessary to fulfill the defaulting parry's obligations; or (D) seek any other available remedy in law or equity. Any amount due hereunder from the defaulting parry to the nondefaulting parry shall bear interest at the lesser of (i) twelve percent (12%) per annum, or (ii) the maximum rate permitted by applicable law, compounded annually. The remedies provided for under this Section are not exclusive, are in addition to and not in lieu of any other rights or remedies available at law or in equity. 9. Self Insurance/Insurance. (a) City may self insure or obtain insurance coverage in such amounts as City deems appropriate at its expense to protect City from claims for damages due to bodily injury, loss or damage to property for which City is responsible under this Easement Agreement, with such coverage in an amount determined by the City. City shall deliver evidence of such self insurance coverage, if any or a certificate of insurance evidencing all coverage specified in this paragraph, to PDP upon request. The coverages to benefit PDP shall not be canceled, cancelable or modified until at least thirty (30) days prior written notice of intention to cancel has been delivered by the insurer to PDP. The • amounts of insurance coverage required hereunder shall be increased from time to time to be consistent with the amounts of such coverages reasonably maintained for similar risks. • (b) PDP shall bring or keep property upon the Easement Area solely at its own risk and City shall not be liable for any damages thereto or any theft thereof. PDP shall maintain a policy of insurance with a responsible insurance company satisfactory to City against risk of loss from any cause whatsoever to all such property and to all of PDP's alterations, improvements or additions to the Easement Area, to the full extent of their replacement cost, which policy of insurance shall contain a clause or endorsement under which the insurer waives or permits the waiver by PDP of, all right of subrogation against City and its agents, employees, customers, invitees, guests or licensees, with respect to losses payable under such policy. To the fullest extent allowed by applicable law, PDP waives all right of recovery which it might otherwise have against City and its agents, employees, customers, invitees, guests or licensees, for any damage to PDP's property, notwithstanding that such damage may result from the negligence or fault of City or its agents, employees, customers, invitees, guests or licensees. 10. Captions. The captions in the paragraph headings set forth in this Easement Agreement are for convenience only and do not define, describe, extend or limit the scope or intent of this Easement Agreement or of any of its provisions. 5 • 11. Severability. The provisions of this Easement Agreement are severable. Should any section, subsection, paragraph or provision of this Easement Agreement be declared to be invalid or unenforceable by a court of competent jurisdiction, it shall not affect the validity or enforceability of the Easement Agreement as a whole or any part thereof, other than the part so declared invalid or unenforceable. The parties shall renegotiate, if possible, the invalid or unenforceable section, subsection, paragraph or provision in a manner consistent with the original intent. 12. No Partnership. Nothing in this Easement Agreement shall be deemed or construed by City, PDP or by any third person to create the relationship of principal and agent, a partnership, joint venture or any other association between the parties. 13. Governing Law. This Easement Agreement shall be construed in accordance with the laws of the State of Michigan. Nothing in this Easement Agreement shall be construed to relieve a party from obtaining any necessary governmental permits, approvals or authorizations otherwise required by law. 14. Construction of Easement Agreement. The rule of strict construction shall not apply to the easements and agreements granted in this Easement Agreement or to the covenants set forth herein. This Easement Agreement shall be given a reasonable construction so that the intention of the City to confer reasonably usable benefits and reasonably enforceable obligations are carried out. • 15. Waiver of Default. No waiver of any default by any party to this Easement Agreement shall be implied from any omission by any other party to take any action in respect of such default if such default continues or is repeated. No express waiver of any default shall affect any default or cover any period of time other than the default and period of time specified in such express waiver. One or more waivers of any default in the performance of any term, provision or covenant contained in this Easement Agreement shall not be deemed to be a waiver of any subsequent default in the performance of the same term, provision or covenant or any other term, provision or covenant contained in this Easement Agreement. The consent or approval by any party to or of any act or request by any other party requiring consent or approval shall not be deemed to waive or render unnecessary the consent to or approval of any subsequent similar acts or requests. The rights and remedies given to any party to this Easement Agreement shall be deemed to be cumulative and no one of such rights and remedies shall be exclusive of any of the others or of any other right or remedy at law or in equity which any such party might otherwise have by virtue of a default under this Easement Agreement and the exercise of one such right or remedy by any such party shall not impair such party's standing to exercise any other right or remedy. 16. Force Maieure. The time within which a party shall be required to perform any act or acts under this Easement Agreement shall be extended to the extent that the performance of such act or acts shall be delayed by acts of God, fire, windstorm, flood, explosion, collapse of structures, riot, war, labor shortages, labor disputes, delays or restrictions by governmental bodies, inability to obtain or use necessary materials or any cause beyond the reasonable control • of such party. The party entitled to such extension shall give prompt notice to the other party of C'1 • the occurrence causing delay. The provisions of this Section (Force Majeure) shall not operate to excuse PDP from prompt payment of any fees or any other payments required by the terms of this Easement Agreement. 17. No Offer. The submission of this Easement Agreement for examination does not constitute an offer to enter into an Easement Agreement and this Easement Agreement shall become effective only upon execution and delivery by City and PDP. 18. Notices. All notices, demands and requests given or required to be given pursuant to this Easement Agreement shall be in writing. All such notices, demands and requests shall be deemed delivered when: (a) received within three (3) days after deposited in any United States postal box if postage is prepaid and the notice properly addressed to the intended recipient; (b) delivered by facsimile transmission with proof of receipt of delivery; (c) delivered by email transmission with proof of receipt; (d) personally delivered; or (e) sent by nationally recognized overnight courier service (e.g. Federal Express or UPS) in which case such notice shall be deemed given the day after the date sent with all fees paid. 19. Successors and Third Parties. This Easement Agreement shall be binding upon and inure to the benefit of each party and their respective successors and permitted assigns. Except for PDP's parent, subsidiary and affiliated entities and their respective officers, directors, shareholders, members, partners, agents and employees and Accident Fund Insurance Company of America while it is an occupant of Parcel B, City and PDP acknowledge and warrant and • represent to each other that there are no third party beneficiaries to this Easement Agreement. 20. Obligations Survive. All obligations arising prior to the termination of this Easement Agreement and all provisions of this Easement Agreement allocating responsibility or liability between the parties shall survive the termination of this Easement Agreement. No obligation which survives the term of this Easement Agreement shall give PDP any interest in the Riverwalk Parcel, possession or otherwise, nor have the effect of extending the term of this Easement Agreement. 21. Record of Termination. If this Easement Agreement is terminated for any reason, City shall be entitled to record a termination of this Easement Agreement with the Ingham County Register of Deeds. 22. Legal Expense. In any action arising out of the enforcement of this Easement Agreement, the nonprevailing Party shall pay to the prevailing Party all reasonable expenses incurred by the prevailing Party in the action, including reasonable attorney fees. 23. Consent. Unless otherwise indicated in this Easement Agreement, where the consent of a Party is required, such consent shall not be unreasonably withheld, conditioned or delayed. 24. Declaration of Restrictive Covenants. This Easement Agreement shall be subject to the provisions of the to be recorded Declaration of Restrictive Covenants, a specimen • of which is attached as an exhibit to the Warranty Deed of even date from City to PDP. 7 The undersigned executed this Easement Agreement this 'TA day of 2008. Approved as to form: CITY OF LANSING By: Virg Bernero, Mayor By: 01A AxA Chris Swope, Clerk PHOENIX DEVELOMENT PARTNERS, LLC, a Michigan limited liability company, CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, Manager ;y5: es M. Cash s: Manager STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Acknowledged before me in Ingham County, Michigan thir-!Oth day of 2008, by Virg Bernero, Mayor of the City of Lansing, a Michigan municipal corporation. Eileen M. Melman Notary Public Washtenaw County, Michigan Acting in - h of-rin County My Conmmission Expires 01/12/2014 • �1 V-�Zz��,.�` = -te Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: • • • STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Acknowledged before me in Ingham County, Michigan this 30th day of September, 2008, by Chris Swope, Clerk of the City of Lansing, a Michigan municipal corporation. Eileen M. Melman Notary Public Washtenaw County, Michigan Acting in 'QiW Ad,* r County My Commission Expires 01/12/2014 STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: Acknowledged before me in Ingham County, Michigan this 30th day of September, 2008, by James M. Cash, Manager of Christman Capital Investment Group, LLC, Manager of Phoenix Development Partners, LLC, a Michigan limited liability company.z of Pub ' ounty, MI Acting in Ingham ounty, Michigan My Commission Expires: / `2-6"'Z? RECORDING FEE: $ I�,1411 1.101 VT Exhibit A: Legal Description of the Riverwalk Parcel Exhibit B: Legal Description of Parcel B DRAFTED BY AND AFTER RECORDING RETURN TO: Gregory J. Guggemos Guggemos Brown & Gilkey, PC 4050 Hunsaker Drive, Suite 120 East Lansing, MI 48823 Telephone: (517) 336-0127 W • EASEMENT AGREEMENT — RETAINING WALL MAINTENANCE EXHIBIT A (Legal Description of the Riverwalk Parcel) Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along'the East-West 1/4 section line of Section 16, N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing N00001'45"W, 7.02 feet; thence along the East line of North Grand Avenue N00001'45"W 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence continuing along said East street line due North 437.19 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 221.35 feet to the point of beginning of the following described parcel; thence continuing S89°58'00"E, 35.38 feet along said South line to the West line of a retaining wall; thence along the West line of said wall the following six (6) courses: 1) S45°00'36"E, 40.44 feet; 2) S07000'06"E, 179.66 feet; 3) S17°21'34"E, 76.99 feet; 4) SO1°08'14"E, 335.04 feet; 5) S17°17'09"W, 171.40 feet; 6) S18°04'11"W, 100.23 feet to the Northerly line of vacated Ottawa Street; thence N90°00'00"W, 12.64 feet to a building line; thence along said building line the following four (4) courses 1) N00012'43"E, 14.22 feet; thence S89047' 17"E, 11.09 feet; thence N15°51'22"E, 63.24 feet; thence N74°14'59"W, 16.75 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six • (6) courses: 1) N18°04'11"E, 24.53 feet; 2) N17°17'09"E, 167.17 feet; 3) NO1°08'14"W, 327.42 feet; 4) N17°21'34"W, 75.69 feet; 5) N07°00'06"W, 173.32 feet; 6) N45°00'36"W, 56.87 feet to the point of beginning. • Also Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16, N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing N00°01'45"W, 7.02 feet to the Southerly curb line of Ottawa Street; thence S89°31' 14"E, 178.68 feet to the point of beginning of the following described parcel; thence N23°01'48"E, 82.99 feet to a building line; thence S89°53'37"E, 27.16 feet along said wall line; thence S23°01'48"W, 83.19 feet to the said Southerly curb line of Ottawa Street; thence N89°31' 14"W, 27.09 feet to the point of beginning. 10 is EASEMENT AGREEMENT — RETAINING WALL MAINTENANCE EXHIBIT B (Legal Description of PDP Property- Parcel B) • Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00°01'45"W 7.02 feet to the point of beginning of the following described parcel; thence N00°01'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50°05' 10"E 157.52 feet; thence N00°29'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89°58'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45°00'36"E, 56.87 feet; 2) S07°00'06"E, 173.32 feet; 3) S17°21'34"E, 75.69 feet; 4) S01°08'14"E, 327.42 feet; 5) S17017'09"W, 167.17 feet; 6) S18004'11"W, 24.53 feet to a building line; thence along said building line the following five (5) courses; 1) S74°14'59"E, 16.75 feet; 2) S15°51'22"W, 63.24 feet; 3) N89°47'17"W, 11.09 feet; 4) S00012'43"W, 14.88 feet; 5) N89°53'37"W, 30.79 feet; thence S23'01'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89.31' 14"W, 178.68 feet along said curb line to the point of beginning. SAClients\Christman Company\Constructive Receipt\Phoenix Development Partners LLC\Easement re BWL Property\City Easements\Easement Agreement.Retaining Wall Maintenance.Final.9.30.08.doc 11 26 • E i • 2 �- B' 3321 21'IIS Z25 10/09/ 008 Pt 40 :41 AM Pages: 15 2008 Michigan'' �• 7309 Paula Johnson, Ingham County, 1111111111alIII g111111111111111111111111113111111111311111111111111111111111 �•'aa; '� Above This Line is for Reeording Information �, , o ca `A VACATED OTTAWA STREET EXISTING UTILITY EASEMENT AND PEDESTRIAN WALKWAY AGREEMENT This VACATED OTTAWA STREET EXISTING UTILITY EASEMENT AND PEDESTRIAN WALKWAY AGREEMENT ("Easement Agreement") is executed this 30th day of September, 2008 between PHOENIX DEVELOPMENT PARTNERS, LLC, a Michigan limited liability company, 208 N. Capitol Ave., Lansing, Michigan 48933 ("Grantor") the CITY OF LANSING, a Michigan municipal corporation, 124 W. Michigan Ave., Lansing, Michigan 48933 and the City of Lansing by its BOARD OF WATER AND LIGHT, a municipal corporation, 1232 Haco Drive, Lansing, MI 48912 ("BWL") ("Grantee"). Grantor and•Grantee are collectively referred to as the "Parties" or singularly as a "Party." RECITALS: Grantor owns a certain parcel of real property located in the City of Lansing, Ingham County, Michigan, which includes a portion of real property commonly known as vacated Ottawa Street legally described on Exhibit A ("Parcel A"). The Parties acknowledge that vacated Ottawa Street is not a public right-of-way. To the South of vacated Ottawa Street is a ten foot (10') Pedestrian Walkway ("Pedestrian Walkway"); and Located within the Parcel A are the following existing Utilities: existing chilled water lines and related appurtenances ("Water Lines"), sanitary sewer lines and related appurtenances ("Sanitary Sewer Lines"), underground and above ground electric utility lines and related appurtenances ("Electric Lines"), existing storm sewer lines including but not limited to the seventy eight inch (78") storm sewer line and related appurtenances ("Storm Sewer Collection Lines") and existing steam lines and related appurtenances ("Steam Lines"), all as depicted on Exhibit B. The Water Lines, Sanitary Sewer Lines, Electric Lines, Storm Sewer Collection Lines and Steam Lines are collectively the "Utilities" ; and I t w Grantor is willing to grant to Grantee an easement to go on, over, under and across those portions of Parcel A located in the vacated portion of Ottawa Street included in Parcel A ("Easement Area") to allow Grantee to operate, maintain, improve, repair or replace the Utilities and the Pedestrian Walkway. .,-V c 5 3A s 11+4 � �- #4 ` r n z r7�n2 fn�3 CDC �-nC3 c OM= rn 4 Q N m- _ran m -3 oc <-n c rrl c Or,,;;, m;i 0 CA THIS EASEMENT AGREEMENT IS BEING EXECUTED IN FURTHERANCE OF • THE PROPERTY PURCHASE AND DEVELOPMENT AGREEMENT DATED JANUARY 30, 2008 ("DEVELOPMENT AGREEMENT') AND THE PARTIES AGREE AS FOLLOWS: I. UTILITIES 1. Grant. Grantor grants to Grantee an exclusive easement to go on, across, through and under the Easement Area for the operation, maintenance, repair, replacement and improvement of the Utilities and the Pedestrian Walkway (" Easement"). (a) The Easement shall also include an easement of support and Grantor shall not allow any activity on the Parcel A which will interfere with or compromise the support of the Utilities located within the Easement Area. Grantee shall be responsible to construct appropriate structural support for the Utilities within the Easement Area. Further, the Easement shall include, subject to the terms and conditions of this Easement Agreement, the right to maintain such structural support. (b) Grantee shall pay all costs associated with the operation, maintenance, repair, replacement and improvement of the Utilities located in the Easement Area ("Operational Obligations"). (i) As part of the Operational Obligations, the Easement shall include a path to be reasonably determined by Grantor from the Grand Avenue public • right of way to the Easement Area to permit Grantee to operate, construct, maintain, repair, improve and replace the Utilities in the Easement Area and to maintain the Pedestrian Walkway. (ii) The Operational Obligations include, without limitation, that Grantee, at its sole expense, shall: (A) operate, maintain, repair, replace and improve the Utilities in the Easement Area in a good and functional condition sufficient for its intended purposes; and (B) maintain any markings for the Utilities in good and consistent condition. (iii) All work performed on or within the Easement Area shall be in accordance with the following requirements: (A) Grantee shall be solely responsible for and have control over the means, methods, techniques, sequences and procedures and for coordinating all portions of work in the Easement Area; (B) Grantee shall obtain all required governmental permits and authorizations for such work; and (C) Grantee shall cause all work to be completed in a good and workmanlike manner, free from defective materials and in compliance with all applicable laws. (iv) All movable trade fixtures, equipment and all other similar items owned by Grantee and installed or placed in the Easement Area shall remain the property of Grantee and Grantee shall have the right to remove said property at • any time during the term of this Easement Agreement provided, Grantee promptly 2 repairs all damage caused by such removal and restores the Easement Area to a • condition reasonably acceptable to Grantor. (v) Nothing in this Easement Agreement shall authorize Grantee to and Grantee shall not do any act which will in any way encumber the title of Grantor in and to Parcel A nor shall the interest of Grantor in Parcel A be in any way subject to any claim whatsoever by virtue of any act or omission of Grantee. Any claim to a lien upon Parcel A arising from any act or omission of Grantee shall apply only against Grantee's interest in Parcel A. (vi) Grantee shall keep Parcel A and the Easement Area free from any construction liens for any labor or material furnished to Grantee in connection with the Utilities or Easement Area, except Grantee shall have the right to contest the validity or amount of any such lien provided, Grantee shall first post any bond or make any deposits required by Grantor or the terms of any mortgage or similar instrument affecting the Easement Area to assure the discharge of such lien. (vii) Any operation, improvement or maintenance of the Utilities within the Easement Area shall be at Grantee's expense. (viii) In exercising its rights under this Easement Agreement, Grantee and its agents, employees, contractors, subcontractors or invitees shall use their best efforts to not unreasonably interfere with, obstruct or delay the conduct and • operations of the business of Grantor or its tenants, agents, employees and invitees, at any time conducted on Parcel A, including, without limitation, public access to and from any portion to Parcel A and the receipt or delivery of products, materials and merchandise. (ix) Upon completion by Grantee of any work within the Easement Area or Access Easement Areas, Grantee shall restore the affected portions of such areas to a condition substantially similar to the condition existing prior to such work. The line and grade of the existing grade shall equal the line and grade of the finished grade. Existing drainage mechanisms traversing the Easement Area must remain intact. No ponding of water is permitted as a result of work completed by Grantee in the Easement Area. (x) Once commenced, any maintenance, repair, improvement or replacement undertaken in reliance upon an easement granted pursuant to this Easement Agreement shall be diligently completed so as to minimize any interference with the business of Grantor and its tenants, agents, contractors, subcontractors, employees and invitees. (xi) Grantee may remove the Utilities at any time subject to Grantor's prior written consent, which shall not be unreasonably withheld, conditioned or delayed. Grantor shall have the right to withhold its consent to the removal of any • of the Utilities if Grantor determines that the removal of any of the Utilities may 3 affect the structural integrity of any existing improvement located on the parcel of real property owned by Grantor immediately adjacent to the north of Parcel A ("Adjacent Parcel"). In the event Grantee removes the Utilities: (A) Grantee shall remove all property that was part of the Utilities and repair any damage to any portion of Parcel A, including without limitation any improvements located on Parcel A, caused by such removal and restore the Easement Area to a condition reasonably acceptable to Grantor; and (B) subject to Grantee's obligations in the preceding subsection (A) and any other obligations of Grantee intended to survive termination of this agreement, this Easement Agreement shall terminate automatically and immediately. 2. Use. Grantee shall use the Easement Area for the sole purpose of operating, improving, repairing and maintaining its Utilities. (a) Grantor has granted to Grantee the rights conveyed in this Easement Agreement because Grantee is a public body and the Utilities shall serve and benefit the public. (b) Grantee shall not engage in or permit its agents, employees, contractors or subcontractors to engage in any use or activity with respect to the Easement Area or Parcel A which would cause Grantor to lose the required Public Support as that phrase is defined in Paragraph 1.7(F) of the Development Agreement. • 3. Load Limit. At no time shall Grantee place a load upon any portion of Parcel A, including improvements located on Parcel A, exceeding the load per square foot it was designed to carry or is permitted by applicable law. Grantee shall not allow any activity on the Easement Area and shall not construct or maintain any portion of the Utilities or its foundation in a manner which will undermine or compromise the support of the improvements made or to be made to Parcel A. 4. Existing Encumbrances. Grantee's rights under this Easement Agreement shall be subject to encumbrances, conditions, covenants, easements, restrictions and rights -of -way as set forth in the deed from Grantee to Grantor for the "City Property", as set forth in the Development Agreement. 5. Acceptance of Easement Area. Grantee accepts the Easement Area in its "as is" condition as of the date of this Easement Agreement. Grantee further acknowledges that Grantor has made absolutely no warranties or representations regarding the condition of the Easement Area or its suitability for Grantee's intended use. 6. Relocation. The parties acknowledge and agree that as part of the Project as defined in the Development Agreement, upon ninety (90) days advance written notice to Grantee, Grantor may, at its sole cost, relocate the Utilities and the Easement Area to a new location acceptable to Grantee (whose approval shall not be unreasonably withheld, delayed or conditioned) so long as: (A) Grantor pays all costs and expenses associated with relocating the • Utilities and Easement Area to the new location; (B) Grantor obtains all required governmental 4 permits and authorizations required for the relocation of the Utilities and Easement Area; (C) . Grantor performs all work to relocate the Utilities and Easement Area (including all disconnection and hook-up) in a good and workmanlike manner and in compliance with all applicable laws; (D) Grantor obtains the written consent of each party holding a lien with respect to Parcel A to any new easement agreement; and (E) in such event, the parties shall execute and record an "as built" easement agreement in a form reasonably acceptable to Grantor and Grantee under which Grantor grants to Grantee an easement (on terms substantially similar to the terms of this Easement Agreement) with respect to the new utilities easement area location. 7. Covenants Run With the Land. The covenants, agreements, conditions and restrictions of Grantor are intended to be and shall be construed as covenants running with the land, binding upon, inuring to the benefit of and enforceable against Parcel A by the Parties, their respective successors and assigns, upon the terms, provisions and conditions in this Easement Agreement. II. GENERAL 1. Integration, Exhibits, Consent to Waiver, Amendment. This Easement Agreement and all agreements arising out of the Development Agreement should be read in conjunction and harmonious with each other. All Exhibits referred to in this Easement Agreement are part of this Easement Agreement. The provisions of this Easement Agreement may be amended, but only with the written consent of Grantor and Grantee, which consent shall not be unreasonably withheld, conditioned or delayed. No other persons, tenants, mortgagees or • occupants of Parcel A shall have any rights whatsoever to join in, prevent or otherwise affect or limit any such modification, amendment or termination. is 2. Exemption from Transfer Tax. This instrument is exempt from state and county transfer tax as the consideration is less than One Hundred ($100.00) Dollars. MCLA 207.505(a); MCLA 207.526(a). 3. Authority. Grantor represents and warrants to Grantee that the individual executing this Easement Agreement on its behalf has the authority to do so. Grantee represents and warrants to Grantor that: (1) Grantee has the right to enter into this Easement Agreement; and (2) all necessary actions have been taken by Grantee in the execution of this Easement Agreement to make this Easement Agreement a binding obligation of Grantee. 4. Assignment. Except for an assignment to a governmental entity associated with Grantee, this Easement Agreement shall not be assigned, transferred, relinquished or conveyed by Grantee without the prior written consent of Grantor, which consent may be withheld in the sole and absolute discretion of Grantor. In case of any permitted assignment, Grantee and the assignee shall be liable for the full performance of all terms and conditions of this Easement Agreement. Grantor's consent to any assignment of this Easement Agreement shall not be deemed a consent to any further assignment of this Easement Agreement. 5 5. Lateral/Subiacent Support. Any damage to Parcel A, its foundational, lateral or • subjacent support or any improvement located on Parcel A caused by Grantee or its agents, employees, contractors, subcontractors or invitees shall promptly be repaired by Grantee at Grantee's sole expense. If Grantee fails to commence repair of such damage within twenty (20) days after receipt of written notice of such damages from Grantor (subject to extension as a result of seasonal or inclement weather) and does not in good faith diligently pursue the repair of such damage, Grantor may do so and the reasonable costs of doing so shall be the sole responsibility of Grantee. Said cost shall be payable by Grantee within twenty (20) days of Grantor's notification to Grantee of Grantor's reasonable cost of repair. 6. Liability Allocation. Grantee shall be responsible for any and all liabilities, claims or damages in connection with the loss of life, personal injury or damage to property caused by the negligent or intentional acts or omissions of Grantee or Grantee's agents, employees, contractors or subcontractors on Parcel A. If within twenty (20) days of Grantor's notice of claims to Grantee, Grantee fails to assume responsibility under terms reasonably acceptable to Grantor in Grantor's sole discretion, Grantor may undertake such defense and the reasonable costs of doing so, together with any liability or damages of Grantor, shall be the sole responsibility of Grantee. Said cost shall be payable by Grantee within twenty (20) days of Grantor's notification of Grantor's damages and reasonable cost of defense. Grantee shall have no responsibility for claims, losses or expenses caused by the negligent or intentional acts or omissions of Grantor or Grantor's agents, employees, contractors or subcontractors on Parcel A. 7. Utility Relocation. To the extent that the exercise of Grantee's rights under this • Easement Agreement requires the relocation of any utility facilities located on Parcel A as of the date of this Easement Agreement, the parties acknowledge that upon ninety (90) days advance written notice to Grantor, Grantee may, at its sole cost, relocate any such utility facilities to a new location on Parcel A acceptable to Grantor (which approval shall be in Grantor's sole discretion) so long as: (A) Grantee is responsible for and pays all costs and expenses associated with relocating the utility facilities to the new location on Parcel A; (B) Grantee obtains all required governmental permits and authorizations required for the relocation of the utility facilities; and (C) Grantee performs all work to relocate the utility facilities in a good and workmanlike manner and in compliance with all applicable laws. 8. Default. In the event a Party shall default in its obligations hereunder and the cure for such default is not commenced in good faith and diligently pursued within twenty (20) days after written notice from the nondefaulting Parry to the defaulting Party, the nondefaulting Parry may: (A) enforce any remedies or rights of termination provided for under this Easement Agreement; (B) seek specific performance of the defaulting Party's obligations; (C) seek reimbursement from the nondefaulting Party in a court of law for expenses the nondefaulting Parry establishes were reasonably incurred and necessary to fulfill the defaulting Party's obligations; or (D) seek any other available remedy in law or equity. Any amount due hereunder from the defaulting Parry to the nondefaulting Parry shall bear interest at the lesser of (i) twelve percent (12%) per annum or (ii) the maximum rate permitted by applicable law, compounded annually. The remedies provided for under this Section are not exclusive, are in addition to and • not in lieu of any other rights or remedies available at law or in equity. 0 9. Self Insurance/Insurance. (a) Grantee may self insure or obtain insurance coverage in such amounts as Grantee deems appropriate at its expense to protect Grantee from claims for damages due to bodily injury, loss, or damage to property for which Grantee is responsible under this Easement Agreement, with such insurance coverage in an amount determined by Grantee. Grantee shall deliver evidence of such coverage, if any or a certificate of insurance evidencing all coverage specified in this paragraph, to Grantor upon request. The coverages to benefit Grantor shall not be canceled, cancelable or modified until at least thirty (30) days' prior written notice of intention to cancel or modify has been delivered by the insurer to Grantor. Notwithstanding the foregoing, the amounts of insurance coverage required hereunder shall be increased from time to time to be consistent with the amounts of such coverages reasonably maintained for similar risks. . (b) Grantee shall bring or keep property upon the Easement Area solely at its own risk and Grantor shall not be liable for any damages thereto or any theft thereof. Grantee may maintain a policy of insurance with a responsible insurance company against risk of loss from any cause whatsoever to all such property and to all of Grantee's alterations, improvements or additions to the Easement Area, to the full extent of their replacement cost, which policy of insurance shall contain a clause or endorsement under which the insurer waives or permits the waiver by Grantee of all right of subrogation against Grantor and its agents, employees, customers, invitees, guests or licensees, with respect to losses payable under such policy. To the fullest extent allowed by applicable • law, Grantee waives all right of recovery which it might otherwise have against Grantor and its agents, employees, customers, invitees, guests or licensees for any damage to Grantee's property, notwithstanding that such damage may result from the negligence or fault of Grantor or its agents, employees, customers, invitees, guests or licensees. 10. Captions. The captions in this Easement Agreement are for convenience only and do not define, describe, extend or limit the scope or intent of this Easement Agreement or of any of its provisions. 11. Severability. The provisions of this Easement Agreement are severable. Should any section, subsection, paragraph or provision of this Easement Agreement be declared to be invalid or unenforceable by a court of competent jurisdiction, it shall not affect the validity or enforceability of the Easement Agreement as a whole or any part thereof, other than the part so declared invalid or unenforceable. The parties shall renegotiate, if possible, the invalid or unenforceable section, subsection, paragraph or provision in a manner consistent with the original intent of this Easement Agreement. 12. No Partnership. Nothing in this Easement Agreement shall be deemed or construed by Grantor, Grantee or by any third person to create the relationship of principal and agent, a partnership, joint venture or any other association between any of the parties. 7 13. Governing Laws. This Easement Agreement shall be construed in accordance • with the laws of the State of Michigan. Nothing in this Easement Agreement shall be construed to relieve a party from obtaining any necessary governmental permits, approvals or authorizations otherwise required by law. 14. Construction of Easement Agreement. The rule of strict construction shall not apply to the easements and agreements granted in this Easement Agreement or to the covenants set forth herein. This Easement Agreement shall be given a reasonable construction so that the intention of the Grantor to confer reasonably usable benefits and reasonably enforceable obligations are carried out. 15. Waiver of Default. No waiver of any default by any Party to this Easement Agreement shall be implied from any omission by any other Party to take any action in respect of such default if such default continues or is repeated. No express waiver of any default shall . affect any default or cover any period of time other than the default and period of time specified in such express waiver. One or more waivers of any default in the performance of any term, provision or covenant contained in this Easement Agreement shall not be deemed to be a waiver of any subsequent default in the performance of the same term, provision or covenant or any other term, provision or covenant contained in this Easement Agreement. The consent or approval by any Party to or of any act or request by any other Party requiring consent or approval shall not be deemed to waive or render unnecessary the consent to or approval of any subsequent similar acts or requests. The rights and remedies given to any Party to this Easement Agreement • are cumulative and no one right or remedy shall be exclusive of any other or of any other right or remedy at law or in equity which any such Party might otherwise have by virtue of a default under this Easement Agreement and the exercise of one such right or remedy by any such Party shall not impair such Party's standing to exercise any other right or remedy. 16. No Offer. The submission of this Easement Agreement for examination does not constitute an offer to enter into an Easement Agreement and this Easement Agreement shall become effective only upon execution and delivery by Grantor and Grantee. 17. Notices. All notices, demands and requests given or required to be given pursuant to this Easement Agreement shall be in writing. All such notices, demands and requests shall be deemed to be delivered when: (a) received within three (3) days after deposited in any United States postal box if postage is prepaid and the notice properly addressed to the intended recipient; (b) delivered by facsimile transmission with proof of receipt of delivery; (c) delivered by email transmission with proof of receipt; (d) personally delivered; or (e) sent by nationally recognized overnight courier service (e.g. Federal Express or UPS) in which case such notice shall be deemed given the day after the date sent with all fees paid. 18. Successors and Third Parties. This Easement Agreement shall be binding upon and inure to the benefit of each Party and their respective successors and permitted assigns. Except for Grantor's parent, subsidiary and affiliated entities and their respective officers, directors, shareholders, partners, agents and employees and Accident Fund Insurance Company . of America while it is an occupant of Parcel A and the Adjacent Parcel, Grantor and Grantee 8 acknowledge and warrant and represent to each other that there are no third party beneficiaries to • this Easement Agreement. 19. Obligations Survive. All obligations arising prior to the termination of this Easement Agreement and all provisions of this Easement Agreement allocating responsibility or liability between the Parties shall survive the termination of this Easement Agreement. No obligation which survives the term of this Easement Agreement shall give Grantee any interest in Parcel A, possession or otherwise nor have the effect of extending the term of this Easement Agreement. 20. Record of Termination. If this Easement Agreement is terminated for any reason, Grantor shall record a termination of this Easement Agreement with the Ingham County Register of Deeds. 21. Legal Expense. In any action arising out of the enforcement of this Easement Agreement, the nonprevailing Parry shall pay to the prevailing Parry all reasonable expenses incurred by the prevailing Party in the action, including reasonable attorney fees. 22. Consent. Unless otherwise indicated in this Easement Agreement, where the consent of a Party is required, such consent shall not be unreasonably withheld, conditioned or delayed. 23. Declaration of Restrictive Covenants. This Easement Agreement shall be • subject to the provisions of the to be recorded Declaration of Restrictive Covenants, a specimen of which is attached as an exhibit to the Warranty Deed of even date from Grantee to Grantor. • [THIS SPACE INTENTIONALLY LEFT BLANK] 0 The undersigned executed this Easement Agreement this day of • < cMb� , 2008. Approved as to form: I: • • CITY OF LANSING, a Michigan municipal corporation, By: Virg Bernero, Mayor By: Chris Swope, Clerk CITY OF LANSING BY ITS BOARD OF WATER AND LIGHT, a municipal corporation, Its: PHOENIX DEVELOPMENT PARTNERS, LLC, a Michigan limited liability company, CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, Manager, "es M. Ca-T Its: Manager fK STATE OF MICHIGAN ) 0 ) ss COUNTY OF INGHAM ) Acknowledged before me in Ingham County, Michigan this 30th day of September, 2008, by Virg Bernero, Mayor of the City of Lansing, a Michigan municipal corporation. Eileen M. Melman Notary Public Washtenaw County, Michigan Acting in �" • '�` My Commission Expires 01/1212014 STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: Acknowledged before me in Ingham County, Michigan this 30th day of September, 2008, by Chris Swope, Clerk of the City of Lansing, a Michigan municipal corporation. • Eileen M. Melman Notary Public Washtenaw County, Michigan Acting i County My Commiss on Expires 01/12/2014 STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: A o el ed before me in Ingham County, Michigan this 30th day of September, 2008, by o�the C4pe ty of Lansing by its Board of Water and Light, a municipal corpor ��. v� tr4 UaI �rSjeL+ 5 Eileen M. Melman Notary Public Washtenaw County, Michigan Acting in�Expires County My Commi/12/2014 Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: 11 STATE OF MICHIGAN • ) ss COUNTY OF INGHAM ) . Acknowledged before me in Ingham County, Michigan this 30th day of September, 2008, by James M. Cash, Manager of Christman Capital Investment Group, LLC, Manager of Phoenix Development Partners, LLC, a Michigan limited liability cppany. ,, o Publ' Wounty, MI Acting in Ingh County, Michi My Commission Expires: V hi 1,3 RECORDING FEE: $ EXHIBITS: Exhibit A: = Legal Description of the Parcel A Exhibit B: - Depiction of Existing Utilities • DRAFTED BY AND AFTER RECORDING RETURN TO: Gregory J. Guggemos Guggemos Brown & Gilkey, PC 4050 Hunsaker Drive, Suite 120 East Lansing, MI 48823 Telephone: (517) 336-0127 • 12 VACATED OTTAWA STREET EXISTING UTILITY EASEMENT AND PEDESTRIAN • WALKWAY AGREEMENT EXHIBIT A (Legal Description of Grantor Property -Parcel A) Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00°01'45"W 7.02 feet to the point of beginning of the following described parcel; thence N00°O1'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50005' 10"E 157.52 feet; thence N00°29'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89°58'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89058'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45000'36"E, 56.87 feet; 2) S07000106"E, 173.32 feet; 3) S17°21'34"E, 75.69 feet; 4) S01008'14"E, 327.42 feet; 5) • S17017'09"W, 167.17 feet; 6) S18°04'11"W, 24.53 feet to a building line; thence along said building line the following five (5) courses; 1) S74°14'59"E, 16.75 feet; 2) S15051'22"W, 63.24 feet; 3) N89047' 17"W, 11.09 feet; 4) S00012'43"W, 14.88 feet; 5) N89°53'37"W, 30.79 feet; thence S23°01'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89031' 14"W, 178.68 feet along said curb line to the point of beginning. • 13 VACATED OTTAWA STREET EXISTING UTILITY EASEMENT AND PEDESTRIAN • WALKWAY AGREEMENT • • EXHIBIT B (Depiction of Existing Utilities) SAClients\Christman Company\Constructive Receipt\Phoenix Development Partners LLC\Easement re BWL Property\City Easements\Ottawa Street Utility Easement.Final.9.30.08.doc 14 N `"- D m D • (' 24" TCRM s C co CENTER POST �� �W - } SEC. 16 T.4N, RX c m g I� ! 1. N I O ' I — , O ❑ ❑ 7 ❑ STC ICI ` v, — —_ .STEAM — -------- ----- -- N0(701'45W 7.02' .... m UG ELfjCiRl + 1�' I 0 O 0 0 0 0 LV- - — - — - - i�. NOO'O1'45'W 330.Or __, I i. D ZONE 8 j EAST LINE N. GRAND AVE. SITE BENCHMARK 1NUKLIL I FD FD. MAG NAIL IN to" -- I �ii. ©AREA A USE AGREEMENT N — POINT OF BEGINNING va o_ I I �I " HISTORIC DISTRICT • PAVEMENT 0.08' SOUTH NORTHWEST CORNER BLOCK 99 ! �; I; ' ; U� ERG 1 2 ------�----- ��� POINT OF BEGINNING ( k' 1 _ ___ �-"�ui �I PROPOSED OTTAWA CAMPUS dt OFFICE BUILDING PROPERTY ! 100 !' I '�� �' ^' 1 - �cy� I '� ! I ''r� I c ^' AREA C USE AGREEMENT j 16' CHI -NAiER --3f-- rn UC EIEaW BLOCK 99 236•. C',J- 14-1Ci'j iE?V-3- 1 II Y ca IVl i•71 EAST Y CORNER - T, '' 82' \\ C F SEC. 16 r.4N, R.2w POINT OF BEGINNING ;' ! �G FINISHED RIVERFRONT PROPERTY ; ., 1 I ! �qj I / N -+ O< \�'� N S89'53'37'E 27.16' tp I v��ti� N89'53'37-W 30.79' • .. .a ! ` I / 6?g9, a •.c,� FO CUT CROSS IN S?301 SEAWALL 0.29' SW � I 78' CULVERT END 42 4. INV. =816.45 �4¢'ti 12' CULVERT END /� -- A [Space Above This Line is for Recording Information] VACATED OTTAWA STREET EXISTING UTILITY EASEMENT AND PEDESTRIAN WALKWAY AGREEMENT This VACATED OTTAWA STREET EXISTING UTILITY EASEMENT AND PEDESTRIAN WALKWAY AGREEMENT ("Easement Agreement") is executed this 30th day of September, 2008 between PHOENIX DEVELOPMENT PARTNERS, LLC, a Michigan limited liability company, 208 N. Capitol Ave., Lansing, Michigan 48933 ("Grantor") the CITY OF LANSING, a Michigan municipal corporation, 124 W. Michigan Ave., Lansing, Michigan 48933 and the City of Lansing by its BOARD OF WATER AND LIGHT, a municipal corporation, 1232 Haco Drive, Lansing, MI 48912 (`BWL") ("Grantee"). Grantor and Grantee are collectively referred to as the "Parties" or singularly as a "Parry." RECITALS: Grantor owns a certain parcel of real property located in the City of Lansing, Ingham County, Michigan, which includes a portion of real property commonly known as vacated Ottawa Street legally described on Exhibit A ("Parcel A"). The Parties acknowledge that vacated Ottawa Street is not a public right-of-way. To the South of vacated Ottawa Street is a ten foot (10') Pedestrian Walkway ("Pedestrian Walkway"); and Located within the Parcel A are the following existing Utilities: existing chilled water lines and related appurtenances ("Water Lines"), sanitary sewer lines and related appurtenances ("Sanitary Sewer Lines"), underground and above ground electric utility lines and related appurtenances ("Electric Lines"), existing storm sewer lines including but not limited to the seventy eight inch (78") storm sewer line and related appurtenances ("Storm Sewer Collection Lines") and existing steam lines and related appurtenances ("Steam Lines"), all as depicted on Exhibit B. The Water Lines, Sanitary Sewer Lines, Electric Lines, Storm Sewer Collection Lines and Steam Lines are collectively the "Utilities" ; and Grantor is willing to grant to Grantee an easement to go on, over, under and across those portions of Parcel A located in the vacated portion of Ottawa Street included in Parcel A ("Easement Area") to allow Grantee to operate, maintain, improve, repair or replace the Utilities and the Pedestrian Walkway. THIS EASEMENT AGREEMENT IS BEING EXECUTED IN FURTHERANCE OF THE PROPERTY PURCHASE AND DEVELOPMENT AGREEMENT DATED JANUARY 30, 2008 ("DEVELOPMENT AGREEMENT") AND THE PARTIES AGREE AS FOLLOWS: I. UTILITIES 1. Grant. Grantor grants to Grantee an exclusive easement to go on, across, through and under the Easement Area for the operation, maintenance, repair, replacement and improvement of the Utilities and the Pedestrian Walkway (" Easement"). (a) The Easement shall also include an easement of support and Grantor shall not allow any activity on the Parcel A which will interfere with or compromise the support of the Utilities located within the Easement Area. Grantee shall be responsible to construct appropriate structural support for the Utilities within the Easement Area. Further, the Easement shall include, subject to the terms and conditions of this Easement Agreement, the right to maintain such structural support. (b) Grantee shall pay all costs associated with the operation, maintenance, repair, replacement and improvement of the Utilities located in the Easement Area ("Operational Obligations"). (i) As part of the Operational Obligations, the Easement shall include • a path to be reasonably determined by Grantor from the Grand Avenue public right of way to the Easement Area to permit Grantee to operate, construct, maintain, repair, improve and replace the Utilities in the Easement Area and to maintain the Pedestrian Walkway. (ii) The Operational Obligations include, without limitation, that Grantee, at its sole expense, shall: (A) operate, maintain, repair, replace and improve the Utilities in the Easement Area in a good and functional condition sufficient for its intended purposes; and (B) maintain any markings for the Utilities in good and consistent condition. (iii) All work performed on or within the Easement Area shall be in accordance with the following requirements: (A) Grantee shall be solely responsible for and have control over the means, methods, techniques, sequences and procedures and for coordinating all portions of work in the Easement Area; (B) Grantee shall obtain all required governmental permits and authorizations for such work; and (C) Grantee shall cause all work to be completed in a good and workmanlike manner, free from defective materials and in compliance with all applicable laws. (iv) All movable trade fixtures, equipment and all other similar items owned by Grantee and installed or placed in the Easement Area shall remain the property of Grantee and Grantee shall have the right to remove said property at • any time during the term of this Easement Agreement provided, Grantee promptly 2 • repairs all damage caused by such removal and restores the Easement Area to a condition reasonably acceptable to Grantor. (v) Nothing in this Easement Agreement shall authorize Grantee to and Grantee shall not do any act which will in any way encumber the title of Grantor in and to Parcel A nor shall the interest of Grantor in Parcel A be in any way subject to any claim whatsoever by virtue of any act or omission of Grantee. Any claim to a lien upon Parcel A arising from any act or omission of Grantee shall apply only against Grantee's interest in Parcel A. (vi) Grantee shall keep Parcel A and the Easement Area free from any construction liens for any labor or material furnished to Grantee in connection with the Utilities or Easement Area, except Grantee shall have the right to contest the validity or amount of any such lien provided, Grantee shall first post any bond or make any deposits required by Grantor or the terms of any mortgage or similar instrument affecting the Easement Area to assure the discharge of such lien. (vii) Any operation, improvement or maintenance of the Utilities within the Easement Area shall be at Grantee's expense. (viii) In exercising its rights under this Easement Agreement, Grantee and its agents, employees, contractors, subcontractors or invitees shall use their best efforts to not unreasonably interfere with, obstruct or delay the conduct and • operations of the business of Grantor or its tenants, agents, employees and invitees, at any time conducted on Parcel A, including, without limitation, public access to and from any portion to Parcel A and the receipt or delivery of products, materials and merchandise. (ix) Upon completion by Grantee of any work within the Easement Area or Access Easement Areas, Grantee shall restore the affected portions of such areas to a condition substantially similar to the condition existing prior to such work. The line and grade of the existing grade shall equal the line and grade of the finished grade. Existing drainage mechanisms traversing the Easement Area must remain intact. No ponding of water is permitted as a result of work completed by Grantee in the Easement Area. (x) Once commenced, any maintenance, repair, improvement or replacement undertaken in reliance upon an easement granted pursuant to this Easement Agreement shall be diligently completed so as to minimize any interference with the business of Grantor and its tenants, agents, contractors, subcontractors, employees and invitees. (xi) Grantee may remove the Utilities at any time subject to Grantor's prior written consent, which shall not be unreasonably withheld, conditioned or delayed. Grantor shall have the right to withhold its consent to the removal of any • of the Utilities if Grantor determines that the removal of any of the Utilities may 3 • affect the structural integrity of any existing improvement located on the parcel of real property owned by Grantor immediately adjacent to the north of Parcel A ("Adjacent Parcel"). In the event Grantee removes the Utilities: (A) Grantee shall remove all property that was part of the Utilities and repair any damage to any portion of Parcel A, including without limitation any improvements located on Parcel A, caused by such removal and restore the Easement Area to a condition reasonably acceptable to Grantor; and (B) subject to Grantee's obligations in the preceding subsection (A) and any other obligations of Grantee intended to survive termination of this agreement, this Easement Agreement shall terminate automatically and immediately. 2. Use. Grantee shall use the Easement Area for the sole purpose of operating, improving, repairing and maintaining its Utilities. (a) Grantor has granted to Grantee the rights conveyed in this Easement Agreement because Grantee is a public body and the Utilities shall serve and benefit the public. (b) Grantee shall not engage in or permit its agents, employees, contractors or subcontractors to engage in any use or activity with respect to the Easement Area or Parcel A which would cause Grantor to lose the required Public Support as that phrase is defined in Paragraph 1.7(F) of the Development Agreement. • 3. Load Limit. At no time shall Grantee place a load upon any portion of Parcel A, including improvements located on Parcel A, exceeding the load per square foot it was designed to carry or is permitted by applicable law. Grantee shall not allow any activity on the Easement Area and shall not construct or maintain any portion of the Utilities or its foundation in a manner which will undermine or compromise the support of the improvements made or to be made to Parcel A. 4. Existing Encumbrances. Grantee's rights under this Easement Agreement shall be subject to encumbrances, conditions, covenants, easements, restrictions and rights -of -way as set forth in the deed from Grantee to Grantor for the "City Property", as set forth in the Development Agreement. 5. Acceptance of Easement Area. Grantee accepts the Easement Area in its "as is" condition as of the date of this Easement Agreement. Grantee further acknowledges that Grantor has made absolutely no warranties or representations regarding the condition of the Easement Area or its suitability for Grantee's intended use. 6. Relocation. The parties acknowledge and agree that as part of the Project as defined in the Development Agreement, upon ninety (90) days advance written notice to Grantee, Grantor may, at its sole cost, relocate the Utilities and the Easement Area to a new location acceptable to Grantee (whose approval shall not be unreasonably withheld, delayed or conditioned) so long as: (A) Grantor pays all costs and expenses associated with relocating the • Utilities and Easement Area to the new location; (B) Grantor obtains all required governmental m �Y • permits and authorizations required for the relocation of the Utilities and Easement Area; (C) Grantor performs all work to relocate the Utilities and Easement Area (including all disconnection and hook-up) in a good and workmanlike manner and in compliance with all applicable laws; (D) Grantor obtains the written consent of each party holding a lien with respect to Parcel A to any new easement agreement; and (E) in such event, the parties shall execute and record an "as built" easement agreement in a form reasonably acceptable to Grantor and Grantee under which Grantor grants to Grantee an easement (on terms substantially similar to the terms of this Easement Agreement) with respect to the new utilities easement area location. 7. Covenants Run With the Land. The covenants, agreements, conditions and restrictions of Grantor are intended to be and shall be construed as covenants running with the land, binding upon, inuring to the benefit of and enforceable against Parcel A by the Parties, their respective successors and assigns, upon the terms, provisions and conditions in this Easement Agreement. H. GENERAL 1. Integration, Exhibits, Consent to Waiver, Amendment. This Easement Agreement and all agreements arising out of the Development Agreement should be read in conjunction and harmonious with each other. All Exhibits referred to in this Easement Agreement are part of this Easement Agreement. The provisions of this Easement Agreement may be amended, but only with the written consent of Grantor and Grantee, which consent shall • not be unreasonably withheld, conditioned or delayed. No other persons, tenants, mortgagees or occupants of Parcel A shall have any rights whatsoever to join in, prevent or otherwise affect or limit any such modification, amendment or termination. • 2. Exemption from Transfer Tax. This instrument is exempt from state and county transfer tax as the consideration is less than One Hundred ($100.00) Dollars. MCLA 207.505(a); MCLA 207.526(a). 3. Authority. Grantor represents and warrants to Grantee that the individual executing this Easement Agreement on its behalf has the authority to do so. Grantee represents and warrants to Grantor that: (1) Grantee has the right to enter into this Easement Agreement; and (2) all necessary actions have been taken by Grantee in the execution of this Easement Agreement to make this Easement Agreement a binding obligation of Grantee. 4. Assignment. Except for an assignment to a governmental entity associated with Grantee, this Easement Agreement shall not be assigned, transferred, relinquished or conveyed by Grantee without the prior written consent of Grantor, which consent may be withheld in the sole and absolute discretion of Grantor. In case of any permitted assignment, Grantee and the assignee shall be liable for the full performance of all terms and conditions of this Easement Agreement. Grantor's consent to any assignment of this Easement Agreement shall not be deemed a consent to any farther assignment of this Easement Agreement. G J • 5. Lateral/Subiacent Support. Any damage to Parcel A, its foundational, lateral or subjacent support or any improvement located on Parcel A caused by Grantee or its agents, employees, contractors, subcontractors or invitees shall promptly be repaired by Grantee at Grantee's sole expense. If Grantee fails to commence repair of such damage within twenty (20) days after receipt of written notice of such damages from Grantor (subject to extension as a result of seasonal or inclement weather) and does not. in good faith diligently pursue the repair of such damage, Grantor may do so and the reasonable costs of doing so shall be the sole responsibility of Grantee. Said cost shall be payable by Grantee within twenty (20) days of Grantor's notification to Grantee of Grantor's reasonable cost of repair. 6. Liability Allocation. Grantee shall be responsible for any and all liabilities, claims or damages in connection with the loss of life, personal injury or damage to property caused by the negligent or intentional acts or omissions of Grantee or Grantee's agents, employees, contractors or subcontractors on Parcel A. If within twenty (20) days of Grantor's notice of claims to Grantee, Grantee fails to assume responsibility under terms reasonably acceptable to Grantor in Grantor's sole discretion, Grantor may undertake such defense and the reasonable costs of doing so, together with any liability or damages of Grantor, shall be the sole responsibility of Grantee. Said cost shall be payable by Grantee within twenty (20) days of Grantor's notification of Grantor's damages and reasonable cost of defense. Grantee shall have no responsibility for claims, losses or expenses caused by the negligent or intentional acts or omissions of Grantor or Grantor's agents, employees, contractors or subcontractors on Parcel A. • 7. Utility Relocation. To the extent that the exercise of Grantee's rights under this Easement Agreement requires the relocation of any utility facilities located on Parcel A as of the date of this Easement Agreement, the parties acknowledge that upon ninety (90) days advance written notice to Grantor, Grantee may, at its sole cost, relocate any such utility facilities to a new location on Parcel A acceptable to Grantor (which approval shall be in Grantor's sole discretion) so long as: (A) Grantee is responsible for and pays all costs and expenses associated with relocating the utility facilities to the new location on Parcel A; (B) Grantee obtains all required governmental permits and authorizations required for the relocation of the utility facilities; and (C) Grantee performs all work to relocate the utility facilities in a good and workmanlike manner and in compliance with all applicable laws. 8. Default. In the event a Parry shall default in its obligations hereunder and the cure for such default is not commenced in good faith and diligently pursued within twenty (20) days after written notice from the nondefaulting Party to the defaulting Parry, the nondefaulting Party may: (A) enforce any remedies or rights of termination provided for under this Easement Agreement; (B) seek specific performance of the defaulting Parry's obligations; (C) seek reimbursement from the nondefaulting Parry in a court of law for expenses the nondefaulting Parry establishes were reasonably incurred and necessary to fulfill the defaulting Parry's obligations; or (D) seek any other available remedy in law or equity. Any amount due hereunder from the defaulting Parry to the nondefaulting Parry shall bear interest at the lesser of (i) twelve percent (12%) per annum or (ii) the maximum rate permitted by applicable law, compounded annually. The -remedies provided for under this Section are not exclusive, are in addition to and • not in lieu of any other rights or remedies available at law or in equity. 2 • 9. Self Insurance/Insurance. (a) Grantee may self insure or obtain insurance coverage in such amounts as Grantee deems appropriate at its expense to protect Grantee from claims for damages due to bodily injury, loss, or damage to property for which Grantee is responsible under this Easement Agreement, with such insurance coverage in an amount determined by Grantee. Grantee shall deliver evidence of such coverage, if any or a certificate of insurance evidencing all coverage specified in this paragraph, to Grantor upon request. The coverages to benefit Grantor shall not be canceled, cancelable or modified until at least thirty (30) days' prior written notice of intention to cancel or modify has been delivered by the insurer to Grantor. Notwithstanding the foregoing, the amounts of insurance coverage required hereunder shall be increased from time to time to be consistent with the amounts of such coverages reasonably maintained for similar risks. (b) Grantee shall bring or keep property upon the Easement Area solely at its own risk and Grantor shall not be liable for any damages thereto or any theft thereof. Grantee may maintain a policy of insurance with a responsible insurance company against risk of loss from any cause whatsoever to all such property and to all of Grantee's alterations, improvements or additions to the Easement Area, to the full extent of their replacement cost, which policy of insurance shall contain a clause or endorsement under which the insurer waives or permits the waiver by Grantee of all right of subrogation against Grantor and its agents, employees, customers, invitees, guests or licensees, with respect to losses payable under such policy. To the fullest extent allowed by applicable • law, Grantee waives all right of recovery which it might otherwise have against Grantor and its agents, employees, customers, invitees, guests or licensees for any damage to Grantee's property, notwithstanding that such damage may result from the negligence or fault of Grantor or its agents, employees, customers, invitees, guests or licensees. • 10. Captions. The captions in this Easement Agreement are for convenience only and do not define, describe, extend or limit the scope or intent of this Easement Agreement or of any of its provisions. 11. Severability. The provisions of this Easement Agreement are severable. Should any section, subsection, paragraph or provision of this Easement Agreement be declared to be invalid or unenforceable by a. court of competent jurisdiction, it shall not affect the validity or enforceability of the Easement Agreement as a whole or any part thereof, other than the part so declared invalid or unenforceable. The parties shall renegotiate, if possible, the invalid or unenforceable section, subsection, paragraph or provision in a manner consistent with the original intent of this Easement Agreement. 12. No Partnership. Nothing in this Easement Agreement shall be deemed or construed by Grantor, Grantee or by any third person to create the relationship of principal and agent, a partnership, joint venture or any other association between any of the parties. 7 13. Governing Laws. This Easement Agreement shall be construed in accordance with the laws of the State of Michigan. Nothing in this Easement Agreement shall be construed to relieve a parry from obtaining any necessary governmental permits, approvals or authorizations otherwise required by law. 14. Construction of Easement Agreement. The rule of strict construction shall not apply to the easements and agreements granted in this Easement Agreement or to the covenants set forth herein. This Easement Agreement shall be given a reasonable construction so that the_ intention of the Grantor to confer reasonably usable benefits and reasonably enforceable obligations are carried out. 15. Waiver of Default. No waiver of any default by any Party to this Easement Agreement shall be implied from any omission by any other Parry to take any action in respect of such default if such default continues or is repeated. No express waiver of any default shall affect any default or cover any period of time other than the default and period of time specified in such express waiver. One or more waivers of any default in the performance of any term, provision or covenant contained in this Easement Agreement shall not be deemed to be a waiver of any subsequent default in the performance of the same term, provision or covenant or any other term, provision or covenant contained in this Easement Agreement. The consent or approval by any Party to or of any act or request by any other Party requiring consent or approval shall not be deemed to waive or render unnecessary the consent to or approval of any subsequent similar acts or requests. The rights and remedies given to any Party to this Easement Agreement are cumulative and no one right or remedy shall be exclusive of any other or of any other right or remedy at law or in equity which any such Party might otherwise have by virtue of a default under this Easement Agreement and the exercise of one such right or remedy by any such Party shall not impair such Party's standing to exercise any other right or remedy. 16. No Offer. The submission of this Easement Agreement for examination does not constitute an offer to enter into an Easement Agreement and this Easement Agreement shall become effective only upon execution and delivery by Grantor and Grantee. 17. Notices. All notices, demands and requests given or required to be given pursuant to this Easement Agreement shall be in writing. All such notices, demands and requests shall be deemed to be delivered when: (a) received within three (3) days after deposited in any United States postal box if postage is prepaid and the notice properly addressed to the intended recipient; (b) delivered by facsimile transmission with proof of receipt of delivery; (c) delivered by email transmission with proof of receipt; (d) personally delivered; or (e) sent by nationally recognized overnight courier service (e.g. Federal Express or UPS) in which case such notice shall be deemed given the day after the date sent with all fees paid. 18. Successors and Third Parties. This Easement Agreement shall be binding upon and inure to the benefit of each Party and their respective successors and permitted assigns. Except for Grantor's parent, subsidiary and affiliated entities and their respective officers, directors, shareholders, partners, agents and employees and Accident Fund Insurance Company • of America while it is an occupant of Parcel A and the Adjacent Parcel, Grantor and Grantee . acknowledge and warrant and represent to each other that there are no third parry beneficiaries to this Easement Agreement. • 19. Obligations Survive. All obligations arising prior to the termination of this Easement Agreement and all provisions of this Easement Agreement allocating responsibility or liability between the Parties shall survive the termination of this Easement Agreement. No obligation which survives the term of this Easement Agreement shall give Grantee any interest in Parcel A, possession or otherwise nor have the effect of extending the term of this Easement Agreement. 20. Record of Termination. If this Easement Agreement is terminated for any reason, Grantor shall record a termination of this Easement Agreement with the Ingham County Register of Deeds. 21. Legal Expense. In any action arising out of the enforcement of this Easement Agreement, the nonprevailing Parry shall pay to the prevailing Parry all reasonable expenses incurred by the prevailing Parry in the action, including reasonable attorney fees. 22. Consent. Unless otherwise indicated in this Easement Agreement, where the consent of a Parry is required, such consent shall not be unreasonably withheld, conditioned or delayed. 23. Declaration of Restrictive Covenants. This Easement Agreement shall be subject to the provisions of the to be recorded Declaration of Restrictive Covenants, a specimen of which is attached as an exhibit to the Warranty Deed of even date from Grantee to Grantor. [THIS SPACE INTENTIONALLY LEFT BLANK] 9 The undersigned executed this Easement Agreement this 3y' day of 2008. Approved as to form: LI-A • • 10 CITY OF LANSING, a Michigan municipal corporation, By: Virg Bernero, Mayor By: . �, Chris Swope, Clerk CITY OF LANSING BY ITS BOARD OF WATER AND LIGHT, a municipal corporation, VG - Its: PHOENIX DEVELOPMENT PARTNERS, LLC, a Michigan limited liability company, CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, Manager, By: �esM. Cash Its: Manager STATE OF MICHIGAN ) • ) ss COUNTY OF INGHAM ) Acknowledged before me in Ingham County, Michigan this 30th day of September, 2008, by Virg Bernero, Mayor of the City of Lansing, a Michigan municipal corporation. Eileen M. Melman Notary Public Washtenaw County, Michigan Acting in .. i4 County My Commission Expires 01/12/2014 STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: Acknowledged before me in Ingham County, Michigan this 30th day of September, 2008, by Chris Swope, Clerk of the City of Lansing, a Michigan municipal corporation. Eileen M. Melman Notary Public Washtenaw County, Michigan Acting i ' County My Commission Expires 01/12/2014 STATE OF MICHIGAN ) ) ss COUNTY OF INGHAM ) Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: � A o ed red before me in Ingham County, Michigan this 30th day of September, 2008, y .� , of the City o Lansing by its Board of Water and Light, a municipal corpor i6�i. �? �fQ� S�e�ta� fn jeJ 5 Eileen M. Melman Notary Public Washtenaw County, Michigan Acting in County My Commis ion Expires 01/12/2014 • 11 Notary Public, County, MI Acting in Ingham County, Michigan My Commission Expires: STATE OF MICHIGAN ) 0 ) ss COUNTY OF INGHAM ) Acknowledged before me in Ingham County, Michigan this 30th day of September, 2008, by James M. Cash, Manager of Christman Capital Investment Group, LLC, Manager of Phoenix Development Partners, LLC, a Michigan limited liability coyppany. -17 v� f' F02t7Publi County, MI gh County, Michi My Commission Expires: X2- 13 RECORDING FEE: $ EXHIBITS: Exhibit A: - Legal Description of the Parcel A Exhibit B: - Depiction of Existing Utilities DRAFTED BY AND AFTER RECORDING RETURN TO: Gregory J. Guggemos Guggemos Brown & Gilkey, PC 4050 Hunsaker Drive, Suite 120 East Lansing, MI 48823 Telephone: (517) 336-0127 • 12 . VACATED OTTAWA STREET EXISTING UTILITY EASEMENT AND PEDESTRIAN WALKWAY AGREEMENT EXHIBIT A (Legal Description of Grantor Property -Parcel A) Commencing at the center post of Section 16, T4N, R2W, now City of Lansing; Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00001'45"W 7.02 feet to the point of beginning of the following described parcel; thence N00°01'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50°05' 10"E 157.52 feet; thence N00°29'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89058'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45°00'36"E, 56.87 feet; 2) S07°00'06"E, 173.32 feet; 3) S 17°21'34"E, 75.69 feet; 4) S01008' 14"E, 327.42 feet; 5) • S 17° 17' 09"W, 167.17 feet; 6) S 18°04' 11 "W, 24.53 feet to a building line; thence along said building line the following five (5) courses; 1) S74°14'59"E, 16.75 feet; 2) S15'51'22"W, 63.24 feet; 3) N89°47' 17"W, 11.09 feet; 4) S00012'43"W, 14.88 feet; 5) N89°53'37"W, 30.79 feet; thence S23'01'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89031' 14"W, 178.68 feet along said curb line to the point of beginning. • 13 • VACATED OTTAWA STREET EXISTING UTILITY EASEMENT AND PEDESTRIAN WALKWAY AGREEMENT • • EXHIBIT B (Depiction of Existing Utilities) SAClients\Christman Company\Constructive Receipt\Phoenix Development Partners LLC\Easement re BWL Property\City Easements\Ottawa Street Utility Easement.Final.9.30.08.doc 14 ct N - I�i� • 0 _I M IN I Z4" SIT(,,R.M I CENTER POST !� Dc-) _ SEC. 16 I m T.4N, R2W. 4 ! " c S b m Ln -I I j N I00 ! I0A CA C3 El co S - T STCk —_� ^Ct ❑ -- _ i I I I` Ii �c IOD _ - — S �' 2F FLOOD � --I- r41$:•STE„N --1 ---- ----- N0(T Fr O1'45"W 7.02' _�— ( x -! i - j ��!--�— UG L5CTRI ❑ O ❑ 00 ❑ 0 �a ELECEFic N00 O1'45'W 330.00` FLOOD ZONE B I i ;; FAST LINE N. GRAN AVE. �— ! ' FD CUT CROSS \ SITE BENCHMARK 1 )AREA A USE AGREEMENT I FD. MAC NAIL IN n POINT OF BEGINNING 7 PAVEMENT 0.08' SOUTH I ! ` Cc�aREA I • G - HISTORIC DISTRICT NORTHWEST CORNER BLOCK 99 1- �?E G+E; POINT OF BEGINNING I ' • r `�k='-' - --- j PROPOSED OTTAWA CAMPUS k OFFICE BUILDING PROPERTY ,o �: nl II ©AREA C USE AGREE!�tENT CO GO • :r • ' 4i L+• I II "fq I i 7 i '.P• I. v BLOCK 99 236..' co- —Ii!`iEAm—Y • , i ; it — I Al EAST Y CORNER - _ — 82' =� C } SEC. 16 T.4N, R.2W ' \U FINISHED POINT OF BEGINNING I m RIVERFRONT PROPERTY \ � 'a! S39'53'37'E 27.16' cl;, � p1 tip i S? p� ¢8 •d?• j N89'53'37"N 30.79' g g' \ ` `r a / 82g 91 FD CUT CROSS IN SZ,}. = ! sl U, SEAWALL 0.29' SW p� 48 ;y 8 ,\''' '-j l 90 78' CULVERT END I NV.=816.45 i2' CULVERT END_.0 E • • 27 PARKING RAMP AGREEMENT This Parking Ramp Agreement ("Agreement") is executed this 30th day of September, 2008, between PHOENIX DEVELOPMENT PARTNERS, LLC, a Michigan limited liability company, 208 N. Capitol Ave., Lansing, Michigan 48933 ("Owner") and the CITY OF LANSING, a Michigan municipal corporation, 124 W. Michigan Ave., Lansing, Michigan 48933-1694 ("City"). (The City is referred to as the "Operator"). Owner and Operator are collectively referred to as the "parties" or singularly as a "parry." RECITALS A. Owner and Operator entered into a Property Purchase and Development Agreement, dated January 30, 2008 ("Development Agreement"), pursuant to which Owner purchased from Operator real property located in the City of Lansing, Ingham County, Michigan, legally described on Exhibit A ("Parcel A"). B. Parcel A is improved with a parking facility and related appurtenances as depicted on Exhibit B ("Current Ramp"). Operator operates the Current Ramp as a public parking ramp (`Business"). C.. Operator will continue to operate the Business at the Current Ramp as provided for under this Agreement and the Development Agreement. D. Pursuant to the terms of this Agreement, Owner is permitting Operator to conduct the Business at the Current Ramp. This Agreement is being executed in furtherance of the Development Agreement and the parties agree as follows: 1. Scope and Term of Operation of Current Ramp. (a) Permitted Operation. Operator shall continue to conduct the Business at the Current Ramp consistent with its standard procedures and consistent with any remedial action plan or due care plan applicable to Parcel A. (b)Term. Operator shall operate the Business at the Current Ramp until seven (7) days prior to Owner's scheduled commencement of demolition of the Current Ramp on August 1, 2009. 2. Operational Liability Allocation. Operator shall be responsible for any and all liabilities, claims, losses or damages in connection with the loss of life, personal injury or damage to property arising out of or caused by any of the following: (i) Operator's conduct of the Business at the Current Ramp during the term of this Agreement; (ii) the negligent or intentional acts, omissions or willful misconduct of Operator or Operator's agents, employees, contractors or subcontractors. If within twenty (20) days of Owner's notice of such claims to Operator, Operator fails to assume such defense or responsibility under terms acceptable to Owner in Owner's reasonable discretion, then Owner may undertake such defense and the reasonable costs of doing so, together with any liability or damages of Owner, shall be the sole responsibility of Operator. Said cost shall be payable by Operator within twenty (20) days of Owner's notification of Owner's damages and reasonable cost of defense and Operator shall have no liability for claims, losses or expenses caused by the negligent or intentional acts or omissions of Owner or Owner's agents, employees, contractors or subcontractors on Parcel A. 3. Liability Allocation Procedures. Owner shall give notice to Operator of any matter covered by Section 2 promptly upon learning of the existence of such matter but no later than thirty (30) days after discovery of a matter covered by Section 2. However, Owner's failure to give notice of such matter to Operator shall not relieve Operator of its responsibilities under Section 2. 4. Demolition and Restoration. Owner shall demolish the Current Ramp and restore the North Grand Ramp that will remain after demolition activity. Demolition and restoration activities to be performed by Owner shall include, at a minimum, those items set forth on Exhibit C. Owner shall conduct demolition and restoration activities in accordance with the following schedule and requirements: (a) Owner shall present a set of plans and specifications to the City for demolition and restoration activity no later than May 15, 2009 for review and approval. The plans and specifications shall ensure (i) compliance with general requirements for work over a public right-of-way and adjacent to a City -owned structure, (ii) compliance with any general City requirements applicable to demolition activities and (iii) that the demolition and resulting restoration work to the adjacent City -owned parking ramp immediately to the west of the Current Ramp will result in the interior and exterior of the City -owned ramp being of similar quality and appearance to the remainder of the City -owned ramp, subject to such modifications as shall be acceptable to the City's Parking Director and City engineers. (b) Owner shall commence demolition of the current ramp on August 1, 2009, which date shall be extended based on standard force majeure events; (c) Owner shall complete demolition activity in sufficient time so that Grand Avenue may be reopened by no later than December 15, 2009, which date shall be extended based on standard force majeure events. Following demolition as set forth above, the City of Lansing Transportation and Parking Office will evaluate the need for the reinstallation of the traffic signal based on the criteria set forth in the Michigan Manual on Uniform Traffic Control Devices (MMUTCD). If this intersection meets the MMUTCD criteria for signalization, Owner will contribute an amount not to exceed $20,000 towards the costs of replacement traffic signalization. • 2 The Owner shall, without expense to any other parry to this Agreement, ensure the demolition • (including the restoration of the City -owned ramp) is performed so as to comply with the approved plans and specifications. Before undertaking the demolition, the Owner shall allow the City thirty (30) days to remove and retain signage and parking ramp equipment from the Current Ramp. 5. New Rama. No later than April 1, 2011, the Owner shall, without cost to any other party to this Agreement, construct or cause to be constructed on the Owner's property identified in the Development Agreement a New Ramp to be owned and operated by private parties having at least 900 parking spaces. The April 1, 2011 date shall be extended based on standard force maj eure events 6. General. (a) Integration, Exhibits, Consent to Waiver, Amendment. This Agreement and all agreements arising out of the Development Agreement shall be read in conjunction and harmonious with each other. All Exhibits referred to in this Agreement are part of this Agreement. The provisions of this Agreement may be amended, but only with the written consent of Owner and Operator. No other person shall have any rights whatsoever to join in, prevent or otherwise affect or limit any such modification, • amendment or termination. (b) Authority. Owner represents and warrants to Operator that the individual executing this Agreement on its behalf has the authority to do so. Operator represents and warrants to Owner that: (1) Operator has the right to enter into this Agreement; and (2) all necessary actions have been taken by Operator in the execution of this Agreement to make this Agreement a binding obligation of Operator. (c) Assignment. Except for an assignment to a governmental entity associated with either Operator, this Agreement shall not be assigned, transferred, relinquished or conveyed by Operator without the prior written consent of Owner, which consent may be withheld in Owner's sole discretion. In case of any permitted assignment, Operator and the assignee shall be liable for the full performance of all terms and conditions of this Agreement. Owner's consent to any assignment of this Agreement shall not be deemed a consent to any further assignment of this Agreement. (d) Default. In the event a parry defaults in its obligations under this Agreement and the cure for such default is not commenced in good faith and diligently pursued within twenty (20) days after written notice from the nondefaulting parry to the defaulting parry, the nondefaulting party may: (A) enforce any remedies or rights of termination provided for under this Agreement; (B) seek specific performance of the defaulting parry's obligations; (C) seek reimbursement from the defaulting party in a court of law for expenses the nondefaulting parry establishes were reasonably incurred • and necessary to fulfill the defaulting parry's obligations ; or (D) seek any other available remedy in law or equity. Any amount due from the defaulting parry to the nondefaulting 3 • parry shall bear interest at the lesser of (i) twelve percent (12%) per annum or (ii) the maximum rate permitted by applicable law, compounded annually. The remedies provided for under this Section are not exclusive, are in addition to and not in lieu of any other rights or remedies available at law or in equity. (e) Self Insurance/Insurance. Operator may self insure or obtain insurance coverage in such amounts as Operator deems appropriate at its expense to protect Owner and Operator from claims for damages due to bodily injury, loss or damage to property for which Operator is responsible under this Agreement, with such coverage in an amount determined by Operator. Operator shall deliver evidence of such self coverage, if any or a certificate of insurance evidencing all coverage specified in this paragraph to Owner upon request. The coverages to benefit Owner shall not be canceled, cancelable or modified until at least thirty (30) days prior written notice of intention to cancel or modify has been delivered by the, insurer to Owner. Operator agrees that the amounts of insurance coverage maintained under this Agreement shall be increased from time to time to be consistent with the amounts of such coverages reasonably maintained for similar risks. Operator shall bring or keep property upon the Current Ramp solely at its own risk and Owner shall not be liable for any damages or theft of such property. Operator may maintain a policy of insurance with a responsible insurance company satisfactory to Owner against risk of loss from any cause to all such property and to all of Operator's alterations, improvements or additions to the Current Ramp, to the full extent of their replacement cost, which policy of insurance shall contain a clause or endorsement under which the insurer waives or permits the waiver by Operator of all right of subrogation • against Owner and its agents, employees, customers, invitees or licensees, with respect to losses payable under such policy. To the fullest extent allowed by applicable law, Operator waives all right of recovery which it might otherwise have against Owner and its agents, employees, tenants, invitees or licensees, for any damage to Operator's property, notwithstanding that such damage may result from the negligence or fault of Owner or its agents, employees, customers, invitees or licensees. (f) Captions. The captions in the paragraph headings set forth in this Agreement are for convenience only and do not define, describe, extend or limit the scope or intent of this Agreement or of any of its provisions. (g) Severability. The provisions of this Agreement are severable. Should any section, subsection, paragraph or provision of this Agreement be declared invalid or unenforceable by a court of competent jurisdiction, it shall not affect the validity or enforceability of the Agreement as a whole or in part, other than the part declared invalid or unenforceable. The parties shall renegotiate, if possible, the invalid or unenforceable section, subsection, paragraph or provision in a manner consistent with the original intent. (h) No Partnership. Nothing in this Easement Agreement shall be deemed or construed by Owner, Operator or by any third person to create the relationship of principal and agent, a partnership, joint venture or any other association between any of • the parties. 4 (i) Governing Laws. This Agreement shall be construed in accordance with the laws of the State of Michigan. Nothing in this Agreement shall be construed to relieve a parry from obtaining any necessary governmental permits, approvals or authorizations otherwise required by law. 0) Construction of Agreement. The rule of strict construction shall not apply to this Agreement. This Agreement shall be given a reasonable construction so that the intentions of the parties are carried out. (k) Waiver of Default. No waiver of any default by a parry to this Agreement shall be implied from any omission by any other party to take any action in respect of such default if such default continues or is repeated. No express waiver of any default shall affect any default or cover any period of time other than the default and period of time specified in such express waiver. One or more waivers of any default in the performance of any term, provision or covenant contained in this Agreement shall not be deemed to be a waiver of any subsequent default in the performance of the same term, provision or covenant or any other term, provision or covenant contained in this Agreement. The consent or approval by a party to or of any act or request by any other party requiring consent or approval shall not be deemed to waive or render unnecessary the consent to or approval of any subsequent similar acts or requests. The rights and remedies given to a party to this Agreement are cumulative and no one right or remedy shall be exclusive of any of the others or of any other right or remedy at law or in equity which a party might otherwise have by virtue of a default under this Agreement and the • exercise of one such right or remedy by a party shall not impair that parry's standing to exercise any other right or remedy. (1) No Offer. The submission of this Agreement for examination does not constitute an offer to enter into an Agreement and this Agreement is only effective upon execution and delivery by Owner and Operator. (m) Notices. All notices, demands and requests given or required to be given pursuant to this Agreement shall be in writing. All such notices, demands and requests shall be deemed to be delivered when: (a) received within three (3) days after deposited in any United States postal box if postage is prepaid and the notice properly addressed to the intended recipient; (b) delivered by facsimile transmission with proof of receipt of delivery; (c) delivered by email transmission with proof of receipt; (d) personally delivered; or (e) sent by nationally recognized overnight courier service (e.g. Federal Express or UPS) in which case such notice shall be deemed given the day after the date sent with all fees paid. (n) Successors and Third Parties. This Agreement shall be binding upon and inure to the benefit of each parry and their respective successor and permitted assign. Except for Owner's parent, subsidiary and affiliated entities and their respective officers, directors, shareholders, partners, agents and employees, Owner and Operator acknowledge and warrant and represent to each other that there are no third parry . beneficiaries to this Agreement. 5 • (o) Obligations Survive. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating responsibility or liability between the parties shall survive the termination of this Agreement. No obligation which survives the term of this Agreement shall give Operator any interest in Parcel A, possessory or otherwise or have the effect of extending the term of this Agreement. (p) Legal Expense. In any action arising out of the enforcement of this Agreement, the nonprevailing Parry shall pay to the prevailing Parry all reasonable expenses incurred by the prevailing Party in the action, including reasonable attorney fees. (q) Consent. Unless otherwise indicated in this Agreement, where the consent of a Parry is required, such consent shall not be unreasonably withheld, conditioned or delayed. (r) Declaration of Restrictive Covenants. This Agreement shall be subject to the provisions of the to be recorded Declaration of Restrictive Covenants, a specimen of which is attached as an exhibit to the Warranty Deed of even date from City to Owner. 0 [THIS SPACE INTENTIONALLY LEFT BLANK] • 0 • • The undersigned executed this Agreement on the d_,� day of , 2008. Approved as to form: Un Brigham C. Smith, EXHIBITS: Exhibit A: - Description of Parcel A Exhibit B: - Depiction of Current Ramp Exhibit C: - Demolition and Restoration Tasks DRAFTED BY: Gregory J. Guggemos Guggemos Brown & Gilkey, PC 4050 Hunsaker Drive, Suite 120 East Lansing, MI 48823 Telephone: (517) 336-0127 7 CITY OF LANSING By: (-- Virg Bernero, Mayor By: C%fis Swope, Cler PHOENIX DEVELOMENT PARTNERS, LLC, a Michigan limited liability company CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, Manager 11 WA FI .• • PARKING RAMP AGREEMENT EXHIBIT A (Legal Description of Parcel A) Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00°01'45"W 7.02 feet to the point of beginning of the following described parcel; thence N00°O1'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50°05' 10"E 157.52 feet; thence N00°29'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89°58'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45°00'36"E, 56.87 feet; 2) S07°00'06"E, 173.32 feet; 3) S17°21'34"E, 75.69 feet; 4) S01008'14"E, 327.42 feet; 5) S 17' 17' 09"W, 167.17 feet; 6) S 18004' 11 "W, 24.53 feet to a building line; thence along said building line the following five (5) courses; 1) S74°14'59"E, 16.75 feet; 2) S15'51'22"W, 63.24 feet; 3) N89°47' 17"W, 11.09 feet; 4) S00°12'43"W, 14.88 feet; 5) N89053'37"W, 30.79 40 feet; thence S23°01'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89°31' 14"W, 178.68 feet along said curb line to the point of beginning. • PARKING RAMP AGREEMENT (Depiction of Current Ramp) 0 • r� 0 • EXHIBIT C Demolition and Restoration Tasks 1. Owner shall return the North Grand Ramp to its pre -expansion construction design based on the original plans and specifications of the ramp including the removal of crossover ramps between the North Grand Ramp and the expansion ramp, replacement of precast expansion spandrels, application of a vehicular traffic membrane, as applicable, and reconstruction and/or restoration of fascia walls on the North grand Ramp where necessary due to demolition of the crossover ramps or damage from the demolition process. 2. Owner shall fill in all doorways between the stairwell at the southeast corner of the original North Grand Ramp to match adjacent walls in both material and color/texture. 3. Owner shall install a fence and gate to prevent unauthorized stairwell access above Level 5. • 4. 4. Owner shall contribute an amount not to exceed $20,000 towards the cost for the removal of the traffic signal at Ionia and Grand and for the replacement of traffic signalization. • 5. Owner shall properly protect the stairwell and elevator glass in the original North Grand Ramp during demolition activities and replace any damaged/broken glass once demolition is completed. 6. Owner shall remove electrical feeds to the Expansion Ramp as directed by City of Lansing Property Management staff. S:\Clients\Christman Company\Constructive Receipt\Phoenix Development Partners LLC\Easement re BWL Property\City Easements\(8) Parking Ramp Agreement -CITY Comments.9.18.08.doc 10 0 WPM E 0 Paula�Jofinson,VIngham County, M3ohi9a1 y C'_ •r Ot 6 8 1- N r+ u- SEMENT GRANT FOR CHILLED WATER LINES AND STEAM SERVICE LINES FACILITY DISTRIBUTION Phoenix Development,Partners, LLC, 208 North Capitol Avenue, Lansing, Michigan 48933-1357. Phoenix Development Partners, LLC, Grantor, in consideration of One and no/100------Dollar ($1.00) to it paid by the City of Lansing by its BOARD OF -WATER AND LIGHT, a Municipal Corporation, P. O. Box 13007, Lansing, Michigan, 48901, Grantee, receipt of which is hereby acknowledged, grants to the City of Lansing by its Board of Water and Light, its successors and assigns, forever, the easement and right to lay, bury .and maintain pipes, facilities, vaults, valves and other fixtures and appurtenances for the purpose of distributing chilled water and steam, for Board of Water and Light's use only, on, over, under and across the -following described parcel of land, including all public highways upon or adjacent to said parcel of land, which parcel situated in the City of Lansing, County of Ingham and State of Michigan, to -wit: PROPERTY DESCRIPTION: 312 North Grand Avenue, Ottawa Station m el 1: Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham Court�'iW -„ n c) 41higan; thence along the East=West 1/4 section line of Section 16 N89059'00"E 527.87 feet; thence, c;; n N00°O1'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan,' nd*_ City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along tie Eaz line of North Grand Avenue N00°01'45"W 7.02 feet to the point of beginning of the following desc*d p l; thence N00001'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the.centerlir�of N vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50°05' 10"E 157.52 feet; thence N00°29'40"E 39.86 feet to a point on the centerline of the party wall to the West extended -Easterly; thence along said extension and along the centerline of the party wall N89058'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89058'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45°00'36"E, 56.87 feet; 2) S07000'06"E, 173.32 feet; 3) S17021'34"E, 75.69 feet; 4) S01°08'14"E, 327.42 feet; 5) S17°17'09"W, 167.17 feet; 6) S18°04'11"W, 24.53 feet to abuilding line; thence along said building line the following five (5) courses; 1) S74014'59"E, 16.75 feet; 2) S15°51'22"W, 63.24 feet; 3) N89°47'17"W, 11.09 feet; 4) S00°12'43"W, 14.88 feet; 5) N89053'37"W, 30.79 feet; thence S23001'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89°31' 14"W, 178.68 feet along said curb line to the point of beginning. a m Said parcel are subject to all easements and restriction of record if any. �z Grantor warrants that it has good and marketable title to the parcel as legally described above. N ' r n ASEMENT DESCRIPTION: (Easement Area No 1 (Chilled Water Lines and Steam Service Line) D 0M G7 0-4 "' An area 20 feet in width centered on the following described centerline: Beginning on the north side of the vacated F,� , Ottawa Street at a point that is 61 ft. easterly of the S.W. corner of Block 98, Original Plat -of Lansing; thence North` 24.6 feet; thence N 33° W 8.7 feet; thence N 01105' E 174.4 feet; thence North 42.45 feet; thence N 02037' W 32.7 feet to Point "A"; thence continuing N 02°37' W 45.5 feet; thence N 00°06' W 98.25 feet; thence"westerly 56 feet, more or less, P. � +,+ ;� 1 � fPP++,N +hP en„th of the centerline of vacated E. Ionia Street, and EASEMENT GRANT FOR CHILLED WA'1'LK LJNLi b A NJJ Y DISTRIBUTION. With full right and authority to Grantee, its successors, licensees, lessees or assigns, and its and their agents and employees, to enter at all times upon said premises for the purpose of constructing, repairing, removing, replacing, patrolling, improving, enlarging and maintaining such pipes, appurtenances, conduits and other supports with all . necessary manholes and vaults, for the distribution of chilled water and steam service lines, and to trim, remove or otherwise control any trees, brush, and landscaping which may, in the opinion of the Grantee, interfere or threaten to interfere with or be hazardous to the construction, operation and maintenance of chilled water amd steam lines. Future Improvements: Grantee, licensees, lessee.or assigns, their agents, and employees may exercise -the permitted activities described above. If access thereto results in any undue damage or destruction of any existing or future surface improvements the Grantee shall restore or replace the affected surface area pursuant to the applicable standards attached as Exhibit B and at no more than an amount that shall take into consideration depreciation of generally over 15 years. Any replacement or restoration of the above mention surface area after 15 years shall be subject to a review and approval by the City of Lansing's Board of Water and Light, which approval shall not be unreasonably withheld, conditioned or delayed. Also it is expressly understood that no landscape grade change will be made and no buildings or other structures will be placed upon the above -described 'easement without the written consent of the Grantee. It is expressly understood that non-use or a limited use of this easement by Grantee shall not prevent Grantee from later making use of the easement to the full extent herein authorized. To the extent permitted by law, the parties shall indemnify and hold each other harmless from any damages arising from ncident to.their action or inaction concerning the Easement Area. Witness the hand and seal of the party of the first part, this 30th day of September 2008. Sealed and Delivered: Development Partners, LLC, a Michigan limited liability company, Christman Capital Investment By: Steven F. Its: Manager STATE OF Michigan) COUNTY OF Ingham) On this 30th day of September, 2008, Steven F. Capital Investment Group, LLC, Manager o� m • before me and signed as Manager of Christman artners, LLC, a Michigan limited liability company. Notary Public My Commission Acting in the County of Ingham Michigan Drafted Bv: Robin R. Sorrells Signed, Sealed and Delivered: • Phoenix Development Partners, LLC, a Michigan limited liability company, Christman Capital Investment Group, LLC, Manager, • By: PanagFer ash Its: STATEOF MICHIGAN ) ) SS COUNTY OF INGHAM ) On thi day o 008, James M. Cash appeared before me and signed as Manager of Christman Capital Investment Group, LLC, Manager of Phoenix Development Partners, LLC, a Michigan limited liability company. "If Drafted By And When Recorded Return To: Robin R. Sorrells Utility Services Board of Water and Light n n 1:1— 11nm • 0 0 EXHIBIT A (EASEMENT AREA NO I. (CHILLED WATER LINES AND STEAM SERVICE LINE) Attached please see Exhibit A north side of parking ramp Legend Electric Facility Easement Area Water and Chilled Water Facility Ease. Area O O 0 p All Utility Facility Easement Area i N J 4— n O ti rn U O W Cleo C7Ao C101NC. ` ..,. C,o,So— _ — o 'M ui O Lo N. Grand cc co Avenue W E Parking E Ramp Q 4— O ..O Cn Cn I0 O Easement No. 3301-16-2 30 E. Ottawa St. Radisson Hotel S.W. Corner of Block 98-_ LUM, r4 Q NORTH SCALE: 1" = 60' 0 30' 60' 90' 120' Ease. #2 P.O.B. —(Pt. "A") `,'t," `' Ease. #2 77777 P.O.E. Block 98, O.PAof Lansing Ottawa Station • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • ............ ............ ............ ............ Wentworth Park Ease entArealNo. 4 Block 99, O.P. of Lansing (RESTORATION/REPLACEMENT STANDARDS) 0 1. Grass: sod on minimum 6 inch top soil base above compacted existing material. 0, 2. Sidewalk: 4 inch concrete sidewalk (broom finish) on top of 4 inch sand base and compacted existing material. 3. Asphalt at Service Drive: 4 inch bituminous pavement (2 inch HMA-13A and 2 inch HMA-3C) on top of Unch gravel base (22A) with 12 inch sand sub base. 4. Concrete/Clay Pavers at Ottawa Street: 4 inch thick pavers on 4 inch sand base with Geotextile fabric liner and 12 inch gravel sub base (21A). 5. Concrete/Clay Pavers at Front Entry: 4 inch thick pavers on 4 inch sand base with Geotextile fabric liner and 6 inch gravel sub base (21A). Attached please see Exhibit B t • EASEMENT GRANT FOR CHILLED WATER LINES AND STEAM SERVICE LINES FACILITY DISTRIBUTION Phoenix Development Partners, LLC, 208 North Capitol Avenue, Lansing, Michigan 48933-1357. Phoenix Development Partners, LLC, Grantor, inconsideration of One and no/100------Dollar ($1.00) to it paid by the City of Lansing by its BOARD OF WATER AND LIGHT„a Municipal Corporation, P. O.-Box 13007, Lansing, Michigan, 48901, Grantee, receipt of which is hereby acknowledged, grants to the City of Lansing by its Board of Water and Light, its successors and assigns, forever, the easement and right to lay, bury and maintain pipes, facilities, vaults, valves and other fixtures and appurtenances for the purpose of distributing chilled water and steam, for Board of Water and Light's use only, on, over, under and across the following described parcel of land, including all public highways upon or adjacent to said parcel of land, which parcel situated in the City of Lansing, County of Ingham and State of Michigan, to -wit: PROPERTY DESCRIPTION: 312 North Grand Avenue, Ottawa Station Parcel 1: Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89059'00"E 527.87 feet; thence N00001'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00°01'45"W 7.02 feet to the point of beginning of the following described parcel; thence N00°O1'•45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897).on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50°05' 10"E 157.52 feet; thence N00029'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89°58'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89058'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45°00'36"E, 56.87 feet; 2) S07°00'06"E, 173.32 feet; 3) S17021'34"E, 75.69 feet; 4) S01008' 14"E, 327.42 feet; 5) S 17"17'09"W, 167.17 feet; 6) S 18°04' 11 "W, 24.53 feet to a building line; thence along said building line the following five (5) courses; 1) S74014'59"E, 16.75 feet; 2) S15051'22"W, 63.24 feet; 3) N89047'17"W, 11.09 feet; 4) S00°12'43"W, 14.88 feet; 5) N89°53'37"W, 30.79 feet; thence S23001'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89031' 14"W, 178.68 feet along said curb line to the point of beginning. Said parcel are subject to all easements and restriction of record if any. Grantor warrants that it has good and marketable title to the parcel as legally described above. EASEMENT DESCRIPTION: (Easement Area No. 1 (Chilled Water Lines and Steam Service Line) An area 20 feet in width centered on the following described centerline: Beginning on the north side of the vacated E. Ottawa Street at a point that is 61 ft. easterly of the S.W. corner of Block 98, Original Plat -of Lansing; thence North 21.6 feet; thence N 331 W 8.7 feet; thence N 01 *05' E 174.4 feet; thence North 42.45 feet; thence N 02137' W 32.7 feet to Point "A"; thence continuing N 02137' W 45.5 feet; thence N 00106' W 98.25 feet; thence'westerly 56 feet, more or less, to a point on the east line of N. Grand Avenue that is 15 feet to the south of the centerline of vacated E. Ionia Street, and the Point of Ending of this centerline description. *See drawing "Exhibit A". Page 1 of 6 Pages 3301-16-2030 • EASEMENT GRANT FOR CHILLED WATER LINES AND STEAM SERVICE LINES FACILITY DISTRIBUTION With full right and authority to Grantee, its successors, licensees, lessees or assigns, and its and their agents and employees, to enter at all times upon said premises for the purpose of constructing, repairing,'removing, replacing, patrolling, improving, enlarging and maintaining such pipes, appurtenances, conduits and other supports with all . necessary manholes and vaults, for the distribution of chilled water and steam service lines, and to trim, remove or otherwise control any trees, brush, and landscaping which may, in the opinion of the Grantee, interfere or threaten to interfere with or be hazardous to the construction, operation and maintenance of chilled water amd steam lines. Future Improvements: Grantee, licensees, lessee or assigns, their agents, and employees may exercise -the permitted activities described above. If access thereto results in any undue damage or destruction of any existing or future surface improvements the Grantee shall restore or replace the affected surface area pursuant to the applicable standards attached as Exhibit B and at no more than an amount that shall take into consideration depreciation of generally over 15 years. Any replacement or restoration of the above mention surface area after 15 years shall be subject to a review and approval by the City of Lansing's Board of Water and Light, which approval shall not be unreasonably withheld, conditioned or delayed. Also it is expressly understood that no landscape grade change will be made and no buildings or other structures will be placed upon the above -described' easement without the written consent of the Grantee. It is expressly understood that non-use or a limited use of this easement by Grantee shall not prevent Grantee from later making use of the easement to the full extent herein authorized. To the extent permitted by law, the parties shall indemnify and hold each other harmless from any damages arising from or incident to.their action or inaction concerning the Easement Area. Witness the hand and seal of the party of the first part, this 30th day of September 2008. • ned, Sealed and Delivered: Phoe ' Development Partners, LLC, a Michigan limited'liability company, Christman Capital Investment Gro By: Steven F. Roznow ci • Its: Manager STATE OF Michigan) COUNTY OF Ingham) On this 30th day of September, 2008, Steven F. Capital Investment Group, LLC, Manager o�M -Drafted By: Robin R. Sorrells System Integrity and Customer Projects Board of Water and Light Bldg. B 2nd. Fl P. O. Box.I3007 Lansing, Michigan 48901 before me and signed as Manager of Christman artners, LLC, a Michigari limited liability company. ,Notary Public ounty, Michigan My Commission Expire . Acting in the County of Ingham Page 2 of 6 Pages 3301-16-2030 • is Witness the hand and seal of the party of the first part, this )th day of r 2008. Signed, Sealed and Delivered: Phoenix Development Partners, LLC, a Michigan limited liability company, Christman Capital Investment Group, LLC, Manager, By: a s M. Cash Its: anager STATE OF MICHIGAN ) ) SS COUNTY OF INGHAM ) On thiM day 01�008, James M. Cash appeared before me and signed as Manager of Christrnan Capital Investment Group, LLC, Manager of Phoenix Development Partners, LLC, a Michigan limited liability company. Drafted By And When Recorded Return To: Robin R. Sorrells Utility Services Board of Water and Light P. O. Box 13007 Bldg. B Vd. fi Lansing, Michigan 48901 E-'2C'ty' g in gh ountyM' hig��/� My Commission Expires: • • n U EX MT A (EASEMENT ARRFA NO 1-(CHILLED WATER LINES AND STEAMS RVICELINE) Attached please see Exhibit A Page 3 of 6 Pages 3301-16-2030 E. Ionia St. • norm side of parking ramp Legend Electric Facility Easement Area Water and Chilled Water Facility Ease. Area O ° O ° O All Utility Facility Easement Area N C CU J O a; 0 r; rn Y U 0 1 r� C7e0 Me CN a010.. 0- O C7 / 0 to a � N. Grand Avenue W `n Parking Ramp, to O Easement No. S.W. '0 to O -164 r of 89'09 Vacated E. Ionia St. Easement No. 3301-16-2030 NORTH SCALE: 1" = 60' 0 30' 60, 90' 120' Ease. #2 P.O.&. (Pt. W) Block 98, O.P/dof Lansing rL �> Ottawa Station 0 n LOOOOO.O. ds®.$.°o° ° °o 0 0 0°0°°°0 0000000000 0 0 0 0 0 000000. o N 0 0 0 0 0 0 0 0 0 0000000000000 0 > 00 °0°000°0 0 E. Ottawa St. Q OQO°o°O°O°o°o°00 °0�°000000000000 !✓ o°0000o°o°°000000 00 0 0 0 0 Radisson Hotel Z Wentworth Park Ease entAreallo.4 Block 99, O.P. of Lansing h:trmvvNoreslphllproJectsbtta"laafdent hmd davacpmenneNler plant W04%easamenta4evisad 9-28-08- 3301-10-2030.dn BOARD OF WATER & LIGHT EASEMENT DRAWING • GRANTOR: Phoenix Development Partners, LLC LOCATION: On the N.E. 1/4 of Section 16, T. 4 N. R. 2 W. City of Lansing Ingham County, Michlgan DRAWN BY: M. Witalec CHECKED: APPROVED: DATE: Rev. 9-26-08 EASEMENT NO.: 3301-16-2030 Exhibit A • E)BIBIT B (RESTORATION/REPLACEMENT STANDARDS) 1. Grass: sod on minimum 6 inch topsoil base above compacted existing material. 2. Sidewalk: 4 inch concrete sidewalk (broom finish) on top of 4 inch sand base and compacted existing material. 3. Asphalt at Service Drive: 4 inch bituminous pavement (2 inch EMA-13A and 2 inch HMA-3C) on top of 8.inch gravel base (22A) with 12 inch sand sub base. 4. Concrete/Clay Pavers at Ottawa Street: 4 inch thick pavers on 4 inch sand base with Geotextile fabric . liner and 12 inch gravel sub base (21A). 5. Concrete/Clay Pavers at Front Entry: 4 inch thick pavers on 4 inch sand base with Geotextile fabric liner and 6 inch gravel subbase (21A). Attached please see Exhibit B • • t Page 5 of 6 Pages 3301-16-2030 • 29 • 41AJ Paula oui...--•till its, IIIIIIIIIIIIIIIII�IIIIIIIIIII'II'II�IIIIIIII EASEMENT GRANT FOR WATERMAIN FACILITY DISTRIBUTION Phoenix Development Partners, LLC, 208 North Capitol Avenue, Lansing, Michigan 48933-1357 Phoenix Development Partners, LLC, Grantor, in consideration of One and no/100-------Dollar ($1.00) to it paid by the City of Lansing by its BOARD OF WATER AND LIGHT, a Municipal Corporation, P. 0. Box 13007, Lansing, Michigan, 48901, Grantee, receipt of which is hereby acknowledged,'grants to the City of Lansing by its Board of Water and Light, its successors and assigns, forever, the easement and right to lay, bury and maintain pipes, facilities, hydrants, and other fixtures and appurtenances for the purpose of distributing water, for Board of Water and Light's use only, on, over, under and across the following described parcel of land, including all public highways upon or adjacent to said parcel of land, which parcel situated in the City of Lansing, County of Ingham and State of Michigan, to -wit: o C.q PROPERTY DESCRIPTION: 312 North Grand Avenue, Ottawa Station M -.- �:z M` _ Parcel 1: Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, 1 �, ,-c Michigan; thence along the East-West 1/4 section line of Section 16 N89°59'00"E 527.87 feet; thence rnoz N00001'45"W 330.00 feet to the Northwest corner of Block 99, Original Plat of the Town of Michigan, no4 i:DM City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the EaO o-< line of North Grand Avenue N00001'45"W 7.02 feet to the point of beginning of the following described ploel; *De N00°01'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50005' 10"E 157.52 feet; thence N00029'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89058'00"W 210.25 feet to the East line of North -Grand -Avenue; —thence -along said_East_streetline due_Xorth 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89058'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall tha 99 following six (6) courses: 1) S45°00'36"E, 56.87 feet; 2) S07000'06"E, 173.32 feet; 3) S17°21'34"E, 75.69" • m— O L72 feet; 4) S01008'14"E, 327.42 feet; 5) S17017'09"W, 167.17 feet; 6) S18°04'11"W, 24.53 feet to abuilding 1 ; M _ thence along said building line the following five (5) courses; 1) S74°14'59"E, 16.75 feet; 2) S15051'22"W,, n -= 63.24 feet; 3) N89047' 17"W, 11.09 feet; 4) S00012'43"W, 14.88 feet; 5) N89053'37"W, 30.79 feet; thence <CDo S23001'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89°31' 14"W,.178.61;> feet along said curb line to the point of beginning. U) Said parcel are subject to all easements and restriction of record if any. Grantor warrants that it has good and marketable title to the parcel as legally described above. O C-0; EASEMENT DESCRIPTION: (Easement Area No. 2 (Water Service Line) An area 20 feet in width centered on the following described centerline: Beginning at Point "A" as located.in the Easement Area No. 1 description recited on the Easement Grant For Chilled Water Lines and Steam Service Lines Facility Distribution dated September 30, 2008: thence S 32°E 41 feet; thence South 8 feet, more or less, to the north �k wall of the existing Ottawa Station building and the Point of Ending of this centerline description. EANhMbN 1 UKAN 1 1' UK w A 1 r, UVIP1 11V r t11.1L11 1 11 V J 1" rl 1 -- With full right and authority to Grantee, its successors, licensees, lessees or assigns, and .its and their agents and employees, to enter at all times upon said premises for the purpose of constructing, repairing, removing, replacing, oiling, improving, enlarging and maintaining such pipes, hydrants, appurtenances, conduits and other supports with 6ecessary manholes, for the distribution of water, and to trim, remove or otherwise control any trees, brush, and 1andscaping which may, in the opinion of the Grantee, interfere or threaten to interfere with or be hazardous to the construction, operation and maintenance of water facilities. Future Improvements: Grantee, licensees, lessee or assigns, their agents, and employees may exercise the permitted activities described above. If access thereto results in any undue damage or destruction of any future surface improvements, the Grantee shall restore or replace the affected surface area pursuant to the applicable standards attached as Exhibit B and at no more than an amount that shall take into consideration depreciation of generally over 15 years. Any replacement or restoration of the above mentioned surface area after 15 years shall be,subject to a review and approval by the City of Lansing's Board of Water and Light, which approval shall not be unreasonably withheld, conditioned or delayed. Also it is expressly understood that no landscape grade change will be made and no buildings or other structures will be placed upon the above -described easement without the written consent of the Grantee. It is expressly understood that non-use or a limited use of this easement by Grantee shall not prevent Grantee from later making use of the easement to the full extent herein authorized. To the extent permitted by law, the parties shall indemnify and hold each other harmless from any damages arising from or incident to their action or inaction concerning the Easement Area. Witness the hand and seal of the party of the first part, this 30th day of September, 2008. Ted, Sealed and Delivered: enix Development Partners, LLC, a Michigan limited liability company, Christman Capital Investment Group, LLC, By: Steven rtRoznowski Its: Manager (STATE OF Michigan) (COUNTY OF Ingham) On this 30°i day of September, 2008, Steven F. Capital Investment Group, LLC,-Manager of PI Drafted By: Robin R. Sorrells Utility Services Board of Water and Light appeared before me and signed as Manager of Christman anent Partners, LLC, a Michigan limited liability company ,Notary Public County, Michigan My Commission Acting in the County of Ingham Bldg. B 2°a. Fl Signed, Sealed and Delivered: Phoenix Development Partners, LLC, a Michigan limited liability company, Christman Capital Investment Group, LLC, Manager, • By: Cash Its:3aonTager STATE OF MICHIGAN ) ) SS COUNTY OF INGHAM ) On this )tti day ofSg08, James M. Cash appeared before me and signed as Manager of Christman Capital Investment Group, LLC, Manager of Phoenix Development Partners, LLC, a Michigan limited liability company. ,-71f w mo S County, MI Acting /Wimn�6WtWyVi4 In, Mhi My Commission Expires: • Drafted By And When Recorded Return To: • Robin R. Sorrells Utility Services Board of Water and Light P. O. Box 13007 Bldg. B V'. fl Lansing, Michigan 48901 EXHIBIT A (DEPICTION OF EASEMENT AREA NO 2 (WATER SERVICE LINE' Attached please see Exhibit A 0 0 north side of parking ramp 1 L- e�c-end I Electric Facility Easement Area f Water and Chilled Water Facility Ease. Area All Utility Facility Easement Area C 4— 0 n O U 0 vie C7a0 c7Ao MING. ` ctoiso— 0 c7 LLI O N. Grand a Avenue W Parking Ramp M ED ti N T to Cd 1_ �1 L 0- 4- 0 tv in U) l,3 tv Q� NORTH SCALE. 1 - 60' 0 30' 60' 90' 120' Ease. #2 P.O.B. (Pt. "A"Easement No. 3301-16-2029 ise. #2 O.E. Block 98, O.P/. jof Lansing Ottawa Station i. S.W. Corner of Block 98 ®�0� d•:�g��oo0000000 000000 O° °O O (� o'Ooo00°O°O 0 0 0 0 0 0 0 0 0 0 00000000 0 0 0 0J00 0 0 0 0 j o 000000. g o 0 0 0 Q °°°°°q°°°°°0°.0 E. Ottawa St. 00000000®6°0000000 00000000000000000 o 0 0 0 0 0 0 0 0 rrLnn V Radisson Wentworth Park Ease I Hotel z Block 99, O.P. of Lansing / Area No. 4 h:\mwwVoreslght\projects\oltawa\accident fund deveopment\chiller plant worMeasemenlskevised 9-26-06 - 3301-16-2029.dwg . „^ .-. r ' n I ', 0-% 1 1 -1- r- - A • /1 r- w A r- ► 1 -r- r % r—% A { A I 1 A 1 r1 EXmff 13 (RESTORATION/REPLACEMENT STANDARDS) • 1. Grass: sod on minimum 6 inch top soil. base above compacted existing material. 2. Sidewalk: 4 inch concrete sidewalk (broom finish) on top of 4 inch sand base and compacted existing material. 3. Asphalt at Service Drive: 4 inch bituminous pavement (2 inch HMA-13A and 2 inch HMA-3C) on top of 8 inch gravel base (22A) with 12 inch sand sub base. 4. Concrete/Clay Pavers'at Ottawa Street: 4 inch thick pavers on 4 inch sand base with Geotextile fabric liner and 12 inch gravel sub base (21A). 5. Concrete/Clay Pavers at Front Entry: 4 inch thick pavers on 4 inch sand base with Geotextile fabric liner and 6 inch'gravel sub base (21A). • Page 5 of 6 Pages 3301-16-2027 • EASEMENT GRANT FOR WATERMAIN FACILITY DISTRIBUTION Phoenix Development Partners, LLC, 208 North Capitol Avenue, Lansing, Michigan 48933-1357 Phoenix Development Partners, LLC, Grantor, in consideration of One and no/100—Dollar ($1.00) to it paid by the City of Lansing by its BOARD OF WATER AND LIGHT, a Municipal Corporation, P. O. Box 13007, Lansing, Michigan, 48901, Grantee, receipt of which is hereby acknowledged, *grants to the City of Lansing by its Board of Water and Light, its successors and assigns, forever, the easement and right'to lay, bury and maintain pipes, facilities, hydrants, and other fixtures and appurtenances for the purpose of distributing water, for Board of Water and Light's use only, on, over, under and across the following described parcel of land, including all public highways upon or adjacent to said parcel of land, which parcel situated in the City' of Lansing, County of Ingham and- State of Michigan, to -wit: PROPERTY DESCRIPTION: 312 North Grand Avenue, Ottawa Station Parcel l: Commencing at the center.post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89"59'00"E 527.87 feet; thence N00001'45"W 330.00 feet to the Northwest corner of Block 99, Original Plat of the T6wn of Michigan, now City of Lansing, as'recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00-61'45"W 7.02 feet to the point of beginning of the following described, parcel; thence N00°01'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50°05' 10"E 157.52 feet; thence N00029'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89158'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89058'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45°00'36"E, 56.87 feet; 2) S07000'06"E, 173.32 feet; 3) S17°21'34"E, 75.69 feet; 4) S01008'14"E, 327.42 feet; 5) S17*17'09"W, 167.17 feet; 6) S18004'1111W, 24.53 feet to a building line; thence along said building line the following five (5) courses; 1) S74°14'59"E, 16.75 feet; 2) S15051'22"W, 63.24 feet; 3) N89°47'17"W, 11.09 feet; 4) S00°12'43'.'W, 14.88 feet; 5) N89*53'37"W, 30.79 feet; thence S23001'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89131' 14"W,.178.68 feet along said curb line to the point of beginning. Said parcel are subject to all easements and restriction of record if any. Grantor warrants that it has good and marketable title to the parcel as legally described above. EASEMENT DESCRIPTION: (Easement Area No. 2 (Water Service Line) An area 20 feet in width centered on the following described centerline: Beginning at Point "A' as located.in the . Easement'Area No. 1 description recited on the Easement Grant For Chilled Water Lines and Steam Service Lines Facility Distribution dated September 30, 2008: thence S 32°E 41 feet; thence South 8 feet, more or less, to the north brick wall of the existing Ottawa Station building and the Point of Ending of this centerline description. . *See drawing "Exhibit A". Page 1 of 6 Pages 3301-16-2029 • 0 EASEMENT GRANT FOR WATERMAIN FACILITY INSTALLATION With full right and authority to Grantee, its successors, licensees, lessees or assigns, and its and their agents and employees, to enter at all times upon said premises for the purpose of constructing, repairing, removing, replacing, patrolling, improving, enlarging and maintaining such pipes, hydrants, appurtenances, conduits and other supports with all necessary manholes, for the distribution of water, and to trim, remove or otherwise control any trees, brush, and landscaping which may, in the opinion of the Grantee, interfere or threaten to interfere with or be hazardous to the construction, operation and maintenance of water facilities. Future Improvements: Grantee, licensees, lessee or assigns, their agents, and employees may exercise the permitted activities described above. If access thereto results in any undue damage or destruction of any future surface improvements, the Grantee shall restore or replace the affected surface area pursuant to the applicable standards attached as Exhibit B and at no more than an amount that shall take into consideration depreciation of generally over 15 years. Any replacement or restoration of the above mentioned surface area after 15 years shall be -subject to a review and approval by the City of Lansing's Board of Water and Light, which approval shall not be"unreasonably withheld, conditioned or delayed. Also it is expressly understood that no landscape grade change will be made and no buildings or other structures will be placed upon the above -described easement without the written consent of the Grantee. It is expressly understood that non-use or a limited use of this easement by Grantee shall not prevent Grantee from later making use of the easement to the full extent herein authorized. To the extent permitted by law, the parties shall indemnify and hold each other harmless from any damages arising from or incident to their action or inaction concerning the Easement Area. Witness the hand and seal of the party of the first part, this 30th day of September, 2008. Signed, Sealed and Delivered: Phoenix Development Partners, LLC, a Michigan limited liability company, Christman Capital Investment Group, LLC, By: Steven Roznowski Its: Manager (STATE OF Michigan) (COUNTY OF Ingham) On this 30th day of September, 2008, Steven F Capital Investment Group, LLC, Manager of P Drafted By: Robin R. Sorrells Utility Services Board of Water and Light Bldg. B 2". Fl • a si Box 13007 Michigan Lansing, Michigan 48901 appeared before me and signed as Manager of Christman *Vent Partners, LLC, a Michigan limited liability company. , Notary Public My Commission Acting in the County of Ingham , Michigan Page 2 of 6 Pages 3301-16-2029 Witness the hand and seal of the party of the fast part, thia)ffi day off' 2008. • Signed, Sealed and Delivered: Phoenix Development Partners, LLC, a Michigan limited liability company, Christman Capital Investment Group, LLC, Manager, By: 14 es M. Cash _ Its (_,Manager STATE OF MICHIGAN ) ) SS COUNTY OF INGHAM ) On thi day ofSRjrjgMbQ08, James M. Cash appeared before me and signed as Manager of Christman Capital Investment Group, LLC, Manager of Phoenix Development Partners, LLC, a Michigan limited liability company. it A A E Drafted By And When Recorded Return To: Robin R. Sorrells Utility Services Board of Water and Light P. O. Box 13007 Bldg. B Td. fl Lansing, Michigan 48901 0 My Commission Expires: County, MI • ' EXIMIT A (DEPICTION,OF AREA NO 2 (WATER SERVICE LINE) Attached please see Exhibit A • Page 3 of 6 Pages 3301-16-2029 • 0 E. Ionia St. Ease. #1 P.O.E. north side of parking ramp Legend Electric Facility Easement Area I .. .. Water and Chilled Water Facility Ease. Area All Utility Facility Easement Area C-o VAo C101No. clmso— N coy i C (6 J 4- 0 a O r; rn Y U O Kk E. Ottawa St. Radisson Hotel 89.09, Vacated E. Ionia St. NORTH SCALE: 1" = 60' 0 30' 60' 90' 120' Ease. #2 P.O.B. (Pt. "A'> Easement No. 3301-16-2029 Ease. #2 P.O.E. a � N. Grand ' N Avenue. W `�' E Parking CU Ramp 4_ ° a :2 Cn 0 L S.W. Corner of Block 98� Block 98, O Ottawa Station Lansing 00000000 0000060000 0 00000000 001000000 00000 0 0000000 > °0°0°0°O O°0°O°°°°00000 ° Q OOOOOOOOQOOOOOOOOOO00000 0000000OG500000000000oo0 0 0 0 0 0 0 0 0 0 0 0 0 o°o°o°o°o°o°o000 °o°O U Z Wentworth Park Ease apt Area No.4 Block 99, O.P. of Lansing h-.Uyn goresiphtlpm1sclsUAtav alWccident fund deveopmenllchiller plant worMeasementAravisad 9.2"8.3301-118-2029.cin BOARD OF WATER & LIGHT EASEMENT DRAWING GRANTOR: rnoenix uevelopmen( vartners, u-u LOCATION: On the N E •1/4 of Section 16 T. 4 N. R. 2 W. City of Lansing, Ingham County, Michigan DRAWN BY: M. Witalec CHECKED: APPROVED: DATE: Rev. 9-26-08 EASEMENT NO.: 3301-16-2029 Exhibit A • E1Qi<llsrr s (RESTORATION/REPLACEMENT STANDARDS) 1. Grass: sod on minimum 6 inch top soil. base above compacted existing material. 2. Sidewalk: 4 inch concrete sidewalk (broom finish) on top of 4 inch sand base and compacted existing material. 3. Asphalt at Service Drive: 4 inch bituminous pavement (2 inch HMA-13A and 2 inch HMA-3C) on top of 8 inch gravol base (22A) with 12 inch sand sub base. 4. Concrete/Clay Pavcm*at Ottawa Street: 4 inch thick pavers on 4 inch sand base with Geotextile fabric liner and 12 inch gravel sub base (21A). 5. Concrete/Clay Pavers at Front Entry: 4 inch thick pavers on 4 inch sand base with Geotextile fabric liner and 6 inchgravel sub base (21A). • Page 5 of 6 Pages 3301-16-2027 0 • 30 • 0 .N en N Z o Lit [-i- o L xi Y zw EASEMENT GRANT - FOR ELECTRICAL UNDERGROUND DISTRIBUTION Phoenix Development Partners, LLC, 208 North Capitol Avenue, Lansing, Michigan 48933-1357 Phoenix Development Partners, LLC, Grantor, in consideration of One and no/l 00------------- Dollar ($1.00) to it paid by the City of Lansing by its BOARD OF WATER AND LIGHT, a Municipal Corporation, P.O. Box 13007, Lansing, Michigan 48901, Grantee, receipt of which is hereby acknowledged, grants to the City of Lansing by it Board of Water and Light, its successors and assigns, forever, the easement and right to lay, bury and maintain wires, electrical facilities, conduits, and other fixtures and appurtenances for the purpose of transmitting electricity and/or conducting a. communication business on, under and across the following described parcel of land, including all public highways upon or adjacent to said parcel of land, which parcel situated in the City of Lansing, County of ingharn and State of Michigan, to -wit: PROPERTY DESCRIPTION: 312 North Grand Avenue, Ottawa Station � Parcel 1; Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham Co>ty7�;,�? Michigan; thence along the East-West 1/4 section line of Section 16 N89°59'00"E 527.87 feet; thenct N00001'45"W 330.00 feet to the Northwest coiner of Block 99, original plat of the Town of Michigan, n'w 'ty of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing alongAe� e of North Grand Avenue N00001'45"W 7.02 feet to the point of beginning of the following descgbed p&i8V_l; thence N00°01'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerlilp of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50°05"l0"E 157.521eet; thence N00029'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89°58'00"W 210.25 feet to the East line of —Norlh-Grand Avenue; thence -along said East street-line-due-N.Ordi-296.1_4-feet to_a-found cut cross in tl?e concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wal"ie following six (6) courses: 1) S45°00'36"E, 56.87 feet; 2) S07°00'06"E, 173.32 feet; 3) S1702113411E, 75.al feet; 4) S01008'14"E, 327.42 feet; 5) S17017'09"W, 167.17 feet; 6) S18004'11"W, 24.53 feet to abuildin�,'I"p rn thence along said building line the following five (5) courses; 1) S74014'59"E, 16.75 feet; 2) S15°51'22"11 ,L c 63.24 feet; 3) N89°47'17"W, 11.09 feet; 4) S00012'43"W, 14.88 feet; 5) N89653'37"W, 30.79 feet; thena�p r• o S23001'48"W, 82.99 feetto the Southerly curb line of Ottawa Street (vacated); thence N89°31'14"W, 1783�8 oz feet along said curb line to the point of beginning.. o� Said parcel are subject to. all easements and restriction of record if any. Grantor warrants that it has good and marketable title to the parcel as legally described above. EASEMENT DESCRIPTION: (Easement Area No 3 (Electric Duct Line and Electric Manholes) On area 20 feet in width centered on the following described centerline: Beginning on the north side of the vacated E. Ottawa Street at a point that is 70.5 ft. easterly of the S.W. corner of Block 98, Original Plat of Lansing; thence N 01° 1 V E 73 ft., more or less, to Lansing BWL Electric Vault C5; thence N 00°22' E- 156 ft., more or less, to Lansing BWL . Electric Vault C43; thence N 87°43' W 73 ft., more or less, through the center of Lansing BWL Electric Vault C268 and to the east line of N. Grand Avenue and the Point of Ending of this centerline description (said Point of Ending being 232 ft. northerly of the of the S.W. corner of Block 98, Original Plat of Lansing), except that part of this described 20 ft. wide EASEMENT GRANT - FOR ELECTRICAL UNDtRGROUND DISTRIBUTION Wloh full right and authority to the Grantee, its successors, licensees, lessees or assigns, and its and their agents and yees, to enter and exit at all times upon said premises for the purpose of accessing, constructing, repairing, removing, replacing, patrolling, improving, enlarging and maintaining such electrical facilities, wires, cables, conduits, and supports with all necessary, manholes, transformers, pedestals, cable and switching devices, or other conductors for the transmission of electrical energy and/or communication, and to trim, remove or otherwise control any trees, brush or other landscaping which may, in the opinion of Grantee, interfere or threaten to interfere with or be hazardous to -the construction, operation and maintenance of these electrical lines, and other appurtenances. Future Improvements: Grantee, licensees, lessee or assigns, their agents, and employees may exercise the permitted activities described above. If access thereto results in any undue damage or destruction of any existing or future surface improvements the Grantee shall restore or replace the affected surface area pursuant to the applicable standards attached as Exhibit B and at no more than an amount that shall take into consideration depreciation of generally over 15 years. Any replacement or restoration of the above mention surface area after 15 years shall be subject to a review and approval by the City of Lansing's Board of Water and Light, which approval shall not be unreasonably withheld, conditioned or delayed. Also it is expressly understood that no landscape grade change will be made and no buildings or other structures will be placed upon the above -described easement without the written consent of Grantee. It is expressly understood that non- use or a limited use of this easement by Grantee shall not prevent Grantee from later malting use of the easement to the full extent herein authorized. To the extent permitted by law, the parties shall indemnify and hold each other harmless from any damages arising from or incident to their action or inaction concerning the Easement Area. Witness the hand and seal of the party of the first part, this 30th day of September, 2008. , Sealed and Delivered: Development Partners, LLC, a Michigan limited liability company, Christman Capital Investment By: Steven F. Its: Manager (STATE OF Michigan) COUNTY OF Ingham) On this 30th day of September, 2008, Steven F Capital Investment Group, LLC, Manager of Pl • appeared before me and signed as Manager of Christman oment Partners, LLC, a Michigan limited liability company , Notary Public County, Michigan My Commission Drafted By: Robin R. Sorrells System Integrity and Customer Projects Acting in the County of Ingham Signed, Sealed and Delivered: Phoenix Development Partners, LLC, a Michigan limited liability company, Christman Capital Investment Group, LLC, Manager, By: M. Cash Its: anager STATE OF MICHIGAN ) ) SS COUNTY OF INGHAM ) On thi8h day o)4(2008, James M. Cash appeared before me and signed as Manager of Christman Capital Investment Group, LLC, Manager of Phoenix Development Partners, LLC, a Michigan limited liability company. My Commission Expires: Drafted By And When Recorded Return To: • Robin R. Sorrells Utility Services Board of Water and Light P. O. Box 13007 Bldg. B 2°d. fl Lansing, Michigan 48901 EXHIBIT A. • (EASEMENT AREA NO.3 - ELECTRIC DUCT LINE AND ELECTRIC MANIIOLES) Attached please see Exhibit A 0 north side of parking ramp Electric Facility Easement Area Water and Chilled Water Facility Ease. Area p rJ O U All Utility Facility Easement Area Ma Vno l� C1011J0. ` � „jJ, U) co7 .• C � LLI o to •I-- O o- '0 t` CV N. Grand p o Avenue W to Parking Ramp MO W E . Ottawa St. Radisson Hotel a c-0 CU 0 0 S.W. Corner of Block 98�, u OVA 10 N O N T 0 m m 0 Z c E �i m W Ease. #2 P.O.B. (Pt. "A") ase. #2 .O.E. NORTH SCALE: 1" = 60' 0 30' 60' 90' 120' Block 98, O.P/jof Lansing M I Easement No. 3301-16-2028 .�, (i�• 1Z • r.: f :; C 7 O....... :•:1:; U) cs Ottawa Station :• • � • tt► • ID :# sir. l'r • i) • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • Wentworth Park �Easer onl Areal No. 4 Block 99, O.P. of Lansing / h:lmww%foresighllprojectslollawa\accident fund deveopmentichiller plant worMeasementslrevised 9-26-08 - 3301-16-2026.dwg EXHIBIT B • (RESTORATION/REPLACEMENT STANDARDS) 1. Grass: sod on minimum 6 inch top soil base above compacted existing material. 2. Sidewalk: 4 inch concrete sidewalk (broom finish) on top of 4 inch sand base and compacted existing material. 3. Asphalt at Service Drive: 4 inch bituminous pavement (2 inch HMA-13A and 2 inch HMA-3C) on top of 8 inch gravel base (22A) with 12 inch sand sub base. 4. Concrete/Clay Pavers at Ottawa Street: 4 inch thick pavers on 4 inch sand base with Geotextile fabric liner and 12 inch gravel sub base (21A). 5. Concrete/Clay Pavers at Front Entry: 4 inch thick pavers on 4 inch sand base with Geotextile fabric liner and 6 inch gravel sub base (21 A). Page 5 of 6 Pagcs 3301-16-2028 • EASEMENT GRANT -FOR ELECTRICAL UNDERGROUND DISTRIBUTION Phoenix Development Partners, LLC, 208 North Capitol Avenue, Lansing, Michigan 48933-1357 Phoenix Development Partners, LLC, Grantor, in consideration of One and no/100---- Dollar ($1.00 to it paid by the City of Lansing by its BOARD OF WATER AND LIGHT, a Municipal Corporation, P.O. Box 13007, Lansing, Michigan 48901', Grantee, receipt of which is hereby acknowledged, grants to the City of Lansing by it Board of Water and Light, its successors and assigns, forever, the easement and right to lay, bury and maintain wires, electrical facilities, conduits; and other fixtures and appurtenances for the purpose of transmitting electricity and/or conducting a, communication business on, under and across the following described parcel of land, including all public highways upon or adjacent to said parcel of land, which parcel situated in the City of Lansing, County of Ingham and State of Michigan, to -wit: PROPERTY DESCRIPTION: 312 North Grand Avenue, Ottawa Station Parcel 1; Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89°59'00"E 527.87 feet; thence N00001'45"W 330.00 feet to the Northwest comer of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00001'45"W 7.02 feet to the point of beginning of the following described parcel; thence N00°01'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50°05 "I VE 157.52 feet; thence ' N00°29'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89°58'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89-58'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45*00'36"E, 56.87 feet; 2) S07°00'06"E, 173.32 feet; 3) S17121'34"E, 75.69 feet; 4) S01*08' 14"E, 327.42 feet; 5) S 17*17'09"W, 167.17 feet; 6) S 18°04' 11"W, 24.53 feet to a building line; thence along said building line the following five (5) courses; 1) S74°14'59"E, 16.75 feet; 2) S15151'22"W, 63.24 feet; 3) N89°47'17"W, 11.09 feet; 4) S00°12'43"W, 14.88 feet; 5) N89°53'37"W, 30.79 feet; thence S23'01'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89°31'14"W, 178.68 feet along said curb line to the point of beginning.. Said parcel are subject to. all easements and restriction of record if any. Grantor warrants that it has good and marketable title to the parcel as legally described above. EASEMENT DESCRIPTION: (Easement Area No. 3 (Electric Duct Line and Electric Manholes) An area 20 feet in width centered on the following described centerline: Beginning on the north side of the vacated E. Ottawa Street at a point that is 70.5 ft. easterly of the S.W. comer of Block 98, Original Plat of Lansing; thence N 0101 V E 73 ft.,'more or less, to Lansing BWL Electric Vault C5; thence N 00°22' E 156 ft., more or less, to Lansing BWL Electric Vault C43; thence N 87*43' W 73 ft., more or less, through the center of Lansing BWL Electric Vault C268 and to the east line of N. GrandAvenue and the Point of Ending of this centerline description (said Point of Ending being 232 ft. northerly of the bf the S.W. corner of Block 98, Original Plat of Lansing), except that part of this described 20 ft. wide area that is within the existing Ottawa Station;building. • *See drawing "Exhibit A". Pagel of 6 Pages 3301-16-2028 EASEMENT GRANT - FOR ELECTRICAL UNDERGROUND DISTRIBUTION With full right and authority to the Grantee, its successors, licensees, lessees or assigns, and its and their agents and employees, to enter and exit at all times upon said premises for the purpose of accessing, constructing, repairing, . removing, replacing, patrolling, improving, enlarging and maintaining such electrical facilities, wires, cables, conduits, and supports with all necessary, manholes, transformers, pedestals, cable and switching devices, or other conductors for the transmission of electrical energy and/or communication, and to trim, remove or otherwise control any trees, brush or other landscaping which may, in the opinion of Grantee, interfere or threaten to interfere with or be hazardous to -the construction, operation and maintenance of these electrical lines, and other appurtenances. Future Improvements: Grantee, licensees, lessee or assigns, their agents, and employees may exercise the permitted activities described above. If access thereto results in any undue damage or destruction of any existing or future surface improvements the Grantee shall restore or replace the affected surface area pursuant to the applicable standards attached as'Exhibit B and at no more than an amount that shall take into consideration depreciation of generally over 15 years. Any replacement or restoration of the above mention surface area after 15 years shall be subject to a review and approval by the City of Lansing's Board of Water and Light, which approval shall not be unreasonably withheld, conditioned or delayed. Also it is expressly understood that no landscape grade change will be made and no buildings or other structures will be placed upon the above -described easement without the written consent of Grantee. It is. expressly understood that non- use or a limited use of this easement by Grantee shall not prevent Grantee from later making use of the easement to the full extent herein authorized. To the extent permitted by law, the parties shall indemnify and hold each other harmless from any damages arising from or incident to their action or inaction concerning the Easement Area. Witness the hand and seal of the party of the first part, this 30th day of September, 2608. • ed, Sealed and Delivered: Phoe ' Development Partners, LLC, a Michigan limited liability company, Christman Capital Investment By: Steven F. Roznows ' Its: Manager (STATE OF Michigan ) COUNTY OF Ingham) On this 30th day of September, 2008, Steven F. Ro�Dee ared before me and signed as Manager of Christman Capital Investment Group, LLC, Manager of P ent Partners, LLC, a Michigan limited liability company. Notary Public ' County, Michigan My Commission Expires: Acting in the County of Ingham' Drafted By: Robin R. Sorrells System Integrity and Customer Projects Board of Water and Light P.O. Box 13007 ' • Bldg. B 2nd.'fl Lansing, Michigan 48901 Page "2 of 6 Pages 3301-16-2028 Witness the hand and seal of the party of the first part, thiU&M day oE��r 2008. • Signed, Sealed and Delivered: Phoenix Development Partners, LLC, a Michigan limited liability company, Christman Capital Investment Group, LLC, Manager, • By: M. Cash Its: anger STATE OF MICHIGAN ) ) SS COUNTY OF INGHAM ) On thit X day o (2008, James M. Cash appeared before me and signed as Manager of Christman Capital Investment Group, LLC, Manager of Phoenix Development Partners, LLC, a Michigan limited liability company. Al Drafted By And When Recorded Return To: Robin R. Sorrells Utility Services Board of Water and Light P. O. Box 13007 Bldg. B 2°d. fl Lansing, Michigan 48901 County, MI cting ' gham ounty, Michigan My Commission Expires: 3-0'��/-.3 • is • EXHIBIT A (EASEMENT AREA NO.3 - ELECTRIC DUCT LINE AND ELECTRIC MANHOLES) Attached please see Exhibit A Page 3 of 6 Pages 3301-16-2028 L is • I ' E. Ionia St. Ease. #1 P.O.E.. north side of parking ramp Legend Electric Facility Easement Area o M M j� Water and Chilled Water Facility'Ease. Area O Z • c a� p O p O All Utility Facility Easement Area N n' E. Ottawa St. Radisson Hotel C7o0 Q7AO C101N0. C101ae— C7 / N. GraAvenu EParkin2RampmN45OlD J.2 0 Vacated E:Ionia St. NORTH SCALE: 1" = 60' 0 30' 60' 90' 120' Ease.#2 P.O.B. (Pt., -A") Ease. #2 P.O.E. Block 98, O.P�of Lansing Easement No. 3301-16-2028 Ottawa Station S.W. Comer of :::• ; (: Block 98 % X 100 �� od0 0@®.g.®0o0000000 0000,00 00000000000000000N GO00.o0 0000000000000000000000 0000000.000000000000000000000�000000000 0 0 0 F3 0 0 0 0 0 0 00000000000000000000000 00 0 0 0 0 0 0. (D / z Wentworth Park Ease . Block 99, O.P. of Lansing �� 4 h:VmwMoresiphtlDmI etsWawalaecidentfand daveopmenikhiller plant workleasements1rov1sod 9.26-08- 3301.16.2028.dwy BOARD OF WATER & LIGHT EASEMENT DRAWING • GRANTOR: Phoenix Development Partners, LLC LOCATION: On the N.E. 1/4 of Section 16, T. 4 N. R. 2 W. City of Lansing Ingham County, Michigan DRAWN BY: M. Witalec CHECKED: APPROVED: DATE: Rev. 9-26-08 EASEMENT NO.: 3301-16-2028 Exhibit A • EXHIBIT B (RESTORATION/REPLACEMENT STANDARDS) 1. Grass: sod on minimum 6 inch top soil base above compacted existing material. 2. Sidewalk: 4 inch concrete sidewalk (broom finish) on top of 4 inch sand base and compacted existing material. 3. Asphalt at Service Drive: 4 inch bituminous pavement (2 inch HMA-13A and 2 inch HMA-3C) ontop of 8 inch gravel base (22A) with 12 inch sand sub base. 4. Concrete/Clay Pavers at Ottawa Street: 4 inch thick pavers on 4 inch sand base with Geotextile fabric liner and 12 inch gravel subbase (2)A). 5. Conorete/Clay Pavers at Front Entry: 4 inch thick pavers on 4 inch sand base with Geotextile fabric liner and 6 inch gravel sub base (21 A). is Page 5 of 6 Pages 3301-16-2028 0 • 31 • • .t y~ B: 3321 P: 1229 10/09/2008 09:41 AM Pages: 6 2009-039466 MISCELLANEOUS Raoalpt N47309 - Paula Johnson,.Inaham County, Mlohlpan- • V °� v IIII�I�UIIIIIIIIIIIIIIIIIIIII�IIIIIIUIIIIIIIIIIIIIIIIIIIIIIIIulllllllllllli A >- 4,- ,..- _ �NT O . Z� GERAL ALL UTILITIES EASEMENT GRANT FOR ALL BOARD OF WATER & LIGHT FACILITY DISTRIBUTION Phoenix Development Partners, LLC, 208 North Capitol Avenue Lansing, Michigan 48933-1357 Phoenix Development Partners, LLC, Grantor, in consideration of One and no/100------Dollar ($1.00) to it paid by the City of Lansing by its BOARD OF WATER AND LIGHT, a Municipal Corporation, P. O. Box 13007, Lansing, Michigan, 48901, Grantee, receipt of which is hereby acknowledged, grants to the City. of Lansing by its Board of Water and Light, its successors and assigns, forever, the easement and right to erect, lay, bury and maintain wires, electrical facilities, poles, conduits, pipes, water facilities, hydrants, chilled water and steam facilities, vaults, manholes and other fixtures and appurtenances for thv purpose of transmitting water, electricity, steam, chilled water and/or conducting a communication business on, over, under.and across the following described parcel of land, including all public highways upon or adjacent to said parcel of land, which parcel situated in the City of Lansing, County of Ingham and State of Michigan, to -wit: PROPERTY DESCRIPTION: 312 North Grand Avenue, Ottawa Station o 0 Parcel 1: Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham Count; ; P—= Michigan; thence along the East-West 1/4 section line of Section 16 N89°59'00"E 527.87 feet; thence l' l rn �_ N00001'45"W 330.00 feet to the Northwest comer of Block 99, original plat of the. Town of Michigan,�wrn�� • City of Lansing, as recorded in Liber 2, Pages 36-38, •Ingham County Plats; thence continuing along the as line of North Grand Avenue NOO*01'45"W 7.02 feet to the point of beginning of the following describ pa thence N00°01'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline o vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50°05' 10"E 157.52 fee ence N00029'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the.centerline of the party wall N89058'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89058'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45000'36"E, 56.87 feet; 2) S07000'06"E, 173.32 feet; 3) S17°21'34"E, 7.69 feet; 4) SOl°08' 14"E, 327.42 feet; 5) S17°17'09"W, 167.17 feet; 6) S18004'11"W, 24.53 feet to a building lirnl E thence along said building line the following five'(5) courses; 1) S74014'59"E, 16.75 feet; 2) S1'5'51'29'Ni 1 ( nrn> 63.24 feet; 3) N89O 47f 17» W,11.09 feet; 4) S00O 12f 43» W,14.88 feet; 5) N890 53 37» W, 30.79 feet; t1w ce«,:v- S23001'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89°31' 14"W,78.6R2 feet along said curb line to the point of beginning. �o Said parcel are subject to all easements and restriction of record if any. ' w 'Grantor warrants that it has good and marketable title to the parcel as legally described above. EASEMENT DESCRIPTION: (Easement Area No 4 (all utilities: water, steam, electric, chilled water,) _ That part of the former E. Ottawa Street (now vacated) on the PROPERTY described above that is bounded on the west by the east line of N. Grand Avenue and on the east by the Grand River. • *See drawing "Exhibit,4 Pagel of 6 Pages 3301-16-2027 • GENERAL ALL UTILITIES EASEMENT GRANT FOR ALL BOARD OF WATER & LIGHT FACILITY DISTRIBUTION - With full right and authority to the Grantee, its successors, licensees, lessees or assigns, and its and their agents and employees, to enter and exit at all times upon said premises for the purpose of accessing, constructing, repairing, removing, replacing, patrolling, improving, enlarging and maintaining such electrical facilities, wires, cables, conduits, and supports- with all necessary, manholes, transformers, pedestals, cable and switching devices; or other conductors for the transmission of electrical energy and/or communication, and to trim, and also for the purpose of accessing, constructing, repairing, removing, replacing, patrolling, improving, enlarging and maintaining such pipes, vaults, valves, hydrants, appurtenances, conduits and other supports with all necessary manholes, for the distribution of water, chilled water and steam, and to trim remove or otherwise control any trees, brush or other landscaping which may, in the opinion of Grantee, interfere or threaten to interfere with or be hazardous to the construction, operation and maintenance of these lines, and other appurtenances. Future Improvements: Grantee; licensees, lessee or assigns, their agents, and employees may exercise the permitted activities described above. If access thereto results in any undue damage or destruction of any existing or future surface improvements the Grantee shall restore or replace the affected surface area pursuant to the applicable standards attached as Exhibit B and at no more than an amount that shall take into consideration depreciation of generally over 15 years. Any replacement or restoration of the above mention surface area after 15 years shall be subject to.a review and approval by the City of Lansing's Board of Water and Light, which approval shall not be unreasonably withheld, conditioned or delayed. Also it is expressly understood that no landscape grade change will be made and no buildings or other structures will be placed upon the above -described easement without the written consent of Grantee. It is expressly understood that non- use or a limited use of this easement by Grantee shall not prevent Grantee from later making use of the easement to the full extent herein authorized. To the extent permitted by law, the parties shall indemnify and hold each other harmless from any damages arising from or incident to their action or inaction concerning the Easement Area. • Witness the hand and seal of the party of the first part, this 30th day of September, 2008. igned, Sealed and Delivered Ph ix Development Partners, LLC, a Michigan limited liability company, Christman Capital Investment Or LC, By: Steven F. Rozn ski: Its: Manager (STATE OF Michigan), (COUNTY OF Ingham) On this 30th day of September,- 2008, St en F. Roznowski ap ed before me and signed as Manager of Christman Capital Investment Group, LLC, M ger of Phoenix Developmen artners, LLC, a Michigan limited liability company. ,omi Drafted By: Robin R. Sorrells Utility Services • Board of Water and Light P. O. Box 13007 Bldg. B 2°d. fl Lansing, Michigan 48901 Notary Public ounty, Michigan• My'Commission Expires: Acting in Ingham County. Page 2 of 6 Pages 3301-16-2027 Witness the hand and seal of the party of the fast part, thwolh day of 52� 2008. Signed, Sealed and Delivered: Phoenix Development Partners, LLC, a Michigan limited liability company, Christman Capital Investment Group, LLC, Manager, By: s M. Cash Its: anger STATE OF MICHIGAN ) ) SS COUNTY OF INGHAM ) On thisbtli day cj;QQkffljg6008, James M. Cash appeared before me and signed as Manager of Christman Capital Investment Group, LLC, Manager of Phoenix Development Partners, LLC, a Michigan limited liability company. • Drafted By And When Recorded Return To: Robin R. Sorrells Utility Services Board of Water and Light P. O. Box 13007 Bldg. B 2°d. fl Lansing, Michigan 48901 0 13 N�noS ub County, MI Acting m gham ounty, Michigan My Commission Expires: 3 —ram Ld �3 • EXHIBIT A (EAS M NT AREA NO 4 (ALL UTUTIES• WATER STEAM ELECTRIC CHILLED WATER) Attached please see Exhibit A • Page 3 of 6 Pages 3301-16-2027 • E. Ionia St. Ease. #1 P.O.E.- north side of Parking ramp Legend Electric Facility Easement Area Water and Chilled Water Facility Ease. Area O O O O O All Utility Fatality Easement Area m E. Ottawa St. Radisson Hotel . c7eo CIAO C101NC0. ` ctmso—. 0 c7 i � FN. Grand N ca Avenue W Parking Ramp -0 . �0 O OL S.W. Comer of Block 98,_ N Q -a C: 2 Pi 89.09, Vacated E. Ionia. St. LQ, NORTH SCALE: 1" = 60' . 0 30' 60' 99 120, Ease. #2 P.O.B. (Pt' "A") ase. #2 .O.E. . Block 98, .O.P/.Jof Lansing ' o` CL Ottawa Station to in jF cs CU •:': f:' i •: • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • ............ ............. ............ Wentworth Park Block 99, O.P. of Lansing Easement No. 3301-16-2027 Area No. 4 h.Vn w/doreslghtlpmjwtabttewnleccldent fund devoopmentkhller plant worMeasementslrevlsed 0-26-M-=1.1&2027.dwp BOARD OF WATER & LIGHT EASEMENT DRAWING • GRANTOR: Phoenix Development Partners, LLC LOCATION: On the N E 114 of Section 16 T. 4 N R. 2 W City of Lansing Ingham County, Michigan DRAWN BY: M. Witalec CHECKED: APPROVED: DATE: Rev. 9-26-08 EASEMENT NO.: 3301-16-2027 Exhibit A • • EXHIBIT B (RESTORATION/REPLACEMENT STANDARDS) , 1. Grass: sod on minimum 6 inch top soil base above compacted existing material. 2. Sidewalk: 4 inch concrete sidewalk (broom finish) -on top of 4 inch sand base and compacted existing . material. 3. Asphalt at Service Drive: 4-inch bituminous pavement (2 inch HMA713A and 2 inch HMA-3C) on top of 8 inch gravel basb'(22A) with 12 inch sand sub base. 4. Concrete/Clay Pavers at Ottawa Street: 4 inch thick pavers on 4 inch sand base with Geotextile fabric liner and 12 inch gravel sub base (21A). 5. Concrete%Clay Pavers at Front Entry: 4 inch thick pavers on 4 inch sand base with Geotextile fabric liner and 6 inch gravel sub base (21A). Attached please see Exhibit B Page 5 of 6 Pages 3301-16-2027 • GENERAL ALL UTILITIES EASEMENT GRANT FOR ALL BOARD OF WATER & LIGHT FACILITY DISTRIBUTION ' Phoenix Development Partners, LLC, 208 North Capitol Avenue Lansing, Michigan 48933-1357 Phoenix Development Partners, LLC, Grantor, in consideration of One and no/100-----Dollar ($1.00) to it paid by the City of Lansing by its BOARD OF WATER. AND LIGHT, a•Municipal Corporation, P. O. Box 11007, Lansing, Michigan, 48901, Grantee, receipt of which is hereby acknowledged, grants to the City of Lansing by its Board of Water and Light, its successors and assigns, forever, the easement and right to erect, lay, bury and maintain wires, electrical facilities, poles, conduits, pipes, water facilities, hydrants, chilled water and steam facilities, vaults, manholes and other fixtures and appurtenances for the -purpose of transmitting water, electricity, steam, chilled water and/or conducting a communication business on, over, under and across the following described.parcel of land, including all public highways upon or adjacent to said parcel of land, which parcel situated in the City of Lansing, County of Ingham and State of Michigan, to -wit: PROPERTY DESCRIPTION: 312 North Grand Avenue, Ottawa Station Parcel 1: Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89°59'00"E 527.87 feet; thence N00011'45"W 330.00 feet to the Northwest comer of Block 99, original plat of the Town of Michigan, now • City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00°01'45"W 7.02 feet to the point of beginning of the following described parcel; thence N00°01'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag 430897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50*05' 10"E 157.52 feet; thence N00°29'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the.centerline of the party wall N89158'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45°00'36"E, 56.87 feet; 2) S07°00'06"E, 173.32 feet; 3) S17*21'34"E, 75.69 feet; 4) S01*08' 14"E, 327.42 feet; 5) S 17*17'09"W, 167.17 feet; 6) S18*04' 1 FV, 24.53 feet to a building line; thence along said building line the following five'(5) courses; 1) S74*14'59"E, 16.75 feet; 2) SI'5*51'22"W, 63.24 feet; 3) N89°47' 17"W, 11.09 feet; 4) S000121431.W, 14.88 feet; 5) N89053'37"W, 30.79 feet; thence S23'01'48"W, 82.99 feet to the Southerly curb line of Ottawa Street. (vacated); thence N89°31' 14"W, 178.68 feet along said curb line to the point of beginning. Said parcel are subject to all easements and restriction of record if any. 'Grantor warrants that it has good and marketable title to the parcel as legally described above. EASEMENT DESCRIPTION: (Easement Area No. 4 fall utilities: water, steam, electric, chilled water.) That part of the former E. Ottawa Street (now vacated) on the PROPERTY described above that is bounded on the west by the east line of N. Grand Avenue and on the east by the Grand River. • *See drawing ' Exhibit A ". Page l of 6 Pages 3301-16-2027 • GENERAL ALL UTILITIES EASEMENT GRANT FOR ALL BOARD OF WATER & LIGHT FACILITY DISTRIBUTION With full right and authority to the Grantee, its successors, licensees, lessees or assigns, and its and their agents and employees, to enter and exit at all times upon said premises for the purpose of accessing, constructing, repairing, removing, replacing, patrolling, improving, enlarging and maintaining such electrical, facilities, wires, cables, conduits, and supports -with all necessary, manholes, transformers, pedestals, cable and switching devices, or other conductors for the transmission of electrical energy and/or communication, and to trim, and also for the purpose of accessing, constructing, repairing, removing, replacing, patrolling, improving, enlarging and maintaining such pipes, vaults, valves, hydrants, appurtenances, conduits and other supports with all necessary manholes, for the distribution of water, chilled water and steam, and to trim remove or otherwise control any trees, brush or other landscaping which may, in the opinion of Grantee, interfere or threaten to interfere with or be hazardous to the construction, operation and maintenance of these lines, and other appurtenances. Future Improvements: Grantee; licensees, lessee or assigns, their agents, and employees may exercise the permitted activities described above. If access thereto results in any undue damage or destruction of any existing or future surface improvements the Grantee shall restore or replace the affected surface area pursuant to the applicable standards attached as Exhibit B and at no more than an amount that shall take into consideration depreciation of generally over 15'years. Any replacement or restoration of the above mention surface area after 15 years shall be subject to a review and approval by the City of Lansing's Board of Water and Light, which approval shall not be unreasonably withheld, conditioned or delayed. Also it is expressly understood that no landscape grade change will be made and no buildings or other structures will be placed upon the above -described easement without the written consent of Grantee. It is expressly understood that non- use or a limited use of this easement by Grantee shall not prevent Grantee from later making use of the easement to the full extent herein authorized. ' To the extent permitted by law, the parties shall indemnify and hold each other harmless from any damages arising from or incident to their action or inaction concerning the Easement Area. is Witness the hand and seal of the party of the first part, this 30th day of September, 2008. Sealed and Delivered Development Partners, LLC, a Michigan limited liability company, Christman Capital Investment Steven F. Rozn ski: Its: Manager (STATE OF Michigan) (COUNTY OF Ingham) On this 30th day of September; 2008, Capital Investment Group, LLC, Mom Drafted By: Robin R. Sorrells Utility Services • Board of Water and Light P. O. Box 13007 Bldg. B 2nd. fl Lansing, Michigan 48901 'en F. Roznowski ap-pepred before me and signed as Manager of Christman of Phoenix Developmen artners, LLC, a Michigan limited liability company. �ounty, otary Public Michigan ' My'Commission Expires: Acting in Ingham County. Page 2 of 6 Pages 3301-16-2027 Witness the hand and seal of the party of the first part, th day of 2008. • Signed, Sealed and Delivered: Phoenix Development Partners, LLC, a Michigan limited liability company, Christman Capital Investment Group, LLC, Manager, By: s M. Cash Its: anager STATE OF MICHIGAN ) ) SS COUNTY OF INGHAM ) On this-_th day of008, James M. Cash appeared before me and signed as Manager of Christman Capital Investment Group, LLC, Manager of Phoenix Development Partners, LLC, a Michigan limited liability company. b Coganunty, MI Acting in gham unty, Michi • My Commission Expires: Drafted By And When Recorded Return To: Robin R. Sorrells Utility Services Board of Water and Light P. O. Box 13007 Bldg. B 2d. fl Lansing, Michigan 48901 is • • EXHIBIT A (EASEMENT AREA NO 4 LALL UT t ITIES• WATER STEAM ELECTRIC, CHILLED LED WATER) Attached please see Exhibit A Page 3 of 6 Pages 3301-16-2027 r �J • C� E. Ionia St. Ease. #1 P.O.E.' north side of .parking ramp Legend Electric Facility Easement Ares Water and Chilled Water Facility Ease. Area O Q ° ° ° All Utility Facility Easement Area Vacated E. Ionia St. Ease.#2 P.O.B. (Pt. "A-) LQ� NORTH SCALE: 1" = 60' 0 30' 60' 90' 120' C760 c7eo i•`:{ <}:. Ease. #2 C C101N0. c7mso ::.. .. .. •• :.•.� ::•::•... P.O.E. '' •E' CU J 41 p •i'r:•r,: :E o a ti : E Block 98, .O.F N. Grand to p Avenue CL E :•::• Parking • .; rn �c Ramp _ :•::1c,. �:: vo 0° Ottawa Station 16 3:`• ++ X. N '�:4:•Fi • i :• S.W. Comer of Block 98 "'%' e`73 deiYs ...od0 a�@®#;000000,000 N 00000000000000000 oOOOo0o0 0o0o000.0o0oOo 00000000 H0000 E. Ottawa St. > . ' ¢. 0°0°0°0°0°0°0°0° 0 O°O°o°OQ000 00000000000 _0 0000°°°008 '00000 .00000000 00000 000 C co 0 0 0000000 0 000 0°0°0°0°000°0 L Radisson Hotel Z � Wentworth Park EaseryfI Block 99, O.P. of Lansing Easement No. 3301-16-2027 7 F Lansing rea No. 4 h:4mv\vUoresigh4miectalottawalaccident fund deveopmentkhit er plant workleesamentsVevised 9.26-09 - n01-16-2027.dwg BOARD OF WATER & LIGHT EASEMENT DRAWING GRANTOR: Phoenix Development Partners, LLC LOCATION: On the N.E. 1/4 of Section 16, T. 4 N. R. 2 W City of Lansing Ingham CountyMichigan DRAWN BY: M. Witalec CHECKED: APPROVED: DATE: Rev. 9-26-08 EASEMENT NO.: 3301-16-2027 Exhibit A 0 L' EXIMIT B (RESTORATION/REPLACEMENT STANDARDS) 1. Grass: sod on minimum 6 inch top soil base above compacted existing material. 2. Sidewalk: 4 inch concrete sidewalk (broom finish) -on top of 4 inch sand base and compacted existing . material. 3. Asphalt at Service Drive: 4 inch bituminous pavement (2 inch HMA-13A and 2 inch HMA-3C) on top•of 8 inch gravel base (22A) with 12 inch sand sub base. 4, Concrete/Clay Pavers at Ottawa Street: 4 inch thick pavers on 4 inch sand base with Geotextile fabric liner and:I2 inch gravel sub base (21A). 5. Concrete/Clay Pavers at Front Entry: 4 inch thick pavers on 4 inch sand base with Geotextile fabric liner and 6 inch gravel sub base (21A). Attached please see Exhibit B Page 5 of 6 Pages 3301-16-2027 C, 32 • • Ir - , �Z6 all LICENSE AGREEMENT THIS LICENSE AGREEMENT is made this 30`h day of September, 2008 by and between the City of Lansing, a Michigan municipal corporation, the principal business address of which is 124 W. Michigan Ave., Lansing, MI 48933 ("Licensor"); and the Lansing Board of Water and Light, an administrative board and agency of the City of Lansing, the principal business address of which is 1232 Haco Drive, Lansing, MI 48912 ("Licensee"). RECITALS: This License Agreement is based on the following recitals: A. Licensor and Licensee are parties to that that certain Property Purchase and Development Agreement dated January 30, 2008 • (the "Development Agreement"). , B. Unless otherwise indicated to the contrary in this License Agreement, all capitalized terms will be understood to have the respective meanings ascribed to them in the Development Agreement. C. In connection with and subject to the terms, conditions and limits of the Development Agreement, Licensor has reviewed and approved the plans and specifications for the New Steam Facilities. D. In connection with locating, constructing, installing, using, operating, maintaining, repairing, replacing, and improving the underground Steam Vault and the New Steam Facilities, Licensee is desirous of obtaining a license for the use of the Steam Vault Location, which Steam Vault Location comprises a portion- of Wentworth Park as more particularly described on Exhibit A attached hereto and made a part hereof. E. Licensor is willing to grant such a license on the terms and conditions hereinafter set forth. NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows: 1. For the annual payment of Ten and 00/100 ($10.00) Dollars per year, Licensor hereby grants to Licensee an irrevocable license to enter onto and use the Steam Vault Location for the purposes of the location, construction, installation, use, operation, maintenance, repair, replacement and improvement of the underground Steam Vault and the New Steam Facilities. 11 2. _ Any location, construction, installation, use, operation, maintenance, repair, replacement and improvement of the underground Steam Vault and the New Steam Facilities by Licensee shall be performed in a professional manner and shall not unreasonably interfere with the use of Wentworth Park. 3. The term of this License Agreement shall commence as of the date hereof and shall not expire for a period of ninety-nine (99) years; provided however, that Licensee may terminate this License Agreement upon thirty (30) days written notice to Licensor. Upon such expiration or any such termination of this License Agreement, Licensee shall restore the Steam Vault Location to a condition as good as or better than it was prior to any such installation, maintenance, repair and replacement by Licensee; provided however, Licensee shall not be required to remove any underground facilities, equipment, lines or similar improvements. 4. Licensee hereby agrees to indemnify, defend and hold harmless Licensor and its engineers, officers, employees, agents, contractors and subcontractors from and against any and all claims, costs, liability or expense arising from or in connection with the use of the Steam Vault Location, including those resulting from the acts or omissions of Licensee or its engineers, officers, employees, agents, contractors and subcontractors with respect the underground Steam Vault and the New Steam Facilities, except those resulting from the negligence or willful misconduct of Licensor or its engineers, officers, employees, agents, contractors or subcontractors. 5. This License Agreement shall be binding upon and inure to the benefit of the • parties hereto and their respective successors and assigns. No alteration, amendment, change, or addition to this License Agreement shall be binding upon any party hereto unless and until reduced to writing and signed by all of the parties. This License Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, without regard to the conflicts of law provisions thereof. 6. This License Agreement may be executed in counterparts, each of which shall be deemed to be an original and which together shall constitute one License Agreement binding upon the parties hereto, notwithstanding that the parties shall not have signed the same counterpart. For the purposes of this License Agreement, facsimile signatures shall be given the same force and effect as original signatures. [Remainder of Page Left Blank / Signatures Follow] K, A IN WITNESS WHEREOF, the parties hereto have executed this License Agreement the date and year first above written. LICENSOR: CITY OF LANSING B y: Virg Be-mero, Mayor /I � , " B y: Chris Swope, CIA LICENSEE: BOARD OF WATER AND LIGHT OF THE CITY OF A SING • By: • Rhonda Jones, 3 • EXHIBIT A Steam Vault Location Propelly City of Lansing Parcel Number 33-01-01-16-256-002 being entire Block 99 of the Original Plat of Lansing, Ingham County, Michigan. Agreement Area The North 20 feet of the West 134 feet of the Property described above. DETROIT.3334250.2 • • 4 • 0 *Agreement Area (20 ft. x 134 ft.) E. Ottawa St. Vacated E. Ottawa St. Lot 1 pp2 2y6. A1A1 �6. Qa� Lot 2 m ai .Ze (D a' Block 99, E Orig. Plat of Lansing N o `° o a m z Lot 3 �e< G� Lot 4 E. Michigan Ave. NORTH SCALE: 1 in. = 60 ft. 0 30' 60' 90' 120' 0:Unghsm(33)%dry of Lansing, lensing townshlp(0113301-16-2_ dwg h.Mnvwuoresighwoje=xottowawmddsnl fund develo� RV vault In wmt%v ih parK*Ng Lansinq Board of Water and Light / City of Lansing Agreement Area LOCATION: 100 Block of N. Grand Avenue (Block 99, Original Plat of Lansing, Ingham County, Michigan) DRAWN BY: M. Witalec CHECKED: APPROVED: DATE: Sept. 30, 2008 Exhibit A 33 • Pages: 5 1227 10/09/2008 09:41 AM e 3321 P ,.........sue B : �� lr Michigan pauBa�Johns nlSinghamECountyceipt #47 IIll, 111111111111111VI111111111111111111111111111111111111111UIIIIIII�� ;'•'::� . MEMORANDUM OF LICENSE THIS MEMORANDUM OF LICENSE, dated this �i � Iday of September, 2008, between Phoenix Development Partners, LLC, a Michigan limited liability company, having ana address at 208 N. Capitol Avenue, Lansing, MI 48933 ("Licensor"), and Lansing Board of Watero ; M_ and Light, an administrative board and agency of the City of Lansing, having an address at 1232 �., :io • Haco Drive, P.O. Box 13007, Lansing, MI 48902 ("Licensee"). -n WITNESSETH: D ,M�rn=C--: 1. License. Licensor (as the successor in interest to Christman Capital Development CD En Company) and Licensee are parties to that certain Property Purchase and DevelopmentT�- Agreement dated January 30, 2008 ("License Agreement"), pursuant to which Licensor granted _ to the Licensee an irrevocable license and-right-of-entry-(the--`-`L-icense" )-onto-the property _ __._ described on the attached Exhibit A for the purpose of certain activities as further described in the License Agreement. o. C= 2. Term - Options. The term of the License commenced on September 30, 2008 0 2� and shall expire on the date the License shall expire pursuant to the terms of the License I' M nD N Agreement. Fn"3 <=;o 3. Purpose. The sole purpose of this instrument is to give notice of the License D DmX Agreement and all of its terms, covenants and conditions to the same extent as if the License o Agreement were fully set forth herein. This instrument shall in no way amend or be used tom,,'' interpret the License Agreement, and in the event of any conflict or inconsistency between any of � ` �- ' i the terms and conditions of this Memorandum and any term and/or condition of the License :0 Agreement, the term and/or condition of the License Agreement shall govern and control. All I n� and agreements of this Memorandum and the License Agreement shall run with the j covenants land until such time as the License is terminated. A full and complete copy of the License CI Agreement is on file at the offices of Licensor and Licensee. .r J i I i yLS 30, S I' q-z- • IN WITNESS WHEREOF, the parties hereto have executed this Memorandum as of the day and year first above written. STATE OF l C/�l�✓'"� SS: LICENSOR: PHOENIX DEVELOPMENT PARTNERS, LLC By: CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, Manager B5Ja)e'_sM. Cash, Manager COUNTY Q • The foregoing instrument was acknowledged before me this day of September, 2008 by James M. Cash, -the manager of CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, a Michigan limited company, the Manager of PHOENIX D VELOP PARTNERS, LLC, a Michigan limited company, on behalf of said company; ^ 1 Totwof.W�60 Stat, County o My Commission Expires: Acting in the County o 0 LICENSEE: BOARD OF WATER AND LIGHT OF THE CIT F LANSING By: P ter Lark, General anager By: Rhonda Jones, Co or Secretary STATE OF MICHIGAN ss. COUNTY OF ) •The foregoing instrument was acknowledged before me in County, Michigan, this _ day of September, 2008, bye 1L , the of Lansing Board of Water and Light, an administrative board and agency of the City of Lansing, on behalf of said board and agency. Print name: Notary Public, tate of Michigan, County of rrr�t=. My commission expires Acting in the County STATE OF MICHIGAN ) ss. COUNTY OF� �) The foregoing instrument was acknowledged before me in —� County, Michigan, this 7,a day of September, 2008, by � '�,�, t s , the of Lansing Board of Water and Light, an administrative board and agency of the City of Lansing, on behalf of said board and agency. Print name: (,�a� Notary Public, State of County of I11�- My commission expires 1 2-- Acting in the County of • EXHIBIT A Legal Description Real property in the City of Lansing, County of Ingham, State of Michigan, described as follows: Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89059'00"E 527.87 feet; thence N00001'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00001'45"W 7.02 feet to the point of beginning of the following described parcel; thence N00001'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag /30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50005'10"E 157.52 feet; thence N00029'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89058'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89058'00"E, 221.35 feet; thence running parallel with and 25 feet •from the West line of a retaining wall the following six (6)'courses: 1) S45000'36"E, 56.87 feet; 2) S07000'06"E, 173.32 feet; 3) S17021'34"E, 75.69 feet; 4) S01008'14"E, 327.42 feet; 5) S17017'09"W, 167.17 feet; 6) S18004'11"W, 24.53 feet to a building line; thence along said building line the following five (5) courses; 1) S74014'59"E, 16.75 feet; 2) S15051'22"W, 63.24 feet; 3) N89047'17"W, 11.09 feet; 4) S00012'43"W, 14.88 feet; 5) N89053'37"W, 30.79 feet; thence S23001'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89031'14"W, 178.68 feet along said curb line to the point of beginning. DETROrr.3330948.2 x PjpI # 33-01-0 i - 16- 25;3- ao3 Comm" A4Af-P S5 31 ;, Nor'Ch Cr&,j N"w-e, LAe-5',15 Iti11 • MEMORANDUM OF LICENSE THIS MEMORANDUM OF LICENSE, dated thi2K day of September, 2008, between Phoenix Development Partners, LLC, a Michigan limited liability company, having an address at 208 N. Capitol Avenue, Lansing, MI 48933 ("Licensor"), and Lansing Board of Water and Light, an administrative board and agency of the City of Lansing, having an address at 1232 Haco Drive, P.O. Box 13007, Lansing, MI 48902 ("Licensee"). WITNESSETH: 1. License. Licensor (as the successor in interest to Christman Capital Development • Company) and Licensee are parties to that certain Property Purchase and Development Agreement dated January 30, 2008 ("License Agreement"), pursuant to which Licensor granted to the Licensee an irrevocable license and right of entry (the "License") onto the property described on the attached Exhibit A for the purpose of certain activities as further described in the License Agreement. 2. Term - Options. The term of the License commenced on September 30, 2008 and shall expire on the date the License shall expire pursuant to the terms of the License Agreement. 3. Purpose. The sole purpose of this instrument is to give notice of the License Agreement and all of its terms, covenants and conditions to the same extent as if the License Agreement were fully set forth herein. This instrument shall in no way amend or be used to interpret the License Agreement, and in the event of any conflict or inconsistency between,any of the terms and conditions of this Memorandum and any term and/or condition of the License Agreement, the term and/or condition of the License Agreement shall govern and control. All covenants and agreements of this Memorandum and the License Agreement shall run with the land until such time as the License is terminated. A full and complete copy of the License Agreement is on file at the offices of Licensor and Licensee. 0 • • • IN WITNESS WHEREOF, the parties hereto have executed this Memorandum as of the day and year first above written. LICENSOR: PHOENIX DEVELOPMENT PARTNERS, LLC By: CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, Manager By: esM.Cash, Manager STATE OF it y ) SS: COUNTY OF The foregoing instrument was acknowledged before me this � day of September, 2008 by James M. Cash, the manager of CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, a Michigan limited company, the Manager of PHOENIX DEVELOPMENT PARTNERS, LLC, a Michigan limited company, on behalf of said company. /1) r Printed Name: 42ep Notary ge c State of , county of My Commission Expires: 3 Acting in the County o� 4 • • n LICENSEE: BOARD OF W OF THE CITY/ Ifl STATE OF MICHIGAN ) ss. COUNTY OF AND LIGHT .NSING Rhonda Jones, Corpgrrate Secretary The foregoing instrument was acknowledged before me in County, Michigan, this day of September, 2008, by I ems-►' Izwt'C. , the 6t^ raj of Lansing Board of Water and Light, an administrative board and agency of the City of Lansing, on behalf of said board and agency. Print name: Notary Public, State of Michigan, County of My commission expires q -a 4 - /'-- Acting in the County of STATE OF MICHIGAN ss. COUNTY OFF ) The foregoing instrument was acknowledged before me in J4-4,0-#� County, Michigan, this -3b day of September, 2008, by c-: F c.5 , the ing2 ,-k S2C re4A►24 of Lansing Board of Water and Light, an administrative board and agency of the City of Lansing, on behalf of said board and agency. Print name: Notary Public, §tate of Michigan, County of in2tirap. My commission expires �---d Acting in the County of—��i�G�s�m 3 Drafted by: Kenneth I Wessel, Esq. Honigman Miller Schwartz and Cohn LLP 2290 First National Building 660 Woodward Avenue Detroit, Michigan 48226-3506 0 After recording return to: Whitney M. Ezis Associate Attorney Lansing Board of Water & Light 1232 Haco Dr. P.O. Box 13007 Lansing, MI 48902 C! • 1 EXHIBIT A Legal Description Real property in the City of Lansing, County of Ingham, State of Michigan, described as follows: Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16 N89059'00"E 527.87 feet; thence N00001'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing along the East line of North Grand Avenue N00001'45"W 7.02 feet to the point of beginning of the following described parcel; thence N00001'45"W, 512.75 feet to a found R.R. spike (now Nail and Tag /30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50005'10"E 157.52 feet; thence N00029'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89158'00"W 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89058'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following six (6) courses: 1) S45000'36"E, 56.87 feet; 2) S07°00'06"E, 173.32 feet; 3) S17021'34"E, 75.69 feet; 4) S01008'14"E, 327.42 feet; 5) S17017'09"W, 167.17 feet; 6) S18004'11"W, 24.53 feet to a building line; thence along said building line the following five (5) courses; 1) S74°14'59"E, 16.75 feet; 2) S15051'22"W, 63.24 feet; 3) N89047'17"W, 11.09 feet; 4) S00012'43"W, 14.88 feet; 5) N89053`37"W, 30.79 feet; thence S23001'48"W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89031'14"W, 178.68 feet along said curb line to the point of beginning. DETROIT.3330948.2 0 • 34 E • Message Page 1 of 4 Jensen, Ingrid A. • From: Eggan, Eric J. [EEggan@honigman.com] Sent: Wednesday, October 08, 2008 3:40 PM To: Jensen, Ingrid A. Subject: LCC Vacating BWL Grand Ave. Parking Lots Good afternoon Ingrid, You have requested evidence of BWL's termination of the "License Agreement for Parking Facilities" between the Board of Water and Light and Lansing Community College. After conferring with representatives of the Board, I learned that the termination notice occurred via email and that the process pf termination and vacating the parking facilities was confirmed through a series of emails that are provided below. If you think it is necessary, I can ask the Board to confirm this process in a letter, but my sense is that the matter is resolved. Please let me know how you wish to handle this. Eric HONIGMAN •Eric Eggan Honigman Miller Schwartz and Cohn LLP 222 North Washington Square Suite 400 Lansing, MI 48933-1800 (517) 377-0726 (517)364-9526 0 eeggan(@honigman.com www,honigman.com From: Whitney Ezis [mailto:wme@LBWL.COM] Sent: Tuesday, October 07, 2008 3:44 PM To: Eggan, Eric J. Subject: FW: LCC Vacating BWL Grand Ave. Parking Lots LCC parking lot email below Whitney M. Ezis Associate Attorney Lansing Board of Water & Light 1232 Haco Dr. P.O. Box 13007 Lansing, MI 48902 Direct dial: (517)-702-6217 Fax: (517)-702-6855 wme _lbwl.com • * * * Attention. Confidential. * * * This message is intended for the use of the party to whom 10/8/2008 Message Page 2 of 4 it is addressed. It may contain confidential information which is subject to the attorney -client privilege or is exempt from disclosure under applicable law. If you are not the intended recipient, any use of this communication is •prohibited. If you have received this communication in error, please notify the sender immediately by calling, return this message to the sender, and delete this message from your records and systems. Thank you. From: Bob Nicholson Sent: Tuesday, October 07, 2008 6:50 AM To: Whitney Ezis Subject: FW: LCC Vacating BWL Grand Ave. Parking Lots -----Original Message----- From: Bob Nicholson Sent: Monday, September 08, 2008 10:52 AM To: Brandie Ekren; Whitney Ezis Subject: FW: LCC Vacating BWL Grand Ave. Parking Lots FYI -----Original Message ----- From: Eric Glohr [mailto:glohre@lcc.edu] Sent: Monday, September 08, 2008 10:39 AM To: Bob Nicholson Subject: RE: LCC Vacating BWL Grand Ave. Parking Lots Hi Bob, Sorry about not contacting you, but it got pretty hectic here at the start of the semester. LCC has been out of the islots as of September 1. We have pulled out our signs, with the exception of signs indicating no LCC parking. I spot checked the lots last week and there were only 3 cars in the lost. We sent a reminder e-mail. Today there was only 1 car in the lot at 9 AM. Thanks, Eric Eric A. Glohr Director of Auxiliary Services Lansing Community College MC 7401 - Auxiliary Services PO Box 40010 Lansing, MI 48901-7210 WTX: (517) 483-1797 FAX: (517) 483-1936 E-mail: e-glohr(@,Icc.edu From: Bob Nicholson [mailto:rcn@LBWL.COM] Sent: Monday, September 08, 2008 10:21 AM To: Eric Glohr Subject: RE: LCC Vacating BWL Grand Ave. Parking Lots Are you on schedule to vacate the lots as required?? Thanks • ----Original Message ----- From: Eric Glohr [mailto:glohre@lcc.edu] Sent: Wednesday, July 16, 2008 9:19 AM To: Bob Nicholson 10/8/2008 Message Page 3 of 4 Cc: Dan Flynn; Dick Peffley; Brandie Ekren Subject: RE: LCC Vacating BWL Grand Ave. Parking Lots • Thanks Bob, I'll make the necessary arrangements to vacate the parking lots. Eric Eric A. Glohr Director of Auxiliary Services Lansing Community College MC 7401 - Auxiliary Services PO Box 40010 Lansing, MI 48901-7210 WTX: (517) 483-1797 FAX: (517) 483-1936 E-mail: eglohr Icc.edu From: Bob Nicholson [mailto:rcn@LBWL.COM] Sent: Wednesday, July 16, 2008 7:26 AM To: Eric Glohr Cc: Dan Flynn; Dick Peffley; Brandie Ekren Subject: FW: LCC Vacating BWL Grand Ave. Parking Lots Per your previous e-mail indicating that "e-mail" notification is acceptable, this e-mail shall be considered • your official notification for ternmination of our "License Agreement for Parking Facilities" with LCC. In order to not delay Christman's development activities the License termination date is August 31, 2008. This notification and termination date satisfies the thirty (30) day termination notice required by Article 5 in the License Agreement. Please proceed with your required removal and restoration obligations in accordance with Article 5 and have them completed by August 31, 2008. -—Original Message— From: Dan Flynn Sent: Tuesday, July 15, 2008 2:40 PM To: Bob Nicholson Cc: Dick Peffley Subject: LCC Vacating BWL Grand Ave. Parking Lots I just received a voice mail from John Holmstrom of Christman. LCC needs to be out of the Grand Ave. Parking Lots no later than 9/1/08. Anthony Pecchio of Christman is or will be working with the BWL concerning this matter. Regards, Daniel J. Flynn, P.E. Principal Mechanical Engineer Project Engineering Resource Center Board of Water & Light Lansing, MI E-Mail: djf(a)-lbwl.com • Telephone: (517) 702-6510 Cell Phone: (517) 331-1778 FAX: (517) 702-6675 10/8/2008 Message Page 4 of 4 • • IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the Internal Revenue Service, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, by any person for the purpose of (i) avoiding tax -related penalties or (ii) promoting, marketing or recommending to another person any transaction or matter addressed in this communication. Confidential: This electronic message and all contents contain information from the law firm of Honigman Miller Schwartz and Cohn LLP which may be privileged, confidential or otherwise protected from disclosure. The information is intended to be for the addressee only. If you are not the addressee, any disclosure, copy, distribution or use of the contents of this message is prohibited. If you have received this electronic message in error, please notify us immediately (313.465.7000) and destroy the original message and all copies. 10/8/2008 35 • LJ 2w� 1�( B 3321 P : 1043 • ,-039278 OUIr CLn lm D E08 e20Q8 #4726e Paula Johnsoh, Ingham County, M1oht9an 08i48 fire Pages: 4 Illllllllllllllulllllll�llllllllllllllllllilllllllllllllillllllllllllllll ``������'� • QUIT CLAIM DEED Abe Grand Avenue II, LLC, a Michigan limited liability company, 208 N. Capitol Avenue, Lansing, Michigan 48933 ("Abe") quit claims to Phoenix Development Partners, LLC, a Michigan limited liability company, 208 N. Capitol Avenue, :Lansing, Michigan 48933 ("Company"), a parcel of real property located in the City of Lansing, County of Ingham, State of Michigan ("Property"), legally described as: Commencing at a point on the East side of Grand Avenue 296,1 feet South of the Southeast corner of Grand Avenue and Shiawassee Street, running thence East parallel with Shiawassee Street along the centerline of a 12 :inch brick firewall whose bearing measures South 89 degrees 53 minutes 57 seconds East 210.25 feet, thence South 00 degrees 29 minutes 40 seconds West 39.74 feet, thence South 50 degrees 05 minutes 10 seconds West 157.52 feet to the centerline of the former Ionia Street now vacated, thence West along said centerline 89.09 feet to the East line o of Grand Avenue, thence North 141.15 feet to the point of beginning, being'a part of Lots 1.2 and --' 13 Block 66 and a part of Ionia Street between Blocks 66. and 98 of the original plat of the City of Lansing, Ingham County, for the sum of One and 00/100 Dollar ($1.00). CP'i This conveyance is exempt from county and state transfer tax under the.provisions of MCL 207.505(a) and MCL 207.526(a). This Property may be located within the vicinity of farmland or farm operation. Generally accepted agricultural and management practices which may generate noise, dust, odors and other associated conditions may be used and are protected, by the Michigan Right-to-Fann Act. This Deed conveys the right to make all divisions available under Section 108 of the Michigan Land Division Act, No. 288 of 1967, MCL §560.109(4). The Property may not be occupied or used for adult businesses as defined in the attached Exhibit A. This Quit Claim Deed shall be effective as of October 7, 2008. • • 0 ABE GRAND AVENUE Il, LLC PHOENIX DEVELOPMENT PARTNERS, .LLC, Sole Member, CHRI:STMAN CAPITAL INVESTMENT GROUP, Manager By: Ja s M.. Cash, Manager STATE OF MICHIGAN ) ) SS COUNTY OF INGHAM ) The foregoing instrument was acknowledged before me this 7th day of October, 2008 by James M. Cash, Manager of Christman Capital .Investment Group, LLC, Manager of Phoenix .Development Partners, LLC, sole member of Abe Grand Avenue II, LLC as his free act and deed. James M. Cash is personally known to me. andra J. Jasinski Notary Public — State of Michigan Eaton County, a/i Ingham County Drafted by: My Commission Expires: 12/30/2010 Gregory J. Guggemos Guggemos Brown & Gilkey, PC' 4050 Hunsaker Drive, Suite 120 East Lansing, MI 48823 Telephone: (517) 336-0127 County Treasurer's Certificate . City Treasurer's Certificate When Recoded Return to: The Christman Company F--` 208 N. Capitol Avenue Lansing, M.1 48933 Send Subsequent Tax Bills to: The Christman Company 208 N. Capitol Avenue Lansing, MI 48933 Parcel No.33-01-01-16-252-033 RecordingF • $iq3` County Transfer Tax: $0 State'TmnsferTax: $0 -W—ol-16-zsa— �3 Teo • EXHIBIT A Definition of "Adult Business" "Adult business" means adult bookstores; adult movie theaters; adult personal,service businesses; adult cabarets, adult novelty businesses, massage parlors and nude modeling studios, or any combination thereof, as defined in this section, which meets one, or more of the criteria defined below as "adult business, significant portion." "Adult bookstore" means an establishment which excludes minors, as defined in MCL 722.51 el seq., and has, as a significant portion of its stock in trade, books, periodicals, magazines, newspapers, pamphlets, pictures, photographs, motion picture films and/or videotapes, or novelty items or paraphernalia which are distinguished or characterized. by their emphasis on matter depicting, describing or relating to "specified sexual activities or. "specified anatomical areas," or an establishment with a segment or section devoted to the sale or display of such material which exceeds 35 percent. of the floor area of the establishment. "Adult business, significant portion" means a business where a significant portion of the stock in trade or services provided meets at least one of the following criteria: A. Thirty-five percent or more of the stock, materials, novelties or services provided are classified as adult materials and/or services as defined herein. B. Thirty-five percent or more of the usable floor area of the building, is used for the. is defined display and/or provision of services classified as adult :materials and/or services, as defined herein. C. The advertising (on signs, in publications, on television or radio and/or other media forms) associated with the business depicts, describes or relates to specified sexual activities and/or specified anatomical areas. "Adult cabaret" means an establishment (which may or may not include the service of food. or beverages) having as an activity the presentation or display of male or female impersonators, dancers, entertainers, waiters, waitresses or employees who display specified anatomical areas, as defined herein. "Adult motion picture theater" means an establishment, in a completely enclosed building or room, which excludes minors, as defined in .MCL 722.51 et seq., and offers, for an admission tee, membership fee or other valuable consideration, the viewing of motion picture films, videotapes, pictures or photographs, cable television, satellite transmissions or other visual media, which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activity or specified anatomical areas, as defined herein, for the observation of patrons therein. 1 That area used .for or intended to be used for the said of merchandise or services, or for use to serve patrons, clients or customers. Such floor area which is used or intended to be used.forhallways, stairways,,elevator shafts, utility or sanitary facilities or the storage or processing of merchandise shall be excluded from this computation of "usable floor area." Measurement of usable floor area shall be the sum of the horizontal areas of each story of a structure measured from the interior faces of the exterior walls> • • "Adult novelties" means objects, .items, and/or devices offered for sale which are designed for sexual stimulation or which simulate human genitals. "Adult personal service business" means a business having as its principal activity a person, while nude or while displaying specified anatomical areas,.. as defined herein, providing, personal services for another. person. Such businesses include; but are not limited to, modeling studios, body painting studios, wrestling studios and conversation parlors.. "Buttock includes the perineum and anus of any person. "Massage parlor" means an establishment wherein private massage is practiced, used or made available as a principal. use of the premises. "Massage" means offering for sale through the use of physical, mechanical or other devices, the manipulation of body muscle or tissue by rubbing, stroking, kneading, tapping or vibrating of the body of another. "Nude modeling studio means a place which offers as:its principal activity the providing of models to display specified anatomical areas, as defined herein, for artists and photographers for a fee. "Offered for sale" means offered in exchange for money, a membership fee or any other valuable consideration. "Sodomy" means sexual bestiality. "Specified anatomical areasmeans:. • A. Human male genitals in a discernible turgid state, even if completely and opaquely covered; or B. Less than completely and opaquely covered: 1. Female breasts below a point immediately above the top of the areola. 2. Human genitalia and the pubic region; and 3. A buttock and anus. "Sexual intercourse" :includes genital coitus; fellatio, cunni.lingus, anal intercourse or any other intrusion, however slight, of any person's body; or of any object into the genital or anal openings of another's body. "Specified sexual activities" are defined as: A. Acts of human masturbation, sexual intercourse or sodomy; B. Fondling or other erotic touching of human genitalia, a pubic region, a buttock, an. anus or a female breast; C. ,Human genitalia in a state of sexual stimulation or. arousal. SAClients\Clmsl"um CompanyV.om;t uclive ReeeipWk)sing on St=ickable BuildinglQuit Claim Deecl.081908.doc 0 • 36 • • • DEPARTMENT OF PLANNING AND NEIGHBORHOOD DEVELOPMENT 316 N. CAPITOL AVENUE . LANSING, MI 48933-1236 .(517) 483-4066 . FAX: (517) 483-6036 PLANNING OFFICE 316 N. CAPITOL AVE., SUITE D-1 Virg Bernero, Mayor September 29, 2008 Mr. Anthony Peccluo Phoenix Development Partners, LLC 208 N. Capitol Avenue Lansing, MI 48933 RE: Site Plan Review - Accident Fund Insurance Company of America 217 E. Ottawa Street, 300, 312 & 320 N. Grand Avenue Dear Mr. Pecchio: Enclosed please find comments regarding the above referenced project from the Site Plan Review Committee members(s). The site plan has been distributed to the following departments for review and approval. BOARD OF WATER AND LIGHT Robin Sorrells (517) 702-6643 Electric: - Approved, refer to comments dated 8/13/08 Water: - Approved, re er to comments dated 8/13/08 Street Lighting: - Approved, refer to comments dated 8/13/08 . Steam: - Approved, refer to comments dated 8/13/08 TRANSPORTATION Mitch Whisler (517) 483-4249 - Approved, refer to comments dated 8/18/08 PARKS AND RECREATION Dick Schaefer (517) 483.428.1.._._ _ .__......_......_ .... - Approved, refer to comments_ dated 8/8/08 PUBLIC SERVICE Dan Danke (517) 483-4461 - Approved, refer to comments dated 9/26/08 Please recycle 'Equal Opportunity Employer' SPR 2008-23 - Accident Fund September 29, 2008 Page 2 PLANNING Susan Stachowiak (517) 483-4085 BUILDING SAFETY Jim Bennett (517) 483-4155 FIRE PREVENTION Phil Sabon (517) 483-4581 - Approved, refer to comments dated 9/29/08 - Approved, refer to comments dated 7/28/08 - Approved, refer to comments dated 7/31/08 The site plan is approved by all relevant City departments. Therefore, you may proceed with construction, subj ect to compliance with all comments contained in the enclosed reviews and subject to obtaining the necessary permits. If you have any questions, please feel free to contact the appropriate committee member. I may be reached at 517-483-4085. Sincere, Susan Stachowiak Zoning Administrator cc: Mr. Bjorn Green Tower Pinkster Titus Associates, Inc. 242 E. Kalamazoo Avenue, Suite 200 Kalamazoo, MI 49007-5828 REVISED 8-13-08 UINSING BOARD`OF. WATER8LIGHT - BOARD . 1 - WATER August 13, 2008 TO: City of Lansing — Department of Planning — Susan Stachowiak FROM: Robin Sorrells, Para Technical (517) 702-6643 RE: Revised Grand and Ottawa — Accident Fund — Building Addition The Site Plan is accepted and approved under the following conditions: Electric: This approval does not constitute an agreement for service, and is subject to the following conditions: • The BWL can provide an underground electric service to serve the new development based on the Board's Rules and Regulations for Electric Service. • A copy of the final site, grading, and electrical plans for.the proposed development must be supplied to the Customer Projects Department before a final cost for electric service and service agreement can be provided to the owner/ developer. • Owner/ developer must contact BWL Customer Projects Department, Timothy J. Rowden @ 517 702-6101, to initiate service agreement process. • There are apparent conflicts with the proposed development and the existing BWL electric distribution facilities. These conflicts must be addressed by the Electrical Design Firm prior to final drawing submittals. • The proposed generator cable installation is designated to run through existing BWL duct -line. BWL does not allow customer cables to share duct -line and manhole space with our primary cables...... . Note that any site plan approval does not constitute an agreement for service. All customers must meet BWL requirements and enter a service agreement prior to receiving service The Site Plan is accepted and approved under the following conditions: Street Lighting: This approval does not constitute an agreement for service, and is subject to the following conditions: Street lighting facilities are located in the street right of way of Grand Avenue and Shiawassee Street. Also included are some lighting facilities located on property to illuminate existing parking lot north of, Ottawa Station. Lighting facilities will either be removed, relocated or replace as required to facilitate the construction of the property. Contact person: Roger Adsit 702-6085. Note that any site plan approval does not constitute an agreement for service. All customers must meet BWL requirements and enter a service agreement prior to receiving service. Q: Resource and System Planning — Grand and Ottawa -i REVISED 8-13-08 L-1 The Site Plan is accepted and approved under the following conditions: Water: This approval does not constitute an agreement for service, and is subject to the following conditions: This site plan approval is contingent upon the following items: The drawings do not show the water mains and services correctly, however the errors do not appear to affect the domestic water development at Ottawa Station. Please contact BWL Customer Projects Department; Mike Schorsch @ (517) 702-6369 to obtain up-to-date copies of BWL as -built drawings. Specifically, the plans do not correctly show the water mains north of Ionia Street. Owner/developer must contact BWL Customer Projects Department; Mike Schorsch @ (517) 702-6369 for any water system improvement. A Board of Water and Light Water Service Agreement shall be established with payment before a water system improvement may begin. (All services up to the meter are part of the water system and cannot be installed without a BWL Water Service Agreement in place.) Water mains and services to conform to BWL Rules & Regulations. Note that any site plan approval does not constitute an agreement for service. All customers must meet BWL requirements and enter a service agreement prior to receiving service The Site Plan is accepted and approved under the following conditions: Chilled Water/Steam This approval does not constitute an agreement for service, and is subject to the following conditions: The existing steam mains and services need to be shown on the plans. The development of an onsite replacement steam distribution facility will impact the proposed project, primarily in the south parking lot area and adjoining concrete sidewalk/plaza pavers, and should be addressed in the design of this project. Proposed site improvements must follow easement restrictions and should be covered during design. As previously discussed with developers the proposed relocation of the two 16" chilled water lines along the west portion of this property will have to be done in accordance with the Lansing Board of Water and lights rules and regulations, and be approved by the board. The owner should contact Michael Schorsch P.E. with the LBWL's Customer Projects Department to obtain requirements for Chilled Water and Steam services. Service Agreements for steam and chilled water shall be required. A chilled water service contract will also be required. Contact person: Dave Johnson Office: (517) 702- Note that any site plan approval does not constitute an agreement for service. All customers must meet BWL requirements and enter a service agreement prior to receiving service 6737. Q: Resource and System Planning — Grand and Ottawa ower stR' n location . _..... 9 i. (8/18/2.008) Susan Stachowiak -Accident Fund: Ottawa p .-. -.. • From: Mitch Whisler To: Stachowiak, Susan Date: 8/18/2008 4:37 PM Subject: Accident Fund: Ottawa power station location CC: Johnson, Bob' Susan, Elaine stated I forgot to give my approval on the above site. I put it in on the emall, erased it because I didn't like it, then sent it out without the modifications. I approve the site plan with conditions. The Accident Fund has a firm conducting a traffic impact study for the proposed site. Our department reserves the right to make changes to the proposed drive approaches on Shiawassee Street and on Grand Avenue, once we have had a chance to review the traffic study. In addition, this could include modifications to Grand Avenue if queuing needs dictate such. Lastly, the CSO project will be through the Ottawa intersection prior to the demolition of the ramp. To make the entrance to the ramp function today, the curb line will not be placed on the east side of the Grand/Ottawa intersection as shown on the plans. type M or valley curb will be installed across the existing opening. It will be the Accident funds responsibility to install the curb as proposed once the Ramp is no longer in service. Regards, Mitch Mitchell J. Whisler Principal Traffic Engineer City of Lansing 219 N. Grand Ave (517) 483-4240 • CONFIDENTIALITY NOTICE: This e-mail contains Information from the .sender that may be CONFIDENTIAL, LEGALLY PRIVILEGED, PROPRIETARY or otherwise protected from disclosure. This e-mail is intended for use only by the person or entity to whom it is addressed. If you are not the Intended recipient, any use, disclosure, copying, distribution, printing, or any action taken in reliance on the contents of this e-mail, is strictly prohibited. If you received this e-mail in error, please contact the sending party by replying in an e-mail to the sender, delete the e-mail from your computer system and shred any paper copies of the e-mail you printed. (8%8/2008) Susan Stachowiak -Site PIan�Review i From: Dick Schaefer To: - Susan Stachowiak Date: 8/8/2008 4:04 PM Subject: Site Plan Review SPR2008-23 The only follow up comment the first review is that there is no Indication on these revised plans to accommodate pedestrian access along the river front at the location where the building structure encroaches to the water edge. If that portion of the building Is to remain, some pass through access in the structure is needed, so as not to break the continuity of the riverwaik as noted on the plans. The master plan document as adopted by city council "Plan for Development of Lansing's Waterfront" notes the need to provide riverwaiks on both sides of the river for public access. Several sections of the west river bank have still yet to be developed with providing this linkage. Comments from Public Service Dept. received by the Planning Office on 9/26/08: In an effort to maintain progress on the Accident Fund project and concentrate time and effort by the designers, I am conditionally approving the site plan at this time pending receipt of the required information by the time frames indicated. I have categorized the following comments provided by Dan Danke by response priority. The following comments are specific to modifications to the site plan. These comments shall be responded to within two weeks or as otherwise noted. 1. A process is in place for resolving easement issues. At this point, the easements are not finalized. when the easements are finalized, a revised plan sheet showing the easements and the associated infrastructure the easements protect will be required. 3. The demolition plans show the removal of the sidewalk along the south wall of the Shiawassee Street bridge. The plans do not show this walk being replaced. This sidewalk provides access to the river trail system and will need to be replaced. 4. The river trail runs under the Shiawassee Street bridge. During demolition and construction, access under the bridge will need to be controlled. Please provide a plan for controlling this access to the site. 5. Note 15 on the demolition plan indicates the contractor will video the 60"X96" storm box culvert. Please modify the not to include that a copy of the video is to be delivered to the Lansing City Engineer. 6. Please include a note on the demolition plan that the seawall along the river is not to be disturbed. 7. Attached are the sewer drawings (5124 and 5122) for the west approach of the Shiawassee Street bridge. Of particular concern is the catch basin on the south side of the west approach. It appears from the demolition plans that the east edge of the taper for the proposed Shiawassee entrance/exit for the parking ramp starts at the west side of this catch basin. However, the catch basin does not show up on the construction plans for the entrance/exit. This catch basin needs to be shown on the construction plans of the proposed entrance/exit. It will be difficult to evaluate the. proposed entrance/exit until this catch basin is shown on the construction plans. B. Attached are plans for the sidewalk/retaining wall for the vicinity of the proposed Shiawassee ramp entrance/exit. Public Service has concerns about the structural capacity of the sidewalk/retaining wall to carry vehicle traffic. The developer will provide documentation that the existing sidewalk has structural capacity to carry the proposed traffic load. Public Service may chose to have a third party evaluate the submitted documentation. The cost of this..evaluation may. -be passed. on to the developer. 9. Compliance with ADA guidelines for the public right -of way is a significant issue for the City of Lansing. Of particular concern is the interface between the public sidewalk in the right-of-way and the drive approaches. Cross slopes and running slopes are key issues for ADA compliance. Public Service will require cross -sections at the drive openings in order to evaluated ADA compliance. Of particular concern is the Shiawassee entrance/exit and at the front entry plaza. 10. Sidewalk is to be continuous through curb cuts. Please show the sidewalk continuous through all the proposed drive approaches. Il. ADA public right-of-way guidelines 16. Although Note #p10 of the Grading and Utility Notes states the City's requirement -foa; .3-foot sumps- tor. -all _catch basins.,. --the.-Structure .Table on .sheet C004 shows the....... .._.. . _......_.._ _ __ sumps to be 2 feet deep. This table will need to be revised to show 3-foot sumps. Additionally, the detail for catch basins on sheet C006B needs to be revised to show 3-foot sumps. 17. Stormwater drainage calculations need to be provide in order to verify the sizing • of the site storm drainage. i 18. Please provide the invert elevations of the stormwater outfalls. Please provide normal water elevation for the Grand River in the vicinity of the Ottawa street Station. These are needed for the evaluation of the stormwater plan. 19. Please review the sizing of the drainage structures. 36" pipes entering at right angles typically need a 6-foot diameter structure in order to accommodate the pipes. 36" pipes that run straight through the structure typically need a 5-foot diameter structure. There are inappropriately sized drainage structures in the Structure Table on sheet C004. 20. All new catch basins are required to have a 3' sump. Catch basin Z does not appear to have a sump. 21. The pipe size and slope are missing for the pipe run from CB X to CB S. 22. Please show the 1-foot contours on Sheet C004 - Stormwater Management Plan. Note #3 indicates that there should be contours on the plan. 23. Label the size of inverts in the Structure Table on sheet C004. 24. CB Y receives stormflow, from a 36" pipe and discharges to the river through 20" X 20" outfall. Since no information was provide for this outfall, the impact the orifice restriction has on storm flow is difficult to determine Please provide documentation that this orifice restriction will not adversely impact storm flow from the site. 25. The note for the 20" X 20" outfall indicates that there is a valve associated with this outfall. Please explain the purpose of the valve. 26. CB FF is where the Stormceptor 900 is to be installed. The landscaping plan shows several trees and landscaping in the vicinity of CB FF. This will make it difficult to maintain CB FF. Please show how access will be maintained to CB FF. Pleas show CB FF on. the landscape plan ( Sheet L001). 41. A cleanout may be needed for the sanitary lead for the new building. Sanitary clean outs are required by Michigan Plumbing Code to be placed every 100 feet. The City of Lansing does not allow clean outs in the public right-of-way. 42, Reinforcement steel is not allowed in public sidewalk. Any detail that shows this will need to be identified that it is for private property use only. 43. Is there any purpose for this site for the Property Line Riser detail. 44. The City does not allow brick/block manholes/catch basins in the public right-of- way. It is recommended that the detail for manholes and catch basins be revised to eliminate the brick/block option. 45. Who will maintain the block retaining wall along the river trail? 46. The landscaping plans show trees being planted in the vicinity of the 60" X 96 " box culvert. This will not be allowed. 2. The development will need new addressing. Please contact Jokay Marie (517-483- 4466) about addressing concerns. The following comments apply to sanitary sewer service. These issues will need to be addressed prior to issuance of the permit to connect to the City's sanitary sewer system. This permit will need to be obtained from Jokay Maxey of this office prior to construction. Sewer lead sizing shown on the site plan shall be revised with revised site plan in two weeks if the building flow rates warrant a change from sizing currently shown on the site plan. 12, Although sanitary flow numbers were provided, the documentation on how these numbers were _, obtaine0l was not proYided_.SanitaW.-c-onaecfjQm.YA1.nQi be gpproyed_unfiL-the_doCument_cttaoiais....______..__._—_.__ provided. 13. Please break down the sanitary flows per building. This is needed in order to determine if the sanitary sewer leads are sized appropriately. 14. No sanitary sewer lead has been provided for the proposed parking ramp. Please verify that there are Virg Bernero, Mayor DEPARTMENT OF PLANNING AND NEIGHBORHOOD DEVELOPMENT 316 N. CAPITOLAVENUE. LANSING, MI 48933-1236 . (517) 483-4066 . FAX: (517) 483-6036 PLANNING OFFICE 316 N. CAPITOL AVE., SUITE D-1 MEMO. TO: Applicant FROM: Susan Stachowiak Zoning Administrator DATE: September 29, 2008 RE: SPR2008-23 - Site Plan Review Building Addition & Renovation, Parking Structure, Site Improvements 217 E. Ottawa Street, 300, 312 & 320 N. Grand Avenue The site plan is approved by the Planning Office. If you have any questions, please do not hesitate to contact me at 483-4085. Please recycle 'Equal Opportunity Employer' ! . 7%28%2008 Susan Stachowiak -SPR 2007-23 REVISED W' - � Page 1 • From: Jim Bennett To: Stachowiak, Susan Date: 7/28/2008 12:38 PM Subject: SPR-2007-23 REVISED The Building Safety Office portion of the site plan review is APPROVED with the following conditions and comments. 1. Previous comments remain in effect. 2. The unit rise of the stairs, see Entry Stair Detail on sheet C006A, must comply with the following. The rise of every step in a stairway shall be not less than 4" nor greater than 7" and the run shall not be less than 11" per section 1009.3 MBC 2006 Edition. Please direct any questions regarding this portion of the site plan review to me at (517) 483-4155 or by email at ibennett(a)ci lansinq mi us <mailto•ibennett@ci lansino mi us> . Jim Bennett Chief Plan Review Analyst Building Safety Office City of Lansing 316 N. Capitol Ave., Suite C-1 Lansing, MI 48933-1238 (517)483-4155 (517)377-0169 Fax Web Page http://plandevelopment.cityoflansingmi.com/bldgsafety/ CONFIDENTIALITY NOTICE: This email contains Information from the sender that may be CONFIDENTIAL, LEGALLY PRIVILEGED, PROPRIETARY or otherwise protected from disclosure. This email is intended for use only by the person or entity to whom it is addressed. If you are not the intended recipient, any use, disclosure, copying, distribution, printing, or any action taken in reliance on -the contents. of this•ernail, is strictly prohibited,. If you received this email in error, please contact the sending party by replying in an email to the sender, delete the email from your computer system and shred any paper copies of the email you' -printed. LANSING FIRE DEPARTNINT:. FIRE MARSHAL'S OFFV J , . 120 E. Shiawassee Street Lansing, MI 48933 : •': ':�� Phone:517-483-4200 Fax:517-483-6069 Chief Tom Cochran Fire Marshal Brian Gaukel To: Susan Stachowiak From: Phil Sabon Plan Review -Fire Marshal's Office Date: July 31, 2008 Project: Revised SPR2008-23-Site Plan Review Location: 217 E Ottawa, 300, 3132, & 320 N Grand Avenue The Lansing Fire Marshal's office has reviewed the above listed revised site plan. We don not have any issue regarding this project other than the following: 1) Please install fire lane signs to both side of the service access road off of Ionia. i. As stated in the plan review letter dated May 7, 2008' Fire Lane sign are required on both side of the Fire Department access road off of Ionia. The re -submitted site plan did not show signs on both sides of this. hire.department.access road. _... _ �9 Phil Sabon • 37 • STATE OF;MICHIGAN DEPARTMENT OFENVIRONMENTAL OUALITY LANSINGDISTRICUOFFICE t DOL" JENNIFER. WGRANHOLM', STEVEN.E.- CHE$TER DIRECTOR r 17. 2,0.68- September DE - TER . MINA TION7 ON BASELINE. ENVIRONMENT AL: AL ASSESSMENT PETITION ,Petitioner- Petifth # P20.0801'330LA Phoenix Development Partners,, LLC 208 Noft4,Capitol Avenue beieirthiriation: Lansing, Michigan 48933 -Affirmed Property' Add ripst/LdcAtidne :217 East Ottawa "'stteet. 300, 3:12,. and32'0 North Grand Avenue: Lansing, , Michigan 48,933. The Department of EnVlronrfierdal QUality,'-(DEO)reviewed Petition P200801,330LA for a: determination On A 1399611neEhVir6hfh6rital w8ft submitted pursuant to,8ecfiom20129a--of Par1t .201,.'Friviron me . ntr 41'Remedlatioil. of the. Natural Resources, and Environmental ProtectiqRApt, 109* PA.451,--,asqmpndqdT (NREFA),, M&L,324.20129& Based on the petition, including,P tesentations! made in the affidavits, the BEA; Whit, h Was 'c.o'-mp-le'.ted:,on :S,60.temb-iae- 8,2008,7,, and ,supporting materials submitted September -lb., 2008'-,,ah&8,eoi6mb0r-1. 7l -2008, fho,,'DP0:has' determined thatthe BEA is affirmed . This determination affirms that'the the BEA-- is; adequat6.'f6rthe purpose Of obtaihing,xin exemption from liabilit �iterm tiAn ypUrsuant to-Sedfibb'201 26(l)(0). -T',h6Affiftb-`atiVi5,d ih tio -on the BEA ia,'conditioned on d, Jivthe.timely and` satisfactory comPletibn-, f,a'hy response. . . activities described petition.. . This pffirmaiti'vedetermination: on.:thq:$EA'js based on the proposed use -of hazardous, -substances, identified in the BEA. Pursuant to', :R 299'.5919(2), if the pttitioher sells or transfers the p'roperty,,:the petitidner:i§. required to disclose the: BEA to a .subsequent 'owner oroperatorliWdrd0r'tobe ehtiti.0d'to.an. exemption from; liability'. This.affirmati.ve:determination is based w the use of thefollowing .!5tipulaftiad:condftj.)(, iosy, pursuant 11 to, R: 299.5906(2)(b):i The submitfer acknowiedgiss&that 0 theto"'is a faiIIure, ofan:engineering control :or similar feature identified"Iri the, SEA, and. if.g.:rPleasleoccurs as aresult l.of .the failure, the: BEA does: not, provide ,an exemption to liability for -response. activity necessary'to address contamination resulting "from the,faildre. The burden of distinguishing the, the failure , of the engineering -control frort! existing contaminationih 11, tier according to$ection: 29 of, ,:s,a be �Yth`e-'su.brr�l Part 261, QQNST&QTION tiALL. T 86� 48tV6 .?4WES�TA�.L ANS REET-:�P.0...13.. 0jk , 4�, Phoenix Development Partqer$0-L�Q 1, . op, • In conjunctio.nvithf have 4i he BEA, You, ay.e.,indicated ANit,iat'a; later dat6,,Vdti; Will: b. submitting .a.request fQr.tlheOE,Q",sopinion; 6f'Wh6thor.yourSection .,201,07a'Compliance .Analysis (Section 7a CA), if °implerngnted as proposed, will be..00nsisteni wiffi.1heAue, zar.6'obligations tetforthinS6cti,on.2GlO7a=oftheNREP,A., Your Section, 7p,QA'mp;st `be submitted. by March 0,.2009, 'siX.m- dn'thsfr'ohl the date?the.BEA for the property, rope was tomploted. The, Section, 7A CA'Must be, submitted with` a copy'of the petition form, including the petit ion,number. assigned by.iheiDE' and, 40�0f, 'hirig that over the Section 7-a CA request.;i's,'J'n.cQ"'nj'unc.ti' request on with, a - determination' _,�prior for �,. relative. to the BEA for theprbpetty., If yoo.haveany questions concemin Se-cfioh,7a,CA,,:P.1'6aselcontact the Ltih.-,§itig'.Di!§tri.ttOffice: .tit517-3a5-6244- e.- DEQ'is not'm I aking any other findings �abo.6t, Whether I ri� making this determ.i determination; th the petit . oner,is, liable- or covered by any other exeMDtion-,from,liability under Part,201,., This determination on the, BEA does not , alter r liability lity with .regard to a -subsequent release. or threat. of teleaso or any exacerbationThe Oete ' rm tion on ;the BEA is only for the person and property. idorifiri6d in. the 08fitidef. The use of the propert.,,'and, response undertaken . I rriust.,bpin-accordance . , y an resp,,,,s- _y I y with th�e,toqu'irbments& all 8PP foe rP levanVand' appropriate state and federal _ laws andregulatio'hs. i have �wt it Notwithstanding.this determination; the ..a also, responsibility; ibilify under _eti0orior may applicable state and federal 'laws,, including,, but not lknftedto 'Part 201,. Envilronmentof ROM.ediatiomPart ,l 11, Haiardou's Wast&Ma agpment-.'PPrt 211., Underground • Storage Tank .Regulations; Pat2,1'3,,.LeakihgUhde(g.rouhd'StbeageTanks; Part"6.1I .5,; Supervisor of" Wells'OftheWEPA- and tho,Michigtn.,Flro'Pr6v6ntioh Code,. 1:941 PA:207,.-as-amended. The DEOW111 maintaih,anadmini,stratjvO'tecprtd.,Ofeach 8E`. Ifatany tJmeypyou provide the DEQ with` post-BEA information .related t'y6ut.BEAjtheDEQ will retain such, information with- the administrative: record. Such post..-BEA i6forrhatiohWill'iridt be: econsidpred part -of the BEA,. and' acceptanico of �such 'information by, the; he: D I EQshb(Uldlih no way- be. construed :to mean will review -or the petitioner regard irigth, the, DEQ 0 adOqUAcy of tuch.information for any p I urpos e.. The, petitioner, as'the owner and/6r,,operalor of Afatility, has th.e,f6IlOWiftg, Due'Cbre responsibilities under SeptjPn,,20.1,07a: of PaTt201 and: Part 1.0, of"the Part 201 Rules, unless <covered by the exemptions, irtSeclibn 201 07a(.4), or (5):: Undertakd'mba§u"res:as are. necessary: to, prevent-, exacerbation: of, the -existing contamination: . , , 0 :Exorci5e due care by unde"itakitig response. act' ivi,y necess I ary-,to,mitig;Ate unac00ptable:OxP08urO: to haf&dWs. sUb8fdhdi.bs, rhitig"ate. fir6 Andexplosion hazards, dqeAq hazardous substances; and,allQW for the. intended user Of the, facility, in, a manner that' protects. the public ;health and safety, 0 artners,'LLC 3 .S.epternber 17,200& Phoenix Develope 0 n t.'.'p • • Take reasonable precautions agabst,the seasonably foreseeable acts: or omissions,.of a third. party and the consequences, th' ,fo, . reAeeoWy,cpuldresult frbm,those°racts,'or;!Omi.sti6hsl*v • Notify thODEQ if ther4-re-Aiscardeo, or abandoned on pd con 4,iners,.Viat contain hazardous ;substandes-bn ttiepf6obrty, Ugiiig, FormEQP4476 • Notifylhie DEQ-and-adjac.Oht,Prb'Petty. owners if contaminants are Tni I gratin' off `the:propert'y'(rOf,erlq, Form EOP4482). • Notify ` local department if,there is a fire or explosion: hazard.. -tau unacceptable ept 4 Notify�'Wtllity and. cause uhao a exposures and/pr-fireiartd` explosion, hazards, RuIO 1003(5) :requires aiperson' Who. is -subject to, the; p'ro'vision-s of"Soctio.h"20107a to maintain d.6cumentatibnof compliance with these . r eq uire I mehts:,lnd to,ptovic!6subh ,.documentation to'. the DEO, upon roquost., If the property use: changes; in'the future, additionaV.due.. care measures,ney.-be-.necessay. The bro_perty�owner'a nd-operdtor must re-eval,Uatpand documentlbeir continued compliance .with Secion 20107a. The BEAconstitutos,.a. response activity,l .Septi'pri. 20137 ofthe NRE_PA. , (4)�an�dl Authod:t6d signature: -BenHall, Supervisor Lansing Digtribt.Wflco R'edevelopment.Divson �517=335-6-228 Attachment,' cc: NTHCoftsuitcIfits, Ltd-, M$Aynefle Marolf; DEQ R&V,6121/04 0 -17, 26f, D 0., FORP USONLY ' Mit�4i(jA`NDEPA'R'TMENTO'F"E'N'V]-R"ON'ME�N.TALO.UALItY" pefirwn,#.... 9X.n 1: ei_ • OVUM. REME01ATIONANUREDEVELOPMENT I EQ USE :ONLY Q VISION',' Amodnt,,$, P46r. 16MAJA14 D'enril'aa- 1h&k* 46021 . PCX 31-406 013J:, 5135 0 0 'PETITION rOR"*,'RA'S'E'L'INE'ENVIRONMENTAL. ASSESSMENT DETERMINATION' and OPTIONAL DETERMINATION OF COMPLIANCE WITH: SECTION 20107a' (FORM EQP4440,'-(REV, 4163)) .117ij?jt�e'Ril-fie-S-- d@a16d,,`ih&eun P4A 401 _ , � I P!M , . I ., Aff of,the. tollowihg,questions must be-;Yan. ,an wered. information: is ' missing, the. p6tition for. Baseline S �y Environmental,Assessmeni,,:.(BEA),d6t6-rrfiit7a!ion::("th :p6titionO)"will,be,..retumedunrevi6.wed;, Name and -address, of petitioner"` 1(individual or. legal entity): Phoenix. Develoment. 'Partners, LLG 208 North Capitol Avenue Lansing, Michigan 48933' Status reiafiV6 to the prqperty. Former Current Prospeptivqz Owner` , Oper@itor* [j: Address,location of.property. where, BEAwas.conducted: <217 East Ottawa Street.. . .320'Nbrth. Grand Avenue, 1.312 North:,Grand Avehue,,and" ,300 -North: Grand 'Avenue Qou*jkoharn Provide: the property .tax'idt-nflfidcitioniiu*ihb6r(.§).,,t)r-i,ifaoolicable,the '.ward and: item. niirilbee 6y ,fotthd.property' identi.fiediiii.th-6. BEA. Required pursuant to: .Rule gOi.7,,.33=OlOl-1*6-252=003,'and33T'01'01-16-w ,252=033, C.ohtact person rk,james MAjash.1 t-phtaor :511-482-1488_- ,0 the: address of the p,re o ktitionerisdiffe different m the address that shoWd.be used ,f ' o correspond'.witfilhe p6tiffionees please provide: the contactaddress ;,,_., Check the appropifqie response to.each o0he,f6#.00iingquestions: i. Is' it kfioiwn, that the source contamination hAb6n,.at,1hd'.'t0Py, property t primarily ft0,M any of foliowing?, 'YES, NO A,Ibakini.Lihdi6tot6uhdstbtAoei,taii.k,(UST)"re Lilatd'd,-.iiiidee'Pb[it2l';3,: ❑ 1994 Pk45,1, as amended: A licensed landfill :or solid wa —managementfakdility. Ate 0 z licensed ,haiArdou!§,W6s.t6..,Treatment, ,Stbtag,6,,-be.Dit§posal,,Fzidilit" OH And 0At:dev0lo0fii0nt rdlmod;.IcfilvWo. The, sOqrpe, of -,,the,rdlease thalt, resulted in ,this property becoming -a "facility" Will determine which DEQ,divisibn will 'oe" U" jon: ewlyq. r petit 2.-. Basedl)n the Part.201 Kules,Jhis 'BEA,1s,: a: Q,.Ateodtyk 'El ,Category D ;M ,Cateqory.,9 3. Are ,'USTs-or-discarded or�abandoned 'containers identified: iii.the B.EA:?.:If'y0,s'this' YES-, NO information must be provided on Form '80P4416., ,EQP440 '.(R:ev.:4/0.3), Palge-1,9f 2 E 0 40 ELIGIBILITY FOR BEA DETERMINATION 4; Is'.1"ho property Whicithe.potitloh't eW-ib Ong requested a. ",facility" as YES defin6dinSection -201.01? Ifihe,answer toll quesfion it, no_ the property, is,finel!gible' for 1Z' El. iconsiderafim,and vour, pdfitlion will �� , e returned., tbor, With 1 , fi 45:.days aft e, of purchase';'VES, NO 6 Was the BEA,,1dbnduct6d*'0r'I or' after Aat occupancy., or forecilospre earliestAnd'completed*- not mdfeAhan45 dayAftirthe:,date' ' ire, T-s reqq' 'd b' odtiiDti20.,1:26'(I,)(c),.t)r'Rijle M7 if 299.5903 the to dither portion s, 'n this OU6stiqn, io, �;the"'BEA 6. Is. this BEA petition being submitted to the. DEQ.-Within;6 months. -after the "YES NO, completion of the BEA? If the 'an.$Wwfo this, question' is no,, pursu6ftto,$ecl:ioh,'41 290 (1). the petiti6nfb'r.a�BEAdet6rmihation it"Invalid and Will. be. returned tothe' petitioner. ,SECTION'20107a'COMPLIANCE,ANALY!3'1S 7. Is the petitioner seeking,.or zdpes,the petitioner intend't,o seek.a detierrh ination,of -VE8 NO Complizifte, With: Section" 20.107a .1 obligations? ThisdetetMih;jtidh,mu.�tbe "specifically requested inoorderforthb DE0.10.,prdvidd. its cobblusiohs. A.Sbctio6.,201.076'C6inpliare Analysis maybe s.qI)rnittd0,accor.jinj,t6 the fsqhedule prescribed in Ruld-.29,9�.*.'591'5.and tKe-lrt$teUCtibhs f6f Prep�adrig and. Disdlo]$ingBE)Ns!. '0, if--YOUL.answeredyes to: number7-abov ection 20107' 'YES :NO, ei,have.You"enpipspo fi�,.`S a -Compliance Analysis. haw?. El M ,REQUIRED MATElk[AL$: This petition must include theJollowiing do'cuipent's prepared according to bE"Q—Instructions jbr Ptrpopting, and Disclosing BEAs,..'Tho docurhonts should be ats'eMWed in the order they -are listed. If anyqf',this "information ismissing the petition Will'be returned 1oyouVJqW Punre le indicatewhether -ornot"the documents are. enclosed: YES. NO • The. $750400 petiti6n.'fo,, This forth, con),06t6d. A Thb.affidavit'signed by. the AccoirdingtO'EjECI proce4dres. .06titionevarid par6d: prd. 'The,.dffidavft..sIg.ne0: by. -the environmental professional who prepared. the BEA, and'if, applicable, Ittfe.affidaviVot. the environmental Arcifessilon alw who completedttie. Section , 0TaComp!iahcd Analysis:. 'i. The BEA, prepared AO,dor4ifilg; to DEQ Instructions, A,Notiop Regarding Discarded or.'Abar.idoned Cbritainets, if applicable, • ASectionr 2067a dompliance Analysis, ifyou answered I yes to question 8. ❑ With rny'sfg nature-bdloW, I certify, that this: petition�eind all.reilat&d materials are dorniplete, a-6d' . acdurat646," the° best of1nyXn'6W d, a d belief. I h� fidiarstarid'Ahe.0aiution r6ldteidlto curing. deficibticibs found in th. b §a -d D1 un 'te 06nally Wa: Instructions r n 1, ' derttand that in an or re is 10 y id Preparing r - su $25 600, r6dch vi6l6fioh pdfition fe n nd rn e to 46 Signature of �Naive ftle..'8.enlor Vice President EQP44.45,,.(Rdv. 4/03) Page.2-of 2 AP'` 202-, A % • • W Z00 [a t a#ZL, • off Hof W OT Ilia 90OZ/9Z/60 JENNIFER M. GRANHOLNI aovERNM STATE OF MICIOGAN DEPARTMENT OF ENVIRONMENTAL QUALITY J ANSING DISTRKT OFFICE September 26, 2008 D E= STEVEN E. CHESTER DIFZ=R DETERMINATION ON COMPLIANCE WITH SECTION 20107a Petitioner: Petition #: P200801330LA Phoenix Development Partners, LLC 208 North Capitol Avenue Determination: Lansing, Michigan 48933 20107a Obligations -Affirmed Property Address/Location: 217 East Ottawa Street 300, 312, and 320 North Grand Avenue Lansing, Michigan 48933 On September 17, 2008, the Department of Environmental Quality (DEQ) affirmed your Petition for a Baseline Environmental Assessment (BEA) Determination, Petition P2008013301-A. Subsequent to the submittal of your BEA, but prior to six months • following completion of your BEA, you requested DEQ's opinion of whether your Section 20107a Compliance Analysis (Section 7a CA), if implemented as proposed, will be consistent with the due care obligations set forth at Section 20107a of Part 201, Environmental Remediation, of the Natural Resources and Environmental Protection Act,1994 PA 461, as amended (NREPA), MCL 324.20107a. Based on Petition P2008013301.A_and the Section 7a CA submitted on September 17, 2008, and additional submittals made on September 18, 24, and 25, 2008, the DEQ affirms the adequacy of your Section 7a CA. This affirmative determination on the Section 7a CA is based on the proposed property use identified in the Section 7a CA, The affirmative determination on the Section 7a CA is conditioned on the timely and satisfactory completion of any response activities described in the Section 7a CA. The Section 7a CA is not a work plan for the purpose of authorizing tax'capture pursuant to Section 15(1) the Brownfield Redevelopment Financing Act, 1996 PA 381, MCL 125.2651, et seq. In this determination, the DEQ Is making no judgment regarding whether the proposed actions are necessary or cost effective. This determination on the Section 7a CA does not alter liabil'►ty vrith regard to a subsequent release or threat of release or any exaceri�attott ofeacisimg roixiitipres The° determination on the Section 7a CA Is only fot ',person arty pro petty]dentifiedAlnthe; petition. The use of the property and any response a+ctivriy undertakenmust be in accordance with the requirements of all aplAcabte or relQvan :and.apprcprJ00 state and federal laws and regulations. CONSTITUTION HALL- 525 WEST At IGAN STREET -P.O. BOX SM42 • LANSING, MICHIGAN 48909-7742 www.midtim.gov - (517) 995.8010 VZ 'd 188S 'ON 101N1SI0 JNISNVI 030W WS:9 800Z '91 'd3S goofa [ 66ZL -oN sor i 0Z:0T Ma 800VOZ/60 Phoenix Development Partners, LLC • Page 2 September 26, 2008 Notwithstanding this determination, the petitioner may also have responsibility under applicable state and federal laws, including, but not limited to Part 201, Environmental Remediation; Part 111, Hazardous Waste Management; Part 211, Underground Storage Tank Regulations; Part 213, Leaking Underground Storage Tanks; Part 615, Supervisor of Wells of the NREPA; and the Michigan Fire Prevention Code, 1941 PA 207, as amended. The DEQ will maintain an administrative record of each BEA and Section 7a CA. If at any time you provide the DEQ with post-BEA information related to your Section 7a CA, the DEQ will retain such information with the administrative record. Such post-BEA information will not be considered part of the�Section 7a CA, and acceptance of such information by the DEQ should in no way be construed to mean the DEQ will review or advise the petitioner regarding the adequacy of such information for any purpose. The petitioner, as the owner and/or operator of a facility, has the following Due Care i. responsibilities under Section 20107a of Part 201 and Part 10 of the Part 201 Rules, unless covered by the exemptions in Section 20107a(4) or (5); I • Undertake measures as are necessary to prevent exacerbation of the existing ; contamination. ` • Exercise due care by undertaking response activity necessary to mitigate unacceptable exposure to hazardous substances, mitigate fire and explosion hazards due to hazardous substances, and allow for the intended use of the facility in a manner that protects the public health and safety. • Take reasonable precautions against the reasonably foreseeable acts or omissions of a third party and the consequences that foreseeably could result from those acts or omissions. Notify the DEQ if there are discarded or abandoned containers that contain hazardous substances on the property using Form EQP4476. Notify the DEQ and adjacent property owners if contaminants are migrating off the property (refer to Form EQP4482). • Notify the local fire department if there is a fire or explosion hazard. Notify utility and easement holders if contaminants could cause unacceptable exposures and/or fire and explosion hazards. • Rule 1003(5) requires a person who is subject to the provisions of Section 20107a to maintain documentation of compliance with these requirements and to provide such documentation to the DEQ upon request. If the property use changes in the future, additional due care measures may be necessary. The property owner and operator must re-evaluate and document their continued compliance with Section 20107a. VE 'd 199S 'ON i3IdiSIO 9NISNd1 030N NVES:8 8006'9i 'd3S .0 • b00 [n (Bm 'ON wr i OV OT Iud 800Z/9Z/60 Phoenix Development Partners, LLC r. Page 3 September 26, 2008 The Section 7a CA constitutes a response activity, consequently, this determination is subject to Section 20137(4) and (5) of the NREPA. ,. i Authorized signature: r en HaII; District upenri jor 0 1 Lansing District Office Remediation and Redevelopment Division 4 517-335-6228 cc: NTH Consultants, Ltd. Ms. Lynelie Marolf, DEQ i Rev. SM1/04 i 0 'd 1885 'ON 1DIN1SIO JNISNVI 030N iNOS:8 8001'91'd3S • 39 • Lansing Board of Water & Light 1232 Haco Dr. Lansing, MI 48902 September 30, 2008 James M. Cash, Manager, Christman Capital Investment Group Phoenix Development Partners, LLC c/o Christman Capital Development Company 208 North Capitol Avenue Lansing, Michigan 48933 Re: Extension of Deadline in connection with Section 6.2(G) of that certain Property Purchase and Development Agreement dated January 30, 2008 (the "Purchase Agreement") by and among the undersigned. The defined terms in the Purchase Agreement shall have the same meanings in this Extension. Dear Mr. Cash: In connection with Section 6.2(G) of the Purchase Agreement, the undersigned hereby request, and by virtue of that request approve an extension of the deadline for the Lansing Board of Water and Light (`BWL") to obtain approval of a Remedial Action Plan ("RAP") from the Michigan Department of Environmental Quality ("MDEQ") under the Purchase Agreement ("Extension"). The terms of the Extension are as follows: 1. Under Section 6.2(G) of the Purchase Agreement, the parties may, by written agreement by the Mayor of the City of Lansing, Michigan ("City") and the General Manager of the BWL agree to a one-time extension of a deadline contained in the Purchase Agreement of up to 60 days. 2. Pursuant to Section 6.2(G), the deadline for obtaining MDEQ's approval of the RAP shall be extended sixty (60) days from the Closing Date. The closing shall occur on September 30, 2008. The new deadline for RAP approval with the sixty (60) day extension will be on or before November 29, 2008. BWL shall diligently pursue MDEQ's approval of the RAP from and after the date hereof. 3. Phoenix Development Partners, LLC ("Developer") hereby waives MDEQ's approval of the RAP as a condition of closing. The closing on the conveyance of the City Property to Developer shall be final, binding and not subject to rescission, and approval of the RAP shall be a post - closing obligation of the BWL that shall survive the closing on the conveyance of the City Property to Developer, anticipated to occur on 9 September 30, 2008. September 16, 2008 Page 2 • 4. Developer hereby acknowledges that certain restrictive covenants ("Covenants") shall be reviewed and approved by MDEQ as a condition of final approval of the RAP. Developer hereby consents to the imposition of such Covenants under the RAP for the purpose of this review and approval, subject to Developer's right to review and consent to the Covenants as described in paragraph 5 below, which consent shall not be unreasonably conditioned, withheld or delayed. 5. Developer hereby acknowledges that MDEQ may require revisions to the current form of the draft Covenants. BWL shall promptly notify Developer of any such revisions that are required by MDEQ, and shall provide Developer with the opportunity to review and approve the form of those revisions, which consent shall not be unreasonably conditioned, withheld or delayed. Upon approval of the RAP by MDEQ, Developer further agrees that conditioned on any necessary assistance from BWL, Developer shall cause said Covenants to be duly recorded within certain specified time limits contained within the approved RAP, and shall provide to B WL and MDEQ evidence of such recording within 7 days of recording. 6. City and Developer hereby agree to provide BWL with access to the property covered by the RAP for any purposes necessary to pursue MDEQ's approval of the RAP, subject to reasonable restrictions on the time and manner of such access. Upon approval of the RAP by MDEQ, City and Developer shall grant an easement(s) over the property covered by the RAP, allowing the BWL or its designated representatives, the City, and any governmental agency of competent jurisdiction to access the property for any purposes necessary to implement the RAP. Said easement(s) may be subject to reasonable terms and conditions, provided that those terms and conditions will not prevent implementation of the RAP. 7. Regardless of the status of MDEQ's approval of the RAP, the BWL shall complete one comprehensive groundwater sampling event by no later than January 1, 2009, as specified under Section 3.9 of the RAP, and then commence abandonment of all monitoring wells, as specified under Section 3.10 of the RAP, in coordination with Developer and Developer's general contractor so as to maintain progress on all construction and other redevelopment activities. 8. Regardless of the status of MDEQ's approval of the RAP, the BWL shall undertake all groundwater monitoring activities, as specified under Sections 3.14 and 3.24 of the RAP, upon the installation of new • monitoring wells as specified under the RAP in coordination with • CJ 0 September 16, 2008 Page 2 Developer and Developer's general contractor so as to maintain progress on all construction and other redevelopment activities. 9. To the extent that there are any conflicts or inconsistencies between the provisions contained in this Extension and the provisions contained in the Purchase Agreement, the provisions of this Extension shall be deemed to be superseding and controlling. 10. This Extension shall be binding upon and shall inure to the benefit of the parties hereto and their permitted successors and assigns. 11. This Extension may be executed in any number of counterparts, but shall collectively constitute one agreement. Signatures to this Extension Agreement may be exchanged via facsimile and/or electronic mail, and any signatures exchanged by such means shall be treated as original signatures for all purposes. By signing below, we hereby accept all the terms of this Extension, and represent and warrant that we are each duly authorized agents of our respective organizations, with all rights and authorities necessary to enter into this Extension. AGREED TO AND ACCEPTED BY: PHOENIX DEVELOPMENT PARTNERS, LLC CHRISTMAN CAPITAL INVESTMENT GROUP, LLC, Manager By: mes M. Cash, Manager Very truly yours, BOARD OF W. OF THE CITJ( -IR AND LIGHT LANSING J. Peter Lark, General Manager CITY OF LANSING z:��� B y: Virg 13emero, Mayor B y: 11Y?A,� �;� Chris Swope, Cler Dated as of September 30, 2008 September 16, 2008 Page 2 CADocuments and Settings\JZR\Local Settings\Temporary Internet Files\OLKA5\DETR0IT-#3315155-d7- Extension_ot_Deadline_Letter_Agt_B WL.DOC DETROIT.3315155.5 r� • :7 • • • E LENDER'S ESTOPPEL CERTIFICATE To: Phoenix Development Partners, LLC Attn: James M. Cash 208 N. Capitol Avenue Lansing, MI 48933 WN - In consideration of the benefits to be derived by Accident Fund Insurance Company of America ("AFICA") as a result of the sale of the City Property (as defined in the Agreement, as defined below) to Phoenix Development Partners, LLC ("PDP") by the City of Lansing ("City"), as set forth in a Property Purchase and Development Agreement dated January 30, 2008 between Christman Capital Development Company ("CCDC'), the City and the Lansing Board of Water and Light ("BWL") ("Agreement"), AFICA confirms the following: 1. AFICA understands the City and BWL will rely upon the statements made in Us Certificate in deciding whether to sell to PDP the City Property, as set forth in the Agreement. 2. AFICA has entered into a Construction Loan Agreement between AFICA and PDP of even date ("CLA'), the terms of which will provide sufficient funds to be borrowed by PDP for the development of the Project as contemplated by the Agreement. 3. . The funds to be loaned to PDP under the CLA for the development of the Project, will be advanced to PDP by AFICA in compliance with all its legal and regulatory requirements and consistent with the normal and customary requirements of a commercial loan, as set forth in the CLA. 4. All necessary corporate action and approvals have been obtained authorizing AFICA to enter into the CLA with PDP. 5. To the best of AFICA's knowledge, neither PDP nor AFICA is currently in default under the CLA and AFICA is committed to fund such loan subject to the terms and conditions set forth in the CLA. 6. The development of the Project, as set forth in the CLA, is consistent with the provisions of the Agreement. 7. The CLA reviewed by the attorneys for the City and BWL on September 26, 2008 has not been revised in any manner which affects the provisions of the Certificate. DETROrr.3328175.2 CJ is • Dated as of September 30, 2008 LENDER: ACCIDENT FUND INSURANCE COMPANY OF AMERICA By: Steven E. Reynolds, Senior Vice President PHOENIX DEVELOPMENT PARTNERS, LLC'S CONCURRENCE PDP certifies that the foregoing information set forth in Paragraphs 1-7 is, to the best of its knowledge, true, accurate and complete. The foregoing information is being provided to satisfy the provisions of Section 1.7(E) of the Agreement. Dated as of September 30, 2008 PHOENIX DEVELOPMENT PARTNERS, LLC, CHRISTMAN CAPITAL INVESTMENT GROUP, LLC Manager M. Cash, Manager C:\Documents and Settings\apecchioEocal Settings\Temporary Intemet Files\OLKEO\DETROIT-#3328175-v2- Lender s Estoppel_Certi£cate_-_BWL (2) DOC-revisedbyTracey-092508 DOC-092608 DOC-revised-092708.DOC DETROIT.3328175.2 • • 41 �J SUBTENANT'S ESTOPPEL CERTIFICATE r] COPY • To: Phoenix Development Partners, LLC Attn: James M. Cash 208 N. Capitol Avenue Lansing, MI 48933 Phoenix Master Tenant, LLC Attn: James M. Cash 208 N. Capitol Avenue Lansing, MI 48933 In consideration of the benefits to be derived by Accident Fund Insurance Company of America ("AFICA") as a result of the sale of the City Property (as defined in the Agreement, as defined below) to Phoenix Development Partners, LLC ("PDP") by the City of Lansing ("City"), as set forth in a Property Purchase and Development Agreement dated January 30, 2008 between Christman Capital Development Company ("CCDC"), the City and the Lansing Board of Water and Light (`BWL") ("Agreement"), AFICA confirms the following: 1. AFICA understands the City will rely upon the statements made in this Certificate in deciding whether to sell to PDP the City Property, as set forth in the Agreement. 2. The undersigned is the Subtenant under a certain Sublease of even date, between Phoenix Master Tenant, LLC ("PMT") as Sublandlord and AFICA (the "Sublease"). 3. The Sublease is in fW1 force and effect and there are no agreements or contracts between Sublandlord and AFICA with respect to the premises subject to the Sublease (the "Premises") other than the Sublease itself, the agreements, plans and specifications referenced in the Sublease, a certain Master Lease between PDP, as Landlord and PMT as tenant, and the AFICA loan documents of even date. The Sublease has not been modified, altered, amended or supplemented and AFICA has not assigned any interest in the Sublease. 4. The Premises are accurately described in the Sublease. 5. The rent will be payable as set forth in the Sublease. There are currently no offsets or credits against the rentals owing under the Sublease, nor has any rent been prepaid. 6. Possession of the Premises will be provided to Subtenant as set forth in the Sublease. DETROIT.3328177.2 • 7. To the best of the undersigned's knowledge, neither the Sublandlord nor AFICA is currently in default under the Sublease. 8. The term of the Sublease expires October 1, 2030 (subject to Subtenant's right to purchase). 9. The development of the Premises, as set forth in the Sublease, is consistent with the provisions of the Agreement. 10. The Sublease reviewed by the attorneys for the City and BWL on September 26, 2008 has not been revised in any manner which affects the provisions of the Certificate. Dated as of September 30, 2008 SUBTENANT: ACCIDENT FUND INSURANCE COMPANY OF AMERICA • By: <�- - �zv .. Steven E. Reynolds, Senior Vice President . SUBLANDLORD'S CONCURRENCE DETROIT.3328177.2 • The Sublandlord hereby certifies that the foregoing information set forth in Paragraphs 1-10 is, to the best of its knowledge, true, accurate and complete. The foregoing information is being provided to satisfy the provisions of Section 1.7(D) of the Agreement. • • Dated as of September 30, 2008 SUBLANDLORD: PHOENIX MASTER TENANT, LLC PHOENIX DEVELOPMENT MANAGEMENT, LLC, Manager CHRISTMAN CAPITAL INVESTMENT GROUP, Manager s M. Cash, Manager CADocuments and Settings\apecchio\Local Settings\Temporary Internet Files\OLKEO\DETROIT-#3328177-v2- Subtenant Estoppel (2) DOC-revisedbyTracey-092508 DOC-revised-092608 DOC-revised-092708.DOC DETROIT.3328177.2 • L' • The accompanying Subtenant Estoppel Certificate is being*delivered to Phoenix Development Partners, LLC ("PDP") and Phoenix Master Tenant, LLC ("PMT") for use by PDP in connection with a certain Property Purchase and Development Agreement dated January 30, 2008 between the City of Lansing ("City"), the Lansing Board of Water and Light ("BWL") and Christman Capital Development Company ("CCDC") ("Agreement"). CCDC has advised the undersigned that all its rights under the Agreement have been assigned to PDP, as permitted under the Agreement. You are authorized to deliver to the representatives of the City and BWL the Subtenant Estoppel Certificate which accompanies this letter and the City and BWL may rely on such Subtenant Estoppel Certificate in consummating the various transactions under the Agreement. If you have any questions, please give me a call. ACCIDENT FUND INSURANCE COMPANY OF AMERICA teven E. Reyno ds, Senior Vice President DETROIT.3328177.2 • 42 L� • MICHIGAN ECONOMIC GROWTH AUTHORITY (MEGA) ACT 381 WORK PLAN TO CONDUCT ELIGIBLE ACTIVITIES Accident Fund Insurance Company of America National Headquarters Campus Development Lansing, Michigan Phoenix Development Partners, LLC 208 North Capitol Avenue Lansing, Michigan 48933 Is June 20, 2008 Prepared by. NTH Consultants, Ltd. 608 S. Washington Ave Lansing, Michigan 48933 • TABLE OF CONTENTS 1.0 INTRODUCTION 1.1 Eligible Property Description 1.1.1 Location 1.1.2 Current Ownership 1.1.3 Proposed Future Ownership 1.1.4 Delinquent Taxes 1.1.5 Existing and Proposed Future Zoning 1.2 Historical Use of Property 1.3 Current Use of Property 1.4 Proposed Redevelopment and Future Use 1.5 Information Required by Section 15(15) of the Statute 1.5.1 Benefit to the Public 1.5.2 Reuse of Vacant Buildings 1.5.3 Jobs Created 1.5.4 Unemployment 1.5.5 Contamination Summary 1.5.6 Private Sector Contribution 1.5.7 Greenfield Site Comparison 1.5.8 Creation of Brownfields 1.5.9 Incentives • 2.0 CURRENT PROPERTY CONDITIONS 2.1 Property Eligibility 2.2 Summary of Environmental Conditions 3.0 SCOPE OF WORK 3.1 Department of Environmental Quality Eligible Activities 3.2 MEGA Eligible Activities 3.2.1 Demolition of North Grand Ramp Extension 3.2.2 Demolition of Cooling System 3.2.3 Construction of New Chilled Water Plant 3.2.4 Demolition of Steam Distribution System 3.2.5 Interest Reimbursement 4.0 SCHEDULE AND COSTS 4.1 Schedule of Activities 4.2 Estimated Costs FIGURES Figure 1 Site Aerial Photograph and Property Location Map is r1 TABLES Table 1 Eligible Activities Costs Table 2 Estimated Captured State Tax- Calculation Table ATTACHMENTS Attachment A Legal Description Attachment B Property Purchase and Development Agreement; Designation of Limited Liability Company and Assignment Attachment C Statement of Intent to Provide Project Financing Attachment D Brownfield Plan Attachment E Environmental Supplemental Report Attachment F Reimbursement Agreement Attachment G City Council Resolution • 40 • • 0 Accident Fund Insurance Company of America National Headquarters Campus Development June 20, 2008 1.0 INTRODUCTION 1.1 Eligible Property Description 1.1.1 Location The proposed site for redevelopment is known as the Former Ottawa Power Station Property (the "site") located in Lansing, Ingham County, Michigan. The site is comprised of two city blocks and is generally bounded by Ottawa Street to the south, North Grand Avenue to the west, Shiawassee Street to the north and the Grand River to the east as shown on attached Figure 1 "Site Aerial Photograph." The site is comprised of two parcels, summarized below. Parcel Number Address / other Size Ownership identifier acres 33-01-01-16-252-003 217 East Ottawa Street 6.55 Phoenix (former Ottawa Street Development Station Power Plant) Partners, LLC* 320 North Grand Avenue (property generally north of Ionia to Shiawassee 312 North Grand Avenue (former Lansing Board of Water and Light customer service Building 33-01-01-16-252-033 300 North Grand 0.54 Abe Grand Avenue, Avenue (aka "Grand LLC Building" or "Stackable Building") *The Property is presently owned by the Lansing Board of Water and Light (LBWL). LBWL, the City of Lansing, and Phoenix Development Partners, LLC (Christman Capital Development Company) have entered into a Property Purchase and Development Agreement for the site. The Legal Description for the site is included as Attachment A. 1.1.2 Current Ownership As stated in the previous table, parcel 33-01-01-16-252-003 is presently owned by the Lansing Board of Water and Light (LBWL). LBWL, the City of Lansing, and Phoenix Development Partners, LLC (Christman Capital Development Company) have entered into a Property Purchase and Development Agreement for the site, a Accident Fund Insurance Company of America • National Headquarters Campus Development June 20, 2008 copy of which is included in Attachment B. Abe Grand Avenue, LLC is the current owner of parcel 33-01-01-16-252-033. 1.1.3 Proposed Future Ownership Phoenix Development Partners, LLC (Phoenix), a Michigan limited liability company, anticipates acquiring the site on September 30, 2008. Phoenix intends to lease the site to the Accident Fund Insurance Company of America (Accident Fund), for use as their National Headquarters Campus. 1.1.4 Delinquent Taxes The redevelopment site currently has no delinquent property taxes. 1.1.5 Existing and Proposed Future Zoning The Site is currently zoned G-1 Business District. This zoning designation is acceptable for the anticipated use of the site. 1.2 Historical Use of Property There have been various commercial and industrial uses on the site for over 120 • years. Previous site uses have included the coal-fired power plant, manufacture of wooden farm implements, a foundry, automobile fueling and repair shops, offices, and parking. These historic uses have resulted in contamination across the site, as discussed in Section 1.5.5. In 1937, the Lansing Board of Water and Light began construction of the Power Station facility as a coal to steam electric generation plant. It was inaugurated in January 1940. Steam and electric generation was fully decommissioned by 1992 and the equipment was removed shortly thereafter. 1.3 Current Use of Property The site currently consists of three unoccupied structures, a portion of the City's North Grand Avenue Parking Ramp expansion, and surface parking areas. Tile former Ottawa Power Station has been predominately vacant since 1992. The LBWL presently operates a chiller plant and steam distribution and pressure - reduction station in portions of the former Ottawa Power Station. The chiller plant occupies approximately 16,000 square -feet of space within the former Ottawa Power Station. The LBWL chiller plant and steam distribution and pressure- redicution station supplies chilled water and steam heat to the greater downtown Lansing area, including State office and governmental buildings. The other unoccupied structures on the site, north of the former Power Station, include a former LBWL Customer Service Building of 34,044 square -feet located 0 Accident Fund Insurance Company of America • National Headquarters Campus Development June 20, 2008 on approximately 2.5 acres, and an adjacent privately held 34,882 square -feet building on a 0.54 acre parcel. An aerial photograph of the site is attached as Figure 1. 1.4 Proposed Redevelopment and Future Use The proposed redevelopment entails rehabilitating the historic Ottawa Power Station into Class A office space that will be leased by the Accident Fund for use as its national corporate headquarters. The rehabilitated power station will consist of approximately 219,000 square feet of office space, as well as a new adjacent 105,000 square foot office building, a parking structure, and green -space areas. Together, the rehabilitated power station and the new structures will form a campus for Accident Fund's corporate headquarters. The campus will eventually employee approximately 1,200 individuals involved in corporate functions, as well as support for both Michigan and other regional operations. Accident Fund anticipates the creation of up to 500 new jobs, with approximately 250 anticipated over the first five years of occupancy. The average salary over this period is expected to be approximately $57,000. The redevelopment project entails the following major components: 1. Environmental remediation and management of contaminated soils at the site. 2. Demolition of two existing structures on the north portion of the site. These structures include the former LBWL Customer Service building (312 North Grand Avenue) and the former office building at 300 North Grand Avenue. Demolition of these structures will also require abatement of potentially hazardous materials (e.g. asbestos containing materials). 3. Removal of an existing 10,000-ton chilled water plant and steam distribution facility that is present in the power plant, and development of replacement facilities at new locations. 4. Development of a 25-foot wide public "linear" park along the Grand River's bank. 5. Removal of the existing City of Lansing North Grand Avenue parking deck that currently spans North Grand Avenue and that partially occupies the southwest corner of the proposed site. 6. Renovation of the historic Ottawa Power Plant, including a comprehensive structural reconfiguration and abatement, to provide office and other program space. 7. Construction of a new office building to the north. The new building has been designed to complement the historic power plant. U Accident Fund Insurance Company of America National Headquarters Campus Development June 20, 2008 8. Development of an approximately 850 to 1,000 space parking deck, for use by the Accident Fund during business hours. The total project budget, based on the components in items (I ) through (8) above, as well as direct expenditures by Accident Fund, is over $182 million. Brownfield Tax Increment Financing is being pursued to address an estimated $33,300,889 in MEGA eligible activities. 1.5 Information Required by Section 15(15) of the Statute 1.5.1 Benefit to the Public While this project is challenging, it also produces a broad range of very significant benefits. It will constitute a capital investment in downtown Lansing in excess of $180 million, much of which will be focused on construction work generating jobs and associated secondary benefits for both the local economy and state income and sales tax base. When the long-term costs of operating the new facility are included, the total commitment represents over $280 million. Tile new carnpus will also bring significant employment to the city of Lansing. It will eventually house 1,200 employees, of which 500 will be new jobs added over the next 10 to 15 years. According to the economic analysis done by the Michigan Economic Development Corporation utilizing Regional Economic Models, Inc. software, it is estimated that this facility will create a total of 804 jobs in the state by the year 2022. Besides the obvious benefits of increased consumption and additional tax revenues, this employment growth is not related to the auto industry or other manufacturing activities and thus promotes much needed diversification of the mid -Michigan and broader state economies. It will allow for the re -purposing of an iconic building that has been unused, functionally obsolete, and environmentally contaminated for well beyond a decade, with no other alternatives for redevelopment in sight. Contamination will be remediated, and the project will result in a high -density office and parking complex on an approximately 7 acre campus. The project team has already embraced sustainability as a key value driving the programming and design, and will adopt Leadership in Energy and Environmental Design (LEED) concepts as development continues. The building is also a strong candidate to seek formal LEED certification from the U. S. Green Building Council (USGBC). Beyond capital investment and job growth, the project will address urban planning challenges long thought impossible to resolve, while also improving public infrastructure. Removal of the existing parking deck spanning Grand Avenue will eliminate the "tunnel effect" it has created. This will reunite areas to the north that have 0 Accident Fund Insurance Company of America • National Headquarters Campus Development June 20, 2008 been essentially cut off from the downtown core, leaving them underutilized and underdeveloped. • The construction of a new "linear" park along the entire riverfiont will allow for the connection of downtown and Wentworth Park to River Front Park to _ the north, returning an uninterrupted stretch of the Grand River shoreline back to Lansing's residents. • A new— more efficient— chiller water plant will be constructed at a more appropriate site across town. Not only will this new plant remove an impediment to redevelopment, it is also expected to improve the chilled water service provided to the downtown district. Relocation of the existing steam station is also expected to improve the steam distribution network. Finally this project represents a. tremendous opportunity for broader revitalization by creating an "anchor" for future development in Lansing. Perhaps more important, it is a true model for how partnerships between the public and private sectors can lead to real, enduring and positive change. 1.5.2 Reuse of Vacant Buildings It is anticipated that the 219,000 square -foot former Ottawa Power Station will be rehabilitated as an integral part of the redevelopment of the site. This historic • Lansing landmark will be redeveloped into trademark office space for the Accident Fund in Downtown Lansing. The other two structures, north of the former Ottawa Power Station, are anticipated to be razed to provide adequate space for the proposed new adjacent 105,000 square -foot office building and a 1,000 space parking structure. 1.5.3 Jobs Created This National Headquarters campus will eventually employ over 1,200 employees involved in corporate functions, as well as support for both Michigan and other regional operations. With the proposed expansion of their operations in Downtown Lansing, the Accident Fund anticipates the creation of up to 500 new jobs, with approximately 250 anticipated over the first five years of occupancy. The average salary over this period is expected to be approximately $57,000. It is also anticipated that this development will be a catalyst for additional businesses, which will result in additional indirect job creation, such as retail and commercial related business to provide services to the large concentration of Accident Fund employees. 1.5.4 Unemployment According to the Michigan Department of Labor and Economic Growth statistics, the Lansing - East Lansing Metropolitan Statistical Area had an unemployment rate averaging 5.1 % over the month of April 2007. In the same month, the state of Michigan experienced an unemployment rate of 6.9%. Over this same period of • Accident Fund Insurance Company of America National Headquarters Campus Development June 20, 2008 time, the National Unemployment rate was 5.0% according to the Bureau of Labor Statistics. 1.5.5 Contamination Addressed by Redevelopment As will be discussed in Section 2.1, soil and groundwater contamination is present across the site — the result of over 120 years of commercial and industrial uses. Contamination in soil was found at levels exceeding the following MDEQ generic cleanup criteria: • Residential Direct Contact Criteria • Industrial Direct Contact Criteria • Drinking Water Protection Criteria • Groundwater Surface Water Interface Protection Criteria • Volatile Source Inhalation (ambient air) Criteria Contamination in groundwater was found at levels exceeding the following MDEQ generic cleanup criteria: • Drinking Water Criteria • Groundwater Surface Water Interface Criteria • Groundwater Contact Criteria Contaminants in soil and groundwater will be alleviated during redevelopment through targeted remediation and as a positive consequence of construction activities. Contamination that is not remediated will be managed through exposure barriers and controls. Specifically: • Soils contaminated at levels exceeding VSIC, as well as metals contamination that may require disposal at a Type I (i.e. hazardous) landfill facility will be targeted for excavation and disposal prior to construction activities. • Contaminated soils excavated during construction of foundations and infrastructure will be properly handled and disposed at an appropriate landfill facility. • Soils remaining at the completion of redevelopment, which are contaminated at levels exceeding direct contact criteria, will be capped such that direct contact is not possible. • Shallow contaminated groundwater that is encountered during construction activities will be appropriate handled. The final methods for handling contaminated groundwater are not yet known, but will consist of either direct discharge to the City of Lansing sanitary sewer system, pretreatment and discharge to the City of Lansing sanitary sewer system, or trucking off -site to a special disposal facility. 0 • 0 Accident Fund Insurance Company of America National Headquarters Campus Development June 20, 2008 The end result of redevelopment will be a significantly cleaner site that is safe for occupants and the general public. 1.5.6 Private Sector Contribution The capture of local and school taxes for reimbursement of eligible activities, in combination with the Brownfield Michigan Business Tax Credit, is essential to securing the appropriate financing needed to fund this development. In combination with the financial resources available through local, state, and federal partnerships, this redevelopment will be funded through direct financing provided by the Accident Fund. A Statement of Intent to Provide Project Financing is included as Attachment C. 1.5.7 Greenfield Site Comparison Other sites were being considered for this proposed development. The Accident Fund was outgrowing its current location and was evaluating outlying Lansing and out-of-state locations. 1.5.8 Creation of Brownfields The proposed redevelopment involves the rehabilitation of the former Ottawa Power Station and the construction of a new office facility. Through the redevelopment of this site, adverse environmental conditions will be remediated and three functionally obsolete structures will be rehabilitated and/or demolished. The Accident Fund's existing Headquarters at 232 South Capitol Avenue, Lansing, Michigan, is anticipated to remain occupied until the completion of the National Headquarter Campus in 2010. The Accident Fund is presently assessing the future plans for their previous operational locations. 1.5.9 Incentives Making this historic redevelopment a reality and financially viable required the combination of a number of financial incentives available through the local, state, and federal government. This development is included in an approved Brownfield Plan (Attachment D). Tax increment revenues will be captured to reimburse the Developer for eligible activities, estimated to total $33,300,899. A Brownfield Michigan Business Tax credit of approximately $10 million is also being requested for this development. In combination with resources available through the Michigan Brownfield Program, the site is also part of a designated Michigan Renaissance Zone. This designation will provide a significant tax exemption until its phased completion after 2024. The Accident Fund Insurance Company of America 0 National Headquarters Campus Development June 20, 2008 Renaissance Zone is anticipated to begin in 2010. The final three years of the Zone will begin a phase -in of taxation. The phase -in is anticipated to begin in 2022 with a 25% phase -in of tax liability, 50% in the year 2023, 75% in the year 2024, and 100% after 2024. With the historic nature of the former Ottawa Power Station, which began construction in 1937, Rehabilitation Tax Credits will be pursued to assist and ensure that this structure remains a time -piece for the era in which it was design and constructed. It is also anticipated that the Lansing Brownfield Redevelopment Authority and the Lansing Economic Development Corporation, through the use of revolving loan funds through the U.S. Environmental Protection Agency (EPA) will provide approximately $500,000 to address environmental related conditions on the site. 2.0 CURRENT PROPERTY CONDITIONS 2.1 Property Eligibility Based on the presence of soil and groundwater contamination across the site at levels exceeding MDEQ Part 201 generic cleanup criteria, the site is a "facility" as defined in Section 2010](])(o) of 1994 Michigan Public Act 451, M.C.L. 3 24.20]0] (] )(o). 2.2 Summary of Environmental Conditions As mentioned previously, the site has been used for numerous commercial and industrial uses for over 120 years. Historic operations have included the former Ottawa Power Station coal-fired power plant, manufacture of farm equipment, a foundry, automobile fueling and repair shops, as well as other uses. These activities involved the use and storage of numerous chemicals and hazardous substances. Furthermore, historic industrial operations on adjacent properties, notably a former manufactured gas plant, have also resulted in contamination to the site. As a result of these historic uses on and near the site, numerous environmental assessments have been conducted on the site. The primary reports that document environmental conditions at the property include: • Ottawa Power Station Power Plant, Hydrogeologic Analysis Report, STS Consultants, Ltd., April 23, 1986. • Subsurface Investigation at Lansing Board of Water & Light's Ottawa Street Facility, Clayton, November 3, 1992. • Phase I Environmental Site Assessment Report —209 East Ottawa Street, 312 North Grand Avenue; AKT Peerless Environmental Services (AKT), May 25, 2001. • Phase II Environmental Site Assessment Report —312 North Grand Avenue; • • Accident Fund Insurance Company of America National Headquarters Campus Development June 20, 2008 AKT, October 11, 2001 • Environmental Site Assessment —Former Coal Storage Site (Parcels A and B); NTH Consultants, Ltd., August 28, 2006. • Supplemental Environmental. Site Assessment— Ottawa Power Station Redevelopment Project; NTH Consultants, Ltd., April 3, 2007. • Environmental Due Diligence Study; NTH Consultants, Ltd., April 4, 2007. • Site -Specific Remedial Action Plan (RAP); Soil and Materials Engineers, Inc. (SME); Revised March 7, 2008. Based on the above reports, environmental contamination at the site is summarized as follows: Fill material; often described as containing debris such as bricks, concrete, wood, etc.; is present across the site. Fill has been typically encountered to depths between 5 and 10 feet below ground surface, but has been observed to depths up to 20 feet below ground surface in some areas. Much of the subsurface fill across the site contains elevated concentrations of various metals, notably arsenic and lead, as well as other contaminants including, but not limited to petroleum -related compounds. • Areas of soil contamination across the site exceed the MDEQ's residential, 0 commercial, and/or industrial cleanup criteria. These exceedances include: o Metals (arsenic, cadmium, and lead) and several polynuclear aromatic (PNA) hydrocarbons at levels exceeding generic residential, commercial, and/or industrial direct contact criteria. o One location where PNA contamination exceeds MDEQ's generic residential cleanup criteria for Infinite Source Volatile Soil Inhalation Criteria (volatilization to ambient air). This area exceeding VSIC will be remediated prior to construction activities. o Metals at one location may require disposal at a Type I (hazardous waste) landfill due to levels of cadmium and lead in soil. o Metals, PNAs, and other contaminants exceed drinking water protection and groundwater surface water interface protection criteria. • Groundwater beneath the site has been impacted by residual contamination from former industrial operations such as coal storage and from underground storage tanks used to store petroleum products. Specifically, groundwater contamination was identified at levels exceeding: - Drinking Water Criteria - Groundwater Surface Water Interface Criteria - Groundwater Contact Criteria 0 • 0 Accident Fund Insurance Company of America National Headquarters Campus Development June 20, 2008 The LBWL is attempting to resolve groundwater contamination issues through a Remedial Action Plan with the MDEQ, which will include a restriction on the deed that prohibits the use of groundwater for potable or non -potable purposes. If dewatering is necessary during construction, contaminated groundwater will need to be managed appropriately. • Evidence of dense non -aqueous phase liquid (DNAPL) was found in a monitoring well installed near the southwest corner of the Ottawa Power Station. Based on observations and laboratory data, the material appears consistent with coal tar that has likely migrated from a property to the west (beneath the current City of Lansing North Grand Parking Structure) that was historically operated as manufactured gas plant. It was not confirmed that DNAPL is present beneath the Ottawa Power Station based on observations and data developed during previous investigations. • Asbestos -containing window caulk is present within the Ottawa Power Station, as well as lead -based paint that is in poor condition throughout the building. These materials will require abatement during renovation of the building. Regulated materials including asbestos containing materials, fluorescent light tubes and ballasts, and other materials are present in the LBWL Customer Service building (312 N. Grand Avenue) and the building located at 300 North Grand Avenue. These materials will require abatement/reinoval prior to building demolition. The presence of soil and groundwater contamination across the site, as well as hazardous building materials, will require either remediation before or during construction activities, or special management considerations during construction and future occupancy of the site. It is not feasible to attach all the environmental reports prepared for this site. However, the most recent site investigation report, "Supplemental Environmental Site Assessment — Ottawa Power Station Redevelopment Project" dated April 3, 2007, prepared by NTH Consultants, Ltd., has been included as Attachment E. 3.0 SCOPE OF WORK 3.1 Department of Environmental Quality Eligible Activities No environmental activities are anticipated to be reimbursed through local and state tax increment financing. 3.2 MEGA Eligible Activities 3.2.1 Demolition of North Grand Ramp Extension This will involve the complete demolition of the North Grand Parking Structure expansion, a 960 space cast -in -place parking structure currently spanning Grand • Accident Fund Insurance Company of America National Headquarters Campus Development June 20, 2008 Avenue and occupying a portion of the proposed redevelopment site at its southwest corner. The ramp was originally built in 1985 and was expanded vertically in 1987. Its demolition will most likely occur from late 2009 to early 2010. The estimated incremental eligible cost of this task is $1,200,000. 3.2.2 Demolition of Cooling System This will involve the complete demolition of the 10,000-ton chilled water generation plant with components contained in the lower level of the existing Ottawa Street Station and on its west elevation. The plant, built in 2001 and operated by the LBWL, provides chilled water to the downtown for use in building and other cooling. The existing pant will be demolished in late 2009, after a replacement plant has been constructed and is fully -operational. The estimated incremental eligible cost of this task is $2,000,000. 3.2.3 Construction of New Chilled Water Plant The new plant will be built at a site located at Allegan Street and Pine Street to be leased from the state of Michigan by the LBWL. Construction on the replacement plant will begin in fall of 2008 and be completed by fall of 2009. is The estimated incremental eligible cost of this task is $20,000,000 3.2.4 Demolition of Steam Distribution System In addition to the chilled water generation plant, the lower level of the Ottawa Street Station contains a steam distribution and pressure -reduction station that services both the existing chiller plant with high-pressure steam, and the downtown steam heating loop with lower pressure steam. The station is solely for distribution purposes, as the steam itself is generated at a plant operated by the LBWL that is unaffected by the development. The existing distribution station will be completely demolished after a replacement is constructed by late 2009. The replacement system will be located on or near the development site in an as yet to be determined location. The estimated incremental eligible cost of this task is $700,000. 3.2.5 Interest Reimbursement Interest shall be reimbursed in accordance to the executed Reimbursement Agreement, included in Attachment F. The amount of interest for reimbursement shall be calculated as 6% of the outstanding balance as stated in the terms and conditions set forth in the agreement. C Accident Fund Insurance Company of America National Headquarters Campus Development June 20, 2008 The estimated incremental eligible cost of this task is $9,400,889. 4.0 SCHEDULE AND ESTIMATED COSTS 4.1 Schedule of Activities Development Activity Act 381 Work Plan Approval Environmental Remediation Site Improvements, Preparation, and New Construction/Buildings Occupancy 4.2 Estimated Costs Pro-jected Start/End Date 3`d Quarter of 2008 0' Quarter of 2008 4°i Quarter of 2008 to I"Quarter of 2011 No later than April 1, 2011 The estimated costs of undertaking the eligible activities have been included in the approved BRA Plan, are described in detail in this Work Plan, and are presented on Table I (attached). 0 0 .7 • 43 �j • 0 C] Former Ottawa Power Station Brownfield Redevelopment Project Lansing, Michigan Brownfield Plan #39 Lansing Brownfield Redevelopment Authority Lansing, Michigan Approved by the LBRA 03/04/2008 Approved by the Lansing City Council 04 / 21 / 2008 • Table of Contents Section Page 1. Site Location and Photos......................................................................................1 2. Project Summary Sheet........................................................................................2 3. Past Use of the Property - Site History ..................................................................3 4. The Lansing Brownfield Redevelopment Authority................................................4 5. Brownfield Project Description..............................................................................4 6. Eligible Activities Planned for Reimbursement......................................................7 7. Captured Taxable Value & Tax Increment Revenues...........................................8 8. Method of Brownfield Plan Financing....................................................................9 9. Amount of Note or Bonded Indebtedness Incurred...............................................9 10. Duration of the Brownfield Plan.............................................................................9 11. Estimated Impact on Taxing Jurisdictions.............................................................9 12. Legal Description & Site Map..............................................................................10 13. Personal Property...............................................................................................10 14. Displacement of Persons....................................................................................10 15. Site Remediation Revolving Fund.......................................................................10 16. Other Information................................................................................................10 • Schedule Schedule 1 Detailed Financial Numbers Exhibits Exhibit A Legal Description of the Property 0 1. Site Location and Air Photo • 1 a Y, y 2 , Sa:;inaw E� 5[ E`. w"'` 2. Project Summary Sheet Project Name: Former Ottawa Power Station Brownfield Redevelopment Project Business Line: The Developer, Christman Capital Development Company on behalf of a to be formed Michigan LLC. Property Location: Ottawa Street to Shiawassee Street, Grand Avenue to the Grand River including but not limited to: 217 East Ottawa Street, 300-310 & 312 North Grand Avenue. Project Description: Rehabilitation of the 219,290 square foot power plant building, the addition of a 105,000 square foot companion building. Developer Investment: Demolition $3,900,000 Construction $105,000,000 New Chilled Water Plant $20,000,000 Total Developer Investment $128,900,000 Estimated Job Creation/Retention: 632 jobs retained, 500 jobs created averaging $57,000/yr. • Duration of Plan: 35 years. Brownfield Numbers: Revenue Sources $24,013,850 Capture of New Local Taxes $12,889,116 Capture of New School Taxes $36,902,966 Total LBRA Revenue Revenue Uses $33,300,889 Developer's Eligible Activities $ 3,602,077 LBRA's Eligible Activities $36,902,966 Total LBRA Eligible Activities Project Fiscal Analysis $13,444,149 New City Income Taxes $17,677,535 Retained City Income Taxes $ 1,801,385 To City Brownfield Authority Fund $ 577,278 New City Property Taxes $-5,234,985 City Taxes Abated by Ren. Zone $-8,336,092 City Taxes Reimbursed to Developer $19,929,270 Net Gain to the City LBRA Staff Recommendation: Approval of Plan 0 2 • 3. Past Use of the Property - Site History The Ottawa Power Station, Customer Service Building and the Coal Storage property are landmarks on the downtown Lansing skyline and situated between Ottawa and Shiawassee Streets along the Grand River and Grand Avenue. The Property is zoned G-1 Business District. In 1937 the Lansing Board of Water and Light (the LBWL) began construction of the Power Station facility as a coal to steam electric generation plant. It was inaugurated in January 1940. Bowe -Munson Company of Lansing designed the exterior brickwork in changing colors to symbolize coal combustion and the building contains other distinctive design elements of the period. From the outset the building looked more like an office structure than a power and steam generating facility; nevertheless it was hailed nationally and celebrated locally for its technological advancement. • The Property constitutes a "facility" under Part 201 because its soils or groundwater contain Hazardous Substances exceeding applicable criteria under Part 201 of Michigan's Natural Resources and Environmental Protection Act, 1994 P.A. 451, as amended, MCL §324.20101 et seq., and the rules promulgated thereunder. An "Environmental Due Diligence Study Report" dated April 4, 2007, prepared for the developer by NTH Consultants, Ltd. (Project No. 16-070161-00), identifies a number of environmental conditions on or around the Property, including by way of example and without limitation, the presence of lead based paint and asbestos within the Power Station building, Dense Non -Aqueous Phase Liquid in groundwater perhaps presenting a volatilization concern, elevated levels of materials related to coal storage, and metals and PCB's exceeding applicable Part 201 criteria. Steam and electric generation at the Ottawa Street Power Station was fully decommissioned by 1992 equipment was removed shortly thereafter. The LBWL currently occupies approximately 16,000 square feet of space within the Property's existing building and has been redeveloped by LBWL for use as a central chilled water and steam heat distribution plant that services the greater downtown Lansing area, including State office and governmental buildings. North of the Power Station there exists and a former LBWL Customer Service Building of 34,044 square feet located on approximately 2.5 acres, and an adjacent privately held 34,882 square foot building on a .54 acre parcel, both of which are part of the project site. 0 3 • 4. The Lansing Brownfield Redevelopment Authority In August of 1997, the Lansing City Council established the Lansing Brownfield Redevelopment Authority (LBRA) and designated the entire City as a "Brownfield Zone". The primary purpose of the LBRA is to encourage the redevelopment of blighted, contaminated and functionally obsolete property within the Brownfield Zone by providing financial incentives. 5. Brownfield Project Description In the Summer of 2006, the Lansing Economic Development Corporation conducted a Request for Proposals (RFP) process accompanied by a national marketing effort to raise awareness of the development potential and available incentives for the site. Concurrent with this, the Accident Fund Insurance Company of America with its headquarters in Lansing was outgrowing its current building and was contemplating either moving out of Lansing or to another state. The Christman Company, working with the City of Lansing, Lansing Board of Water and Light, Michigan Department of Management and Budget, Michigan Economic Development Corporation, Michigan 0 0 Department of Environmental Quality and the Lansing Brownfield Redevelopment Authority put together a development proposal to keep the Accident Fund growing in Lansing. Thus, Christman's development affiliate, Christman Capital Development Company (the "Developer") will purchase, remediate and redevelop the site into the national headquarters for the Accident Fund. The headquarters will be comprised of the 219,000 square foot rehabilitated power plant and a new adjacent 105,000 square foot office building. The Developer will: dismantle and remove the existing chilled water plant and steam distribution systems in the power plant building; demolish the portion of the City's North Grand Ramp that extends over Grand Ave and construct a new chilled water plant on an offsite location to replace the existing chilled water plant. The removal of the cooling towers and a portion of the parking ramp will dramatically improve the look and feel of Grand Avenue between Michigan Avenue and Shiawassee Street. The architectural splendor and grandeur of the former power plant will clearly visible from Grand Ave. The adjacent new office building will complement and expand the capacity of the historic power plant. Planned conversion of Grand Avenue to a two- way street will further enhance the impact of this catalyst development. With the retention of 632 jobs and the long-term addition of another 500 or more new jobs will have a profound and lasting positive impact on the riverfront in downtown Lansing. The Michigan Department of Environmental Quality has offered a $3.2 million grant for public improvements to the riverfront focusing on the twenty foot wide strip of land and runs between the project and the river. Additionally, the City is putting together a Downtown Riverfront Development plan to coordinate and maximize the positive impacts from the multiple developments proposed for the riverfront. This plan will examine the flow of traffic, pedestrians and employees both back and forth across the river and to and from the core downtown areas. Overall, the project will be a catalyst for the complete rebirth of a major part of downtown Lansing. The image and rendering on page six depicts the look, size and scale of transformation anticipated from the development. 0 5 s�s P § t 4U" ol v) ro p It op �:r as �• - �s� 0 6. Eligible Activities 0 The table below presents the anticipated eligible activities that will be completed for this project and the estimated eligible costs associated with each activity: Eligible Activity Local Tax MEGA Tax Total Reimbursement ReimbIursement Idr olr N OW2RO7ROO 91M' 1. Demolition of portion. of the . North Grand Ramp that extends over Grand Ave. $725,688 $474,312 $1,200,000 2. Demolition of Cooling System $1,209,480 $790,520 $2,000,000 3. Demolition of Steam Distribution System $423,318 $.276,682 $700,000 4. Construction of New Chilled Water Plant $ 12,094,798 $7,905,202 $ 20,1000,000 5. Interest to Developer $5,958,489 $3,442,400 $9,400,889 "r WATEARM940 WTI -a., n--W� fz'4M allf"M Fer; 11-1 1k "NOW Total Tax Capture Reimbursed to Developer $ 20,411,772 $ 12,889,116 $ 33,300,889 NUMMIN i 6. EPA Grant for Environmental Activities: Assessment, Due Care, Remediation, Response, Etc. $600,000 $0 $6.00,000 7. Amount to LBRA for Administrative and Legal Costs $1,200,692 $0 $1,200,692 8. Amount to LBRA Revolving Fund $1,801,385 $0 $1,801,385 01EM �1H M WON 4 TV4 4W I , ; Total Tax Capture to LBRA $3,602,077 $0 $3,602,077 1-1 I ":X III tQ 51 P " -- -M � On, "1';6 � '�' I Total Tax Ca ture $ 24,013,850 $ 12,889,116 $ 36,902,966 M a� mgg! z , --I rg'a&'�"zmcy Fou'l-m-Timm", pmaiewaoiz VA 0 0 7. Captured Taxable Value and Tax Increment Revenues The LBRA will capture the tax increment revenues from 2013 through 2042 which will be generated by the increase in taxable value. The following table provides a summary of the estimated'taxable values and the tax increment revenue which they will provide: Tax Year Tax Value State Tax Capture Local Tax Capture Total Tax Capture 2008 $0 $0 $0 $0 2009 $0 $0 $0 $0 i—,A -'W. 001 O'WANIINNI $04 47 %T-11 2 4 8,1, ()�j I It AN.'- -411,-�-41 4A 1,1,11, 14", 1 MAM :11"All, �Wbt., 41 WO "PAOU &1110 11-f ikl id 6441,11 eut, M111�1 R, 1;1'.iN All rfl& il,11 4 1r,J�l Ift -2 Q4 42�Onn t AU 4;11'�A't WW',W P, -A !O*t-1 202a ss. "IF ",$Zr 2'. 'k N J --,; 6 N.Av If, 51119.� W4 W A -14 &s jfflJjOZ0Z5 3 t"N�i 038'' 2025 $29,353,635 $648.487 $1 j074,537 $1,723,024 2026 $29,850,708 $660,380 $1,092,733 $1,753,113 2027 $30,357,722 $672,511 $1,111,293 $1,783,804 2028 $30,874,876 $684,885 $1,130,224 $1,815,109 2029 $31,402,374 $697,506 $1,149,534 $1,847,040 2030 $31,940,421 $710,379 $1,169,230 $1,879,609 2031 $32,489,229 $723,510 $1,189,320 $1,912,830 2032 $33,049,014 $736,903 $1,209,812 $1,946,715 2033 $33,619,994 $750,565 $1,230,714 $1,981,278 2034 $34,202,394 $764,4991 $1,252,033 $2,016,533 2035 $34,796,442 $778,713 $1,273,779 $2,052,492 2036 $35,402,371 $793,210 $1,295,960 $2,089,171 2637 $36,020,418 $807,998 $1,318,585 $2,126,583 2038 $36,650,826 $823,081 $1,341,662 $2,164,743 2039 $37,293,843 $838,466 $1,365,201 $2,203,667 2040 $37,949,720 $854,159 $1,389,210 $2,243,369 2041 $38,618,714 $0 $1,413,700 $1,413,700 2042 $39,301,088 $0 $1,438,679 $1,438,679 Total $12,889,116 $24,013,850 $36,902,966 Tax revenue to the - LBRA will remain zero or diminished until the anticipated Renaissance Zone (shaded time period) tax exemption phases completely out in 2024. The captured incremental taxable value and associated tax increment revenue will be 0 8 determined by the City Assessor. Furthermore, the amount of tax increment revenue available under this Plan will be based on 100% of the actual millage levied annually by each taxing jurisdiction on the captured value resulting from the redevelopment project that is eligible and approved for capture. The Developer will be making a separate application to the State of Michigan for Michigan Brownfield Michigan Business Tax credits. 8. Method of Brownfield Plan Financing The Developer will initially fund approximately $23,900,000 of Eligible Activities as listed in Section 6. The LBRA will also spend $600,000 of its funds to assist in cleanup of the site. The Developer and LBRA will be reimbursed for these costs by the LBRA utilizing taxes captured from the project as estimated in Schedule 1. The LBRA will provide financing for its costs to implement and administer the Plan by utilizing 5% of the new local taxes captured per year for the duration of the Plan. No portion of captured school taxes will be used for LBRA administration costs. 9. Amount of Note or Bonded Indebtedness Incurred None. 10. Duration of the Brownfield Plan Unless amended by the Lansing City Council, the Plan is anticipated to remain in effect until the end of 2042. 11. Estimated Impact on Taxing Jurisdictions The following table presents a summary of the new tax revenues generated by the taxing jurisdictions, whose millage is subject to capture by the LBRA under this Plan. Jurisdiction Taxes Captured Amendment City of Lansing $9,807,167 Lansing Community College $2,497,515 Ingham Intermediate School District $3,080,303 County of Ingham $5,727,583 Regional Airport Authority $445,357 Capitol Area Transportation Authority $1,432,568 Capital Area District Library $1,023,357 0 9 • City of Lansing Debt $0 Lansing School District Debt $0 Lansing School District Operating $9,656,898 State Education $3,232,218 TOTALS: $36,902,966 Additional information related to the impact of tax increment financing on the various taxing jurisdictions is presented in Schedule 1 attached to this Plan. 12. Legal Description & Site Map The legal description of the Eligible Property is provided as Exhibit A. A Site Map is provided on page 1. 13. Personal Property Incremental tax revenues resulting from new personal property will be captured in the same proportions as real property. These funds will be used to reimburse the LBRA and Developer for eligible activities. See Schedule 1 for more detail. 0 14. Displacement of Persons There are no persons currently residing on the property. 15. Site Assessment and Remediation Revolving Funds The LBRA will deposit 10% of all annual local tax capture in the LBRA's Local Site Remediation Revolving Fund (LSRRF). The capture of school taxes will halt once the Developer has been reimbursed either the amount of school tax capture approved by the Michigan Economic Growth Authority or the plan expires. The reimbursement of the Developer from the capture of local taxes will end when the Developer has been reimbursed the sum total of $20,411,772 or the plan expires. If the Developer has been reimbursed for $20,411,772 from local tax capture prior to the expiration of the plan, all remaining capture of local taxes will be deposited in the LBRA's revolving fund to the maximum extent permitted by Act 381 of 1996, as amended ("the Act"). The funds in the LBRA's revolving fund will be used in a manner consistent with the Act. 16. Other Information The LBRA and the Lansing City Council, in accordance with the Act, may amend this Plan in the future in order to fund additional eligible activities associated with the Project described herein. 0 10 • • Schedule 1 Detailed Financial Numbers 11 pent rune orownnem meaevewpmem rian - wwwuo Project Numbers Brownfield Plan Numbers l Private Project Investment $146,900,000 Developer's Eligible Activities Per. Property Invest in Rehab. Building $12,000.000 Per. Property Invest in New Building $6,000,000 I New Personal Property Investment $18.000,000 Demolition of Portion of Ramp mated Tax Value of New Personal Property $9,000,000 Demolition of Cooling Towers Demolition of Steam System I New Real Prop. Invest In Rehab Bldg. $65,000,000 Relocation of Chiller System it Final Sq. Footage of Rehab Bldg. 219,290 Interest Assessed Market Value 219,290 sf @ $110 per sf. $24,121,900 Total Developer Eligible Activities Assessed Tax Value $12,060,950 LBRA's Eligible Activities d New Real Prop. Invest In New Building $40.000,000 Environmental Costs (EPA) d Final Sq. Footage of New Bldg. 105,000 Admin Assessed Market Value 105,000 sf @ $110 per sf. $11.550.000 LBRA Revolving Fund Assessed Tax Value $5,775,000 Total LBRA Eligible Activities it New Real Prop. Investment $105,000,000 Totals Assessed Real Prop. Market Value $35.671.900 imated Total Buildings Tax Value $17,835,950 mated Increase in Land Value $2,000.000 Imated Land Tax Value $1,000,000 . Total Buildings 3 Land Tax Value $18,835,950 ieloper Financed Eligible Activities $23,900.000 LBRA MEGA DEQ Appreciation, Interest, Assessment & Tax Rates Eligible Local Tax School Tax School Tax Cost Capture Capture Capture Ydy Appr. Rate for Real Prop. 2.00% $1.200.000 $725,688 $474,312 $2,000.000 $1,209,480 $790,520 $700,000 $423.318 $276.682 $20,000.000 $12,094,798 $7.905,202 $9,400,889 $5,958,489 $3,442,400 $33,300,889 $20,411,772 $12,889,116 100% 61% 39% $600,000 $600.000 $0 $1,200,692 $1,200.692 $0 $1,801,385 $1,801,385 10 $3,602,077 $3,602,077 $0 $36,902,966 $24,013,850 $12,889,116 100% 65% 35% Interest Rate for Discounting 6.00% Init. Est. Bldg M.V. Per SF $110 IRR for Developer Local Taxe: 2.23% $0 IRR for Developer Sch. Taxes 1.34% $0 $0 LBRA $0 Millage New Taxes E0 Taxing Unit Rate Captured $0 0% City 0.0149500 $9,807,167 LCC 0.0038072 $2,497,515 $0 ISD 0.0046956 $3,080.303 $0 County 0.0087311 $5,727,583 §0 Airport 0.0006789 $445,357 $0 CATA 0.0021838 $1,432,568 CADL 0.0015600 $1.023,357 $0 Tot Local 0.0366066 $24,013,860 0% City Debt 0.0008800 $0 Schl Debt 0.0022569 0 Tot Debt 0.0031369 $0 SchlOper 0.0179262 $9,656,898 State Educ. 0.0060000 $3,232,218 Tot Schl 0.0239262 $12,889,116 Totals 0.0636697 $36,902,966 Accident Fund Brownfield Redevelopment Plan - 03/04108 100.0% 85.0% Internal Internal 5.0% 10.0% New Captured Captured Rate of Rate of Captured Captured Projected Personal Projected Projected Property School Local Total Return to Return to Local Local Total Real Prop. Property Per. Prop. Total Taxes School Local LBRA Taxes To Taxes To Captured Develper Develper Taxes To Taxes To Captured Tax Value Deprec. Tax Value Tax Value Abated By Taxes Taxes Total Reimburse Reimburse Taxes To from School from Local LBRA LBRA Taxes To Year Capture Multiprs. Capture Capture Ren. Zone Captured Captured Revenue Develper Develper Develper Taxes Taxes AdmintLegal Revol Fund LBRA 2008 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 2009 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 -$4,780,000 -$7,170,000 $0 $0 $0 2010 $1.000,000 $0 $1.000,000 $95,505 $0 $0 $0 $0 $0 $0 44,780,000 -37.170,000 $0 $0 $0 2011 $18,835.950 89.000/6 $8,010,000 $26,845,950 $1,645,284 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 2012 $19.212.669 76.00% $6,840,000 $26,052.669 $1,608,773 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 30 2013 $19.596.922 67.00% $6.030.000 $25.626,922 $1,591.356 $0 $0 $0 $0 $0 $0 30 $0 $0 $0 $0 2014 $19,988,860 60.00% $5,400,000 $25,388.860 $1,583,735 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 2015 $20,388.637 54.00% $4,860,000 $25,248,637 $1.581.267 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 30 2016 $20,796,410 50.00% $4,500,000 $25,296.410 $1,588,616 $0 $0 $0 $0 $0 $0 30 $0 $0 $0 $0 2017 $21,212.338 50.00% $4,500,000 $25.712,338 $1,615,098 30 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 2018 $21,636,585 50.00% $4.500,000 $26,136,585 $1,642.109 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 2019 $22,069,317 50.00% $4,500,000 $26.569.317 $1,669,661 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 2020 $22,510,703 50.00% $4.500.000 $27.010.703 $1,697.764 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 2021 $22,960,917 2022 $23,420,135 50.00% 50.00% $4,500,000 $27,460,917 $4,500,000 $27.920,135 $1.726,429 $1.316,751 $0 $153,547 $0 $255.515 $0 $409,062 $0 $153,547 $0 $217,188 $0 $370,735 $0 $153,547 $0 $255.515 $0 $12,776 $25,552 $38,327 2023 $23.888,538 50.00% $4,500,000 $28,388,538 $892,745 $312.698 $519.604 $832,302 $312.698 $441,663 $754,361 $312.698 $519,604 $25.980 $51,960 $77,941 2024 $24,366.309 50.00% $4,500,000 $28,866.309 $453,978 $477,620 $792,523 $1,270.143 $477,620 $673,645 $1,151,265 $477.620 $792,523 $39.626 $79.252 $118.878 2025 $24.853.635 50.00% $4.500,000 $29,353,635 $0 $648,487 $1,074.537 $1.723,024 $648,487 $913.356 $1,561.843 $648,487 $1,074.537 $53.727 $107,454 $161,181 2026 $25,350,708 50.00% $4,500,000 $29.850.708 $0 $660,380 $1.092,733 $1,753.113 $660,380 $928.823 $1.589,203 $660.380 $1,092,733 $54,637 $109,273 $163,910 2027 $25.857,722 50.00% $4,500,000 $30,357,722 $0 $672,511 $1,111,293 $1,783,B04 $672,511 $944,699 $1,617,110 $672.511 $1.111,293 $55,565 $111,129 $166,694 2028 $26,374,876 50.00% $4,500,000 $30,874,876 $0 $684.885 $1,130.224 $1,815,109 $684,885 $960,691 $1.645.675 $684,885 $1,130,224 $56,511 $113.022 $169.534 2029 $26,902.374 50.00% $4,500,000 $31,402.374 $0 $697,506 $1,149,534 $1,847,040 $697,506 $977,104 $1,674,610 $697,506 $1,149.534 $57,477 $114,953 $172,430 $175.385 2030 $27,440,421 50.00% $4,500,000 $31,940,421 $0 $710.379 $1.169.230 $1.879.609 $710,379 $993.846 $1.704.225 $710,379 $1,169,230 $58.462 $116,923 2031 $27,989.229 50.00% $4,500,000 $32,489.229 $0 $723,510 $1.189,320 $1,912,830 $723,510 $1.010,922 $1.734.432 $723,510 $1,189,320 $59.466 $118,932 $178,398 $181,472 2032 $28.549,014 50.00% $4.500,000 $33,049,014 $0 $736.903 $1,209,812 $1.946,715 $736,903 $1,028.340 $1,765,244 $1.796.671 $736.903 $750.565 $1.209,812 $1.230,714 $60,491 $61,536 $120,981 $123,071 $184,607 2033 $29,119.994 50.00% $4,500,000 $33.619.994 $0 $750,565 $1,230,714 $1.981.278 $750.565 $1,046,107 $187.805 2034 $29.702,394 50.00% $4,500,000 $34,202,394 $0 $764,499 $1.252,033 $2,016.533 $764,499 $1.064.228 $1,828,728 $764,499 $1,252.033 $62,602 $125.203 $127,378 $191,067 2035 $30,296,442 50.00% $4,500,000 $34,796,442 $0 $778.713 $1.273.779 $2.052,492 $778.713 $1,082,713 $1,861,425 $778.713 $1,273.779 $63,689 $64.798 $129,596 $194.394 2036 $30,902,371 50.00% $4,500,000 $35.402,371 $0 $793,210 $1,295.960 $2.089,171 $793,210 $1,101,566 $1,120.797 $1,894,777 $1.928,795 $793,210 $807,998 $1,295,960 $1,318,585 $65,929 $131,859 $197.788 2037 $31,620,418 50.00% 50.00% $4,500,000 $36,020.418 $4.500,000 $36.650,826 $0 $0 $807.998 $823,081 $1,318.585 $1,341.662 $2,126.583 $2.164,743 $807,998 $823,081 $1,140.413 $1,963.494 $823.081 $1,341,662 $67,083 $134.166 $201,249 2038 $32,150,826 2039 $32,793,843 50.00% $4,500,000 $37,293,843 $0 $838,466 $1,365,201 $2,203.667 $838.466 $1,160,421 $1.998.887 $838,466 $1.365,201 $68,260 $136,520 $204,780 2040 $33,449.720 50.00% $4,500,000 $37,949,720 $0 $854.159 $1.389,210 $2,243.369 $854,159 $1.180,829 $2,034,987 $854,159 $1.389.210 $69.461 $138.921 $208.382 $212,055 2041 $34,118,714 50.00% $4,500.000 $38,618.714 $0 $0 $1,413.700 $1,413,700 $0 $0 $1,201.645 $1.222,877 $1,201.645 $1,222.877 $0 $0 $1,413,700 $1,438,679 $70,685 $71,934 $141.370 $143,868 $215,802 2042 $34,801,088 50.00% $4,500,000 $39.301.088 $0 $0 $1,438.679 $1.438,679 $20,709,071 $12,889,116 $24,013,850 $36,902,966 $12,889,116 $20,411,772 $33,300,889 $1,200,692 $2,401,385 $3,602,077 0 EXHIBIT A: Legal Description of the Property Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East — West'/a section line of Section 16 N89°59'00"E 527.87 feet; thence N00001'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats, and the Point of Beginning; thence along the East line of North Grand Avenue N00°01'45"W 519.77 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50°05' 10"E 157.52 feet; thence N00°29'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89°58'OOW 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 256.73 feet; thence S45000'36"E, 40.44 feet; thence S07°00'06"E, 179.66 feet; thence S17°21'34"E, 76.99 feet; thence S01°08'14"E, 335.04 feet; thence S17017'09"W, 171.40 feet; thence S18°04'11"W, 100.23 feet; thence S90° 00'00"W 16.00 feet; thence S23°01'48"W, 89.64 feet; thence S90° 00'00"W 203.50 feet to the point of beginning EXCEPT a 25 foot wide strip of real property located adjacent and parallel to the West wall of a retaining wall located along the following courses: Commencing at the East line of North Grand Avenue to a point where the South line of Shiawassee Street intersects the East line of North Grand Avenue; thence S89°58'00"E 256.73 to the Point of Beginning; thence S45°00'36"E, 40.44 feet; thence S07°00'06"E, 179.66 feet; thence S17021'34"E, 76.99 feet; thence SO1°08'14"E, 335.04 feet; thence S17°17'09"W, 171.40 feet; thence S18004'11"W, 100.23 feet; thence S90° 00'00"W 16.00 feet; thence S23°01'48"W, 89.64 feet EXCLUDING any portion of the 25 foot wide strip of real property on which any portion of the Ottawa Station Brick Building is presently located. • 12 • r� • • THE LANSING BROWNFIELD REDEVELOPMENT AUTHORITY Resolution Recommending Approval of Plan #39 Former Ottawa Power Station At a meeting of the Board of Directors of the Lansing Brownfield Redevelopment Authority (LBRA) Lansing, Michigan, held on the 4th day of March, 2008, at 7:45 a.m., pursuant to notice duly given: PRESENT: Mayor Bernero, Kim Coleman, Bo Garcia, Calvin Jones, Kelly Rossman-McKinney, Greg Ward, Jeff Williams ABSENT: James Butler, Brian Jeffries The following preamble and resolution was offered by; Member: Kelly Ross man -McKinney, and supported- by; Member: Greg Ward • WHEREAS, The LBRA staff has worked closely with the Christman Capital Development Company (Developer) to draft Brownfield Plan #39 — Former Ottawa Power Station (Plan); and WHEREAS, The LBRA staff has duly reviewed such Plan and has found it to be in compliance with the provisions of the Brownfield Redevelopment Financing Act, being Act 381 of the Public Acts of the State of Michigan of 1996, as amended (Act), and meets the following determinations and findings: 1. The Plan constitutes a public purpose under the Act; 2. The Plan meets all of the requirements for a brownfield plan set forth in Section 13 of the Act; 3. The proposed method of financing the cost of the eligible activities, as described in the Plan, is feasible and the LBRA has the ability to arrange the financing; 4. The costs of the eligible activities proposed in the Plan are reasonable and necessary to carry out the purposes of the Act; and 5. The amount of the captured taxable value estimated to result from the adoption of the Plan is reasonable; and WHEREAS, The LBRA staff also recommends approval of the Plan for the following reasons: 1. The Developer is investing approximately $146,900,000 to rehabilitate the • power station building and construct an adjacent office building; 2. The project when complete will retain 632 and create 500 jobs in Lansing; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE LANSING BROWNFIELD REDEVELOPMENT AUTHORITY, AS FOLLOWS: 1. The Brownfield Plan described as Brownfield Plan #39 — Former Ottawa Power Station in the form filed herewith is hereby approved by the Lansing Brownfield Redevelopment Authority and recommended for consideration by the City Council of the City of Lansing pursuant to Act 381 of Michigan Public Acts of 1996, as amended. 2. The LBRA Board hereby requests that the Lansing City Council, after required notification as specified by the Act, hold a public hearing in consideration of this matter, and subsequently approve the Plan. YEAS: Mayor Bernero, Kim Coleman, Bo Garcia, Calvin Jones, Kelly Rossman-McKinney, Greg Ward, Jeff Williams NAYS: None • ABSTENTIONS: None ABSENT: James Butler, Brian Jeffries RESOLUTION DECLARED ADOPTED. 0 • STATE OF MICHIGAN ) )SS. COUNTY OF INGHAM ) I hereby certify that the foregoing is a true and complete copy of a resolution adopted at a special meeting of the Brownfield Redevelopment Authority held on the 4th day of March, 2008, and said resolution is on file in the office of the Economic Development Corporation and is available to the public. Public notice of the said meeting was given pursuant to and in compliance with Act No. 267, Public Acts of Michigan 1976, including in the case of a special or re -scheduled meeting, notice by publication or posting of at least eighteen (18) hours prior to the time set for the meeting. In addition, said meeting was held in full compliance with the Board's By -Laws. IN WITNESS WHEREOF, I have hereunto affixed my official signature this day of March 4, 2008. • • • • 45 • I, CHRIS SWOPE, CITY CLERK of the City of Lansing, Michigan, do hereby certify that 1 have compared the annexed copy of Resolution #175 of 2008, Approval of Brownfield Redevelopment Plan #39; Former Ottawa Power Station, which was adopted on April 21, 2008 with the original now on file in my office, and that it is a correct copy thereof, and the whole of such original. A'' a t) ,l L 01 SEAL IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal of the City of Lansing this .26th Day of September, A.D. 2008 /1,4� 4� CHRIS S OPE, ity Clerk • RESOLUTION#175 BY THE PLANNING AND DEVELOPMENT COMMITTEE RESOLVED BY THE CITY COUNCIL OF THE CITY OF LANSING BROWNFIELD PLAN #39 FORMER OTTAWA POWER STATION WHEREAS, the Brownfield Redevelopment Authority (the Authority) of the City of Lansing, pursuant to and in accordance with the provisions of the Brownfield Redevelopment Financing Act, Public Act, Public Act 381 of 1996, as amended, (the Act) has prepared a Brownfield Plan, submitted to Council and placed on file in the office of City Clerk, LBRA Brownfield Plan #39 — Former Ottawa Power Station (the Plan); and WHEREAS, a public hearing was held by the Lansing City Council, and at least 10 days before the public hearing the taxing jurisdictions were provided notice to be fully informed about the fiscal and economic implications of the proposed Plan, and given a reasonable opportunity to express their views and recommendations regarding the Plan in accordance with Section 13 (10) and 14(1) of the Act; and WHEREAS, the Lansing City Council, after its public hearing on April 14, 2008, reviewed testimony and evidence regarding the Plan, and -found that: 1. the project property was historically used as a coal burning electric power plant, • 2. the Plan provides for the reimbursement of costs attributable to eligible activities to the developer and the Authority, 3. the Project includes, in addition to the eligible activities identified in the Plan, the redevelopment of the property, 4. the project may result in new private investment of approximately $128,900,000, 5. the Plan provides for the capture of property tax increment revenues, WHEREAS, the Authority Board of Directors, at its meeting on March 4, 2008, unanimously recommended approval of the Plan, for this Project; NOW, THEREFORE, BE IT RESOLVED that the Lansing City Council, after having duly considered the Plan, finds it is in compliance with the provisions of the Act and further finds: The Plan constitutes a public purpose under the Act; 2. The Plan meets all of the requirements for a Brownfield Plan set forth in Section 13 of the Act; • 3. The proposed method of financing the costs of the eligible activities, as described in the Plan, is feasible and the Authority has the ability to LANSING CITY COUNCIL LEGISLATIVE ITEMS: APRIL 21, 2008 RESOLUTIONS • arrange the financing; 4. The costs of the Eligible Activities proposed in the Plan are reasonable and necessary to carry out the purposes of the Act; and 5. The amount of the captured taxable value estimated to result from the adoption of the Plan is reasonable. IT IS FINALLY RESOLVED that the Lansing City Council hereby approves the LBRA Brownfield Plan #39 — Former Ottawa Power Station. By Councilmember Wood Motion Carried • • LANSING CITY COUNCIL LEGISLATIVE ITEMS: APRIL 21, 2008 RESOLUTIONS • • 46 • 300 1 LAW CUSTOMER ASSISTANCE CENTER S17 373 9000 WWW.MICHIGAN.ORG EXECUTIVE COMMITTEE MATTHEW P. CULLEN Chair General Motors Corporation PHILIP H. POWER Vice -Chair The Center for Michigan JAMES C. EPOLITO President and CEO RICHARD E. BLOUSE JR., CCE Detroit Regional Chamber JOHN W. BROWN Stryker Corporation DR. DAVID E. COLE Contorfor tontResearch H W..COOLEY Michigan Department of Labor & Economic Growth JOANN CRARY Saginaw Future Inc. DR. HAIFA FAKHOURI Arab American and Chaldean Council STEVEN K. HAMP Hemp Advisors, LLC HAYDEN H. HARRIS EOFVenluros PAUL HILLEGONDS DTE Energy Company FREDERICK W. HOFFMAN Chrysler, LLC GEORGE W. JACKSON JR. Detroit Economic Growlh Corporation MICHAEL J. JANDERNOA Bridge Street Capital Partners, LLC. BIRGIT M. KLOHS The flight Place, Inc. F. THOMAS LEWAND BodmanLLP DR. IRVIN D. REID Wayne State University MICHAEL B. STAEBLER Pepper liamillon LLP DENNIS R. TOFFOLO Oakland County PETER S. WALTERS Guardian Industries Corp. 0 MICHIGAN ECONOMIC DEVELOPMENT CORPORATION July 24, 2008 Karl Dorshimer City of Lansing Economic Development Corporation 401 South Washington Square, Suite 100 Lansing, Michigan 48933 Dear Mr. Dorshimer: Enclosed is a certified copy of the Michigan Economic Growth Authority (MEGA) Resolution 2008-78, adopted at the July 15, 2008, MEGA Board meeting, authorizing a MEGA tax credit for the City of Lansing — former Ottawa Power Station. Thank you for choosing Michigan! Sincerely, Peter C. Anastor Secretary to the MEGA Board Enclosure oil, k ti r, 300 N. WASHINGTON SQ. 'LANSING. M04BB13 CUSTOM =R-,,.{ ASS ISTANCE CENTER 517 3731;9808 W W W.THEMEDC.ORG EXECUTIVE COMMITTEE MATTHEW P. CULLEN. Chair. f Rock Enterprises PHILIP H. POWER Vice -Chair The Conterfor Michigan JAMES C. EPOLITO President and CEO RICHARD E. BLOUSE JR., CCE Detroit Regional Chamber JOHN W. BROWN Stryker Corporation DR. DAVID E. COLE Center for iea 1-4 W.C W W. OOLEY Michigan Department of Labor & Economic Growth JOANN CRARY Saginaw Future Inc. OR. HAIFA FAKHOURI Arab American and Chaldean Council STEVEN K. HAMP Hamp Advisors, LLC PAUL HILLEGONDS DTE Energy Company FREDERICK W. HOFFMAN Chrysler, LLC GEORGE W. JACKSON JR. Detroit Economic Growth Corporation MICHAEL J. JANDERNOA Bridge Street Capital Partners, LLC BIRGIT M. KLOHS The Right Place, Inc. F. THOMAS LEWAND Bodman LLP DR. IRVIN D. REID Wayne State University MICHAEL B. STAEBLER Poppor Hamlltan LLP DENNIS R. TOFFOLO Oakland County PETER S. WALTERS Guardian Industries Corp. TODD A. WYETT Versa Development, LLC 0 MICHIGAN ECONOMIC DEVELOPMENT CORPORATION Michigan Economic Growth Authority (MEGA) Certificate Resolution 2008-78 Former Ottawa Power Station (Phoenix Development Partners, LLC — City of Lansing) I, Peter C. Anastor, Secretary to the MEGA Board, do hereby certify that the attached is a true and complete copy of a resolution adopted by the MEGA board at a meeting on July 15, 2008 and that public notice of said meeting was given pursuant to Act No. 24, Public Acts of Michigan, 1995, including the case of a special or rescheduled regular meeting, or a meeting recessed for more than 36 hours, notice by posting at least 18 hours prior to the time set for the meeting. IN WITNESS WHEREOF, I have hereto affixed my signature this 24t' day of July, A.D. 2008. ,�2 �- 'vq- Peter C. Anastor Secretary to the MEGA Board Lag6awn-T Burman Board Administrative Assistant • RESOLUTION 2008-78 MICHIGAN ECONOMIC GROWTH AUTHORITY City of Lansing Brownfield Redevelopment Authority Former Ottawa Power Station (Phoenix Development Partners, LLC) Lansing, Michigan At the meeting of the Michigan Economic Growth Authority ("MEGA") held on July 15, 2008 in Lansing, Michigan. WHEREAS, MEGA has been established by 1995 PA 24, as amended (the "Act"); WHEREAS, 2002 PA 727 amended 1996 PA 381, MCL 125.2651 et seq, to empower local brownfield redevelopment authorities to request the MEGA Board to approve a brownfield project work plan and, thereby, capture taxes levied for school operating purposes for the project; WHEREAS, captured school operating tax revenues may be used under 1996 PA 381 as amended, for infrastructure improvements that directly benefit eligible property, for lead or asbestos abatement, and for structure demolition and site preparation that are not response activities under the Natural Resources and Environmental Protection Act, 1994 PA 451; WHEREAS, the City of Lansing Brownfield Redevelopment Authority (the • "Authority") has submitted a work plan for property located at 217 East Ottawa Street and 300, 312 and 320 North Grand, within the City of Lansing, known as the Accident Fund National Headquarters Project (the "Project"); WHEREAS, the City of Lansing is a "qualified local governmental unit" and is eligible to provide for: a) demolition, b) site preparation, c) lead and asbestos removal, and d) infrastructure improvement activities for the project; and WHEREAS, the Authority is requesting MEGA approval to capture additional taxes levied for school operating purposes to provide for the reimbursement of the cost of eligible activities on an eligible property; and WHEREAS, the Project meets the guidelines as transformational due to the following reasons: 1) it is regionally transformational; 2) the state and region will benefit from the Project; 3) the Project addresses a major redevelopment need in the community; 4) the Project will not move forward without the support of interest reimbursement; 5) the Project economics require a strong subsidy. NOW, THEREFORE, BE IT RESOLVED, that the MEGA Board authorizes the Authority to capture taxes levied for school operating purposes in substantially the same proportion as the 40% to 60% ratio currently existing between school and local taxes for the real property portion and as the 25% to 75% ratio currently existing between school and local taxes for the personal property portion of the project to reimburse the cost of demolition and public infrastructure improvements as presented in the work plan dated June • 20, 2008. Any change in millage that increases the capture percentage of school operating taxes by more than 5 percentage points must be approved by the MEGA Board. The • authorization is based on the Authority capturing all available local operating mills for the term of the capture period. The authorization for the capture of taxes levied for school operating purposes is based on a maximum of $23,900,000 for the principal activity costs of non -environmental eligible activities and a maximum of $9,400,889 for interest costs related to the principal activities, with the capture of taxes levied for school operating purposes being approximately $12,603,670. Provided that: (a) Any environmental contamination encountered at the site will be dealt with as required to protect the public health, safety and welfare, and environment. BE IT FURTHER RESOLVED, that the MEGA Board authorizes the staff of the MEGA, to provide written notification to the Authority, in the form of a letter which incorporates the terms set forth in this Resolution and consistent with the limitations of the Act, and that this approval is further conditioned upon the City of Lansing or the Authority, as appropriate, maintaining adequate records regarding: a) all taxes captured for the project; and b) receipts or other appropriate documentation of the cost of eligible activities. The records shall be made available for review upon request by MEGA staff. Eligible activities authorized by this resolution must be completed within three (3) years. BE IT FURTHER RESOLVED, that the MEGA Board is authorizing that capture of school taxes for the payment of interest, up to a maximum interest rate of 6 percent (6%). • ADOPTED: AYES: Douglas Buckler, Keith Cooley, Baldomero Garcia, Andrew Lockwood (acting on behalf of Robert Kleine, authorization attached), Jackie Shinn (acting on behalf of Kirk Steudle) NAYS: July 15, 2008 Lansing, Michigan 0 JUL •3Y 2008 '09:28 FR COP1PIUNTCRT IONS - 517 373 4*968' TO 93350'198 P.02 • JENNIFER M. GRANHOLM M)VH'HNOH t.. S,rA,rE OF MICHIGAN DEPARTMENT OF TREASURY LANS I NG July 15, 2008 Michigan Economic Growth Authority 300 North Washington Square Lansing, MT 48913 To Whom It May Concern_ ROBERT J. KLEINE STATE TREASUASR I hereby designate Andr6w Lockwood, Tax Analysis Division, Department of Treasuzy, to represent me at the Michigan Economic Growth Authority Board meetings, which I am unable to attend. Sincerely, • Robert J. Kleine State Treasurer RICHARD H. AUSTIN BUILDING'- P.Q. BOX 15128 - LANSING, MICHIGAN 49801 www.mich1g2naov/treasury - (517) 373.3200 Pdneed by mrmbCyrssoof: -'• SElU TOTRL PRISE. 02 y== ON/05/ZOO y•TUE 10:08 FAX IJ002/0�2 • JENNIFER M. GRANHOLM GOVERNOR 1 1 �p}g STATE OFMICHIGAN DEPARTMENT OF TRANSPORTATION LAN$IN(, August 4, 2008 Rhonda J. Pierce Executive Assistant to Cindy Douglas, Director Program Administration Division MI Economic Development Corp. 300 North Washington Square Lansing, MI 48913 Dear Ms. Pierce; KIRKT. STEUDLE DIRECTOR I hereby designate Jackie Shinn, Chief Deputy Director with the. Michigan Department of Transportation, to represent me at all Michigan Economic Growth Authority Board meetings which I am unable to attend. 7 ;7 Sincerely, Kirk T_ Steadle Director • MURRAY D. VAN WAGONER BUILDING • P.O. BOX 30050 • LANSING, MICHIGAN 4B809 vmw.miahI0sn.©av • (517) 373-2090 LH•LAN•0 (01/03) 11 • • 1 r 47 '_• a) 'lie parties, agree that this Agreement and the Tax 'Increment;.Revenues. collected and - p distributed pursuant to the BrownfieldBan are intended to=fund only the Eligible Costs, including accrued�interest, and the Autliority's�revolving funds; administrative and legal costs, - s - 3, Capture of Taxes. The City shall; during the term of this Agreeinenta collect all Tax Increment,. l ;Revenues from the Property and transmit l'00% of such Tax Increment Revenues to the Authori for use i .only as provided An this Agreement. , The Authority will .annually use, 504 of the annual. local, Tax,, i `Increment Revenues for administrative and legal casts, and annually'deposit 10% Of the annual local, Tay nereme' t Revenues into two of the;Authority's revolving„funds as directed by the Brownfield. Plan, ' ;The. .. } remaining 85% of the annual local Tax,Increment Revenues shall be available and used to, reimburse the Developer for approved Eligible; Costs. ,In addition, 100% of the annual: -Tax Increment Revenues from s taxes levied for school operating purposes, shall be available ,and used, to °reimburses- the'Developer for approved Eligible Costs.' Submission of Costs, or those Eligible Costs for which the,.Developer, seeks reimbursement i fromIieAuthority, t1�e,Developershall subinitto the,Authority such of the following as may"be required by Authority representatives:. g (a) a writteh statement detailing the costs, (b) a written explanation ' as to ;why reimbursement is appropriate under the Plan and this".'., m Agreement, (c) copies of invoices, from the consultant$, cantraetoxsfi engineers, attorneys or others who y provided such services' (d) copies ofwaivers of liens 6ytlie contractors, subcontractors and material suppliers, : - (e) if, not already submitted, copies,of the contract with the?contractor or supplierprovi, ing n the services orsupplies for which reimbursement is "sought, t ( a statement -from the,'cngineer and project `.mannger overseeing the work recommending t . payment; and ` any other information.which: may be re uired by state authorities or reasonably required,—, t 3 by the Authority:` s F The Developer may submit a, reimbursement request .including such information whenever it is available even .though Tax .increment Revenues `for the, reimbursemept may not be available for many"years a thereafter. The Developer,and, Authority' agree that no reimbursemerif requests will be' accepted by the ` " 4 Authority after December" 34 20,12. 5.. :Payments. Payments to the Developer shall be`made'as follows:, (a) F Within.forty eve �45) days of its receipt of:the materials identified in paragraph'4 above, the Authority shall decide whether the payment request is for'Eligible Costs and whether such { costs are accurate. If the Authority determines all, or, a portion of the requested payment, is for Eligible Costs and is accurate, it shall see, that, the ,portion of the •payment request that is for Eligible Costs and is`'accurate is processed ,as provided in , subparagraph (b) below. If the Authority disputes the accuracy of any portion of any payment request or that any portion of any, , payment is for Eligible Costs, it shall notify the Developer in writing of.its determination and the M . .reasons for its determination. The Developer -shall have thirty (30) days to address, the reasons i «given by the Authority and shall have an opportunity to meet with, the Authority's representatives - or; if the Authority Board consents,to meet with the ,Authority S ,Board to " > o discuss and resolve any - remaining dispute. In doing so, the Developer shall provide the Authority a written response to .'.' the, Authority's decision and the reasons given by the Authority. If the parties do not resolve the dispute in such a manner, it shall pe xesolved,;as provided .in paragraph 6 below.: Page 2 ....a...xa..u.....:v:sr>mTR>.•.%n.a.&.,ra.r.:,.„..vN...auvvas:.o..x,,..R,caalrk�u•n.t+�.t+�.✓�...:z�:,u��a+."zt.ms.�,r',+e,.a.».qe...a..,ria`:...a:.e'.e.x�avn,s��i3�u%..+.dewwkYPYem,Sw".�:,ws.,,cJ.wr?c-,a+.u.Feesri+axn s-.....n:++a., ,.r:r...�+„• f }• (b) Oneeit approves arty requestfor payment,"Vigible Costs and approves the accuracy of a sueli costs, the, Authority shall pay,tq the Developer the amounts for which submissions bava S been made pursuant to paragraph 4 of this Agreement as the Authority, receives Tax_lncrement ;t2eyenues as directed': by the Brownfield Plan, until .all of the amounts for which submissions have been made have been fully paid to the Developer, or, the repayment obligation expires, whichever . r occurs first. c Except as further rovided.1n this section ' interest on the obligation of the Authority to a p gl op .. r t, �) p�"� , p- t g Y 'reimburse the Developer forthe Eligible Costs shall be -paid as described in `sub _ara a h (e) from the date the submission .far Eligible Costs has been made as provided in paragraph 4 of this, ' Agreement until the Developer has been. fully reimbursed or`the repayment obligation expires, whichever occurs :first. Such interest shall not accrue during any period beginning on the date that the Developer has not timely paid its property, taxes and ending on the date that such taxesa including all penalties, interest and other amounts due in, relation thereto, "are paid in full. For purposes of this Agreement, to be timely paid, taxes must be paid before the date on which they can no longeebe paid without°penalties.orinterest,. (d) - The repayment obligation under this Agr'eemen� sha11 "expire upon the payment by the Authority to the Developer of all amounts duethe Developer under this,, Agreement or on December 31, 2042, whichever occurs first: �(e) The amount to be reimbursed under -,this. Agreement shall be determined as follows: .r (1) The AUTHORITY shall use captured taxes as referred to in paragraph .to reimburse the Developer for'Eligible� Costs, not including interest, a total amount not to r , exceed .$23,900,000. T (2) The amount of Eligible Costs, not including interest, to`be,reimbursed with the capture.of taxes levied for school operating purposes ("School Taxes') as estimated to 'be The actual maximum amount of the Eligible Costs' reimbursed with School Taxes will be determined :by the. Michigan Economic Growth Authority MEGA; Board).. (3) * ;,The maximum amount of Eligible Costs 'not including,interes4 to be reirribursed with the capture of taxes not levied for: school op erating"purposes ("Local Taxes') is' estimated to,be $14,453,284. ` . °(4) Interest shall accrue as Eligible£ Costs due for reimbursement by'the Authority'to the Developer'' starting on January 1, 2010' and on every •January l" thereafter; until .this = , -Agreement terminates as set`,forth .in paragraph °'l l (c). On January1 of each year an which interest shall accrue, ,the amount of interest shall be calculated as 6% of the outstanding balance of'Eligible Costs due for reimbursement as of December 31 .of the . z < . previous year. This interest amount. shall be calculated by the Authority and added to the outstanding balance of Eligible Cosh due for reimbursement. Interest shall be eligible, .y for reimbursement with both captured School and local Takes and the total. amount of Eligible' Costs reimbursed to the Developer, including interest, .shall,:.not exceed $33;30009. x (5) The Authority shall, no later than February 1, , 2010 ;;and each February 1 S` thereafter until this Agreement terminates as set forth in paragraph 11(c), provide the Developer a.; statement. of account ("Statement") via, the notice requirements set forth in, paragraph 11(e), -The <Statement, must include, the,following information: Page 3 �.�. ,. ,... ...�.. ,., ,M „<., cn. .=s.+.,n..,w' ...a .,.e E, , .,.s.ae.=.. `wrs. ,., ..... a^+aavn�,i3w....;. . w. 3.W.s-.v,.,.atssw.i,x,:..ro s:s•ece 5>er.>eswwa..a>..,+»ri«..rr+.w•re.+e s•?r�,s>+as+tw.ttdP:::tx.N,wr.�r.,: r+a.....C..:..:.;: +P ,. ,.>.r.,<.. .. '`�;:.; ` (i) the balance of, Eligible Costs due for reimbursement as of January V'.of - the previous year, af%er'application of interest as set forth in paragraph 5(e)(4), if applicable; l rr the amounts " artd a rove( dates oi',addrtianal Eli able Costs, added to the„ balance,of Eligible Costs due for reimbursement during"the previous calendar year, ;if applicable; (iii) the amount(s)' and "payment dafe(s) of any reimbursements of Eligible Costs made to Developer .during the prevou's calendaryear, if applicable, (iv) the balance of Eligible Costs due for reimbursement as of December 31, - of'theprevious year, if.applicable; (v) the -amount of, interest applied to the balance of ,Eligible Costs due for . reimbursement on Januarys► Y I of the current cif Applicable, PPlicable, and c i (vi) the current balancel of EligibleCosts due for ,reimbursement as of ranuary l5" of the 'current year, after application of interest as set forth in F paragraph 5(e)(4)• 3'; f' Within thirty, (30) days of receipt of'a Statements Developer nay dispute the information provided in the :Statement through, the 'same procedures set, forth.. for, the dispute' of Eligibles Cost sunder paragraphs 5 and ti ofthis Agreement: 'Upon payment to Developer of total" r.r imbursements as outlined above being met; or expiration of the Plan, reimbursements to: Developer. shall: cease. ` n (fj . The sole source for an reimbursement shall. be such Tax Increment Revenues.. To the , Y extent permitted, by layv, such; 'xermbursements, once approved by, the Authority under b subparagraph. (b)-above shall'be and remain'valid and binding obligationt of the Authority until aid or untie ex tration of the time i-or a meat as "rovided in sub era a hs d °and a above: p p P "Y However, the Developer shall bear any risk of a change in lawprohibrting reimbursement at the . : time Tax Increment, are 'available for reimbursement to the.,,Developer fo_r;;costs ,that � NY.ere Eligible �Cosis atthe" fungi the A-uthori a rove ' h' pp 6.. Di§pute As . To Eligible Costs. "If there. is "a dispute over whether a cost submitted by the Y ` Developer is anBligible Cosh"" the dispute ;shall be resolved by an independent qualified.,professionai chosen by mutual agreement of the parties. If the parties:',are unable'to agree upon `aTrofess onal, then ` eaeh.- party (the ` City,'- the , Authority,,; and the Developer) shall " appoint an' " independent ,-qualified i professional to review the Authority',s decision, provided that each party chooses, a "professional that has l not been directly employed by or provided services to that party for a period: of -two (2) years before the t date of proposed appointment.. If and to the extent that two of the three qualified professionals so selected r agree that costs ,submitted are eligible, this shall' constitute an award, and the Developer shall. be reimbursed those costs in accordance with this Agreement. in addition, `any such award may be, used as t the basis for. the Ingham County Circuit Court rendering judgment, that such av+�ard constitutes a final decision under statutory arbitration. The fees .for the' professionals contemplated' by this paragraph shall be reimbursed with Tax, InerenenirRevenues. . t ; 7, - Assignment of Future" Reimbursement Revenue.. _ The. Developer ,may assign ar its sole" and Absolute discretion, all orpart of its rights and obligations under this Agreement. Developer shall, no later than thirty (30) days prior to such assignment, notify` the Authority as specified under"paragraph l l(e). s 8. Ad justments. 7f, due to art appeal of any tax assessment or reassessment or any, other reason, the } ' Authorityis required to reimburse any Talc Increment Revenues, the Authority may deduct the amount of any such "reimbursement from any amounts due and owing" the Developer or, if all amounts due the Developer• under this Agreement have been fully paid, the Authority may invoice the Developer for the 1. Page 4 .. a a•,. .. +., xs . rc.,c,. a+»...x,.,........,a... a. L. ,.a +Ytz+.-.v 1.wi �+.++'-CWcu ..a+-.a..v,sh.ur,M1�ki9x.w:,:.x.itxt.A+*:4PdS.Awr-i..as„n4f. rX a s.� .,. .s,_d +.LAa.i.<t w.x. >utr. L ., r. ^tom/ .. xt: ',. "t :k, .i. Y"' :i vc'sny Satrq.., .a'.; K.,t`k;" fk•f .gxc`R," 'c"` P":V Y s5 F74 9 jf%is. 4 • amount, of such reimbursement and the Developer shall pay the Authority such invoiced amount within 30, " days of Developer's receipt of the invoice from the Authority. Nothing in. this agreement hall lanit' l , " the right of the Developer to appeal any tax assessment. a -., Oblation to Fund "Eligible Activities. The Developer shall pay for the Eligible Costs with its own funds and receive reimbursement from theAuthority by'"available Tax Increment -Revenues. Ais anticipated that there will be sufficient, -available Tax Increment Revenues to pay for all :Eligible Costs under this: Agreement.: Tlowever, if "for any reason .increased "sTan' Increment Revenues :from the Development do, not result in "sufficient"revenues to saGsfy'such obligations, the ,Developer agrees and t understands that it will have" no claim 'or further recourse -.of any kind or `nature against the City or the Authority and the Developer shall assume full responsibility for any such loss or costs. ' 10. Indemnification. 'The Developer shall defend, indemnify, and hold the. City and the Authority, and Their agents, representatives, and einploye&s (hereinafter "Indemnified Persons") harmless from: any loss, expense (including reasonable legal counsel fees) or liability of any".nature due to any, and allsu ts, t , actions, legal or administrative proceedings, or claims arising or resulting from injuries to persons_ or t, property as a result of the ownership; operation, use or maintenance of the Improvements from and alter N the date ,Developer acquires title to the Property. " To the. extent the City or Authority` has obligations under the,. Development Agreement;; there "shall,be no 'indemnity for any of these obligations to: the extent F 'r apyIndemnified Persons cause any injury to persons or property due to conduct by,ndemnified Persons in the discharge of these obligations. Iit addition, Developer shall not defend, "indemnify or hold. harmless .' R g the City' or Authority for any responsibilities related to environmental remediation or ongong environmental liability as sent forth in the Development Agreement. i i r Miscellaneous. (a) This is the entireF agreement: between the parties as to its subject. , .All previous negotiations, statements and preliminaryinstruments of, the parties or `their representatives, are >• merged in this' Agreement, usball :not, be amended or modified except in writing signed by'atl" 1. the parties. 1t shall not "be affected 'by any course of dealing and: the waiver of any breach shall 4 not constitute a waiver of any subsequentbreach of the same or any other provision:. x, (b) -'Phis Agreement the rights and. obligations under this Agreement except as previously ." ;noted, are un-assignable and non -transferable without the "consent of the other parties.. It shall, " however, be binding upon any successors or permitted assigns of the parties. (e) This Agreement sholl,terminate when all, reimbursements required under this; Agreement" `have been made or upon' the expiration of the obligation tomake.such reimbursements, whichever occurs first. (d) All parties had input into the drafting of this Agreement and all had the advice of legal n counsel before entering into this Agreement. In the event` any ambiguity, of any language in ;this Agreement arises, such ambiguity shall not be construed against any party.: (e). Notices "Shall be complete when delivered' by personal delivery, by couriex or delivery service (such -as UPS; FedEx or other service) or by, certified mail, return receipt. requested toAhe addresses first written above,` if any party;refuses to accept delivery when presented, delivery -� shall be deemed to have, aeeprrerl at the time of . such refusal. Any suchnotice and communication shrill be addressed as follows; " If to Authority:" Lansing Brownfield Rede"velopmentAuthority x 401 S..Washington Squarej, Suite100 Lansing, Michigan 48933 Attu:, Robert L. T'rezise, Director' F r� Page 5 a t x �..... .. .«,+ ..... .. .w .. ..t�a ,w ...�•... ,.,.aw....:;x .. .+L+s.'.*-;_+.., .. ..P�_ ,-,.-,. aaa:.a:�'wt':1 ...+:7w+°?�e_ w.iask.3�m$w.nA e�`,'..' .nb. 7.,' iia.. �ac-rs �rdRws._ :r+e +-r: ax.<s ,. ,. t :.,-'- .� c., ,- ,..,., �., n..4, ., t s..,r.r��o-..n+cti>:-on-,�r-�.:rnversrr�"a� rcc„-�xww^��.m�a'� c:.c. �na�,.wzh-:ans;M�w....�rw."'�;r�ctx^r.::�z , r,;.c�ti.-, �.. < ag,�.. f„�..�...:, „vro..._. ;..x .• w-gvr-'. .. �T'1 s if to Developer: Phoenix Development- Farmers, LLC c/a The Christman Company. 20 North Capitol Avenue " Lansing, ,Michigan-' 48933 Attnt Steven F. Roznowski"Manager ^ ` This Agreement shall be'governed, b "the laws of the state o Michigan To the extent i g g y,. . pei- pitted by,law,`the"juteisdiction and venue for any"action brought pursuant to, arising -from or to r t enforce any provision of this Agreement shall be solely in. the state courts in Ingham County, Michigan'and the prevailing party in any such action shall, in addition to any other remedy, be entitled to recover its costs', including,".without limitation, actual, reasonable filing,fees, .legal fees; expert fees, diseoveryPexpenses and' other costs incurred to `investigate, bring, ,maintain or defend any such. action -from its first: Accrual or first .notice thereof through all„ a ellate rind collection Ap proceedin' By signing beioi}�, all parties 'represent and warrant their autitoxity'to enter. into this agreement on behalf of their respective organizations. The parties. have signed this Agreement as, of the date first-vtrritten ' 3 t above. LANSING BROWNFIELD PHOENIX DEVELOPMENT ' TREDE MENT AUTiORiT�' PARTNERS; LLC , � 6 7 � " ManageC RobedlL T,rezis irector � ' Steven )i. Roznowsk'i; , a s L • Page 6 �a•,„wr .1",Fasw:..ttq�h €.ca. 3...w....z+. r>. aLF,mY.b.ss.:+..;::.rat., .+5,+.,..:N.aexuei,.in_.. �.wys.6:- =k.", e. ,.M .a*.w'Cwwwxn.+w,..=. s<it.mite..rF4.'3+h1.�:.#�.,i�¢�a3:�.+a ..,. _r,Aa.n..ct.3kn'ewa._.: BR<OWNFlEID PLAN' y } 2 s. _ _ n S S , J } Q is .3 . x�alah n§i:+. x<s<*ra" .e .a .-u5 ! .o.a.+p.�J3t. .lhLFe;;yrvFa.� ane ._ +'i9 k•�y i+tr9xti'3� <./� .�_ c d <. .. x_3Ful5f4knabd:�ak.eY<�-'N lMi3&�M:�'x1i14NF5M1. 0.::ATxt4w.3aslfa8?.kaF4 es4 .....a. e keltNV.d1Kl _�e. Eba}.YFUV,.=ab�f...� ,.� ^ �Cdlljj I I lit • Table of Contents Section Page I . *Site Location and Photos......................................................................................1 2. Project Summary Sheet........................................................................................2 3. Past Use of the Property - Site History ..................................................................3 4. The Lansing Brownfield Redevelopment Authority................................................4 5. Brownfield Project Description..............................................................................4 6. Eligible Activities Planned for Reimbursement......................................................7 7. Captured Taxable Value & Tax Increment Revenues...........................................8 8.. Method of Brownfield Plan Financing....................................................................9 9. Amount of Note or Bonded Indebtedness Incurred...............................................9 10. Duration of the Brownfield Plan.............................................................................9 11. Estimated Impact on Taxing Jurisdictions.............................................................9 12. Legal Description & Site Map..............................................................................10 13. Personal Property...............................................................................................10 14. Displacement of Persons....................................................................................10 15. Site Remediation Revolving Fund.......................................................................10 16. Other Information................................................................................................10 Schedule Schedule 1 Detailed Financial Numbers Exhibits Exhibit A Legal Description of the Property 9 • 1. Site Location and Air Photo 2. Project Summary Sheet Project Name: Former Ottawa Power Station Brownfield Redevelopment Project Business Line: The Developer, Christman Capital Development Company on behalf of a to be formed Michigan LLC. Property Location: Ottawa Street to Shiawassee Street, Grand Avenue to the Grand River including but not limited to: 217 East Ottawa Street, 300-310 & 312 North Grand Avenue. Project Description: Rehabilitation of the 219,290 square foot power plant building, the addition of a 105,000 square foot companion building. Developer Investment: Demolition $3,900,000 Construction $105,000,000 New Chilled Water Plant $20,000,000 Total Developer Investment $128,900,000 Estimated Job Creation/Retention: 632 jobs retained, 500 jobs created averaging $57,000/yr. Duration of Plan: 35 years. Brownfield Numbers: Revenue Sources $24,013,850 Capture of New Local Taxes $12,889,116 Capture of New School Taxes $36,902,966 Total LBRA Revenue Revenue Uses $33,300,889 Developer's Eligible Activities $ 3,602,077 LBRA's Eligible Activities $36,902,966 Total LBRA Eligible Activities Project Fiscal Analysis $13,444,149 $17,677,535 $ 1,801,385 $ 577,278 $-5,234,985 $ -9, 807,167 $18,458,195 New City Income Taxes Retained City Income Taxes To City Brownfield Authority Fund New City Property Taxes City Taxes Abated by Ren. Zone City Taxes Reimbursed to Developer Net Gain to the City LBRA Staff Recommendation: Approval of Plan 0 2 • • 3. Past Use of the Property - Site History The Ottawa Customer Service Coal Storage landmarks on Lansing skyline between Ottawa Power Station, Building and the property are the downtown and situated and Shiawassee Streets along the Grand River and Grand Avenue. The Property is zoned G-1 Business District. In 1937 the Lansing Board of Water and Light (the LBWL) began construction of the Power Station facility as a coal to steam electric generation plant. It was inaugurated in January 1940. Bowe -Munson Company of Lansing designed the exterior brickwork in changing colors to symbolize coal combustion and the building contains other distinctive design elements of the period. From the outset the building looked more like an office structure than a power and steam generating facility; nevertheless it was hailed nationally and celebrated locally for its technological advancement. The Property constitutes a "facility" under Part 201 because its soils or groundwater contain Hazardous Substances exceeding applicable criteria under Part 201 of Michigan's Natural Resources and Environmental Protection Act, 1994 P.A. 451, as amended, MCL §324.20101 et seq., and the rules promulgated thereunder. An "Environmental Due Diligence Study Report" dated April 4, 2007, prepared for the developer by NTH Consultants, Ltd. (Project No. 16-070161-00), identifies a number of environmental conditions on or around the Property, including by way of example and without limitation, the presence of lead based paint and asbestos within the Power Station building, Dense Non -Aqueous Phase Liquid in groundwater perhaps presenting a volatilization concern, elevated levels of materials related to coal storage, and metals and PCB's exceeding applicable Part 201 criteria. Steam and electric generation at the Ottawa Street Power Station was fully decommissioned by 1992 equipment was removed shortly thereafter. The LBWL currently occupies approximately 16,000 square feet of space within the Property's existing building and has been redeveloped by LBWL for use as a central chilled water and steam heat distribution plant that services the greater downtown Lansing area, including State office and governmental buildings. North of the Power Station there exists and a former LBWL Customer Service Building of 34,044 square feet located on approximately 2.5 acres, and an adjacent privately held 34,882 square foot building on a .54 acre parcel, both of which are part of the project site. a • 0 4. The Lansing Brownfield Redevelopment Authority In August of 1997, the Lansing City Council established the Lansing Brownfield Redevelopment Authority (LBRA) and designated the entire City as a "Brownfield Zone". The primary purpose of the LBRA is to encourage the redevelopment of blighted, contaminated and functionally obsolete property within the Brownfield Zone by providing financial incentives. 5. Brownfield Project Description In the Summer of 2006, the Lansing Economic Development Corporation conducted a Request for Proposals (RFP) process accompanied by a national marketing effort to raise awareness of the development potential and available incentives for the site. Concurrent with this, the Accident Fund Insurance Company of America with its headquarters in Lansing was outgrowing its current building and was contemplating either moving out of Lansing or to another state. The Christman Company, working with the City of Lansing, Lansing Board of Water and Light, Michigan Department of Management and Budget, Michigan Economic Development Corporation, Michigan Gl • Department of Environmental Quality and the Lansing Brownfield Redevelopment Authority put together a development proposal to keep the Accident Fund growing in Lansing. Thus, Christman's development affiliate, Christman Capital Development Company (the "Developer") will purchase, remediate and redevelop the site into the national headquarters for the Accident Fund. -The headquarters will be comprised of the 219,000 square foot rehabilitated power plant and a new adjacent 105,000 square foot office building. The Developer will: dismantle and remove the existing chilled water plant and steam distribution systems in the power plant building; demolish the portion of the City's North Grand Ramp that extends over Grand Ave and construct a new chilled water plant on an offsite location to replace the existing chilled water plant. The removal of the cooling towers and a portion of the parking ramp will dramatically improve the look and feel of Grand Avenue between Michigan Avenue and Shiawassee Street. The architectural splendor and grandeur of the former power plant will clearly visible from Grand Ave. The adjacent new office building will complement and expand the capacity of the historic power plant. Planned conversion of Grand Avenue to a two- way street will further enhance the impact of this catalyst development. With the retention of 632 jobs and the long-term addition of another 500 or more new jobs will have a profound and lasting positive impact on the riverfront in downtown Lansing. The Michigan Department of Environmental Quality has offered a $3.2 million grant for public improvements to the riverfront focusing on the twenty foot wide strip of land and runs between the project and the river. Additionally, the City is putting together a Downtown Riverfront Development plan to coordinate and maximize the positive impacts from the multiple developments proposed for the riverfront. This plan will examine the flow of traffic, pedestrians and employees both back and forth across the river and to and from the core downtown areas. Overall, the project will be a catalyst for the complete rebirth of a major part of downtown Lansing. The image and rendering on page six depicts the look, size and scale of transformation anticipated from the development. �: � ' ,� � r,+.� f,,,,� , � � `� s "' 3` air ri � v �.� �� '- kv+ ��g�-S�;'xE 'S,�Nw�'.,.;.,,°.�.,..'.�f�3t `.�r�`k°iW. °' �f � „`i, `� `. � � twee W i+"-t ;;S �� , �� +,, � � � i y .,sr a ,. fv l i t 3� S '�� Y ff 1 t +` . � �j -:.r .� 3 G t rry ... �F' d % iyi$i - sue, �_: ,• „ . :-_ ._, '.; a,. p' � Y i r ... F7 ���� i�kr�FN'�'�ili � _ :��.�Fr.���ra:fYi ra',�.".::� �ii.�S..;xf:�� e• :.FINEST. �0��� pOUpLED rke: �hthYD{3R G � �jp � ;. •.rr. • 0 6.1 .. Eligible Activities The table below presents the anticipated eligible activities that will be completed for this project and the estimated eligible costs associated with each activity: Eligible Activity Local Tax MEGA Tax Total Reimbursement Reimbursement 2. Demolition of portion of the W) North Grand Ramp that WI extends over Grand Ave. $725,688 $474,312 $ 1,200,000 ,3, Demolition of Cooling System $1,209,480 $790,520 $2,000,000 4. Demolition of Steam Distribution System $423,318 $276,682 $700,000 5. Construction of New Chilled Water Plant $ 12,094,798 $7,905,202 $ 20,000,000 6. Interest to Developer $5,958,489 $3,442,400 $9,400,889 Total Tax Capture Reimbursed to Developer $ 20,411,772 $ 12,889,116 $ 33,300,889 `7 1 7. EPA Grant for Environmental Activities: Assessment, Due Care, Remediation, Response, Etc. $600,000 $0 $600,000 8. Amount to LBRA for. Administrative and Legal Costs $1,200,692 $0 $ 1,200,692 9. Amount to LBRA Revolving Fund $1,801,385 $0 $ 1,801,385 Total Tax Capture to LBRA $3,602,077 $0 $3,602,077 Total Tax Capture $ 24,013,850 1 $ 12,889,116 $ 36,90.2,966 7 • • 7. Captured Taxable Value and Tax Increment Revenues The LBRA will capture the tax increment revenues from 2013 through 2042 which will be generated by the increase in taxable value. The following table provides a summary of the estimated taxable values and the tax increment revenue which they will provide: Tax Year Tax Value State Tax Capture Local Tax Capture Total Tax Capture 2008 $0 $0 $0 $0 2009 $0 $0 $0 $0 Q00.:.�.,.$0.' .`.: 2011... ;° ..: ,$26.,845950. ....:...: !. ........; ' 2012 :2013, $25,626.922. >,} ..,, ; ,..� i . ... ,' $Q: ;$.0 "' $0'- -2 ;388 860 ._?'a ...3 ,,. ",,:. ,.$0}110 ;r$0'` d 7i ''ti;,.+.. . 2017 t ,'r `..2Q20 sy'rr.;`�# :•3s $27;0,10703<, �F >u $0 ; x t jr x� ,5� �w .$D'PMr3 ��:r�, E; ..ra..e. I,Ts 3i QQ ,5�. .•..� �". .rh^ . iF� '�" ._J2021r t,; ,:$27,46Q�9'i7'( a, 1, f -s • r M-� v fri �.�}Q�� :i+Y. t. •1 f'[. ,f$ 3A /_�+' {L f f .M 1 �� E4 U� <.,i;°. ,3.^u %._x4 ,$ ks� is a`` � : °f �} � 1�,�,'. +1 f,. l _.�.�'W. 3°2Q23$2$,388538 2,:024 $,7,92,523: 1ti i.,.:a.,rj$r1270,14„' 2025 $29,353,635 $648,487 $1,074,537 $1,723,024 2026 $29,850,708 $660,380 $1,092,733 $1,753,113 2027 $30,357,722 $672,511 $1,111,293 $1,783,804 2028 $30,874,876 $684,885 $1,130,224 $1,815,109 2029 $31,402,374 $697,506 $1,149,534 $1,847,040 2030 $31,940,421 $710,379 $1,169,230 $1,879,609 2031 $32,489,229 $723,510 $1,189,320 $1,912,830 2032 $33,049,014 $736,903 $1,209,812 $1,946,715 2033 $33,619,994 $750,565 $1,230,114 $1,981,278 2034 $34,202,394 $764,499 $1,252,033 $2,016,533 2035 $34,796,442 $778,713 $1,273,779 $2,052,492 2036 $35,402,371 $793,210 $1.295,960 $2,089,171 2037 $36,020,418 $807,998 $1,318,585 $2,126,583 2038 $36,650.826 $823,081 $1,341,662 $2,164,743 2039 $37,293,843 $838,466 $1,365,201 $2,203,667 2040 $37,049,720 $854,159 $1,389,210 $2,243,369 2041 $38,618,714 $0 $1,413,700 $1,413,700 2042 $39.301,088 $0 $1,438,679 $1,438,679 Total $12,889,116 $24,013,850 $36,902,966 Tax revenue to the LBRA will remain zero or diminished until the anticipated Renaissance Zone (shaded time period) tax exemption phases completely out in 2024. The captured incremental taxable value and associated tax increment revenue will be 0 8 determined by the City Assessor. Furthermore, the amount of tax increment revenue available under this Plan will be based on 100% of the actual millage levied annually by each taxing jurisdiction on the captured value resulting from the redevelopment project that is eligible and approved for capture. The Developer will be making a separate application to the State of Michigan for Michigan Brownfield Michigan Business Tax credits. 8. Method of Brownfield Plan Financing The Developer will initially fund approximately $23,900,000 of Eligible Activities as listed in Section 6. The LBRA will also spend $600,000 of its funds to assist in cleanup of the site. The Developer and LBRA will be reimbursed for these costs by the LBRA utilizing taxes captured from the project as estimated in Schedule 1. The LBRA will provide financing for its costs to implement and administer the Plan by utilizing 5% of the new local taxes captured per year for the duration of the Plan. No portion of captured school taxes will be used for LBRA administration costs. 9. Amount of Note or Bonded Indebtedness Incurred None. 10. Duration of the Brownfield Plan Unless amended by the Lansing City Council, the Plan is anticipated to remain in effect until the end of 2042. 11. Estimated Impact on Taxing Jurisdictions The following table presents a summary of the new tax revenues generated by the taxing jurisdictions, whose millage is subject to capture by the LBRA under this Plan. Jurisdiction Taxes Captured Amendment City of Lansing $9,807,167 Lansing Community College $2,497,515 Ingham Intermediate School District $3,080,303 County of Ingham $5,727,583 Regional Airport Authority $445,357 Capitol Area Transportation Authority $1,432,568 Capital Area District Library $1,023,357 El City of Lansing Debt $0 Lansing School District Debt $0 Lansing School District Operating $9,656,898 State Education $3,232,218 TOTALS: $36,902,966 Additional information related to the impact of tax increment financing on the various taxing jurisdictions is presented in Schedule 1 attached to this Plan. 12. Legal Description & Site Map The legal description of the Eligible Property is provided as Exhibit A A Site Map is provided on page 1. 13. Personal Property Incremental tax revenues resulting from new personal property will be captured in the same proportions as real property. These funds will be used to reimburse the LBRA and Developer for eligible activities. See Schedule 1 for more detail. 14. Displacement of Persons There are no persons currently residing on the property. 15. Site Assessment and Remediation Revolving Funds The LBRA will deposit 10% of all annual local tax capture in the LBRA's Local Site Remediation Revolving Fund (LSRRF). The capture of school taxes will halt once the Developer has been reimbursed either the amount of school tax capture approved by the Michigan Economic Growth Authority or the plan expires. The reimbursement of the Developer from the capture of local taxes will end when the Developer has been reimbursed the sum total of $20,411,772 or the plan expires. If the Developer has been reimbursed for $20,411,772 from local tax capture prior to the expiration of the plan, all remaining capture of local taxes will be deposited in the LBRA's revolving fund to the maximum extent permitted by Act 381 of 1996, as amended ("the Act"). The funds in the LBRA's revolving fund will be used in a manner consistent with the Act. 16. Other Information The LBRA and the Lansing City Council, in accordance with the Act, may amend this Plan in the future in order to fund additional eligible activities associated with the Project described herein. 0 10 0 • Schedule 1 Detailed Financial Numbers uent Tuna nrownneta Kedeyelopment Plan - Draft - 03/04108 Project Numbers I Private Project Investment $146,900,000 Per. Property Invest. in Rehab. Building $12.000.000 Per. Property Invest. in New Building $6,000,000 1 New Personal Property Investment $18.000.000 mated Tax Value of New Personal Property $9,000,000 1 New Real Prop. Invest. In Rehab Bldg. $65,000,000 1 Final Sq. Footage of Rehab Bldg. 219,290 Assessed Market Value 219.290 sf @ $110 per sf. $24,121,900 Assessed Tax Value $12,060,950 1 New Real Prop. Invest. In New Building $40.000,000 1 Final Sq. Footage of New Bldg. 105.000 Assessed Markel Value 105,000 sf @ $110 per sf. $11,550,000 Assessed Tax Value $5,775,000 1 New Real Prop. Investment $105,000,000 Assessed Real Prop. Market Value $35,671,900 mated Total Buildings Tax Value $17,835,950 hated Increase in Land Value $2,000,000 mated Land Tax Value $1,000,000 Total Buildings & Land Tax Value $18,835,950 eloper Financed Eligible Activities $23,900,000 Brownfield Plan Numbers Developer's Eligible Activities Demolition of Portion of Ramp Demolition of Cooling Towers Demolition of Steam System Relocation of Chiller System Interest Total Developer Eligible Activities LBRA's Eligible Activities Environmental Costs (EPA) Admin LBRA Revolving Fund Total LBRA Eligible Activities Totals LBRA MEGA DEQ Appreciation, Interest, Assessment & Tax Rates Eligible Local Tax School Tax School Tax Cost Capture Capture Capture Yrly Appr. Rate for Real Prop 2 00% $1.200,000 $725,688 $474.312 $2,000.000 $1,209.480 $790.520 $700,000 $423,318 $276.682 $20.000,000 $12,094,798 $7.905.202 $9,400,889 $5,958.489 $3,442,400 $33.300,889 $20,411,772 $12,889,116 100% 61% 39% $600,000 $600.000 $0 $1,200,692 $1.200.692 s0 $1,801,385 $1,801,385 -00 $3.602,077 $3,602,077 $0 $36,902,966 $24,013,850 $12,889,116 100% 65% 35% Interest Rate for Discounting 6.00% Init. Est. Bldg M.V. Per SF $110 IRR for Developer Local Taxe: 2.23% $0 IRR for Developer Sch. Taxes 1.34% $0 $0 LBRA $0 Millage New Taxes Taxing Unit Rate Captured $0 0% City 0.0149500 $9.807.167 LCC 0.0038072 $2,497.515 $0 ISD 0.0046956 $3,080,303 $0 County 0.0087311 $5.727,583 §0 Airport 0.0006789 $445,357 $0 CATA 0.0021838 $1.432,568 CADL 0.0015600 $1,023,357 $0 Tot Local 0.0366066 $24,013,850 0% City Debt 0.000880D $0 Schl Debt 0.0022569 �0 Tot Debt 0.0031369 $0 Schl Oper 0.0179262 $9.656,898 Slate Educ. 0.0060000 $3,232,218 Tot Schl 0.0239262 $12,889,116 Totals 0.0636697 $36,902,966 Accident Fund Brownfield Redevelopment Plan - Draft - 03/04108 10D.0% 85.0% Internal Internal 5.0% 10.0% New Captured Captured Rate of Rate of Captured Captured Projected Personal .. Projected Projected Property School Local Total Return to Return to Local Local Total Real Prop. Property Per. Prop, Total Taxes School Local LBRA Taxes To Taxes To Captured Develper Develper Taxes To Taxes To Captured Tax Value Deprec. Tax Value Tax Valuo Abated By Taxes Taxes Total Reimburse Reimburse Taxes To from School from Local LBRA LBRA Taxes To Year Capture Multiprs. Capture Capture Ren. Zone Captured Captured Revenue Develper Develper Develper Taxes Taxes Admin/Legal Revol Fund LBRA 2008 $0 $0 $0 $0 $0 30 s0 $0 $0 $0 so $0 $0 SO $0 2009 $0 $0 $0 $0 30 $0 $0 $0 $0 $0-$4,780,000-37.170.000 $0 $0 $0 2010 $1,000.000 $0 $1,DD0,000 $95.505 $0 $0 $0 $D $0 30-$4,780,000 47.170,000 s0 30 s0 2011 $18.835.950 89.DO% $8,010.000 $26.845.950 $1,645,284 s0 $0 $0 $0 $0 s0 $0 $0 $0 $0 SO 2012 $19.212.669 76.00% $6,840.000 $26.052,669 $1,60B,773 $0 30 $0 $0 $0 s0 $0 $0 SO s0 s0 2013 $19,596.922 67.00% $6,030,DOO $25,626,922 $1.591.356 30 $0 $0 $0 $0 $0 $0 s0 $0 s0 s0 2014 $19.988.860 60.00% $5,400,000 $25,388,860 $1,583.735 30 $0 $0 s0 30 $0 s0 50 $0 s0 $0 2015 $20,38B,637 54.00% $4,860.000 $25.248.637 $1.581,267 $0 s0 $0 $0 $0 so SO $0 30 $0 $0 2016 $20.796,410 50.00% 34.500,000 $25,296.410 $1.588.616 $0 s0 $0 $0 $0 $0 s0 $0 s0 SO $0 2017 $21.212,338 50.00% $4,500,000 $25,712.338 $1.615.098 $0 $0 $0 $0 $0 $0 s0 $0 $0 $0 s0 2018 $21,636.585 50.00°% $4,500,000 $26,136,585 $1,642,109 $0 $0 $0 $0 $0 $0 $0 s0 $0 s0 s0 2019 $22,069.317 50.00% $4,500,000 $26,569.317 $1,669.661 $0 $0 $0 $0 s0 $0 s0 $0 $0 $0 $0 2020 $22.510,703 50.00% $4.500.000 $27.010,703 $1.697,764 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 2021 $22,960,917 50.00°% $4,500,000 $27,460.917 $1,726,429 $0 $0 40 $0 $0 $0 30 $0 $0 $0 $0 2022 $23,420,135 50.00% $4,500,000 $27,920,135 $1,316,751 $153.547 $255,515 $409.062 $153.547 $217.188 $370.735 $153.547 $255.515 $12.776 $25.552 $38.327 2023 $23,888.538 50.00% $4.500.000 $28,388,53B $892.745 $312,698 $519,604 $832,302 $312.698 $441,663 $754,361 $312.698 $519.604 $25.980 $51,960 $77,941 2024 $24.366.309 50.00% $4,500,ODO $28.866.309 $453,978 $477.620 $792.523 $1,270.143 $477.620 $673,645 $1.151.265 $477,620 $792,523 $39.626 $79.252 $118,878 2025 $24.853.635 50.00% $4,500,000 $29.353,635 $0 $648,487 $1,074.537 $1.723.024 $648,487 $913.356 $1.561.843 $648,487 $1.074.537 $53,727 $107.454 $161.181 2026 $25.350.708 50.00% $4,500.000 $29,850,70B $0 $660.380 $1.092,733 $1.753.113 $660,380 $928,823 $1,589.203 $660.380 S1,092,733 $54,637 $109,273 $163.910 2027 $25.857,722 50.00% $4,500.000 $30,357,722 s0 $672,511 $1,111,293 $1,783.804 $672.511 $944.599 $1.617.110 $672,511 $1.111,293 $55,565 $111.129 3166.694 2028 $26,374.876 50.00% $4.500,000 $30.874.876 $0 $684.885 $1,130,224 $1.815,109 $684,885 $960,691 $1,645,575 $684.885 $1,130,224 $56,511 $113.022 $169.534 2029 $26,902.374 50.00°% $4.500.000 $31,402,374 $0 $697,506 $1,149.534 $1.847,040 $697.506 $977,104 $1.674.610 $697,506 $1.149.534 $57.477 $114.953 $172.430 2030 $27,440,421 50.00°% $4.500,000 $31,940.421 $0 $710.379 $1.169,230 $1,879.609 $710,379 $993.846 31,704,225 $710,379 $1.169.230 $58,462 $116.923 *175,385 2031 $27,989.229 50.DO% $4,500,000 $32,489.229 $0 $723,510 $1.189.320 $1.912.830 $723.510 $1.010.922 31.734,432 $723.510 $1.189,320 $59,466 $118.932 4178.398 2032 $28.549.014 50.00% $4,500,0DO $33,049,014 $0 $736,903 $1.209,812 $1.946,715 $736,903 $1,028.340 $1,765.244 $736.903 $1.209,812 $60,491 S120,981 $181.472 2033 $29.119.994 50.00°% $4,500.000 $33,619,994 $0 S750,565 $1,230.714 $1,981,278 $750,565 $1,046.107 $1,796,671 $750,565 $1.230,714 $61.536 $123.071 $1B4,607 2034 $29,702,394 50.00°% $4,500,0DO $34.202.394 $0 $764,499 $1,252.033 $2.016,533 $764.499 $1,064,228 $1,828.72B $764.499 $1.252.033 $62.602 $125.203 $187.805 2035 $30.296.442 50.00°% $4.500,000 $34.796.442 $0 $778,713 $1.273,779 $2.052.492 $778,713 $1,082.713 $1,861.425 $778.713 $1.273.779 $63,689 $127,378 $191,067 2036 $30,902,371 50.00°% $4,500.000 $35,402,371 $o $793.210 $1,295,960 $2,089.171 $793,210 .$1,101,566 $1,894.777 $793.210 $1.295.960 $64,798 3129.596 $194,394 2037 $31.520.418 50.00°% $4.500,000 $36.020,418 $0 $807,998 $1.318,585 $2,126,563 $807,998 $1,120.797 $1,928.795 $807,998 $1.318.585 $65,929 $131,859 $197,788 2038 $32,150,826 50.00% $4.500.000 $36.650.826 30 $823,081 $1,341,662 $2,164.743 $823,081 $1.140.413 $1,963,494 $823.081 $1,341,662 $67.083 $134,166 $201.249 2039 $32,793.843 50.00°% $4.500,000 $37.293,843 $0 $838,466 $1.365,201 $2.203.667 $838.466 31,160,421 $1,998,887 $838,466 $1.365,201 $68,260 $136.520 $204.780 2040 $33,449,720 50.00% $4,5D0,000 $37,949.720 $0 $854.159 $1,389,210 $2,243,369 $854,159 $1.180,829 $2,034,987 $854,159 $1,389.210 $69,461 $138.921 $208.382 2041 $34.118.714 50.00% $4,500,000 $38,618,714 $0 30 $1.413,700 $1.413.700 30 $1,201,645 $1,201.645 30 $1.413,700 $70,685 $141,370 $212,055 2042 $34.801.088 50.00% $4,500,000 $39,301,088 $0 $0 $1,438,679 $1.438.679 $0 $1.222,877 $1.222.877 $0 $1,438,679 $71.934 $143,868 $215,802 $20,709,071 $12,889,116 $24,013,850 $36,902,966 $12,889,116 $20,411,772 $33,300,889 $1,200,692 $2,401.385 $3,602.077 0 EXHIBIT A: Legal Description of the Property Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East — West'/a section line of Section 16 N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest comer of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats, and the Point of Beginning; thence along the East line of North Grand Avenue N00°01'45"W 519.77 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50°05' 10"E 157.52 feet; thence N00029'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89°58'OOW 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 256.73 feet; thence S45000236"E, 40.44 feet; thence S07°00'06"E, 179.66 feet; thence S17°211341E, 76.99 feet; thence S01 °08' 14"E, 335.04 feet; thence S 17°17'09"W, 171.40 feet; thence S 18°04' 11 "W, 100.23 feet; thence S90° 00'00"W 16.00 feet; thence S23°01'48"W, , 89.64 feet; thence S90° 00'00"W 203.50 feet to the point of beginning EXCEPT a 25 foot wide strip of real property located adjacent and parallel to the West wall of a retaining wall located along the following courses: Commencing at the East line of North Grand Avenue to a point where the South line of Shiawassee Street intersects the East line of North Grand Avenue; thence S89°58'00"E 256.73 to the Point of Beginning; thence S45°00'36"E, 40.44 feet; thence S07°00'06"E, 179.66 feet; thence S17°21'34"E, 76.99 feet; thence SO1°08'14"E, 335.04 feet; thence S17°17'09"W, 171.40 feet; thence S18"04'11"W, 100.23 feet; thence S90° 00'00"W 16.00 feet; thence S23101'48"W, 89.64 feet EXCLUDING any portion of the 25 foot wide strip of real property on which any portion of the Ottawa Station Brick Building is presently located. r� • EXHIBIT B LEGAL DESCRIPTION OF PROPERTY Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East — West '/ section line of Section 16 N89°59'00"E 527.87 feet; thence N00001'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats, and the Point ,of Beginning; thence along the East line of North Grand Avenue N00°01'45"W 519.77 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence along said centerline due East 89.09 feet; thence N50°05' 10"E 157.52 feet; thence N00°29'40"E 39.86 feet to a point on the centerline of the party wall to the West extended Easterly; thence along said extension and along the centerline of the party wall N89°58'OOW 210.25 feet to the East line of North Grand Avenue; thence along said East street line due North 296.14 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 256.73 feet; thence S45°00'36"E, 40.44 feet; thence S07100'06"E, 179.66 feet; thence S17°21'34"E, 76.99 feet; thence SO1108'14"E, 335.04 feet; thence S17°17'09"W, 171.40 feet; thence S18°04'11"W, 100.23 feet; thence S90° 00'00"W 16.00 feet; thence S23°01'48"W, 89.64 feet; thence S90° 00'00"W 203.50 feet to the point of beginning EXCEPT a 25 foot wide strip of real property located adjacent and parallel to the West wall of a retaining wall located along the following courses: Commencing at the East line of North Grand Avenue to a point where the South line of Shiawassee Street intersects the East line of North Grand Avenue; thence S89°58'00"E 256.73 to the Point of Beginning; thence S45°00'36"E, 40.44 feet; thence S07000'06"E, 179.66 feet; thence S17021'34"E, 76.99 feet; thence SO1008'14"E, 335.04 feet; thence S17017'09"W, 171.40 feet; thence S18°04'11"W, 100.23 feet; thence S90° 00'00"W 16.00 feet; thence • S23001'48"W, 89.64 feet EXCLUDING any portion of the 25 foot wide strip of real property on which any portion of the Ottawa Station Brick Building is presently located. • 5562629.2 26005/119350 • .7 • 48 I, CHRIS SWOPE, CITY CLERK of the City of Lansing, Michigan, do hereby certify that 1 have compared the annexed copy of Resolution #444 of 2008, Support of a Grant Application; MDEQ for Waterfront Development Grant funds, which was adopted on August 11, 2008 with the original now on file in my office, and that it is a correct copy thereof, and the whole of such original. SEAL IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal of the City of Lansing this 26t" Day of September, A.D. 2008 CHRIS SWOPE, ity Clerk 0 • RESOLUTION'#444 BY THE COMMITTEE OF THE WHOLE RESOLVED BY THE CITY COUNCIL OF THE CITY OF LANSING Support of DEQ Waterfront Development Grant Request In Association with the Redevelopment of the Former Ottawa Power Station for the Accident Fund Insurance Company of America WHEREAS, the Lansing Brownfield Redevelopment Authority (LBRA) desires to apply on behalf of the City of Lansing (City) for a Michigan Department of Environmental Quality (MDEQ) Waterfront Development Grant; and WHEREAS, The LBRA is seeking the grant funds to fund demolition, infrastructure and public facility improvements on public property adjacent to the Grand River between Shiawassee Street and Michigan Avenue in the City of Lansing, Michigan; and WHEREAS, the LBRA is applying on behalf of the City of Lansing in support of funding for specific activities included in the previously approved and executed Property Purchase and Development Agreement (Agreement) between the City, Lansing Economic Development Corporation (EDC), Lansing Board of Water and Light (LBWL) and Christman Capital Development Company; and WHEREAS, the implementation of the agreement will result in the redevelopment of the • former Ottawa Power Station property to facilitate the expansion of the Accident Fund Insurance Company of America; and WHEREAS, the project is consistent with local development and redevelopment plans, and zoning ordinances, specifically, the City of Lansing's Central Lansing Comprehensive Plan and Waterfront Redevelopment Master Plan. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Lansing supports the application to the MDEQ for Waterfront Development Grant funds to be used for the above purposes. By Councilmember Quinney Motion Carried 0 LANSING CITY COUNCIL LEGISLATIVE ITEMS: AUGUST 11, 2008 RESOLUTIONS • • ,49 NOV-09-2007 FRI 04:08 AM P. 002 BL - 97566201 - 1 Peon 1 ASSISTANCE ID NO. U.S. ENVIRONMENTAL,PRG DATEOFAWARD DOG ID AMEND# BL ' 97566201 - A t PROTECTION AGENCY TYPE OF ACTION MAILING DATE. U 1r, No Cost Amendment Assistance Amendment PAYMENT METHOD: AC 4[ • ACH RECIPIENT TYPE: Send Payment Request to: Special District Comptroller Branch, MF 10J RECIPIENT: PAYEE: Lansing Brownfield Redevelopment Authorlty Lansing Brownfield Redevelopment Authority 309 North Washington Square Ste. 016 $09 North Washington Square Ste. 016 Lansing, MI 48933 Lansing, MI 48933 EIN: 38-3492729 PROJECT MANAGER EPA PROJECT OFFICER EPA GRANT SPECIALIST Brian D. anderSon Craig Mankowskl Karen'Sykes 309 North Washington Square Ste. 010 77 West Jackson Blvd, Assistance Section, MC-10J Lansing, MI 48933 Chicago, IL 60604-3507 E-Mail: sykes.keren@epa.gov E-Mail: banderso(g .1ansing,ml.us E-Mail: MankowskE.CralgQepamall.epa.gov Phone: (312) 686-7571 Phone: (517) 4483-4594 Phone: (312) 886-9493 PROJECT TITLE AND EXPLANATION OF CHANGES BROWNFIELD CLEANUP REVOLING LOAN Funding being provided to the Lansing Brownfeld Redevelopment Authority (LBRA) to increase the redevelopment of brownfeld properties In the City of Lansing to create jobs and promote growth within the City of Lansing. This amendment approves a budget & project period extension through March 2, 2007. This extension Wil allow LBRA to'enter In a loan for a project that will require the cleanup of hazardous materlale and the removal of a contaminated structure. EPA Contact Information; Time Extension (Amendment); BUDGET PERIOD PROJECT PERIOD TOTAL BUDGET PERIOD COST TOTAL PROJECT PERIOD COST 09/01/2001 - 03/02/2007 09/01/2001 - 03/02/2007 oa5,000.00 ' I $835,000.00 NOTICE OF AWARD cased on your,appllcatlon dated 0712512000, Including all modiftcations and amendments, the United States acting by and through the US Environmental Protection Agency (EPA), hereby awards $, ' EPA agrees to cost -share 100.00% of all approved budget period costs Incurred, up to and not exceeding total federal funding of $835,000. Such award maybe terminated by EPA without further cause if the recipient fails. to provide timely affirmation of the award by signing under the Affirmation of Award section and returning all pages of this agreement to the Grants Management Office listed below wlthln 21 days,after receipt, or any extension of time, as may be granted by EPA. This agreement is subject to applicable EPA statutory provisions. The applicable regulatory provisions are 40 CFR Chapter 1, Subchapter 8, and all terms and conditions of this agreement and any attachments, ISSUING OFFICE GRANTS MANAGEMENT OFFICE) AWARD APPROVAL OFFICE 'ORGANIZATION I ADDRESS ORGANIZATION / ADDRESS U.S. EPA Region 5 U.S. EPA, Region 5 Mall Code MCG10J Superfund Division 77 West Jackson Blvd. 77 W. facson, S-5J Chicago, IL 60504-3507 Chicago, IL 60604 E UNITED STATES OF AMERICA BY THE U.S. ENVIRONMENTAL PROTECTION AGENCY 31 T RE OF RD FICIA TYPED NAME AND TITLE • D�A�TE t/ SHARON GREEN, CHIEF, ASSISTANCE SECTION �y P AFFIRMATION OF AWARD Y AND ON BEHALF OF THE DESIGNATED RECIPIENT ORGANIZATION SIGNAT TYPED NAME AND TITLE DATE i K76 -``\ e v s ey d, Cr=_ 0 NOV-09-2007 'FRI 04:08 AM P. 003 EPA Funding Information SL-97566201.1 Page FUNDS FORMER AWARD THIS ACTION AMENDED TOTAL PAAmount'rhls Action $ 835,000 $ $ 835,000 EPA in -Kind Amount $ 0 $ $ 0 Unexpended,PrlorYear Balance $ 0 $ $ 0 Other Federal Funds $ 0 $ $ 0 Reolplant Contribution $ 0 $ $ 0 State Contribution $ 0 $ $ 0 Local Contribution $ 0 $ $ 0 Other Contribution $ 0 $ $ 0 Allowable Project Cost $ 835,000 $ 0 $ 835,000 Assistance Program (CFDA) Statutory Authority Regulatory Authority 66.811 - Brownfield Pilols•Cooparative Agreements CERCLA, Sea 311 40 CFR PTS 31 & 35 SUBPT O Fiscal ' Site Name DCN FY Approp, Coda Budget Organization PRC Object Class Site/Project Cost Organization Obligation 1 Deobligatlon i 0 NOV-09-20'0.7 FR1 04:08 AM Bud et Summary Page • P. 004 BL - 97566201 -1 Page 3 Table A - Object Glass Category (Non -construction) Total Approved Allowable Budget Period Cost 1. Personnel 2. Fringe Benefits $45,000 $0 3; Travel $1,500 4. Equipment $0 B. Supplies 40 6. Contractual $5,000 7. Construction $0 8. Other $783,600 9. Total Direct Charges $835,000 10. Indirect Costs: % Base $0 11: Total (Share: Recipient QiQQ °1° rederal 100.00 °1°.) $835,000 '12. Total Approved Assistance Amount 4835,000 13. Program Income . .$0 14, Total EPA Amount Awarded This Action $0 15. Total EPAAmount Awarded To pate $835,000 NOV-09-2007 FRI 04:08 AM P. 005 BL - 97566201 - 1 Page 4. • Administrative Conditions TERMS AND CONDITIONS THIS AWARD IS IN RESPONSE TO THE RECIPIENT'S APPLICATION SUBMITTED JULY 25, 2006. 1. LOBBYING AND LITIGATION In accordance with OMB Circular A-21, A-87, or.X122, as approoriafe, the recipient agrees that it will not use project funds, Including the Federal and non -Federal share, to engage in lobbying the Federal Government or in litigation against the United States. The recipient also. agrees to provide the EPA Form 5700-53, Lobbying and Litigation Certificate as mandated by EPNs annual appropriations act. A chief executive officer of any entity receiving funds under this Act shall certify that none of these funds have been used to engage in the lobbying of the Federal Government or In litigation against the United States unless authorized under existing law. The certification must be submitted in accordance with the instructions provided by the EPA award official and is due 90 days after the end of the project period. 2. CONSULTANT CAP Payment to,consultents. EPA participation in the salary rate (excluding• overhead) paid to individual consultants retained by recipients or by a recipient's contractors or subcontractors shall be limited to the maximum daily rate for a Level IV of the Executive Schedule (formerly 138-18), to be adjusted annually.• This limit applies to consultation services of designated individuals with specialized skills who are paid at a daily or hourly rate. As of January 1, 2006, the limit is $M.08 per day and $68.51 per hour. This rate does not include transportation. and subsistence costs for travel performed (the recipient will pay these in accordance with their normal travel reimbursement practices). Subagreements with firms for services which are awarded using the procurement requirements in 40 CFR 30 or 31,'as applicable, are not affected by this limitation unless the terms of the contract provided the recipient with'responsibillty for the selection, direction, and control of the individuals who will be providing • services under.the contract at an hourly or daily rate of compensation. See 40 CFR 31.36(j) or 30.27(b) 3, DEBARM15NT'AND SUSPENSION Recipient shall fully comply with Subpart C of 40 CFR Part 32, entitled "Responsibilities of Participants Regarding Transactions. " Recipient is responsible for ensuring that any lower tier covered transaction, as - described In Subpart B of 40•OFR Part 32, entitled ".Covered Transactions," includes a•term or condition requiring compliance with Subpart C. Recipient is responsible for further requiring the inclusion of a similar term or condition in any subsequent louver tier covered transactions. Recipient acknowledges that failing to disclose the Information required under 40 CFR 32.335 may result in the delay or negation of this assistance agreement, or pursuance of legal remedies, including suspension and debarment. Recipient may access the Excluded Parties List System at http;/Iei)ls.arnet.gov. This tern and condition supersedes EPA Form 5700-49, "Certification Regarding Debarment, Suspension, and Other Responsibility Matters." 4. Drug -Free Workplace Certification for all EPA recipients The recipient organization of this EPA assistance agreement must make an ongoing, good faith effort to maintain a drug -free workplace pursuant to the specific requirements set forth in Title 40 CFR 36.200 - 36.230. Additionally, in accordance with these regulations, the recipient organization must identify all known workplaces under its federal awards, and keep this information on file during the performance of the award: Those recipients who are individuals must comply with the drug -free provisions set forth in Title 40 CFR 36.300. The consequences for violating this condition are detailed under Title 40 CFR 36.510. Recipients can • access the Code of Federal Regulations (CFR) Title 40 Part 36 at http://www.amus,opo.novinera/cfrtwaisidx 06140cfr36 06.html. 5. NATIONAL HISTORIC PRESERVATION ACT NOV-09-2007 FR1 04:09 AM P. 006 Prior to conducting or engaging in any on -site activity with the potential to impact historic properties (such • as Invasive sampling or cleanup), the grantee shall consult with EPA regarding potential applicability of the National Historic Preservation Act and, if applicable shall assist EPA in complying with any requirements of the Act and implementing regulations. 6. PROCUREMENT OF RECYCLED PRODUCTS STATE AGENCIES AND POLITICAL SUBD1visibNS: Any State agency or agency of a political subdivision of a State which is using appropriated Federal funds shall comply with the requirements set forth in Section 6002 of the Resource Conservation and Recovery Act (RCRA) (42 U.S.C. 6962). Regulations issued under RCRA Section 6002 apply to any acquisition of an Item where the purchase price exceeds $10,000 or where the quantity of such items acquired in the course of the preceding fiscal year was $10,000 or more. RCRA Section 6002 requires that preference be given in procurement programs to the purchase of specific products containing recycled materials'Identified in guidelines developed by EPA. These guidelines are listed in 40 CFR 247. Programmatic Conditions THE FOLLOWING TERM AND CONDITION HAS BEEN ADDED: 1. ENVIRONMENTAL RESULTS - RECIPIENT PERFORMANCE REPORTING Recipients subject to 40 CAR. part 31 (other than recipients of State or Tribal Program grants under 40 C.F.R. Parts 36 Subparts A or 1:3) Performance Reports: • In accordance with 40 C.F.R. §31.40, the recipient agrees to submit performance reports that include brief Information on each of the following areas: 1) a comparison of actual accomplishments to the 'outputs/outcomes established in the assistance agreement workplan for the period; 2) the reasons for slippage If established outputs/outcomes were -not met; and 3) additional pertinent information, including, when appropriate, analysis and Information of cost overruns or high unit costs. In accordance with 40 C.F.R. § 31.40 (d), the recipient agrees to inform EPA as soon as problems, delays or adverse conditions become known which will materially impair the abiiity'to meet the outputs/outcomes specified In the assistance agreement work plan. 0 rI 50 BROWNFIELDS CLEANUP REVOLVING LOAN FUND LOAN AGREEMENT BETWEEN THE CITY OF LANSING BROWNFIELD REDEVELOPMENT AUTHORITY ("LENDER") THE CITY OF LANSING ECONOMIC DEVELOPMENT CORPORATION ("BORROWER") r: 0 TABLE OF CONTENTS RECITALS..................................................................................................................................... 1 ARTICLE1 LOAN......................................................................................................................... 2 ARTICLE II REPRESENTATIONS AND WARRANTIES......................................................... 4 ARTICLE III CONDITIONS PRECEDENT................................................................................. 5 ARTICLE IV AFFIRMATIVE COVENANTS............................................................................. 6 ARTICLE V EVENTS OF DEFAULT.......................................................................................... 9 ARTICLE VI REMEDIES OF LENDER..................................................................................... 10 ARTICLEVII MISCELLANEOUS............................................................................................. 10 EXECUTION................................................................................................................................ 11 EXHIBIT A • LEGAL DESCRIPTIONS EXHIBIT B LOAN GUARANTY EXHIBIT C PROJECT DOCUMENTS EXHIBIT D FINANCIAL STATEMENT • • TH S OAN AGREEMENT (this "Agreement") is entered into as of the day of -5ehor,moer , 2008, by and between the CITY OF LANSING BROWNFIELD REIIEVELOPMENT AUTHORITY, a public body corporate created under the authority of the Brownfield Redevelopment Financing Act, MCL 125.2651 et seq, whose address is 401 South Washington Square, Suite 100, Lansing, Michigan 48933 ("LENDER") and the CITY OF LANSING ECONOMIC DEVELOPMENT CORPORATION., a public body corporate created under the authority of the Economic Development Corporations Act, MCL 125.1601 et seq whose address is 401 South Washington Square, Suite 100, Lansing, Michigan 48933 ("BORROWER"). RECITALS Lender is a recipient of a United States Environmental Protection Agency (USEPA) Brownfields Cleanup Revolving Loan Grant (BCRLF) and is authorized to make certain loans therefrom. To the extent that certain properties are contained within an eligible brownfield area, Lender is also able to collect tax increment revenue attributable to brownfield properties within such an area and utilize such funds as repayment of a revolving brownfield loan. • Borrower is an economic development corporation created for the purpose of attracting, expanding and retaining business and industry in the City of Lansing. Borrower and Lender have agreed to facilitate the redevelopment of certain real property commonly known as the former "Ottawa Power Station" site, located at 312 N. Grand Avenue, City of Lansing, Ingham County, Michigan which is more specifically described in Appendix A (the "Property") by financing the performance of certain remedial action at the Property. The Borrower has determined, based upon an analysis performed by NTH Consultants, Ltd. (NTH) that the Property is a "facility" contaminated with "hazardous substances", as those terms are defined by the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA) and qualifies as a Brownfield Site in need of environmental clean-up. The Lansing Board of Water and Light has prepared a Remedial Action Plan ("RAP") and has submitted the RAP to the Michigan Department of Environmental Quality ("MDEQ") for review and approval under Public Act 451, Part 201 of the Michigan Public Acts of 1994. In order to induce Lender to make a loan to finance certain discrete remedial activities, Borrower has executed an obligation to repay the Loan Funds by execution of a Loan Guaranty ("Guaranty"), attached hereto and made a part hereof as Exhibit B. This Agreement and the Guaranty are collectively referred to herein as the "Loan Documents." For purposes of facilitating the redevelopment of the Property, the Borrower wishes to engage in environmental clean-up activities on the Property that will be paid for out of the proceeds of the Loan from • Lender. In order to repay the loan, Borrower has agreed to make certain fixed payments and it is • envisioned by both the Borrower and the Lender that redevelopment of the Property will result in the capture of tax increment revenue by the Lender that will also be used to repay the remaining loan balance. In the event that subsequent redevelopment and the associated capture of tax increment revenue does not result in repayment of the remaining loan balance, Borrower has also agreed to guaranty the remaining repayment of the loan as set forth in the Guaranty. • The Lender and the Borrower agree that upon conveyance of the Property the terms and conditions of this loan agreement shall remain in full force as evidenced by the Loan Documents. NOW THEREFORE, Lender and Borrower, intending to be legally bound, agree as follows: ARTICLE 1 LOAN 1.01 Loan. Lender agrees to make a Loan in the amount of up to Five Hundred Thousand Dollars ($500,000) (the "Loan"). The Lender has the ability to provide the Borrower with a "Loan Discount" pursuant to the terms and conditions of the Environmental Protection Agency Grant Agreement with the Lansing Economic Development Corporation (the "Lender"). The Lender agrees to provide the Borrower with a ten percent Loan Discount and the Borrower shall cause to be paid ninety percent of the Loan (the "Loan Funds"), not to exceed Four Hundred Fifty Thousand Dollars ($450,000) plus applicable interest calculated at a rate of one percent per annum as set forth herein to the Lender. The Borrower shall evidence its obligation to repay the Loan Funds by execution of this Agreement and the Loan Guaranty (Exhibit B). 1.02 Payment Terms. The Loan Funds shall be due and payable to Lender based on the following schedule: • $4,500.00 due and payable January 31, 2015; • $4,500.00 due and payable January 31, 2016; • $4,500.00 due and payable January 31, 2017; • $4,500.00 due and payable January 31, 2018; • $4,500.00 due and payable January 31, 2019; • $4,500.00 due and payable January 31, 2020; • $4,500.00 due and payable January 31, 2021; • $4,500.00 due and payable January 31, 2022; • 10 percent of the remaining accumulated amount due and payable on January 31, 2023; • 14 percent of the remaining accumulated amount due and payable on January 31, 2024; • 14 percent of the remaining accumulated amount due and payable on January 31, 2025; • 14 percent of the remaining accumulated amount due and payable on January 31, 2026; • 14 percent of the remaining accumulated amount due and payable on January 31, 2027; • 14 percent of the remaining accumulated amount due and payable on January 31, 2028; • 14 percent of the remaining accumulated amount due and payable on January 31, 2029; • all remaining amounts due and payable on January 31, 2030. 2 • The Borrower agrees to pay the amounts due and owing in years 2016 through 2022. As to the amounts due and owing in years 2023 through 2030, Lender anticipates making repayments of the amounts due and payable in each of those years through tax revenue captured as part of a Brownfield Reimbursement Agreement executed as of May 1, 2008 between the Lansing Brownfield Redevelopment Authority, Phoenix Development Partners LLC and the City of Lansing and agrees to make such payments to the extent of available brownfield tax captured revenue in those years. To the extent that captured tax revenue is insufficient to make the payments in years 2023 through 2030, Borrower will be obligated to make any deficiencies in the payments set forth in the schedule above and as secured in the Loan Guaranty. 1.03 Prepayment Prior to Maturity. Borrower may, without premium, prepay any portion of the principal on the Loan prior to maturity. 1.04 Purpose. Borrower shall not, without Lender's prior written consent, use the proceeds of the Loan for activities other than the approved remediation of hazardous substances at the Property (the "Work") as set forth in this Section or as amended and approved by the Lender and subject to written approval by the MDEQ and concurrence from the USEPA to insure that any amendments to the work are eligible BCRLF activities. More specifically, the loan funds shall be used for the following tasks and as further delineated in the Project Documents (Exhibit C): 1. excavation/transportation/disposal of contaminated soils from several locations at the Property, and backfilling; • 2. Costs for disposal of removed soils at a Type 2 landfill facility due to balancing of site or lack of suitability for reuse as fill material. 3. Costs for disposal of dewatering discharge in municipal sanitary sewer system, including set-up, maintenance and dismantling of any equipment or systems. I-] 1.05 Contractor Qualifications and Insurance. Borrower affirms that, prior to commencement of the Work its environmental consultant (the "Contractor") will examine the Property, will be fully familiar with local conditions, and will be able to perform the Work in accordance with the Project Documents. The Contractor shall carry out the Work consistent with the level of care and skill exercised by similar contractors performing comparable services under comparable circumstances. The Contractor shall maintain and keep in full force and affect the following insurance: pollution and general liability insurance with a minimum of $1,000,000 coverage per accident or claim, property insurance, and workers compensation insurance. 1.06 Default. Upon default arising from provisions of Article V, Borrower promises to pay to Lender all collection and attorney's fees and expenses associated with collection actually incurred by Lender, whether or not litigation is commenced, including, without limitation, penalties and/or fees due under this Agreement. 1.07 Security. As security for Borrower's indebtedness to Lender, Borrower shall execute the Loan Guaranty (Exhibit B). 3 1.08 Loan Proceeds. The parties agree that no loan proceeds shall be disbursed, and no Work to be financed by this Agreement shall be performed until "Closing" on the Property occurs as provided in a Property Purchase and Development Agreement dated January 30, 2008 and executed between the City of Lansing, the Lansing Board of Water and Light, the Christman Capital Development Company and the City of Lansing Economic Development Corporation. In the event that "Closing" does not occur, Lender's obligation to disburse loan proceeds to the Borrower shall terminate and neither the Lender nor the Borrower shall have any further obligations under this Agreement. Disbursements of loan proceeds shall take place on a monthly basis based upon expenses incurred and appropriately documented by the Borrower and submitted to the Lender. 1.09 Contingency Items. In the event that Work financed under this Agreement costs less than the $500,000 loan amount, the Loan amount shall be reduced accordingly to reflect the actual costs of remediation tasks performed and the Loan Funds to be repaid shall reflect the ten percent discount referenced in Section 1.01 of this Agreement. ARTICLE II REPRESENTATIONS AND WARRANTIES 2.01 Environmental Warranties. Borrower represents and warrants that: 1. The Property is not listed or proposed for listing on the National Priorities • List of the U.S. Environmental Protection Agency. • 2. Borrower did not generate or transport hazardous substances, pollutants or contaminants at or to the Property. 2.02 Legal Status. Borrower is a public body corporate, validly existing under the Laws of the State of Michigan. 2.03 Interest in Property. The Borrower agrees and understands that the Work shall only be performed on such property for which the Borrower has obtained permission to conduct clean up activities and has presented the Lender such documentation, acceptable to the Lender, that the Borrower has a legal right to perform such Work on the property prior to undertaking the Work. Borrower shall ensure that Lender shall have access to the Property. 2.04 No Violation. The making and performance by Borrower of this Agreement does not violate any provision of federal, state or local law, or result in a breach of or constitute a default under any agreement, indenture or other instrument to which Borrower is a party or by which Borrower may be bound. 2.05 Authorization. This Agreement and the Loan Guaranty have been duly authorized, executed and delivered and are valid and binding agreements of Borrower. 4 2.06 Litigation. The Borrower acknowledges that there are no pending or threatened actions or proceedings before any court or administrative agency that the Lender, in its best judgment, believes will adversely affect the financial condition or operation of Borrower other than those heretofore disclosed by Borrower to Lender in writing. 2.07 Correctness of Financial Statement. Borrower represents and warrants that if there are any financial statements, they are incorporated as Exhibit D, heretofore delivered by Borrower to Lender, and present fairly the financial condition of Borrower, and have been prepared by a Certified Public Accountant in accordance with generally accepted accounting principles consistently applied. As of the date of such financial statements, and since such date, there has been no material adverse change in the condition or operation of Borrower. 2.08 The above -listed representations and warranties shall survive the execution of this agreement. ARTICLE III CONDITIONS PRECEDENT 3.01 The obligation of Lender to make the Loan contemplated hereunder is subject to the fulfillment of the following conditions: 1. Approval of Lender's Counsel. All legal matters incidental to Lender's commitment to issue the Loan hereunder shall be satisfactory to Lender's counsel, • including the form, validity and enforceability of this Agreement and Exhibit B. 2. Compliance. The representations and warranties contained herein shall be true on and as of the date of the signing of this Agreement with the same effect as though such representations and warranties had been made on and as of such date, and on such date no Event of Default as defined in Article V herein, and no condition, event or act which, with the giving of notice or the lapse of time or both, would constitute an Event of Default shall have occurred and be continuing or shall exist. • 3. Identification of Contractors. Borrower shall submit to Lender a list identifying all of Borrower's contractors and subcontractors whose work is funded by this Loan prior to commencement of the Work. 4. Cooperation With Audit. Borrower agrees to cooperate fully with an audit of the Loan and the Work, if so required. 5. Erect Sign. Borrower agrees to erect a sign on the Property, approved by Lender, stating that the Work is being financed in part by U.S. EPA BCRLF Funds and the Lender and providing appropriate contacts for obtaining information on activities being conducted at the Property and for reporting suspected criminal activities. The sign erected on the Property shall comply with 40 CFR Part 35, Subpart O (Sec. 35.6105 (a) (2) (ii)). 5 • ARTICLE IV AFFIRMATIVE COVENANTS 4.01 Continuation of Responsibility. Borrower covenants to do the following items indicated in this Article for so long as amounts remain due under this Agreement. 4.02 Punctual Payment. Borrower shall punctually confirm that payment has been made to Lender, or punctually pay, all payments set forth in Section 1.02 of this Agreement. 4.03 Accounting Records. Borrower shall document all the uses of the proceeds of the Loan, and maintain adequate books and accounts in accordance with generally accepted accounting principles consistently applied. Borrower shall permit any representative of Lender at any reasonable time to inspect, audit and examine such books. Borrower shall maintain documentation on the use of the proceeds of the Loan for ten years after completion of the Work supported by the Loan and shall obtain approval of Lender prior to destroying such documentation. If any audit or other action involving the records has been started before the expiration of the ten-year period, the records shall be retained until the completion of the action and resolution of all issues that arise from it, or until the end of the regular ten-year period, whichever is later. • 4.04 Furnish Reports. The Borrower shall furnish reports to the Lender that document that it is in material compliance with all relevant federal and state environmental regulations as requested. 4.05 Furnish Financial Statements. Borrower shall furnish annual financial statements, including basic accounting and control mechanisms to track use of the proceeds of the Loan and document that such proceeds are put to authorized uses. Borrower's accounting system must track site -specific costs, cost activity and operable unit (if applicable). Financial statements include: (a) income statements; (b) balance sheets; and (c) cash flow statements. 4.06 Other Information. Borrower shall furnish such other information as Lender may from time to time reasonably request. 4.07 Compliance With All Laws. Borrower shall carry out the Work in accordance with the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. §§ 9601 et seq.) ("CERCLA"); Uniform Administrative Requirements for Grants and Cooperative Agreements to States and Local Governments, 40 C.F.R. Part 31; Cooperative Agreements for Superfund Response Actions, 40 C.F.R. Part 35, Subpart O; the National Oil and Hazardous Substances Contingency Plan ("NCP"), and 40 C.F.R. Part 300. Borrower shall carry out the Project activities in accordance with all applicable state, local and federal laws, regulations, orders, writs, judgments, injunctions, decrees or awards, including but not limited to the following, all applicable "cross -cutting requirements" described in this section, including those federal requirements agreed between the USEPA and Lender set forth in the Cooperative Agreement; OSHA Worker Health & Safety Standard 29 CFR 1910.120; the 9 • Uniform Relocation Act; Historic Preservation Act; Endangered Species Act; and Permits required by Section 404 of the Clean Water Act; Contract Work Hours and Safety Standards Act, as amended (40 USC 327-333) the Anti Kickback Act (40 USC 276c) and Section 504 of the Rehabilitation Act of 1973 as implemented by Executive Orders 11914 and 11250." 4.08 Compliance With Executive Order 11246. Borrower shall comply with Executive Order 11246, Equal Employment Opportunity, and implementing regulations at 41 C.F.R. 60-4 relating to federally -assisted construction contracts. 4.09 Davis -Bacon Act. Borrower shall carry out the Work in accordance with the Davis -Bacon Act of 1931 (CERCLA § 104(g)(1), 40 U.S.C. §§ 276a to 276a-5 and 42 U.S.C. § 3222 as set forth in CERCLA § 104 (g)). Compliance with the Davis -Bacon Act requires payment of federal prevailing wage rates for construction, repair or alteration work funded in whole or in part with BCRLF Loan Funds. Borrower must obtain recent and applicable wage rates from the U.S. Department of Labor and incorporate them into the construction contract. 4.10 Insurance. In addition to Contractor's insurance requirements, Borrower shall maintain and keep in full force and effect insurance of the types and amounts necessary to protect the Security for Borrower's indebtedness to the Lender, including without limitation, general liability insurance with a minimum of $1,000,000 coverage per accident or claim, property insurance and workers compensation insurance (if applicable), and fire insurance for the value of the property, and coverage for all pollution incidents that may be evidenced by pollution Legal Liability insurance. Insurance coverage shall be primary in relation to any other insurance • or self-insurance available to the Lender. The Lansing Economic Development Corporation and the Lansing Board of Water and Light, their officers, employees and agents, shall be named Additional Insureds. Borrower shall deliver to Lender from time to time at Lender's request certificates of insurance or polices setting forth all business insurance then in effect. Policies shall be endorsed to provide that the Lender shall be provided with written notice of thirty (30) days for any cancellation, suspension or reduction in limits. 4.11 Taxes and Other Liabilities. Borrower shall pay and discharge when due any and all indebted obligations, assessments, taxes (real and personal), including federal and state payroll and income taxes, except such as Borrower may in good faith contest or as to which a bona fide dispute may arise; provided provision is made to the satisfaction of Lender for eventual payment thereof in the event that it is found that the same is an obligation of Borrower. 4.12 Litigation. Borrower shall promptly give notice in writing to Lender of any Litigation pending or threatened against Borrower or the Property in excess of Twenty-five Thousand Dollars ($25,000). 4.13 Non -Discrimination and Equal Opportunity. Borrower agrees to comply with the statutes prohibiting discrimination on the grounds of race, color, national origin, sex and disability. In addition, Borrower shall undertake good faith efforts in compliance with 40 C.F.R. § 35.6580 to give opportunities to qualified Small Business Enterprises ("SBE"), Minority Business Enterprises ("MBE") and Women -Owned Business Enterprises ("WBE") to submit . proposals and bids and provide services on contracts and subcontracts for services and supplies. Borrower shall submit a report of such efforts in a manner acceptable to the Lender. 7 • 4.14 Debarment and Suspension. Borrower certifies that Borrower and, to its knowledge, Contractor: 1. Are not presently or proposed to be debarred or suspended, declared ineligible, or voluntarily excluded from federal, state or Local (hereinafter "public") transactions; 2. Have not within a three year period preceding this Agreement been convicted of or had a civil judgment rendered against them for (i) fraud or commission of a criminal offence in connection with obtaining, attempting to obtain, or performing a public transaction or contract under a public transaction, (ii) violation of federal or state antitrust laws, or (iii) embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements or receiving stolen property; 3. Are not presently indicted for or otherwise criminally or civilly charged by a public entity with commission of any of the offenses enumerated under Section 2 above. 4. Have not within the preceding three years had a public transaction terminated for cause or default. i4.15 Environmental Compliance. Borrower certifies that it is not now, and has not in the past, been subject to any penalties resulting from environmental non-compliance at the Property. Borrower further certifies that it will conduct cleanup activities in accordance with the BCRLF Program, the Cooperative Agreement between EPA and the Lender and Michigan Public Act 451, Part 201 of the Michigan Public Acts of 1994, and will modify the cleanup activities, as required by the Lender and MDEQ based on unforeseen site conditions or public involvement requirements. 4.16 Notice to Change in Response Action Plan. Borrower shall immediately report in writing any potential changes to the Work described in Section 1.04 hereof and the discovery of hazardous substances, pollutants or contaminants not previously identified at the Property. The Site Manager and Lender shall approve all changes or modifications to the Work or related documents prior to such change or modification becoming effective. 4.17 Completion of Project. Borrower agrees to begin the Work by November 15, 2008 and to complete the Work within eighteen months following commencement of the Work. If Work has not commenced by November 15, 2008, this Agreement will become null and void and all unliquidated obligations shall be returned to EPA pursuant to the terms of a Closeout Agreement negotiation between EPA and LBRA. Borrower shall notify Lender when the Work is complete and shall submit a closeout report for review and approval by Lender and MDEQ. The notice shall contain certification or documentation necessary to establish the following: 0 • 1. Environmental cleanup actions were conducted in accordance with the Project Documents. 2. All proceeds of the Loan were expended for eligible project costs 4.18 BCRLF Program Requirements. Prior to the commencement of the Work, Borrower shall insure the completion of the following: 1) Community Relations Plan (CRP); 2) Engineering Evaluation and Cost Analysis (EE/CA), or equivalent, that includes a comparative analysis of cleanup options; 3) if applicable, the Quality Assurance Project Plan (QAPP), or its equivalent; 4) 30-day public comment period on the Administrative Record which shall include, but not be limited to, the CRP, the EE/CA, the public notice announcing the availability of the Administrative Record, the Due Care Plan, and all other documents that support the basis for the proposed cleanup. Upon completion of the public comment period and prior to the commencement of the Work, the Borrower shall insure that the Lender has issued the Action Memorandum selecting the final cleanup plan and addressing any substantive comments received during the public comment period. ARTICLE V EVENTS OF DEFAULT • 5.01 The following shall constitute Events of Default: 0 1. Default by Borrower in any payment when due of principal or interest under this Agreement, which default is not cured within thirty (30) days of receipt of a notice of default. 2. Any representation or warranty made by Borrower hereunder or in the Loan Documents proves false or misleading in any material respect. 3. Use of the proceeds of the Loan for purposes other than those stated in Section 1.04 or approved in writing by Lender. 4. Default by Borrower in the performance of any other term, covenant or agreement contained herein, or in the Loan Documents, which default is not cured within thirty (30) days of receipt of a notice of default (or such longer period as shall be reasonably necessary to cure such default provided Borrower promptly commences such cure and thereafter diligently pursues such cure to completion). 5. Default by Borrower under the terms of any agreement or instrument pursuant to which Borrower has borrowed money from any person or entity for the Property, which default is not cured within thirty (30) days of receipt of a notice of default (or such longer period as shall be reasonably necessary to cure such default E • provided Borrower promptly commences such cure and thereafter diligently pursues such cure to completion). 6. Failure of Borrower to satisfy any judgment or remove any levy or other process against the assets of Borrower within thirty (30) days after the entry or levy thereof, or at least five (5) days prior to the time of any proposed sale under any such judgment or levy. 7. The breach by Borrower of any of the financial covenants in the Loan Guaranty, which breach is not cured within thirty (30) days of receipt of a notice of default. 5.02 Acceleration. Notwithstanding anything to the contrary in this Agreement, upon an Event of Default, any indebtedness of Borrower under this Agreement shall, at Lender's option and without notice, become immediately due and payable and the obligations, if any, of Lender to permit further borrowing hereunder shall immediately cease and terminate. ARTICLE VI REMEDIES OF LENDER • 6.01 Upon the occurrence of an Event of Default, Lender may exercise, singly or in combination, any or all of the rights, powers and privileges provided in the Loan Documents, at law or in equity. Failure of Lender to exercise any rights or remedies at any time shall not constitute a waiver of any of its rights or remedies. ARTICLE VII MISCELLANEOUS 7.01 Successors. This Agreement shall be binding upon the permitted assigns or successors of Borrower and Lender. This Agreement shall not be assigned or transferred by Borrower without the written consent of Lender and any purported assignment or transfer without such prior written consent shall be void. 7.02 Notices. Any notice or other communication required or permitted to be given under this Agreement shall be in writing and shall be provided via hand delivery, by certified or registered mail, return receipt requested, postage prepaid, or by nationally recognized overnight delivery service. 10 7.03 Attorney's Fees. Borrower will reimburse Lender for all costs, expenses and reasonable attorneys' fees expended or incurred by Lender in enforcing this Agreement or in collecting any sum which becomes due the Lender under this Agreement or the Loan Guaranty. 7.04 Exhibits. All exhibits mentioned herein shall be deemed incorporated herein by reference as though fully set forth herein. 7.05 Entire Agreement. The terms and conditions of this Agreement, all exhibits attached hereto and any documents expressly incorporated by reference represent the entire agreement between the parties with respect to the subject matter of this Agreement. This Agreement shall supersede any prior Loan agreements, oral or written, regarding the subject matter of this Agreement between Lender and Borrower. This Agreement may not be amended or modified without the written consent of the parties hereto. 7.06 Inconsistency. If any conflicts arise between the terms and conditions of this Agreement and the terms and conditions of the attached exhibits or any documents expressly incorporated by reference, the terms and conditions of this Agreement shall control except where federal statutes or regulations are controlling. 7.07 Severability. If any part of this Agreement is determined to be illegal or unenforceable, all other parts shall be given effect separately and shall be in effect. . 7.08 Governing Law. The Loan Documents shall be construed in accordance with and governed by the Laws of the State of Michigan except where superceded by federal statutes or regulations. 0 EXECUTION IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the date first above written. WITNESSES: FOR THE LENDER: Lansing B ow field Redevelopment Authori Y: Dated: % - 3 0- 11 • STATE OF MICHIGAN COUNTY OF INGHAM E This document was acknowledged before me on SxjoT-"6g.^ 3411'1r-ba by of Lansing Brownfield Redevelopment Authority. Eileen M. Melman Notary Public Washtenaw County, Michigan Acting in County My Commission Exp res 01/12/2014 WITNESSES: STATE OF MICHIGAN COUNTY OF INGHAM Notary Public, kigh County, MI My Commission Expires: EXECUTION FOR THE BORROWER: Lansing onomie Corporation By: Robert L. Trezise, Jr. Chairman Dated: Development This document was acknowledged before me on by Robert L. Trezise, Jr., President/CEO, on behalf of the Lansing Economic Development Corporation. Eileen M. Melman Notary Public Washtenaw County, Michigan Acting in County My Commissi n Expires 01/12/2014 Notary Public, Ingham County, MI My Commission Expires: 5644705v.1 • EXHIBIT A The Property is real property in the City of Lansing, County of Ingham, State of Michigan, described as follows: COMMENCING AT THE CENTER POST OF SECTION 16, T. 4 N. R. 2 W., CITY OF LANSING, INGHAM COUNTY, MICHIGAN; THENCE ALONG THE EAST -WEST 1/4 SECTION LINE OF SECTION 16, N 890 59' 00" E 527.87 FEET; THENCE N 00' 01' 45" W 330.00 FEET TO THE NORTHWEST CORNER OF BLOCK 99, ORIGINAL PLAT OF THE TOWN OF MICHIGAN, NOW CITY OF LANSING, AS RECORDED IN LIBER 2, PAGES 36-38, INGHAM COUNTY PLATS, AND THE POINT OF BEGINNING; THENCE ALONG THE EAST LINE OF NORTH GRAND AVENUE N 000 01' 45" W 519.77 FEET TO A FOUND R.R. SPIKE ON THE CENTERLINE OF VACATED IONIA STREET; THENCE ALONG SAID CENTERLINE DUE EAST 89.09 FEET; THENCE N 500 05' 10" E 157.52 FEET; THENCE N 00' 29' 40" E 39.86 FEET TO A POINT ON THE CENTERLINE OF THE PARTY WALL TO THE WEST EXTENDED EASTERLY; THENCE ALONG SAID EXTENSION AND ALONG THE CENTERLINE OF THE PARTY WALL N 890 58' 00" W 210.25 FEET TO THE EAST LINE OF NORTH GRAND AVENUE; THENCE ALONG SAID EAST STREET LINE DUE NORTH 296.14 FEET TO A FOUND CUT CROSS IN THE CONCRETE SIDEWALK, SAID POINT BEING ON THE SOUTH LINE OF SHIAWASSEE STREET; THENCE ALONG SAID SOUTH STREET LINE S 890 58' 00" E TO THE WESTERLY EDGE OF THE GRAND RIVER; THENCE SOUTHERLY ALONG THE WESTERLY EDGE OF THE GRAND RIVER TO THE SOUTH LINE OF OTTAWA STREET; THENCE ALONG SAID SOUTH STREET LINE DUE WEST TO THE POINT OF BEGINNING. There shall be excluded from the final legal description of the Property that portion of the parcel legally described above which constitutes "waterfront", as defined in City Ordinance 208.10 (except for that portion of "waterfront" that is occupied by the current Power Station Building, which shall be conveyed). Also, there shall be excluded from the final legal description of the Property any property that is south of the vacated Ottawa Street curb line. 0 EXHIBIT B LOAN GUARANTY AGREEMENT BETWEEN THE CITY OF LANSING BROWNFIELD REDEVELOPMENT AUTHORITY AND THE CITY OF LANSING ECONOMIC DEVELOPMENT CORPORATION This Guaranty Agreement (this "Guaranty") is dated as of ✓ jem�r 30 , 2008 and is between the City of Lansing Brownfield Redevelopment Authority, a public body corporate (as the "Lender"), whose address is 401 South Washington Square, Suite 100, Lansing, Michigan 48933, and the City of Lansing Economic Development Corporation, (as the "Guarantor") a public body corporate created under the authority of the Economic Development Corporations Act, MCL 125.1601 et seq whose address is 401 South Washington Square, Suite 100, Lansing, Michigan 48933. RECITALS WHEREAS, the Lender is a recipient of a United States Environmental Protection Agency Brownfields Cleanup Revolving Loan Grant and is authorized to make certain loans there from; and WHEREAS, the Guarantor and the Lender have concurrently executed a Loan Agreement pursuant to which the Authority has agreed to loan the Guarantor up to Five Hundred Thousand • Dollars ($500,000) ("Loan"), to be applied toward environmental clean-up costs on property identified in Exhibit A of the Loan Agreement and incorporated herein; and WHEREAS, pursuant to Section 1.01 of the Loan Agreement, the Guarantor is only obligated to repay up to Four Hundred Fifty Thousand Dollars ($450,000); and WHEREAS, the Guarantor must execute and deliver its guaranty in favor of the Lender providing for reimbursement to the Lender for up to the full amount of the Loan Funds as that term is used in the Loan Agreement. NOW, THEREFORE, in consideration of the foregoing and to induce the Lender to make available the Loan as provided in the Loan Agreement, the Guarantor hereby covenants and agrees with the Lender as follows: ARTICLE I REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE GUARANTOR Section 1.1 Representations and Warranties. The Guarantor hereby represents and warrants as follows: 1.1.1. Corporate Authority. 0 (a) The Guarantor is a tax-exempt organization under Sec. 501(c)(3) of the Internal Revenue Code and a Michigan Corporation duly authorized, validly existing and in good standing under the laws of the State of Michigan, has the corporate powers and authority to own its property and assets, to carry on its business as now being conducted by it and to execute, deliver and perform this Guaranty. The Guarantor is duly qualified to do business in every jurisdiction in which such qualification is necessary, including the State of Michigan. (b) The execution, delivery and performance of this Guaranty and the consummation of the transactions herein contemplated have been duly authorized by all requisite corporate action on the part of the Guarantor and will not violate any provision of Law, any order of any court or other agency of government or the charter of the Guarantor or any indenture, agreement or other instrument to which the Guarantor is a party or by which it or any of its property is bound, or be in conflict with or result in a breach of or constitute (with due notice and/or lapse of time) a default under any such indenture, agreement or other instrument. 1.1.2. Pending Litigation. The Guarantor represents that presently there are no proceedings pending, or to the knowledge of the Guarantor threatened, against or affecting the Guarantor in any court or before any governmental authority or arbitration board or tribunal which involve the possibility of materially and adversely affecting the ability of the Guarantor to perform this Guaranty. The Guarantor is not in default with respect to any order of any court, governmental authority or arbitration board of tribunal. 0 1.1.3. Agreements, etc., Legal and Authorized. Compliance by the Guarantor with all of the provisions of this Guaranty: (a) is within the corporate powers of the Guarantor; and (b) is legal and will not conflict with, result in a breach in any of the provisions of, or constitute a default under the provisions of, any agreement, charter instrument, by law or other instrument to which the Guarantor is a party or by which it may be bound. 1.1.4 Governmental Consent. Neither the nature of the Guarantor nor of any of its respective businesses nor any relationship between the Guarantor or any person, nor any circumstances in connection with the entering into and performance of this Guaranty is such as to require a consent, approval or authorization of, or filing, registration or qualification with, any governmental authority on the part of the Guarantor as a condition to the execution and delivery of this Guaranty. 1.1.5. Compliance with Law. The Guarantor: (a) is not in violation of any laws, ordinances, governmental rules or regulations to which it is subj ect; and (b) has not failed to obtain any licenses, permits, franchises or other governmental authorizations necessary to the conduct of its business, which violation or failure to obtain might materially and adversely affect the business, prospects, profits, or condition (financial or a otherwise) of the Guarantor. Section 1.2 Guarantor's Business Covenants. The Guarantor covenants that, during such time as the Guaranty is in effect, it will: (a) Corporate Existence and Rights. Do or cause to be done all things necessary to preserve and keep in full force and effect its existence; and (b) Compliance with Law. Not be in Violation of any Laws, ordinances or governmental rules and regulations to which it is subject and not fail to obtain any Licenses, permits, or other governmental authorizations necessary to the ownership of its property or enter into any loans, agreements or any other instrument which would materially affect the Guarantor's ability to honor this Guaranty. ARTICLE II GUARANTY Section 2.1 Guaranty. The Guarantor hereby guarantees repayment, as scheduled in Section 1.02 of the Loan Agreement or as may otherwise come due under an event of default, the Loan Funds. Section 2.2 Obligation. The Guarantor agrees that its undertaking in Section 2.1 above constitutes an absolute present and continuing guaranty of payment and not collection and Guarantor waives any right to require that any resort be had by the Lender to any other security held by the Lender, with the exception of tax captured revenue as set forth in Section 1.02 of the Loan Agreement. The Guarantor agrees that its obligations under this Guaranty shall not be affected, modified, released, or impaired by any state of facts or the happening of any event including, without limitation, any of the following whether or not with notice to or consent of the Guarantor: (a) the failure to give notice to the Guarantor of the occurrence of any Event of Default under the terms and provisions of this Guaranty or the Agreement; (b) the waiver of the payment, performance or observance by the Lender of any of the obligations, conditions, covenants or agreements of the Guarantor under the Agreement; (c) the modification or amendment (whether material or otherwise) of any duty, obligation, covenant or agreement set forth in the Loan Agreement or this Guaranty; (d) any failure, omission, delay or lack thereof on the part of the Lender to assert or exercise any right, power or remedy conferred on the Lender in the Loan Agreement or this Guaranty; (e) the voluntary liquidation, dissolution, merger, consolidation, sale or other disposition of • all or substantially all the assets, marshaling of assets and liabilities, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantor, or any allegation or contest of the validity of the Loan Agreement or this Guaranty in any such proceeding, it being specifically understood, consented and agreed to that this Guaranty shall remain and continue in full force and effect and shall be enforceable against the Guarantor to the same extent and with the same force and effect as if such proceedings had not been instituted; and it being the intent and purpose of this Guaranty that the Guarantor shall and does hereby waive all rights and benefits which might accrue to the Guarantor by reason of any such proceedings; (f) to the extent permitted by Law, the release or discharge of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or the Loan Agreement by the operation of Law; (g) the default or failure of the Guarantor fully to perform any of its obligations set forth in this Guaranty or the Loan Agreement; or (h) any other circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or a guarantor. Section 2.3 Payment on Guaranty. On default of the Loan Agreement the Guarantor without notice and without the necessity of further action by the Lender, will promptly and fully pay to the Lender the full amount of either: (i) the amount of the Loan Funds that the Lender loans to the Guarantor under the Loan Agreement; or (ii) the outstanding loan balance at the time of default. All payments by the Guarantor shall be made in lawful currency of the United States of America in immediately available funds. Section 2.4 Termination. The Guarantor agrees that its obligations under this Guaranty shall remain in full force and effect until the Guarantor has paid in full the Loan amount. ARTICLE III EVENT OF DEFAULT AND REMEDIES Section 3.1 Event of Default. An "Event of Default" shall exist if any of the following occurs and is continuing: (a) the Guarantor defaults in making the payment required to be made as set forth in the Loan Agreement; (b) the Guarantor fails to observe and perform any covenant, condition or agreement other than such referred to in this Guaranty or the Loan Agreement and such failure continues for more than ten (10) days after written notice of such failure has been given to the Guarantor by the Lender or if by reason of such default the same cannot be remedied within said ten (10) days; (c) any warranty, representation or other statement by or on behalf of the Guarantor • contained in this Guaranty is false or misleading in any material respect as of the date made. iSection 3.2 Remedies Upon Default. Upon an Event of Default under Section 3.1 of this Guaranty, and with the exception of the collection of brownfield tax capture revenue as set forth in Section 1.02 of the Loan Agreement, the Lender shall have the right to proceed first and directly against the Guarantor under the terms of this Guaranty without proceeding against or exhausting any other remedies which it may have and without resorting to any other security held by the Lender. Each and every default in the payment or performance of the obligations specified in this Guaranty shall give rise to a separate cause of action hereunder, and separate suits may be brought hereunder as each cause of action arises. The Guarantor agrees that it will pay all reasonable costs and expenses, including reasonable attorneys' fees, paid or incurred by the Lender in connection with the enforcement of the obligations of the Guarantor under this Guaranty. ARTICLE IV MISCELLANEOUS Section 4.1 Notice_, Except as otherwise provided herein, all notices or other communications hereunder shall be sufficiently given when delivered by hand delivery or certified or registered mail, postage prepaid, addressed as follows: To the EDC: 40 President/CEO Lansing Economic Development Corporation 401 South Washington Square, STE 100 Lansing, MI 48933 To the Lender: Manager Lansing Brownfield Redevelopment Authority 401 South Washington Square, STE 100 Lansing, MI 48933 Section 4.2 Counterparts. This Guaranty constitutes the entire agreement, and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof and may be executed simultaneously in several counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. 9 Section 4.3 Severability. The invalidity or unenforceability of any one or more phrases, sentences, clauses or sections contained in this Guaranty, shall not affect the validity or enforceability of the remaining portions of this Guaranty, or any part thereof. Section 4.4 Governing Law. This Guaranty shall be governed by and construed in accordance with the laws of the State of Michigan. Section 4.5 Successor and Assigns. This Guaranty shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and, in the case of the Authority, its statutory successors and assigns, and in the case of the Guarantor, any successors and assigns permitted under Section 1.2(a) above. Section 4.6 Capitalized Terms. All capitalized terms used in this Guaranty shall have the meaning set forth in the Loan Agreement. EXECUTION IN WITNESS WHEREOF, the guarantor has caused this Guaranty to be executed, all as of the date first above written. WITNESSES: FOR TH&GUARANTOR: By: Dated: STATE OF MICHIGAN COUNTY OF INGHAM This document was acknowledged before me on L:zx,- 30fly �obecl- L,T!'2'z i s e, on behalf of City of Lansing Economi evelopment Corporation Notary Public, Ingham County, MI My Commission Expires: o I- I a- an I Eileen M. Melman Notary Public Washtenaw County, Michigan Acting in .T,' {13-&,, County My Commission Expires 01/12/2014 • • Accepted: City of L si Brownfield Redevelopment Authority By: 'l 0" RobertL. Trezise, Jr. President/CEO 0) --3G - O$ Jensen, Ingrid A. Brian Anderson [banderso@lansingmi.gov] #OnT: Tuesday, September 30, 2008 2.29 PM : Anthony Pecchio; Novak, Paul F.; Greg Guggemos; Heather Gilkey; eeggan@honigman.com Cc: Cassell, David D.; Jensen, Ingrid A.; Smith, Scott G.; Bob Trezise Subject: Re: EDC/LBRA Loan Documents Attachments: BCRLF Activities - Ottawa Street Station Redevelopment Site.pdf BCRLF Activities - Ottawa Stre... Just got this now. Brian D. Anderson Center City Director Lansing EDC 401 S. Washington Sq., Suite 100 Lansing, MI 48933 banderso@ci.lansing.mi.us Direct: 517.483.4594 Cell: 517.243.3509 Fax: 517.483.6057 edc.cityoflansingmi.com >>> "Novak, Paul F." <PNovak@C1arkHill.com> 9/30/2008 6:39 AM >>> 10tached are the documents for the EDC/LBRA loan that address the requirements in Section 5 of the Development Agreement. We are awaiting the preparation of Exhibit C that was to be prepared by SME or NTH. In the event that it is not forthcoming today, we will need to include a consent from Developer that the loan to EDC will not be available until after the close. Paul F. Novak Clark Hill PLC 212 East Grand River Avenue Lansing, MI 48906 Ph 517-318-3034 Fax 517-318-3099 email Pnovak@clarkhill.com LEGAL NOTICE: This e-mail is for the exclusive use of the intended recipient(s). If you are not an intended recipient, please notify the sender by reply e-mail or by calling (313) 965-8300, delete the e-mail from your computer and do not copy or disclose it to anyone else. Unauthorized disclosure, copying, distribution, reliance or use is prohibited. Neither this e-mail nor its attachment(s) establish an attorney -client relationship, constitute an electronic signature or provide consent to contract electronically, unless expressly so stated by a Clark Hill attorney in the body of this e- mail or an attachment. 0DERAL TAX ADVICE DISCLAIMER: Under U. S. Treasury Regulations, we are informing you at, to the extent this message includes any federal tax advice, this message is not intended or written by the sender to be used, and cannot be used, for the purpose of avoiding federal tax penalties. C r� • OTTAWA STREET STATION REDEVELOPMENT PROJECT • SUMMARY OF BCRLF ENVIRONMENTAL RESPONSE ACTIVITIES Page 1 of 2 A loan of up to $470,000 from the Lansing Brownfield Cleanup Revolving Loan Fund (BCRLF) will be used by the Lansing Economic Development Corporation (LEDC) for environmental response actions needed to prepare the Ottawa Street Power Station Site for redevelopment and reuse. The BCRLF loan will be used for the following eligible environmental response activities. Hot Spot Delineation...............................................................................................$25,000 Prior to initiation of environmental response actions, previously identified areas of contamination will be delineated, and contaminated media will be characterized for disposal. Remediation of Identified Areas (Hot Spots) of Contamination ........................$42,000 Previous environmental assessments indicated that soils contaminated with hazardous substances at levels above site reuse criteria are present in three locations on the site. Soils in one area (Hot Spot #1) are contaminated with polynuclear aromatic hydrocarbons (PAHs). Soils in the second area (Hot Spot #2) are contaminated with heavy metals. Soil and groundwater in Hot Spot #3 (Ottawa Street Power Station building mat foundation) are contaminated with volatile organic compounds (VOCs), PAHs, metals, and polychlorinated biphenyls (PCBs). Up to 375 cubic yards of contaminated soil will be isexcavated, transported, and disposed at a licensed Type H landfill. Up to 1,500 gallons of contaminated water will be removed and properly disposed. Disposal of Impacted Soil.....................................................................................$220,000 Soil in areas outside of the identified hot spots has been determined to contain levels of hazardous substances above those that would allow the soil to be reused as clean fill. Construction excavation activities will generated approximately 10,000 cubic yards of impacted fill that will have to be transported and disposed in a licensed Type II landfill. Contaminated sol in areas outside at levels unsuitable for onsite reuse will require disposal at a Type II landfill. Dewatering During Construction..........................................................................$40,000 Shallow groundwater on the site is contaminated with hazardous substances at levels that prohibit unlimited discharge. Approximately 100,000 gallons of contaminated groundwater and storm water will be generated during dewatering activities needed to support subsurface construction. The groundwater and storm water will be pumped from the proposed excavation, treated on -site using sediment and carbon filtration, and discharged, under appropriate permitting requirements, into the municipal sanitary sewer system. The sanitary sewer discharge permit will require initial water characterization and periodic effluent sampling and reporting. OTTAWA STREET STATION REDEVELOPMENT PROJECT • SUMMARY OF BCRLF ENVIRONMENTAL RESPONSE ACTIVITIES Page 2 of 2 CapInstallation.....................................................................................................$135,000 Two areas of impacted soil on the eastern and western portions of the property will be left in placed and covered with protective caps to prevent human exposures. The western area is approximately 66,000 square feet in size and will be covered with a geotextile membrane barrier and six inches of clean topsoil. The eastern approximately 32,000 square feet of impacted soil will be covered with a 12-inch, compacted clay cap, and six inches of topsoil. Prior to installation of the caps, the final areas of impact will be defined, and the caps will be engineered. FinalReporting.........................................................................................................$8,000 A final report will be prepared to document and summarize environmental response activities completed with BCRLF funds. • 0 51 C: • • Lansing Brownfield Redevelopment Authority Special Board of Director's Meeting Minutes Lansing Economic Development Corporation Conference Room Friday, September 12, 2008 7:45 a.m. Members Present: Bo Garcia, Bob Jolmson, Calvin Jones, Kelly Rossman-McKinney, Greg Ward, Jeff Williams Members Absent: Mayor Virg Bernero, James Butler, Kim Coleman, Brian Jeffries Staff Present: Brian Anderson, Karl Dorshimer, Andrea Ragan, Marchelle Smith, Ken Szymusiak, Bob Trezise Special Guests: Kris Elliott, Paul Novak, Brian Trent, Steve Willobee Public Present: None Call to Order Vice Chair Bo Garcia called the meeting to order at 8:05 a.m. Approval of Corrected Meeting Minutes from July 1, 2008 Regular Board of Director's Meeting Motion: Kelly Rossman-McKinney moved the Board to approve the corrected meeting minutes from the July 1, 2008 regular Board of Director's meeting and place • them on file. Motion seconded by Jeff Williams. Yeas: Unanimous. Motion carried. Approval of Meeting Minutes from August 12, 2008 Special Board of Director's Meeting Motion: Greg Ward moved the Board to approve the meeting minutes from the August 12, 2008 special Board of Director's meeting and place them on file. Motion seconded by Kelly Rossman-McKinney. Yeas: Unanimous. Motion carried. Financial Statements as of July 31, 2008 Motion: Greg Ward moved the Board to receive the July 31, 2008 financial statements and place them on file. Motion seconded by Jeff Williams. Yeas: Unanimous. Motion carried. Resolution to Approve EPA Funds to LEDC for Clean-up of the Ottawa Power Station Bob Trezise gave an overview on the EPA funds. Brian Anderson presented the loan agreement of up to $500,000 to be used for clean-up of contamination on the Ottawa Power Station site. The loan will be given directly to the LEDC from the LBRA. A project of this magnitude could possibly receive national recognition. 0 . Motion: Kelly Rossm.-m-McKinney moved the Board to approve the resolution for EPA funds to the LEDC for clean-up of the Ottawa Power Station and place them on file. Motion seconded by Greg Ward. Yeas: Unanimous. Motion carried. Other Business Bob Trezise reported there will be a Chiller Groundbrealdng ceremony on September 23 at 11:00 a.m. The lease between the Christman Company and the Accident, Fund will be signed on September 22. There will be wrecking ball event regarding the Stackable building and demolition on the North Grand Ramp.. Time of the event is still to be determined. Public Comment None Adjournment Vice Chair Bo Garcia declared the meeting adjourned at 8:10 a.m. Motion: Kelly Rossman-McKinney moved the Board to adjourn the meeting at 8:15 a.m. Motion seconded by Greg Ward. Yeas: Unanimous. Motion carried. �J Minutes by M. Smith 0 Lansing Economic Development Corporation • Special Board of Director's Meeting Minutes Lansing Economic Development Corporation Conference Room Friday, September 12, 2008 7:45 a.m. Members Present: Bo Garcia, Bob Johnson, Calvin Jones, Kelly Rossmarn-McKirmey, Greg Ward, Jeff Williams Members Absent: Mayor Virg Bennero, James Butler, Kin Coleman, Brian Jeffries Staff Present: Brian Anderson, Karl Dorshiner, Andrea Ragan, Marchelle Smith, Ken Szymusiak, Bob Trezise Special Guests: Kris Elliott, Paul Novak, Brian Trent, Steve Willobee Public Present: None Call to Order Vice Chair Bo Garcia called the meeting to order at 8:10 a.m. Approval of Meeting Minutes from August 12, 2008 Special Board of Director's Meeting Motion: Kelly Rossman-McKirnney moved the Board to approve the meeting minutes from the August 12, 2008 special Board of Director's meeting and place them on file. Motion seconded by Greg Ward. • Yeas: Unanimous. Motion carried. Financial Statements as of July 31, 2008 Motion: Greg Ward moved the Board to receive the July 31, 2008 financial statements and place them on file. Motion seconded by Jeff Williams. Yeas: Unanimous. Motion carried. Resolution Approving Project Plan and District Area for Troppo Expansion Project Bob Trezise reported that there has been recent interest from several persons regarding the LEDC's Business Finance Assistance Prograin (BFAP). Kris Elliott has been the fist one to bring a completed and fully collateralized loan application for construction of a t\vo-story (12,000 square feet) restaurant adjacent to the One Michigan Avenue building located at 120 N. Washington Square on the North East corner of Michigan Avenue and Washington Square. We are required under the EDC Act to obtain resolution approval on the Project District Area and Project Plan from both the LEDC Board of Directors and the City Council. A commitment letter will then be brought back to the LEDC Board for approval. The amount of the loan request is $440,000 with a total project cost of $1,030,000 retaining 35 jobs and adding an additional 20 jobs for a total of 55 jobs. Kris Elliott presented renderings and outlined his project plan which will locate Troppo restaurant into the new building in order to expand their services, Tavern on the Square will locate into the current Troppo location and a new restaurant is anticipated to locate into the Tavern on the Square building. If the loan is approved, Ki.-is indicated that he will be paying off the existiaig • Troppo loan. Motion: Xelly Rossnnan-McIsinney moved 'the Board to approve the resolution for Kris • Elliott's Project Plan and District Area and place them on file. Motion seconded by Jeff Williams. Yeas: Unanimous. Motion carried. Resolution to Approve Acceptance of EPA Funds from LBRA Bob Trezise gave an ovenriew on the EPA funds. Brian Anderson presented the loan agreement of up to $500,000 to be used for clean-up of contamination on the Otfatva Power Station site. The loan will be given directly to the LEDC from the LBRA. Although on the books of the LEDC for 20 years, annual payments will actually be paid by the Board of Water & Light and the Power Station TIF. Motion: Jeff Williams moved the Board to approve the resolution for Acceptance of EPA funds from LBRA for clean-up of the Ottawa Power Station and place theirs on file. Motion seconded by Greg Ward. Yeas: Unanimous. Motion carried. Arts & Culture Matching Loan Fund Policy and Procedure Guidelines Marchelle presented the Arts & Culture Matching Loan Fund Policy and Procedure Guidelines. The Board made the following recommendations: • Change the word under the fifth bulleted item under eligibility from "stability" to "predictability". • Remove the words under the first bulleted item under Loan Program "or not more • than 50% of the available loan funds". • Add "if available" next to most recent audit under Mandatory Loan Requirements The Board noted that because Marchelle sits on the Lansing Art Gallery's (LAG) Board of Directors, processing the loan documents could be considered a conflict of interest. Bob indicated that he and Marchelle have talked about her possibly resigning from the LAG Board. Sign Banner Policy Update Due to time constraints, an update will be presented at the next board meeting. New Development Agreement Update Due to time constraints, an update will be presented at the next board meeting. Fiscal Year -End Report Due to time constraints, the year-end report will be presented at the next board meeting. Rehmann Robson Audit Engagement Letter This was to inform the Board that we have entered into an audit engagement with Rehmann Robson for the fiscal year ending June 30, 2008.* CATA Letters CATA continues to write letters to City Council requesting that their millage be exempt from requested tax abatements on projects. Bob suggested that the LEDC board write a letter to CATA in response to their opposition. • Other Business None Public Comment • None Adjournment Vice Chair Bo Garcia declared the meeting adjourned 9:00 a.m. Motion: Greg Ward moved the Board to adjourn the meeting at 9:00 a.m. Seconded by Kelly Rossman. Yeas: Unanimous. Motion carried. Minutes by M. Smith • • • 52 LANSING ECONOMIC DEVELOPMENT CORPORATION 401 S. WASHINGTON SQ., SUITE 100, LANSING MI 48933, PHONE: (517) 483-4140 FAX: (517) 483-6057 www. a dc.cityoflansingmL com Virg Bernero, Mayor September 30, 2008 J. Peter Lark, General Manager Lansing Board of Water and Light 1232 Haco Drive Lansing, MI 48912 Dear Mr. Lark, Lansing Economic Development Corporation Lansing Tax Increment Finance Authority Lansing Brownfield Redevelopment Authority Lansing Regional SmartZonesm This side letter agreement is made in relation to a certain Loan Agreement and Loan Guaranty executed between the City of Lansing Economic Development Corporation (as Guarantor) and the City of Lansing Brownfield Redevelopment Authority (as Lender) dated September 30, 2008. It being the mutual understanding of the Lansing Economic Development Corporation ("LEDC") and the Lansing Board of Water and Light that the purpose of the Loan Agreement is to assist with the remediation of certain properties described in greater detail in the Loan Agreement but generally comprised of the Board of Water and Light Ottawa Street Power Station property and adjacent areas, and it being the further understanding of the parties that the LEDC would not enter into the Loan Agreement without the agreement of the Lansing Board of Water and Light to make payments to the LEDC as described below, it is hereby understood and agreed that the Board of Water and Light will make the following payments to the LEDC in the amounts and prior to the dates set forth as follows: • $4,500.00 due and payable prior to January 31, 2015; • $4,500.00 due and payable prior to January 31, 2016; • $4,500.00 due and payable prior to January 31, 2017; • $4,500.00 due and payable prior to January 31, 2018; • $4,500.00 due and payable prior to January 31, 2019; • $4,500.00 due and payable prior to January 31, 2020; • $4,500.00 due and payable prior to January 31, 2021; • $4,500.00 due and payable prior to January 31, 2022. L.J • By signing below, each parry represents that it possesses the requisite authority to enter into this side letter agreement on behalf of its respective organization and that the agreement is fully binding upon the Lansing Economic Development Corporation and the Lansing Board of Water and Light Lansing Economic tydlopment Corporation 401 S. Washin Square, STE 100 Lansing, MI 4 933 IJ. Peter Lark, General Manager Lansing Board of Water and Light 1232 Haco Drive Lansing, MI 48912 APPROVED •OARD OF WKfER& LIGHT LEGAL COUNSEL Date /19) e • m1cm • •I, CHRIS SWOPE, CITY CLERK of the City of Lansing, Michigan, do hereby certify that 1 have compared the annexed copy of Resolution #492 of 2008, New Renaissance Subzone, Ottawa Power Substation Redevelopment Project, which was adopted on September 15, 2008 with the original now on file in my office, and that it is a correct copy thereof, and the whole of such original. :,� rr• o :�,ii ..a � "Al, • SEAL IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal of the City of Lansing this 26th Day of September, A.D. 2008 CHRIS SWOPE, C y Clerk U • RESOLUTION #492 BY THE COMMITTEE ON DEVELOPMENT AND PLANNING RESOLVED BY THE CITY COUNCIL OF THE CITY OF LANSING WHEREAS, pursuant to the Renaissance Zone Act, being Public Act 376 of 1996 (PA 375 of 1996), Phoenix Development Partners, LLC (the Developer) has filed an application for a Renaissance Subzone with the Lansing City Clerk, for a proposed redevelopment project in Lansing with an estimated cost of one hundred and eighty million dollars ($180,000,000) ("Project"), to be constructed over properties more commonly known as 217 East Ottawa Street (former Ottawa Street Station power plant), 300 North Grand Avenue (aka "Grand Building" or "Stackable Building"), 312 North Grand Avenue (former Board of Water and Light customer service building), and 320 North Grand Avenue (property generally north of Ionia to Shiawassee) (the "Properties"); and WHEREAS, Developer is in the process of purchasing and assembling the Properties for the Project; and WHEREAS, the Developer, City and Lansing Board of Water and Light (the BWL) have entered into a Property Purchase and Development Agreement whereby the approval of a resolution in support of the Renaissance Zone prior to September 15, 2008 is a prior condition to the Developer closing on the Properties pursuant to Section . 5.6 of that Development Agreement; and WHEREAS, the Development Agreement further required the delineation of which areas of the Properties would be placed within the Renaissance Zone and which areas would not; NOW, THEREFORE, BE IT RESOLVED that the Lansing City Council hereby approves an application for submission to the Michigan Strategic Fund with a City Council recommendation to approve a Renaissance Subzone, for the properties more commonly known as 300 and 312 North Grand Avenue, Lansing, Michigan, legally described as: Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1#4 section line of Section 16, N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing N00°01'45"W, 7.02 feet to the Point of Beginning; thence along the East line of North Grand Avenue N00°01'45"W 512.75 feet to a found R.R. spike (now Nail and Tag #30897) 0 LANSING CITY COUNCIL LEGISLATIVE ITEMS: SEPTEMBER 15, 2008 RESOLUTIONS • on the centerline of vacated Ionia Street; thence continuing along said East street line North, 437.19 feet to a found cut cross in the concrete sidewalk, said point being on the South line of Shiawassee Street; thence along said South street line S89°58'00"E, 221.35 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following eight (8) courses: 1) S45000'36"E, 56.87 feet; 2) S07°00'06"E, 173.32 feet; 3) S17°21'34"E, 75.69 feet; 4) S01 °08'04"E, 327.42 feet; 5) S17017'09"W, 167.18 feet; 6) S18°04'11"W, 81.92 feet; 7) N90000'00"W, 14.40 feet; 8) S23°01'48"W, 110.81 feet to the Southerly curb line of Ottawa Street (vacated); thence N89031'14"W, 178.68 feet along said curb line to the point of beginning. Also including any portion of real property on which any portion of the Ottawa Station Brick Building is presently located, for the period of fifteen (15) consecutive years to begin on December 31, 2009. BE IT FURTHER RESOLVED that the Lansing City Council, in approving the Developer's application by this resolution, finds and determines all of the following; 1. The applicant is not delinquent in any taxes related to the properties. • 2. All of the items described in the Application for Renaissance Subzone have been provided to the City of Lansing by the applicant. 3. The commencement of rehabilitation activities of the facility did not occur prior to the establishment of the Renaissance Subzone. 4. The application relates to the Renaissance Subzone properties more commonly known as 217 East Ottawa Street (former Ottawa Street Station power plant), 300 North Grand Avenue (aka "Grand Building" or "Stackable Building"), 312 North Grand Avenue (former Board of Water and Light customer service building), and 320 North Grand Avenue (property generally north of Ionia to Shiawassee) Lansing, Michigan for a proposed redevelopment project in Lansing with an estimated cost of one hundred and eighty million dollars ($180,000,000) 5. The completion of the Project is calculated to, and will at the time of issuance of the certificate, have the reasonable likelihood to, increase commercial activity, create employment, and revitalize an urban area. The structure must be completed not later than April 1, 2011 as evidenced by the 0 LANSING CITY COUNCIL LEGISLATIVE ITEMS: SEPTEMBER 15, 2008 RESOLUTIONS • issuance of a Certificate of Occupancy from the City of Lansing Building Safety Office. BE IT FURTHER RESOLVED that the Council hereby approves the Developer's proposal that all of the New Ramp, as that term is used in the Development Agreement, shall be privately constructed, financed and owned and included within the Renaissance Zone. BE IT FINALLY RESOLVED that the City Clerk shall cause the Application for Renaissance Subzone to be completed, including the "Clerk Certification" and shall file the completed application, together with a certified copy of this resolution with the Michigan Strategic Fund. By Councilmember Wood Motion Carried • 9 LANSING CITY COUNCIL LEGISLATIVE ITEMS: SEPTEMBER 15, 2008 RESOLUTIONS • 54 • E 11 B: 3321 P: 1233 10/09/2008 09:41 AM Pages: 5 2008-039470 MISCELLANEOUS Receipt #47309 Paula Johnson, Ingham County, Michigan fir, Space Above for Recorder's Use Only DOCUMENT COVER SHEET TITLE OF DOCUMENT: DATE OF DOCUMENT: LANDLORD: LANDLORD MAILING ADDRESS: TENANT: TENANT MAILING ADDRESS: LEGAL DESCRIPTION: REFERENCE BOOK & PAGE: T— �o zoo o oL- U C% a N X . i-. � �C-) _W 0 cartC30 N SLC-3088934-3 MEMORANDUM OF LEASE September 29, 2008 Phoenix Development Partners, LLC 208 N. Capitol Avenue Lansing, Michigan 48933 Phoenix Master Tenant, LLC 208 N. Capitol Avenue Lansing, Michigan 48933 See attached Exhibit A N/A ,r/Gs 3a5 1+A- i • MEMORANDUM OF LEASE This MEMORANDUM OF LEASE (this "Memorandum of Lease") is made and entered into as of the 29'b day of September, 2008 by and between Phoenix Development Partners, LLC, a Michigan limited liability company, having an address at 208 N. Capitol Avenue, Lansing, Michigan 48933 ("Landlord 1), and Phoenix Master Tenant, LLC, a Michigan limited liability company, having an address at 208 N. Capitol Avenue, Lansing, Michigan 48933 ("Tenant"). WHEREAS, Landlord is the owner of certain improved real property located at 312 N. Grand Avenue, 217 East Ottawa Street, 300 N. Grand Avenue, and 320 N. Grand Avenue in Lansing, Michigan, and more particularly described on Exhibit. A attached hereto (the "Land'); and WHEREAS, Landlord and Tenant are parties to that certain Master Lease Agreement (the "Lease"), dated as of the date hereof, whereby Landlord leased to Tenant and Tenant leased from Landlord the building and associated parking located on the Land (the "Leased Premises"): WHEREAS, Landlord and Tenant desire to confirm and ratify and to provide notice of the Lease including, without limitation, the terms and conditions described in this Memorandum of Lease. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant do hereby agree as follows: 1. Subject to the covenants and conditions contained in the Lease, Landlord leases to Tenant • and Tenant leases from Landlord the Leased Premises. • 2. The term of the Lease commences on the date hereof and expires on the day immediately before the thirty second (32nd) anniversary of "Substantial Completion" of the rehabilitation of the Leased Premises, as defined in the Lease. The Lease does not contain any renewal or extension rights or rights of first refusal to purchase the Leased Premises. 3. This instrument does not alter, amend, modify or change the Lease or the exhibits thereto in any respect. All of the provisions of the Lease and exhibits thereto are hereby incorporated by reference in this Memorandum of Lease. In the event of any conflict between the provisions of this instrument and the Lease, the provisions of the Lease shall control. [Signatures begin on the following page] SLC-3088934-3 • IN WITNESS WHEREOF, Landlord and Tenant have caused this Memorandum of Lease to be executed, as of the date and year first above written. 0 PHOENIX DEVELOPMENT PARTNERS, LLC, a LANDLORD: Michigan limited liability company By: Christman Capital Investment Group, LLC, its Manager By: ames M. Cash anager PHOENIX MASTER TENANT, LLC, a Michigan TENANT: limited liability company By: Phoenix Development Management, LLC, its Manager By: Christman Capital Investment Group, LLC, Its Manager By: N es M. Cash I . anager SLC-3088934-3 • STATE OF MICHIGAN ' ) SS. COUNTY OF INGHAA ) On this day of September, 2008, before me appeared James M. Cash, to me personally known, who being by me duly sworn, did say that he is the Manager of Christman Capital Investment Group, LLC, a Michigan limited liability company, which is the Manager of Phoenix Development Partners, LLC, a Michigan limited liability company, and that said instrument was signed on behalf of said company by authority of its members and said Manager acknowledged said instrument to be the free act and deed of said company on behalf of Phoenix Development Partners, LLC. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal in the County and State aforesaid, the day and year fir:lad Notary Public O�em�� .y� ^ ^ SANDRA J. ATE O KI My commission expires: 1 �.(/ NOTARY PCOUNCTY OF EA�ON ICHIf3AN My Commission Expires Dec. 30. 201 Acting in the County of STATE OF MICHIGAN ) SS. • COUNTY OF INGHAM ) On this day of September, 2008, before me appeared James M. Cash, to me personally known, who being by me duly sworn, did say that he is the Manager of Christman Capital Investment Group, LLC, a Michigan limited liability company, which is the Manager of Phoenix Development Management, LLC, a Michigan limited liability company, which is the Manager of Phoenix Master Tenant, LLC, a Michigan limited liability company, and that said instrument was signed on behalf of said company by authority of its members and said Manager acknowledged said instrument to be the free act and deed of said company on behalf of Phoenix Master Tenant, LLC. • IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal in the County and State aforesaid, the day and year first above written. NotaryPublic My commission expires: ©eC&KbC 50V X1 D SANDRA J. JASINSKI NOTARY PUBLIC - STATE OF MICHIGAN COUNTY OF EATON My Commission Expires( ec. 0 20 0 Acting In the County of SLC-3088934-3 C7 EXHIBIT A Office Building Property: Commencing at the center post of Section 16, T4N, R2W, now City of Lansing, Ingham County, Michigan; thence along the East-West 1/4 section line of Section 16, N89°59'00"E 527.87 feet; thence N00°01'45"W 330.00 feet to the Northwest corner of Block 99, original plat of the Town of Michigan, now City of Lansing, as recorded in Liber 2, Pages 36-38, Ingham County Plats; thence continuing N00°01'45"W, 7.02 feet to the Point of Beginning; thence along the East line of North Grand Avenue N00°01'45"W 512.75 feet to a found R.R. spike (now Nail and Tag #30897) on the centerline of vacated Ionia Street; thence continuing along said East street line North, 41.25 feet to the North line of vacated Ionia Street; thence East, 307.49 feet; thence running parallel with and 25 feet from the West line of a retaining wall the following three (3) courses: 1) S01 °08' 14"E, 216.06 feet; 2) S 17° 17'09"W, 167.17 feet; 3) S 18'04' 11 "W, 24.53 feet to a building line; thence along said building line the following five (5) courses; 1) S74014'59"E, 16.75 feet; 2) S15'51'22"W, 63.24 feet; 3) N89047' 17"W, 11.09 feet; 4) S00012'43"W, 14.88 feet; 5) N89°53'37"W, 30.79 feet; thence S2300114811W, 82.99 feet to the Southerly curb line of Ottawa Street (vacated); thence N89031' 14"W, 178.68 feet along said curb line to the point of beginning, containing 3.55 acres, more or less and subject to any easements or restrictions of use or record. • 7ax Poc,c.e I * 33-0 1- 01- F6 . :k52— 003 C.O, Wvr>h -&4�4e 55. 3 ► -A Na^ Gn&^4 �}tkna4e, Lar,S t n9, yV1t SAClients\Christman Company\Constructive Receipt\Phocnix Development Partners LLC\Survey\Legal Description.Office Building Property.091608.rtf •