Approved Agreements and Contracts 2024/04/30 Public Utility Easement Adelaide Pointe

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                        ~ Agenda tem Review Form
                           Muskegon City Commission

Commission Meeting Date: April 30, 2024                Title: PUblic Utility Easement - Adelaide Pointe

Submitted by: Jonathan Seyferth, City Manager          Department: Manager's Office

Brief Summary:
The easement is from Adelaide Pointe to the City of Muskegon. It will allow the City to takeover
ownership and operate the water main within the development site.


Detailed Summary & Background:
Generally, utility lines are turned over to the City simultaneously as roads and other public utilities.
However, because aspects of the development are still ongoing, the City needs to take control of
the utility lines ahead of completion of other parts of the project. This easement will give the City the
same access to the water line as if we owned them. Once all other aspects of the project are
complete and all construction liens are lifted, the City will go through the formal and standard
process of taking possession of all roads, water, and sewer utilities in the project that are intended for
public management.


It should also be noted that acceptance of the easement is also conditioned on the execution of an
insurance policy equal to active liens on the property and the completion of all required EGLE testing
and certification. Once these have occurred, the City can take over the lines and allow connections
to occur.


Goal/Focus Area/Action Item Addressed:


Key Focus Areas:



Goal/Action Item:
2027 Goal 1: Destination Community & Quality of Life


Amount Requested:                                       Budgeted Item:

n/a                                                     Yes             No           N/A | X

Fund(s) or Account(s):                                  Budget Amendment Needed:

n/a                                                     Yes             No           N/A | X

Recommended Motion:
to approve the easement from Adelaide Pointe Building 1, LLC, Adelaide Point Multi-Use, LLC,
Adelaide Pointe Boagters Services, LLC Adelaide Pointe Wet ete         3 LLC, and Adelaide Pointe QOZB
LLC all of 1204 W. Western Ave., Suite A with the condition that theviAsurance policy be taken out in
the City of Muskegon's name equal to the amount of any outstanding liens and that utility lines pass
all state certification testing.




                                                                                                   Page 3 of 31
Approvals:             Guest(s) Invited / Presenting:

Immediate Division
Head                    No


Information
Technology

Other Division Heads

Communication

Legal Review




                                                        Page 4 of 31
                                PUBLIC UTILITY EASEMENT

       This Easement is entered into this        day of April 2024 by Adelaide Pointe Building
1, LLC, Adelaide Pointe Multi-Use, LLC, Adelaide Pointe Boaters Services, LLC, Adelaide
Pointe Wet Marina, LLC, and Adelaide Pointe QOZB, LLC all of 1204 W. Western Ave, Suite
A, Muskegon, MI 49441 (“Grantor”) and the City of Muskegon, a municipal corporation
organized under the laws of the State of Michigan, with offices at 933 Terrace Street, Muskegon,
Michigan 49440 (“City”) with reference to the following facts:

                                           Background

       Grantor is the owner of real property in the City of Muskegon, Muskegon County,
Michigan legally described on Exhibit A (“Grantor’s Property”). The City desires that Grantor
install public water and sewer lines that will be operated by the City across a portion of Grantor’s
Parcel and Grantor is willing to grant the City an easement for the water and sewer lines in
accordance with the terms of this Agreement.

       Therefore, for good and valuable consideration, receipt of which is acknowledged,
the parties agree as follows:

       1.      Grant of Easement. Grantor grants, warrants, and conveys an easement to
the City for the perpetual right of its contractors and employees to enter at all times upon
and to operate, repair, maintain, replace, relocate, and reconstruct, water and sewer lines
(“Easement”) upon the portion of the Grantor Property legally described on Exhibit A
(“Easement Property”), together with all rights and privileges therein necessary or
convenient for the full enjoyment or use thereof for the sole purposes of ingress and egress
to and from the Easement Property or by way of existing roads, lanes, or trails, located
outside the Easement Property, whether public or private and with the right to use areas of
the Grantor’s Property immediately adjacent to the Easement Property only for
Maintenance as defined below.


       2.      Maintenance. Any such operation, repair, maintenance, replacement,
relocation, or reconstruction shall be performed by the City so as not to unreasonably
interfere with the use of the Easement Property by Grantor and its tenants and without cost
to Grantor or its tenants. Upon completion of the operation, repair, maintenance,
replacement, relocation, or reconstruction, the City will restore the Easement Property to
the same condition as it was prior to such operation, repair, maintenance, replacement,
relocation, or reconstruction, and without cost to the Grantor, provided that the Grantor
shall repair the damage done to any fixed structures constructed after the original utility




                                                                                                   Page 5 of 31
installation unless said damage is the result of the negligent acts or omissions of the City,
their agents, employees, representatives or contractors, in which case the said restorations
shall be made by the City. The City shall use reasonable care to protect said fixed
structures and landscaping and shall restore to grade and re-seed all lawn areas.

       3,      CSX Crossing. Grantor acknowledges that a portion of the water and sewer
lines that are the subject of this Agreement cross under real property owned by the City
(“City Property”). The City Property is legally described on Exhibit B and is subject to
certain rights benefitting CSX (“CSX”) as set forth in the Quit Claim Deed dated February
6, 2023 and recorded at Liber 4327, Page 494, Muskegon County Records. Grantor is
responsible for obtaining any and all required consents from CSX related to the water and
sewer lines including, without limitation, the installation, location, method of installation,
and maintenance requirements of the water and sewer lines. Grantor releases the City from
any claim or loss related to water and sewer lines located on the City Property arising from
claims from CSX. Any requirements for relocation or modification to the water and sewer
lines located on the City Property shall be the responsibility of Grantor and Grantor shall
hold harmless and indemnify the City from any and all claims from CSX or its successors
or assigns related in any manner to the water and sewer lines being located on the or under
the City Property.


        4,     Retained Property Rights. The Grantor retains all other property rights in
the Easement Property, including, but not limited to, the right to utilize the Easement
Property to construct thereon sidewalks, driveways, curbs, gutters, landscaping, plantings
and traffic control signs. The Grantor agrees not to construct any buildings within the
Easement Property.


        5.     Hold Harmless. The Grantor hereby agrees to save and hold the City
harmless from any and all claims, debts, causes of action or judgments for any damage to
property and/or injury to any person which may arise out of any construction within or use
of the Easement Property by the Grantor, its agents, employees, representatives,
contractors, or assigns.


        6.      Future Construction. The Grantor and its successors or assigns agree that
if any buildings or other structures are constructed by them, near or adjacent to the
Easement Property, and, because of the construction of such buildings and other
structures, it should become necessary to structurally support, shore, brace or otherwise
provide for the stability of such buildings, surface or subsurface structure so that the City
may perform the work of maintaining, replacing and repairing said utilities and the
pertinent facilities, the Grantor shall assume such expense for support, shoring and
bracing; provided, however, that the City shall consult with the Grantor, its successors or
assigns before performing the work with respect to alternative methods of repair,
improvement, maintenance or replacement. The Grantor and the City shall confer
promptly and shall avoid jeopardizing the health, welfare and safety of the public by
unnecessary delays in consultation.




                                                                                                 Page 6 of 31
       7.      Additional Easements. The Grantor reserves the right to grant to others,
additional easement rights, within the Easement Property, for the installation and
maintenance of gas, electric power, telephone structures and lines; said right being subject
to approval by the City as to location and size of the proposed easement and utilities. Said
approval by the City shall not be unreasonably withheld. All such additional easements
shall be subject to the prior rights of the City and additional expenses incurred in the
construction, maintenance, repair or replacing of the utilities owned by the City resulting
from these additional easements and the presence of gas, electric or telephone structures
and lines shall be assumed by the owners of the structures or lines causing such extra
expense. Grantor agrees to hold Grantee harmless against any claims by other easement
holders.


       This easement is given for $1.00 and other good and valuable considerations.

       THIS INSTRUMENT shall be binding upon and inure to the benefit of the parties
hereto and their representatives, assigns or successors.




                                       ADELAIDE POINTE BUILDING 1, LLC




                                       By:     Ryan Leestma
                                       Its:    Manager

                                       ADELAIDE POINTE BOATERS SERVICES, LLC




                                       By:     Ryan Leestma
                                       Its:    Manager


                                       ADELAIDE POINTE MULTI-USE, LLC




                                       By:     Ryan Leestma
                                       Its:    Manager

                                       ADELAIDE POINTE WET MARINA, LLC




                                       By:     Ryan Leestma
                                       Its:    Manager




                                                                                               Page 7 of 31
                                        ADELAIDE POINTE QOZB, LLC



                                        By:    Ryan Leestma
                                        Its:   Manager


STATE OF MICHIGAN             )
                              )ss.
COUNTY OF MUSKEGON)


On this    day of April 2024 before me, a Notary Public, in and for said County personally
appeared Ryan Leestma to be known to be the same person described in an who executed the
written instrument on behalf of each of the foregoing entities and who have acknowledged the
same to be his/her free act and deed.



                                                                     , Notary Public
                                                                  County, Michigan
                                        Acting in the County of           Michigan
                                        My commission expires:



Prepared by and after recording
return to:
Kevin B. Even
Smith Haughey Rice & Roegge
900 Third St., Ste 204
Muskegon, MI 49440
231-724-4320
keven@shrr.com




                                                                                               Page 8 of 31
                                          EXHIBIT A




City of Muskegon, Section 25, Town 10 North, Range 17 West, City of Muskegon, Muskegon
County, Michigan, said easement being described as:
       BEGINNING on the North right-of-way line of Western Avenue at a point being
       North 87°52'58" West 824.34 feet from the Southeast corner of Lot 4 of said
       Block 577; thence North 02°08'44" East 263.07 feet; thence North 34°14'29" East
       74.27 feet; thence North 23°44'59" East 71.13 feet; thence North 02°08°44” East
       164.98 feet; thence Northerly 75.89 feet on a 358.00 foot radius curve to the left,
       the chord of which bears North 03°55'38" West 75.75 feet; thence Northeasterly
       53.16 feet on a 30,00 foot radius curve to the right, the chord of which bears
       North 40°45'35" East 46.47 feet; thence South 88°28'50" East 70.66 feet; thence
       Northeasterly 137.17 feet on a 141.00 foot radius curve to the left, the chord of
       which bears North 63°39’00” East 131.82 feet; thence Easterly 43.20 feet on a
       165,00 foot radius non-tangential curve to the left, the chord of which bears South
       81°06’34” East 43.07 feet; thence South 88°36°35” East 77.91 feet; thence
       Southeasterly 164.07 feet on a 105.00 foot radius curve to the right, the chord of
       which bears South 43°50'39" East 147.88 feet; thence South 00°55'16" West
       231.33 feet; thence South 88°08'38" East 57.67 feet; thence North 01°56'07" East
       248.95 feet; thence North 88°06'24" West 8.34 feet; thence North 32°59'53" West
       152.26 feet; thence Northwesterly 11.02 feet on a 180.00 foot radius curve to the
       left, the chord of which bears North 60°10'49" West 11.02 feet; thence
       Northwesterly 23.47 feet on a 44.00 foot radius curve to the right, the chord of
       which bears North 46°39'17" West 23.19 feet; thence North 31°22'33" West 32.33
       feet; thence South 58°41'48" West 30.10 feet; thence Southwesterly 24.54 feet on
       a 43.00 foot radius curve to the right, the chord of which bears South 75°02'37"
       West 24.20 feet; thence North 88°36'35" West 28.07 feet; thence Northwesterly
       112.92 feet on a 113.00 foot radius curve to the right, the chord of which bears
       North 60°00'12" West 108.28 feet; thence North 31°22'33" West 304.82 feet;
       thence Northwesterly 25.59 feet on a 100.00 foot radius curve to the left, the
       chord of which bears North 38°42'28" West 25,52 feet; thence North 73°07'40"
       West 86.39 feet; thence Southwesterly 63.79 feet on a 52.00 foot radius curve to
       the left, the chord of which bears South 35°56'19" West 59.86 feet; thence South
       58°37'27" West 514.47 feet; thence South 10°46'30" West 86.44 feet; thence
       South 31°22'33" East 25.92 feet; thence North 58°37'27" East 598.50 feet; thence
       South 31°22'33" East 297.13 feet; thence South 58°37'27" West 79.88 feet; thence
       North 88°28'50" West 95.92 feet; thence South 40°42'37" West 73.46 feet to
       Point A, so-called; thence Southerly 123.08 feet on a 292.00 foot radius curve to
       the right, the chord of which bears South 09°55'48" East 122.17 feet; thence
       South 02°08'44" West 161.50 feet; thence Southwesterly 72.07 feet on a 117.00
       foot radius curve to the right, the chord of which bears South 19°47'30" West
       70.93 feet; thence Southerly 143.52 feet on a 233.00 foot radius curve to the left,
       the chord of which bears South 19°47'30" West 141.26 feet; thence South
       02°08'44" West 194.05 feet to the North right-of-way line of Western Avenue;
       thence Easterly 23.28 feet along said North right-of-way line on a 430.58 foot




                                                                                             Page 9 of 31
radius curve to the right, the chord of which bears South 89°25'54" East 23.27
feet; thence South 87°52'58" East 41.40 feet along the North right-of-way line of
Western Avenue to the place of beginning.



ALSO an easement described as: BEGINNING at above mentioned Point A, so-
called; thence South 89°12'02" West 32.68 feet; thence South 58°37'27" West
287.81   feet; thence Northwesterly   102.90 feet on a 91.00 foot radius non-
tangential curve to the right, the chord of which bears North 63°46'09" West
97.50 feet; thence North 31°22'33" West 168.67 feet; thence North 58°37'27" East
87.08 feet; thence South 31°22'33" East 185.00 feet; thence North 58°37'27" East
285.00 feet; thence North 31°22'33" West 185.00 feet; thence North 58°37'27"
East 66.00 feet; thence South 31°22'33" East 245.03 feet; thence South 40°42'37"
West 73.46 feet to Point A, so-called and the place of ending.




                                                                                    Page 10 of 31

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