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Agenda Item Review Form
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Muskegon City Commission
Commission Meeting Date: January14, 2020 Title: Easement Agreement
Submitted By: LeighAnn Mikesell Department: Planning
Brief Summary: Staff is seeking approval of the easement agreements. These easement
agreements will allow for access to the to the development as well as access to the Hartshorn boat
launch .
Detailed Summary: As part of the planned development, the access road that services the
Hartshorn boat launch will be replaced with a non-motorized path and green space. A new access
point for the boat launch will be installed as part of the development along the western edge of the
Fricano Center property. The owners are granting the City a permeant easement to access the
boat launch as well as a temporary easement to access the boat launch during Phase 1
construction. In return, the City is providing the developer a permanent easement to access the
devel0pment along the north side of the railroad tracks. Once these easements are recorded, we
should see construction within 60-90 days.
Amount Requested: $0 Amount Budgeted: $0
Fund(s) or Account(s): Fund(s) or Account(s): N/A
Recommended Motion: Approve the Agreement and authorize the Mayor to sign .
Check if the following Departments need to approve the item first:
Police Dept.0 Fire Dept.0 IT Dept.0
For City Clerk Use Only:
Commission Action :
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT ("Agreement") has been made as of January
li-\-,2020 ("Effective Date"), by and between HARTSHORN HOLDINGS, LLC, a Michigan
limited liability company, of 1050 W. Western Avenue, Suite 210, Muskegon, Michigan 49441
C'Grantor"), and the CITY OF MUSKEGON, a Michigan municipal corporation, of 933
Terrace Street, Muskegon, Michigan 49442 ("Grantee").
Recitals
A. Grantor owns the real estate located in the City of Muskegon, Muskegon County,
Michigan, as legally described on Exhibit A attached to this Agreement, subject to easements,
restrictions, encumbrances, and reservations affecting it ("Grantor Parcel").
B. Grantor desires to grant Grantee an easement for ingress to and egress from West
Western Avenue, over and across Grantor Parcel, to the drive located on the Hartshorn Marina
property for purposes of accessing the marina's public boat launch.
C. This Agreement is exempt from the real estate transfer taxes under MCL §§
207.505(a) and 207.526(a) because the value of the consideration shown is less than One
Hundred and no/100 Dollars ($100.00).
D. Grantor and Grantee and their respective heirs, personal representatives,
distributees, executors, administrators, successors and assigns are referred to in this Agreement
collectively as "Parties" and individually as "Party."
Agreement
In consideration of the facts described above and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, Grantor and Grantee agree
as follows:
1. Grant of Driveway Easement. Grantor grants for the benefit of the Grantee and
the public in general, a perpetual, non-exclusive easement ("Driveway Easement") over, across
and through the Grantor Parcel for the construction, maintenance and use of a driveway, and all
replacements thereof to be located on the Grantor Parcel and depicted on Exhibit B attached to
this Agreement ("Driveway"), subject to easements, restrictions, encumbrances, and reservations
affecting it, for the purpose of ingress and egress to and from West Western Avenue, over and
across Grantor Parcel, to the drive located on the Hartshorn Marina property for purposes of
accessing the marina's public boat launch. The Driveway Easement is to be used solely for
pedestrian and vehicular transportation and for other future modes of transportation for access to
Grantor Parcel and marina boat launch by the Parties, their tenants, agents, employees,
contractors, invitees, licensees, guests, and customers (collectively, "Affiliates").
2. Enjoyment of Property. Grantee must conduct its activities under this
Agreement so as not to interfere umeasonably with Grantor's peaceful enjoyment of Grantor
Parcel.
3. Obstructions. The Driveway Easement is to remain open and unobstructed by
any buildings, fences, trees, barriers, banners, or other structures, so as to permit the Parties and
their Affiliates unimpeded access across the Driveway Easement in accordance with the terms of
this Agreement. Furthermore, the location of the Driveway Easement may not be changed,
altered or modified in any way without the written approval of the Parties.
4. Improvements. Except as otherwise provided herein, Grantee may upgrade or
otherwise make improvements to the Driveway only upon the advance written consent of
Grantor, which consent may not be unreasonably withheld, delayed or conditioned. The costs of
any upgrades or improvements to the Driveway will be paid in the same manner as the
Maintenance costs unless otherwise agreed to in writing by the Parties.
5. Encumbrances. The Driveway Easement is made subject to all covenants,
conditions, restrictions, encumbrances, and easements of record as of the date this Agreement is
recorded. Grantee acknowledges that Grantor may grant other easements over and across the
Grantor Parcel so long as such easements do not interfere with the use of the Driveway
Easement.
6. Property Taxes. The owner of the Grantor Parcel will pay all real property taxes
and special assessments levied against Grantor Parcel, without any reimbursement from the
Grantee for any portion thereof.
7. Insurance and Indemnification. Each Party will carry insurance to protect it in
connection with the ownership, use, and Maintenance of the Driveway Easement. Each Party
will furnish to the other party, if requested, evidence of the insurances described in this
Paragraph. Each Party will indemnify and hold the other Party harmless from all claims,
judgments, costs and expenses (including, without limitation, reasonable attorneys' fees) incurred
by the second Party arising in connection with or as a direct or indirect result of the first Patty's
exercise of the rights granted or breach of the obligations imposed in this Agreement; provided,
however, the Grantee's indemnification and hold harmless obligations shall only be to the extent
permitted under Applicable Laws.
8. Compliance with Laws. Each Party will comply with all applicable laws, codes,
ordinances, rules, and regulations (collectively, "Applicable Laws") governing the maintenance
and use of the Driveway Easement.
-2-
9. Damage. If either Party, or any agent, contractor or tenant of either Party, causes
any damage to the Driveway Easement or the Grantor Parcel, then the responsible party will
immediately cause and pay for the repair of such damage.
10. Default. If an Party fails to comply with any provision herein, including, without
limitation, the obligation to pay any maintenance costs or property taxes and assessments
1
(' Defaulting Party"), then the other Party ("Non-Defaulting Party") may upon ten (10) days'
prior written notice to the Defaulting Party, cure the default by the payment of money or
performance of other action for the account of the Defaulting Party. The foregoing right to cure
may not be exercised if within ten (10) days of the written notice: (i) the Defaulting Party cures
the default; or (ii) if the default is curable, but cannot reasonably be cured within that time
period, the Defaulting Party begins to cure such default within such time period and thereafter
diligently pursues such cure to completion. The ten (10) day notice period will not be required
if, using reasonable judgment, the Non-Defaulting Party gives reasonable notice of its intent to
cure to the Defaulting Party. Within ten (10) days following written demand, including copies of
paid invoices, the Defaulting Party must reimburse the Non-Defaulting Party any sum reasonably
expended by the Non-Defaulting Party to cure the default. The Non-Defaulting Party also has
the right to restrain by injunction any violation or threatened violation by the Defaulting Paiiy of
any of the terms, covenants, or conditions hereof, or to obtain a decree to compel performance if
any such term, covenant, or condition is not adequate. In addition to all other rights and
remedies, the Non-Defaulting Party may place a lien on the Defaulting Party's Parcel for such
amount owed, together with interest at the maximum legal rate, plus attorneys' fees necessary for
collection. The Non-Defaulting Paiiy may, in addition to, or instead of, foreclosure, obtain a
personal judgment against the owner of the Defaulting Party's Parcel who failed to pay the real
prope1iy taxes and special assessments. All remedies are cumulative and will be deemed
additional to any and all other remedies to which the Parties may have at law or in equity.
11. Notices. All notices, requests, claims, demands, and other communications
hereunder must be in writing and delivered by personal delivery, a recognized overnight courier
service, or postage prepaid registered mail, return receipt requested to the paiiies at their
addresses first indicated above or to such other address or such additional recipient as any Party
may have furnished to the others in writing in accordance herewith. All notices will only be
effective upon receipt or refusal.
12. Duration and Effect. The Driveway Easement burden the Grantor Parcel and
benefit the Grantee and the general public. This Agreement will continue in effect perpetually
and constitute an easement and a covenant running with the land; but nothing contained in this
Agreement will be construed as a conveyance by Grantor of its rights in the fee to Grantor
Parcel. Grantor will automatically be released from all liability thereafter arising under this
Agreement upon conveyance of Grantor's entire interest in the Grantor Parcel. Notwithstanding
anything to the contrary herein, this Agreement shall automatically terminate upon the execution
and recordation of another easement that provides Grantee with access to the boat launch area by
running a drive along or near the western boundary of the Grantor Parcel.
-3-
13. Amendments. This Agreement may be amended, modified or terminated (in
whole or in part) from time to time by written document executed and acknowledged by all of
the Parties and duly recorded in the Muskegon_County Register of Deeds, Michigan, or in such
other office as may from time to time by law be charged with the duty of maintaining the public
records of Muskegon County, Michigan, and will not otherwise be amended, modified or
terminated during the term hereof.
14. Parties Bound. The terms and conditions of this Agreement bind and benefit
each Party and their respective heirs, personal representatives, distributees, executors,
administrators, successors, and assigns.
15. Governing Law. This Agreement 1s governed by and will be construed m
accordance with the laws of the State of Michigan.
16. Entire Agreement. This Agreement contains the entire understanding of Grantor
and Grantee and the patties acknowledge that there have been no representations or
understandings other than those expressly set forth in this Agreement.
17. Counterparts. This Agreement may be executed in one or more counterparts,
each such counterpart being deemed an original and all such counterparts taken together
constituting but one and the same instrument.
The Grantor and Grantee signed this Easement Agreement as of the date first set
forth above.
-4-
THE CITY OF MUSKEGON
Grantee
STATE OF MICHIGAN )
) ss:
COUNTY OF ti1U~~Yl )
-1!!:_,
The foregoing instrument was acknowledged before me this January 2020,
by Stephen J. Gawron, as Mayor of the CITY OF MUSKEGON, a Michigan municipal
corporation, for the corporation.
Notary public, t e ofM'~hian, County of\lY\ ~
My _con:imission expires ~(l~~,'.}-,5
Actmg m the County of ~~-'4~YMi.~U~-~r-~-----
This instrument was prepared by and return to:
Rob M. Davies
WARNER NORCROSS & JUDD LLP
900 Fifth Third Center
111 Lyon Street, NW
Grand Rapids, Michigan 49503-2487
Telephone: (616) 752-2000
19429930
-6-
HARTSHORN HOLDINGS, LLC
) ~
l.
12,/,=--:-\bl;r-ld't~P-'-"--'-+--l++-'-'~"--""'J.......L----
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...____ . /
/ Grantor
STATE OF MICHIGAN )
) ss:
coUNTY oF VVluclutr1 )
The foregoing instrument was acknowledged before me this January 2020, JS_,
by Jennifer Fricano, as Member/Manager, of HARTSHORN HOLDINGS, LLC, a liability
company, for the limited liability company. ·
j~~
My _cori:imission expires ~ 1~
County of ~ntd~
Itcta-S '
Actmg m the County of __._~+==~--Ft'--'L....,,R,-~CJ/1~-------
~
-5-
EXHIBIT A
Grantor Parcel Legal Description
Entire Block 574, Lots 1 and 2 of Block 575, Lots 1 and 2 of Block 576, Lots 1, 2 and 3 of Block
577, of the Revised Plat of the City of Muskegon, Muskegon County, Michigan, as recorded in
Uber 3 of Plats, Page 71. ALSO: That part of vacated Franklin Street, lying North of Western
Avenue. EXCEPT: The following described parcels:
(1) The parcel of land occupied by the right of way of the Chesapeake and Ohio Railway
Company.
(2) The parcel of land conveyed to the City of Muskegon by deed dated August 3, 1949, and
recorded October 25, 1949 in Uber 575 of Deeds, Page 163.
(3) The parcel of land conveyed to the City of Muskegon by deed dated December 12; 1951
and recorded on January 22, 1952 in Uber 604 of Deeds, Page 380.
(4) The parcel of land conveyed to the Shaw-Walker Company by deed dated March 13, 1952,
and recorded on March 17, 1952 in Uber 606 of Deeds, Page 255, said deed having been given
to correct a deed dated December 12, 1951 and recorded in Uber 603 of Deeds, Page 427.
(5) The parcel of land conveyed to West Michigan Steel Foundry Company by the deed dated
January 27, 1959, and recorded July 2, 1959 in Uber 698 of Deeds, Page 432.
More particularly described as:
PARCEL A:
Commencing at the Southeast corner of Block 574 of the Revised Plat of the City of Muskegon,
Muskegon County, Michigan, as recorded in Uber 3 of Plats, Page 71; thence North 88°43'
West 270.74 feet to the North line of Western Avenue; thence North 84°30'25" West (recorded
Westerly) along said North line 457 .28 feet to the point of beginning of this description;
thence continuing North 84°30'25" West, along said North line 40.82 feet; thence South
88°08'16" West, along said North line, 565.39 feet; thence North 01°53'05" West 158.44 feet
to the Southerly right of way of the Chesapeake and Ohio Railroad; thence South 76°41'19"
East, along said railroad right of way 142.20 feet; thence continuing along said Southerly
railroad right of way around a curve to the Left having a radius of 2118. 94 feet, an arc of
78.14 feet, and a chord bearing South 78°07'17" East, 78.14 feet; thence continuing along
said Southerly railroad right of way around a curve to the right having a radius of 3674.17
feet, an arc of 108.80 feet and a chord bearing South 7S°28'17" East, 108.80 feet; thence
South 76°54'43" East, along said Southerly railroad right of way 296.99 feet; thence South
02°04'00" East 6.09 feet to the point of beginning. ALSO: Commencing at the Southeast
corner of Block 574 of the Revis.ed Plat of the City of Muskegon, Muskegon County, Michigan,
as recorded in Uber 3 of Plats, Page 71; thence North 88°43' West 270.74 feet to the North
line of Western Avenue thence North 84°30'25" West (recorded Westerly) along said North line
457.28 feet; thence North 02°04'00" West 37.17 feet to the point of beginning of this
description; thence continuing North 02°04'00" West 195.04 feet; thence South 88°41'46"
West 153.42 feet; thence North 58°24'41" West 115.65 feet; thence North 77°47'55" West
219. 71 feet; thence South 25°42'29" West 192.32 feet to the Northerly line of the Chesapeake
and Ohio Railroad; thence South 76°41'49" East, along said Northerly railroad right of way
95.24 feet; thence continuing along said Northerly railroad right of way around a curve to the
Left having a radius of 2088.94 feet, an arc of 76.90 feet, and a chord bearing South
78°07'17" East, 76.90 feeti thence continuing along said Northerly railroad right of way
around a curve to the right having a radius of 3704.17 feet, an arc of 109.84 feet, and a chord
bearing South 78°28'17" East, 109.84 feeti thence South 76°54'43" East along said Northerly
railroad right of way 289.05 feet to the point of beginning.
PARCEL B:
Commencing at the Southeast corner of Block 574 of the Revised Plat of the City of Muskegon,
Muskegon County, Michigan, as recorded in Uber 3 of Plats, Page 71; thence North 88°43'
West 270.74 feet to the North line of Western Avenue; thence North 84°30'25" West (recorded
Westerly) along said North line 457.28 feet thence North 02°04'00" West 232.21 feet to the
point of beginning of this description; thence continuing North 02°04'00" West 260. 71 feet;
thence North 47°05'00" West 247.75 feet; thence South 87°55'00" West, 691.01 feet; thence
South 02°04'00" East 367.35 feet to the Northerly line of the Chesapeake and Ohio railroad
right of way; thence along said Northerly railroad right of way line on a curve to the left having
a radius of 792.59 feet, an arc of 203.01 feet and a chord bearing South 67°58'15" East,
202.45 feet; thence continuing along said Northerly railroad right of way South 76°41'49" East
134.01 feet; thence North 25°42'29" East, 192.32 feet; thence South 77°47'55" East 219.71
feet; thence South 58°24'41" East, 115.65 feet; thence North 88°41'46" East, 153.42 feet to
the point of beginning.
EXCEPT: That part of Block 574 of the Revised Plat of 1903 of the City of Muskegon, described
as: Commencing at the Southeast corner of said Block 574; thence North 8S°13'54" West
270.33 feet to a point on the North right of way line of Western Avenue; thence North
83°55'00" West along said North right of way line 456.97 feet; thence North 01°31'44" West
470.34 feet to the point of beginning; thence North 46°32'44" West 257.11 feet; thence South
88°27'16" West 684.39 feet; thence North 01 °31 '44" West 16.00 feet; thence North 88°27'26"
East 691.04 feet; thence South 46°32'44" East 247.70 feet; thence South 01°31'44" East
22.62 feet to the point of beginning.
Together with any and all rights to cross the parcel of land occupied by the Chesapeake and Ohio
Railway Company, it successors and/or assigns.
-8-
EXHIBIT B
Site Plan
See attached.
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1. COV£R Sff££T
2~ 10POCl-!.,tPHiC SURY.IT
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9. llGA!LS
FINAL EASEMENT TEMPORARY EASEMENT PERMANENT EASEMEffr<
TOCITY TOCITY TO DEVELOPER
WESTSHORE
ENGINEERING & SURVEYING
ENVIRONMENTAL
SKETCH OF EASEMENT
FOR: HARBOR WEST, LLC
' & i"'543•04'18 £
.17'
11
DRIVEWAY EASEMENT DESCRIPTION;
THOSE PARTS OF BLOCKS 574 AND 575, REVISED
PL4T {OF 1903} OF THE CITY OF MUSKEGON,
MUSKEGON COUNTY. MICHIGAN, DESCRIBED AS
FOLLOWS: COMMENCING AT THE SOUTHEASTERLY
CORNER OF BLOCK 574 OF SAID REVISED PLAT (OF
1903} OF THE CITY OF MUSKEGON; THENCE NORTH
84 DEGREES 41 MINUTES 53 SECONDS WEST
270.27 FEET, TO A POINT ON THE NORTHERLY LINE
OF WEST WESTERN AVENUE. THENCE CONTINUING,
ALONG SAID NORTHERLY LINE NORTH 80 DEGREES
29 MINUTES 37 SECONDS WEST, A DISTANCE OF
456.87 FEET TO THE POINT OF BEGINNING;
THENCE, NORTH 80 DEGREES JO MINUTES 05
SECONDS WEST, ALONG SAID NORTHERLY LINE OF
WEST WESTERN AVENUE, A DISTANCE OF 40.80 FEET;
THENCE NORTH 01 DEGREES 57 MINUTES 31
I
SECONDS EAST, A DISTANCE OF 506.07 FEET;
THENCE SOUTH 4.3 DEGREES 04 MINUTES 18
SECONDS EAST. A DISTANCE OF 57.17 FEET;
I
THENCE SOUTH O1 DEGREE 5 7 MINUTES J 1
SECONDS WEST, A DISTANCE OF 471.02 FEET TO
SAID NORTHERLY LINE OF WEST WESTERN AVENUE
AND THE POINT OF BEGINNING.
DR/VEWA Y EAS£M£NT
o· JO' 60'
! I I
n DATE:
P.S. •
2534 BU.CK CREEK ROAD
MUSKEGON, Ml. 49444
PHONE: {231)777-3447
~/;~-z_oiu REV: 1-13-2020
FILE NO: 04311-0001
SCALE: 1 "=60'
SURV£YED BY: TWD
FAX : (231)773-3453 1 OF 1 ORN BY: NSS
Y\>•· lob> Com!,;ll<!d\04001 ·· 04500',04301 04350\4311 ·0001\DWG\ACCESS EASEMENl\431l ·0001 ACCESS ESMT REV l.13,20.dwg. 1/13/2020•,50.29 PM, \\WC>Ullot.,..>pp\X.r,,. Wori<Cenue 5955
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT (''Agreement") has been made as of January
_tg_,2020 ("Effective Date"), by and between the CITY OF MUSKEGON, a Michigan
municipal corporation, of 933 Terrace Street, Muskegon, Michigan 49442 ("Grantor"), and
HARBOR WEST, LLC, a Michigan limited liability company, of 108 South University, Suite 6,
Mount Pleasant, Michigan 48858 ("Grantee").
Recitals
A. Grantor owns the real estate located in the City of Muskegon, Muskegon County,
Michigan, as legally described on Exhibit A attached to this Agreement, subject to easements,
restrictions, encumbrances, and reservations affecting it (''Grantor Parcel").
B. Grantee owns the real estate located in the City of Muskegon, Muskegon County,
Michigan, as legally described on Exhibit B attached to this Agreement, subject to easements,
restrictions, encumbrances, and reservations affecting it ("Grantee Parcel").
C. Grantor Parcel and Grantee Parcel are contiguous. Grantor desires to grant
Grantee an easement for ingress to and egress from West Western Avenue, over and across
Grantor Parcel, to the drive to be located on the Grantee Parcel for purposes of i:tccessing the
Grantee Parcel. Grantor also desires to grant a utility easement to Grantee over, across and under
portions of the Grantor Parcel for the construction, installation, operation, inspection,
replacement, repair, maintenance and removal of public or private utilities.
D. Grantor and Grantee and their respective heirs, personal representatives,
distributees, executors, administrators, successors and assigns are referred to in this Agreement
collectively as "Owners" and individually as "Owner." Grantor Parcel and Grantee Parcel are
referred to in this Agreement collectively as "Parcels" and individually as "Parcel."
E. This Agreement is exempt from the real estate transfer taxes under MCL §§
207.505(a) and 207.526(a) because the value of the consideration shown is less than One
Hundred and no/100 Dollars ($100.00).
Agreement
In consideration of the facts described above and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, Grantor and Grantee agree
as follows:
1. Grant of Driveway Easement. Grantor grants for the benefit of the Grantee
Parcel, a perpetual, non-exclusive easement ("Driveway Easement") over, across and through
the Grantor Parcel for the construction, maintenance and use of a driveway, and all replacements
thereof to be located on the Grantor Parcel and depicted on Exhibit C attached to this Agreement
1 11
(' Driveway ), subject to easements, restrictions, encumbrances, and reservations affecting it, for
the purpose of ingress and egress to and from West Western Avenue, over and across Grantor
Parcel, to the drive located on the Grantee Parcel for purposes of accessing Grantee Parcel. The
Driveway Easement is to be used solely for pedestrian and vehicular transportation and for other
future modes of transportation for access to Grantor Parcel and Grantee Parcel by the Owners,
their tenants, agents, employees, contractors, invitees, licensees, guests, and customers
(collectively, "Affiliates").
2. Grant of Non-Exclusive Utility Easement. Grantor grants to Grantee a
perpetual, non-exclusive easement appurtenant to the Grantee Parcel over, under, across and
through the Grantor Parcel in the area depicted on Exhibit C attached hereto ("Utility
Easement") for the construction, installation, operation, inspection, replacement, repair,
maintenance and removal of public and private utilities and appurtenant facilities, including,
without limitation, sanitary sewer, storm sewer, water, electric, gas, telephone, cable television,
and other lines, poles, cables, conduits, and transformers that serve the Grantee Parcel
("Utilities"). Grantor also grants to Grantee the right, from time to time, to cut, trim, remove,
destroy, or otherwise control trees and brush now or hereafter standing or growing on or over the
Grantor Parcel that interfere with the Utilities serving the Grantee Parcel.
3. Enjoyment of Property. Grantee must conduct its activities under this
Agreement so as not to interfere unreasonably with Grantor 1s peaceful enjoyment of Grantor
Parcel.
4. Obstructions. The Driveway Easement and Utility Easement (collectively, the
"Easements") are to remain open and unobstructed by any buildings, fences, trees, barriers,
banners, or other structures, so as to permit the Owners and their Affiliates unimpeded access
across the Easements in accordance with the terms of this Agreement. Furthermore, the location
of the Easements may not be changed, altered or modified in any way without the written
approval of the Owners.
5. Construction, Repair and Maintenance. The Owner of the Grantee Parcel must
maintain and repair, at its sole cost, the Utilities serving the Grantee Parcel, whether located
within the Grantee Parcel or located within the Utility Easement. Grantee shall make any
improvement necessary to construct the Driveway. Grantee must maintain and repair, at its sole
cost, the Driveway in a good and passable condition consistent with the practices prevailing in
the operation of driveways of similar quality in Muskegon County, Michigan. Such maintenance
and repair is to include, without limitation, the following (collectively, "Maintenance"):
-2-
(a) Maintaining, restriping, repairing and resurfacing, when necessary,
all paved surfaces in a level, smooth and evenly covered condition with the type
of surfacing material originally installed or such substitute as is in all respects
equal or superior in quality, use and durability;
(b) Removing all papers, debris, filth and refuse and thoroughly
sweeping the Driveway, all to the extent reasonably necessary to keep the
Driveway in a clean and orderly condition;
(c) Removing snow and ice, patching, and removing debris as needed
for seasonal weather;
(d) Maintaining, repairing and replacing, when reasonably necessary,
all traffic directional signs, markers and lines;
(e) Operating, maintaining, repairing and replacing, when reasonably
necessary;such artificial lighting facilities as are reasonably required;
(f) Maintaining all landscaped areas including, without limitation,
replacing shrubs and other landscaping as is reasonably necessary; and
(g) While performing any such repair or maintenance, Grantee will use
its best efforts not to disrupt any operations on Grantor's Parcel and will give
written notice to Grantor before any temporary closing of the Driveway for such
repair or maintenance.
6. Improvements. Except as otherwise provided herein, Grantee may upgrade or
otherwise make improvements to the Driveway or Utilities only upon the advance written
consent of Grantor, which consent may not be unreasonably withheld, delayed or conditioned.
The costs of any upgrades or improvements to the Driveway or Utilities will be paid in the same
manner as the Maintenance costs unless otherwise agreed to in writing by the Owners.
7. Encumbrances. The Driveway Easement is made subject to all covenants,
conditions, restrictions, encumbrances, and easements of record as of the date this Agreement is
recorded. The Owners acknowledge that each Owner may grant other easements over and across
their respectively owned Parcel so long as such easements do not interfere with the use of the
Driveway Easement.
8. Property Taxes. The Owner of the Grantor Parcel will pay all real property taxes
and special assessments levied against Grantor Parcel, without any reimbursement from the
Owner of Grantee Parcel for any potiion thereof. The Owner of Grantee Parcel will pay all real
property taxes and special assessments against Grantee Parcel, without any reimbursement from
the Owner of Grantor Parcel for any portion thereof.
9. Insurance and Indemnification. Each Owner will carry insurance to protect it
in connection with the ownership, use, and Maintenance of the Easements. Each Owner will
-3-
furnish to the other party, if requested, evidence of the insurances described in this Paragraph.
Each Owner will indemnify and hold the other Owner harmless from all claims, judgments, costs
and expenses (including, without limitation, reasonable attorneys' fees) incurred by the second
Owner arising in connection with or as a direct or indirect result of the first Owner's exercise of
the rights granted or breach of the obligations imposed in this Agreement; provided, however,
the Grantor's indemnification and hold harmless obligations shall only be to the extent permitted
under Applicable Laws.
10. Compliance with Laws. Each Owner will comply with all applicable laws,
codes, ordinances, rules, and regulations (collectively, "Applicable Laws") governing the
maintenance and use of the Easements.
11. Damage. If either Owner, or an Affiliate of either Owner, causes any damage to
the Easements or the other Owner's Parcel, then the responsible party will immediately cause and
pay for the repair of such damage.
12. Default. If an Owner fails to comply with any provision herein, including,
without limitation, the obligation to pay any maintenance costs or property taxes and assessments
("Defaulting Owner"), then the other Owner ("Non-Defaulting Owner") may upon ten (10)
days' prior written notice to the Defaulting Owner, cure the default by the payment of money or
performance of other action for the account of the Defaulting Owner. The foregoing right to cure
may not be exercised if within ten (10) days of the written notice: (i) the Defaulting Owner cures
the default; or (ii) if the default is curable, but cannot reasonably be cured within that time
period, the Defaulting Owner begins to cure such default within such time period and thereafter
diligently pursues such cure to completion. The ten (10) day notice period will not be required
if, using reasonable judgment, the Non-Defaulting Owner gives reasonable notice of its intent to
cure to the Defaulting Owner. Within ten ( 10) days following written demand, including copies
of paid invoices, the Defaulting Owner must reimburse the Non-Defaulting Owner any sum
reasonably expended by the Non-Defaulting Owner to cure the default. The Non-Defaulting
Owner also has the right to restrain by injunction any violation or threatened violation by the
Defaulting Owner of any of the terms, covenants, or conditions hereof, or to obtain a decree to
compel performance if any such term, covenant, or condition is not adequate. In addition to all
other rights and remedies, the Non-Defaulting Owner may place a lien on the Defaulting Owner's
Parcel for such amount owed, together with interest at the maximum legal rate, plus attorneys'
fees necessary for collection. The Non-Defaulting Owner may, in addition to, or instead of,
foreclosure, obtain a personal judgment against the owner of the Defaulting Owner's Parcel who
failed to pay the real property taxes and special assessments. All remedies are cumulative and
will be deemed additional to any and all other remedies to which the Owners may have at law or
in equity.
13. Notices. All notices, requests, claims, demands, and other communications
hereunder must be in writing and delivered by personal delivery, a recognized overnight courier
service, or postage prepaid registered mail, return receipt requested to the parties at their
addresses first indicated above or to such other address or such additional recipient as any Owner
may have furnished to the others in writing in accordance herewith. All notices will only be
effective upon receipt or refusal.
-4-
14. Duration and Effect. The Easements burden the Grantor Parcel and benefit the
Grantee Parcel. This Agreement will continue in effect perpetually and constitute an easement
and a covenant running with the land; but nothing contained in this Agreement will be construed
as a conveyance by Grantor of its rights in the fee to Grantor Parcel. Grantor and Grantee will
automatically be released from all liability thereafter arising under this Agreement upon
conveyance of their respective entire interest in the real property burdened or benefited by this
Agreement.
15. Amendments. This Agreement may be amended, modified or terminated (in
whole or in part) from time to time by written document executed and acknowledged by all of
the Owners and duly recorded in the Muskegon_ County Register of Deeds, Michigan, or in such
other office as may from time to time by law be charged with the duty of maintaining the public
records of Muskegon County, Michigan, and will not otherwise be amended, modified or
terminated during the term hereof.
16. Owners Bound. The terms and conditions of this Agreement bind and benefit
each Owner and their respective heirs, personal representatives, distributees, executors,
administrators, successors, and assigns.
17. Governing Law. This Agreement 1s governed by and will be construed m
accordance with the laws of the State of Michigan.
18. Entire Agreement. This Agreement contains the entire understanding of Grantor
and Grantee and the parties acknowledge that there have been no representations or
understandings other than those expressly set fo1ih in this Agreement.
19. Counterparts. This Agreement may be executed in one or more counterparts,
each such counterpart being deemed an original and all such counterparts taken together
constituting but one and the same instrument.
The Granter and Grantee signed this Easement Agreement as of the date first set
forth above.
-5-
THE CITY OF MUSKEGON
Grantor
STATE OF MICHIGAN )
) ss:
COUNTY OF \f\1 ~~ )
cl,
The foregoing instrument was acknowledged before me this January 2020,
by Stephen J. Gawron, as Mayor of the CITY OF MUSKEGON, a Michigan municipal
corporation, for the corporation.
-6-
Grantee
STATE OF MICHIGAN )
) ss:
COUNTY OF ty\~ )
The foregoing instrument was acknowledged before me this January 15_, 2020,
by W. Sidney Smith, as Manager of HARBOR WEST, LLC, a limited liability company, for the
limited liability company.
otary public, ichigan, County of _,\...,,.a-.,c==~...,_
My commission expires __,_-#,-"4-'l,L__·_,_1~=-,_,,___.,_____~--
Acting in the County of_~tfl-e'<-'ukJ_~-1~~,,..._,..____
This instrument was prepared by and return to:
Rob M. Davies
WARNER NORCROSS + JUDD LLP
900 Fifth Third Center
111 Lyon Street, NW
Grand Rapids, Michigan 49503-2487
Telephone: (616) 752-2000
18771913
-7-
EXHIBIT A
Grantor Parcel Legal Description
~
All that part of Biock 574 and 575 of the Revised Plat (of 1903) of the City of Muskegon, lying Northerly a,nd
Easterly of the following described boundary lines: (EXCEPT lhe right of way of the Chesapeake and Ohio
Railway Co.)
Commence at an iron bolt (original) located at the Southeast corner of Block 574 oi the Revised Plat of the
City of Muskegon, Muskegon County, Michigan; thence North 88'43' West 270.42 feet for a place of , ,
beginning; thence North 1°40' West 345.42 feet: thence North 84~6' West 290.81 feet: thence N?r1h47 5
West 236.7 feet: thence North 2°4' Wast 175,2 feet: thence South 87°55' West 866.7 feet to an 1ron stake;
thence North sr West 730 foot; thence North 48° West to the thread of the stream in Muskegon Lake, for
the place of ending of said lines.
Pare~! 3:
Part of Block 573 of the Revised Plat {of 1903) of the City of Muskegon, Muskegon County. Michfgan,
described as: Commencing at the Southwest corner of s.atd Block 573 for the point of beginning; thence
North 1"40' West along the West line of said Block, 347.0 feet: thence North 21°40' West along H1e Westerly
line of said Block, 241.0 feet: thence North 29"28' West along the Westerly line of said Block, 187.50 feet;
thence South 35~37' East 258.20 feet; thence South 09"53' East 504.80 feet to the Northerly lrne of West
Western Avenue: thence South 59"34' West aloog said Northerly Hne, 53.0 feet to the point of beginning.
Except:
BIK£ PATH WEST DESCRIPTION:
THAT PART OF BLOCK 574 OF THE REVISED PLAT OF 1903 OF THE CITY OF MUSKfGON, DESCRIBED
AS: COMMENCING AT THE SOUTHEAST CORNER OF SAID BLOCK 574; THENCE NORTH 88'13'54" WEST
270.33 FEET TO A POINT ON THE NORTH RIGHT-OF-WAY LINE OF WESTERN AVENUE; THENCE NORTH
8J'55'00" WEST ALONG SAID NORTH RIGHT-OF-WAY LINE 456.97 FEET; THENCE NORTH 01 '31 '44"
WEST 470.34 FEET TO THE POINT OF BEGINNING; THENCE NORTH 46'32'44" WEST 257.11 FEIT;
THENCE SOUTH 88"27'16" WEST 684.39 FEET; THENCE NORTH 01 '31 '44" WEST 16.00 FEET; THENCE
1
NORTH 88'27 26" EAST 691.04 FEET; THENCE SOUTH 46'32'44" tAST 247.70 FEIT; THENCE SOUTH
01'31'44" EAST 22.62 FEET TO THE POINT OF BEGINNING.
BIK£ PATH £AST DESCRIPTION (PARCEL 5):
THAT PART OF BLOCK 574 OF THE REVISED PLAT OF 1903 OF THE CITY OF MUSKEGON, MUSKEGON
COUNTY, MICHIGAN, DESCRIBED AS COMMENCING AT THE SOUTHtAST CORNER OF $AID BLOCK 574;
THENCE NORTH 88'13'54" WEST 270.33 FEET TO A POINT ON THE NORTH RIGHT OF WAY LINE OF
WESTERN AVENUE; THENCE NORTH 01'09'31" WEST 100.00 FEIT; THENCE NORTH 46'31 '44" WEST
118.61 FEET TO THE POINT OF BEGINNING; THENCE NORTH 61'45'12" WEST 60.93 FEET; THENCE
NORTH 46'31 '44" WEST 227.22 FEET; THENCE NORTH 46'J2'44" WEST 220.80 FEET; THENCE NORTH
01'31'44'' WEST 22.62 Fl:ET; THE:NCE SOUTH 46'J2'44" EAST 236.79 FEIT; THENCE SOUTH 46'31'44"
EAST 286.01 FEET TO THE POINT OF BEGINNING.
EXHIBIT B
Grantee Parcel Legal Description
Parcel 4:
THOSE PARTS OF BLOCKS 574 AND 575, REVISED PLAT (OF 1903) OF THE CITY OF
MUSKEGON, MUSKEGON COUNTY, MICHIGAN, DESCRIBED AS FOLLOWS: COMMENCING AT
THE SOUTHEASTERLY CORNER OF BLOCK 574 OF SAID REVISED PLAT (OF 1903) OF THE CITY
OF MUSKEGON,· THENCE NORTH 88 °43 WEST 270.42 FEET (M=NORTH 84 °41 '53 WEST 270.27
I II
FEET) TO A POINT ON THE NORTHERLY LINE OF WEST WESTERN AVENUE FOR A POINT OF
BEGINNING,·
THENCE WESTERLY ALONG THE NORTHERLY LINE OF WEST WESTERN AVENUE 457.28 FEET
(M=NORTH80°29'18" WEST457.02 FEET),· THENCENORTH2C04' WEST492.92 FEET,· THENCE
SOUTH 47C05' EAST 236.7 FEET; THENCE CONTINUING SOUTH 47C04' EAST TO A POINT 100
FEET NORTH OF AND NORTH 1 °40' WEST OF THE POINT OF BEGINNING. TOGETHER WITH
THE C & 0 RAILWAY COMPANY RIGHT OF WAY RUNNING THROUGH THE ABOVE DESCRIBED
PARCEL, EXCEPT THAT PART WHICH WAS DEEDED TO THE CITY OF MUSKEGON AS
RECORDED IN LIBER 2138, PAGES 751 AND 752.
The property address and tax parcel number listed below are provided solely for informational
purposes, without warranty as to accuracy or completeness. If the information listed below is
inconsistent in any way with the legal description listed above, the legal description listed
above shall control.
Property Address: 1000 W. Western Avenue, Muskegon, Michigan
Tax Parcel No.: 61-24-205-574-0001-10
And
BIKE PATH WEST DESCRIPTION:
THAT PART OF BLOCK 574 OF THE REVISED PLAT OF 1903 OF THE CITY OF MUSKEGON, DESCRIBED
AS: COMMENCING AT THE SOUTHEAST CORNER OF SAID BLOCK 574; THENCE NORTH 88"13'54" WEST
270,JJ FEET TO A POINT ON THE NORTH RIGHT-OF-WAY LINE OF WESTERN AVENUE; THENCE NORTH
8J'55'oo" WEST ALONG $AID NORTH RIGHT-OF-WAY LINE 456.97 FEET; THENCE NORTH 01'31'44"
WEST 470.34 FEET TO THE POINT OF BEGINNING,· TH£NCE NORTH 46'32'44" WEST 257.11 FEET;
THENCE SOUTH 88"27'16" WEST 684.39 FEET; THENCE NORTH 01 '31 '44" WEST 16.00 FEET; THENCE
NORTH 88'27'26" EAST 691.04 FEET; THENCE SOUTH 46'32'44" EAST 247.70 FEET; TH£NCE SOUTH
01 'J 1'44" EAST 22.62 FEET TO THE POINT OF BEGINNING.
BIKE PATH EAST DESCRIPTION (PARCEL 5):
THAT PART OF BLOCK 574 OF THE REVISED PLAT OF 1903 OF THE CITY OF MUSKEGON, MUSKEGON
COUNTY, MICHIGAN, DESCRIBED AS COMMENCING AT Tl-/£ SOUTHEAST CORNER OF $AID BLOCK 5 7 4;
THENCE NORTH 88'13'54" WEST 270.JJ FEET TO A POINT ON THE NORTH RIGHT OF WAY LINE OF
WESTERN AVENUE; THENCE NORTH 01'09'.31" WEST 100.00 FEET; THENCE NORTH 46'31 '44" WEST
118.61 FEET TO THE POINT OF BEGINNING; THENCE NORTH 61'45'12" WEST 60.93 FEET; THENCE
NORTH 46'.31'44" WEST 227.22 FffT; THENCE NORTH 46'32'44" WEST 220.80 FEET; THENCE NORTH
01'31'44'' WE"ST 22.62 FEET; THENCE SOUTH 46'32'44" EAST 236.79 FEIT; THENCE SOUTH 46'31'44"
EAST 286.01 FEET TO TH[ POINT OF BEGINNING,
EXHIBIT C
Site Plan
See attached.
ESTSHORE
ENGINEERING & SURVEYING
ENVIRONMENTAL
SKETCH OF EASEMENT
FOR: HARBOR WEST, LLC
DRIVEWAY AND UTILITY EASEMENT DESCRIPTION:
A 66.00 FOOT WIDE ACCESS EASEMENT BEING LOCATED IN PARTS OF BLOCKS 573, 574
AND 575, REVISED PlAT (OF 1903) Of THE CITY OF MUSKEGON, MUSKEGON COUNTY,
MICHIGAN, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF BLOCK 574 OF SAID REVISED PlAT (OF 1903)
OF THE CITY OF MUSKEGON, SAID CORNER IS ALSO THE SOUTHWEST CORNER OF SAID
BLOCK 573;
THENCE NORTH 84 DEGREES 41 MINUTES SJ SECONDS WEST, ALONG THE NORTH LINE OF
WEST WESTERN AVENUE, A DISTANCE OF 16.87 FEET:
THENCE NORTH 05 DEGREES 51 MINUTES 25 SECONDS WEST, A DISTANCE OF 50.18 FEET;
THENCE SOUTH 69 DEGREES 09 MINUTES 40 SECONDS WEST, A DISTANCE OF 69.21 FEET;
THENCE SOUTH 84 DEGREES 51 MINUTES 17 SECONDS WEST, A DISTANCE OF 103.33 FEET
TO A POINT ON SAID NORTH LINE OF WEST WESTERN AVENUE;
THENCE NORTH 84 DEGREES 41 MINUTES SJ SECONDS WEST, ALONG SAID NORTH LINE OF
WEST WESTERN AVENUE, A DISTANCE OF 79.94 FEET;
THENCE NORTH 02 DEGREES 21 MINUTES 07 SECONDS EAST, A DISTANCE OF 66.09 FEET;
THENCE SOUTH 84 DEGREES 41 MINUTES 53 SECONDS EAST, A DISTANCE OF 77.J 1 FEET;
THENCE NORTH 84 DEGREES 51 MINUTES 17 SECONDS EAST, A DISTANCE OF 88.20 FEET;
THENCE NORTH 69 DEGREES 09 MINUTES 40 SECONDS EAST, A DISTANCE OF 77. 78 FEET;
THENCE NORTH 84 DEGREES OB MINUTES 35 SECONDS EAST, A DISTANCE OF 66.00 FEET;
THENCE SOUTH 05 DEGREES 51 MINUTES 25 SECONDS EAST, A DISTANCE OF 103.37 FEET
TO SAID NORTH LINE OF WEST WESTERN AVENUE;
THENCE SOUTH 63 DEGREES 44 MINUTES 09 SECONDS WEST, ALONG SAID NORTH LINE OF
WEST WESTERN AVENUE, A DISTANCE OF 52. 76 FEET TO THE POINT OF BEGINNING.
SAID PARCEL CONTAINS 0.55 ACRES, MORE OR LESS.
REV: 1-13-20
REV: 12-16-19
DATE: 12-06-19
@ COPYRIGHT 2019 SHEET 2 OF 2 FILE NO: 04311-0001
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WESTSHORE
ENGINEERING & SURVEYING
FOR: HARBOR WEST, LLC
ENVIRONMENTAL
N
DESCRIPTION: SEE SHEET 2
SKETCH OF EASEMENT I
---- ,1.1 - - - - EAST UN£
BLOCK 574
FM - - - -
o' 25' SO'
- - '"~s4·os'35"£ ~/ '- I i i
66.oo· \\ I ' SCAL£: 1" = 50'
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POINT OF BEGINNING
NORTH LIN£
WEST WESTERN S£ COR. BLK 574
N84° 41 '53 "W SW COR. BLK 573
TIMOTHY DATE: AVE,
~ n.toto
P.S. NO. 54454
25J4 BLACK CR££K ROAD REV: 1-13-20 FILE NO: 04J 11-000 1
MUSKEGON, Ml. 49444 REV: 12-16-19 SCALE: 1"=50'
PHONE : (231)777-3447 DATE: 12-06-19 SURVEYED BY: TWO
FAX : (231)773-3453 @ ORN BY: NSS
COPYRIGHT 2019 SHEU 1 OF 2
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