HomeMy WebLinkAboutResolutions - 1999.12.16 - 25685, December 16, 1999
MISCELLANEOUS RESOLUTION #99339
BY: Planning and Building Committee - Charles E. Palmer, Chairperson
IN RE: DEPARTMENT OF FACILITIES MANAGEMENT, REAL ESTATE SECTION -
OAKLAND/TROY AIRPORT - STORM WATER DETENTION POND EASEMENT
AGREEMENT - SIDWELL PARCEL NO. 20-32-126-027
TO THE OAKLAND COUNTY BOARD OF COMMISSIONERS
Chairperson, Ladies and Gentlemen:
WHEREAS the County of Oakland owns property located at 2672 Industrial
Row, Troy, Michigan, and being a part of Tax Sidwell No. 20-32-126-027, known
as Oakland/Troy Airport; and
WHEREAS Cambridge Crossings Business #1, L.L.C., Cambridge Crossings
Shops #1, L.L.C., Mentor Heavy Vehicle Systems, L.L.C., and Allen Bradley
Company are requesting an easement on County-owned property at the
Oakland/Troy Airport for the construction, operation and maintenance of a
joint stormwater detention pond on a portion of property described as Tax
Sidwell Parcel 20-32-126-027; and
WHEREAS in consideration of the mutual benefits to the parties to the
proposed easement agreement, the developer of the Cambridge Crossings
Business and Shops parcels will clean out and fill in with engineered fill
the existing airport stormwater detention basin, and will extend the
airport's existing stormwater drainage piping from its current terminus to
the new stormwater detention basin, creating new buildable sites for the
construction of additional T-hangar buildings; and
WHEREAS the Airport Committee and the Airport Manager have reviewed and
recommended the granting of this easement request.
NOW THEREFORE BE IT RESOLVED that the Oakland County Board of
Commissioners authorizes the granting of this easement to the parties recited
therein for the construction, operation and maintenance of a stormwater
detention pond on a portion of Tax Parcel 20-32-126-027 at the Oakland/Troy
Airport.
BE IT FURTHER RESOLVED that the Oakland County Board of Commissioners
authorizes its chairperson to execute the necessary documents to effect the
same.
AND BUILDING—COMMITTEE
Planning and Building Committee Vote:
Motion carried unanimously on a roll call vote with Sever absent.
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EASEMENT AGREEMENT
This EASEMENT AGREEMENT ("Agreement") is made as of this day of
,1999 by and between CAMBRIDGE CROSSINGS BUSINESS #1, L.L.C., a Michigan
limited liability company, whose address is do The Nelson Companies, Incorporated, 6960 Orchard
Lake Road, Suite 200, West Bloomfield, Michigan 48322 ("Business") CAMBRIDGE CROSSINGS
SHOPS #1, L.L.C., a Michigan limited liability company, whose address is c/a The Nelson
Companies Incorporated, 6960 Orchard Lake Road, Suite 200, West Bloomfield, Michigan 48322
("Shops"), MERITOR HEAVY VEHICLE SYSTEMS, LLC, a Delaware limited liability company,
whose address is 2135 West Maple Road, Troy, Michigan 48084 (together with its affiliates at the
Mentor Parcel, "Mentor"), ALLEN-BRADLEY COMPANY, a Delaware corporation, whose
address is 1201 South Second Street, Milwaukee, Wisconsin 53204 ("Bradley"), and COUNTY OF
OAKLAND, a Michigan constitutional and municipal corporation, whose address is c/o The
Oakland County International Airport, 6500 Highland Road, Waterford, Michigan 48327-1649
("Oakland").
RECITALS:
A. Business is the owner in fee of a certain parcel of land located in the City of Troy,
Oakland County, Michigan and more fully described in attached Exhibit "A" and identified on the
Site Plan attached hereto as Exhibit "F" ("Site Plan") as the "Business Parcel" ("Business Parcel").
B. Shops is the owner in fee of a certain parcel of land located in the City of Troy,
Oakland County, Michigan and more fully described in attached Exhibit "B" and identified on the
Site Plan as the "Shops Parcel" ("Shops Parcel").
C. Mentor is the owner in fee of a certain parcel of land located in the City of Troy,
Oakland County, Michigan and more fully described in attached Exhibit "C" and identified on the
Site Plan as the "Mentor Parcel" ("Mentor Parcel"),
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D. Bradley is the owner in fee of a certain parcel of land located in the City of Troy,
Oakland County, Michigan and more fully described in attached Exhibit "D" and identified on the
Site Plan as the "Bradley Parcel" ("Bradley Parcel").
E. Oakland is the owner in fee of a certain parcel of land located in the City of Troy,
Oakland County, Michigan and more fully described in attached Exhibit "E" and identified on the
Site Plan as the "Airport Parcel" ("Airport Parcel").
F. The Business Parcel, the Shops Parcel, the Mentor Parcel, the Bradley Parcel and the
Airport Parcel are herein sometimes referred to individually as a "Parcel" and collectively as
the "Property".
G. The parties by this Agreement intend: (i) to impose and establish certain rights for
the discharge and retention of storm water; (ii) to establish certain agreements and understandings
of the parties with respect to such discharge and retention of storm water; and (iii) provide that so
long as the Bradley Parcel is owned by Bradley or an affiliate of Bradley, Mentor shall pay the
Bradley Parcel's pro rata share of the Maintenance Expenses, all as more specifically set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein set
forth and for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by each party hereto, the parties agree as follows:
•1. Storm Water Easements.
(a) Shops hereby grants and conveys, for the sole benefit of the Business
Parcel, the Mentor Parcel and the Bradley Parcel, to Business, Mentor and Bradley, their respective
mortgagees, lessees, sublessees, employees, agents, customers, licensees and invitees, a nonexclusive
perpetual easement on, over, across and through the storm water runoff lines and leads on the Shops
Parcel identified on the Site Plan (the "Shops Leads") for the drainage of storm water.
(b) Shops hereby grants and conveys to the Responsible Owners (as
hereinafter defined) of the Business Parcel, the Mentor Parcel and the Bradley Parcel, for the
purpose of exercising their rights under Section 3(e) of this Agreement, a nonexclusive perpetual
easement on, over, under, through and across that portion of the Shops Parcel identified on the Site
Plan as the Shops Storm Water Easement Areas for the purpose of constructing, excavating,
maintaining, dredging, repairing, replacing, using and-operating the Shops Leads.
(c) Oakland hereby grants and conveys to the Responsible Owner of the
Shops Parcel (and the Responsible Owners of the Business Parcel, the Mentor Parcel and the
Bradley Parcel for the purpose of exercising their rights under Section 3(e) of this Agreement), a
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nonexclusive perpetual easement on, over, under, through and across that portion of the Airport
Parcel identified on the Site Plan as the Airport Storm Water Easement Areas for the purpose of
constructing, excavating, maintaining, dredging, repairing, replacing, using and operating storm
water runoff lines and leads (the "Airport Leads") (the Shops Leads and the Airport Leads are
sometimes hereinafter referred to as the "Leads").
(d) Oakland hereby grants and conveys, for the sole benefit of the
Business Parcel, the Shops Parcel, the Mentor Parcel and the Bradley Parcel, to Business, Shops,
Mentor and Bradley, their respective mortgagees, lessees, sublessees, employees, agents, customers,
licensees and invitees, a nonexclusive perpetual easement for the drainage of storm water on, over,
across and through the Airport Leads.
(e) Oakland hereby grants and conveys to the Responsible Owner of the
Shops Parcel (and the Responsible Owners of the Business Parcel, the Mentor Parcel and the
Bradley Parcel for the purpose of exercising their rights under Section 3(e) of this Agreement) a
nonexclusive perpetual easement on, over, under, through and across those portions of the Airport
Parcel identified on the Site Plan as the Detention Pond Parcel for the purpose of constructing,
excavating, maintaining, dredging, repairing, replacing, using and operating storm water runoff lines
and leads and a storm water detention pond (collectively, the "Storm Water System").
Oakland hereby grants and conveys, for the sole benefit of the
Business Parcel, the Shops Parcel, the Mentor Parcel and the Bradley Parcel to Business, Shops,
Mentor and Bradley, their respective mortgagees, lessees, sublessees, employees, agents, customers,
licensees and invitees, a nonexclusive perpetual easement on, over, across and through the Detention
Pond Parcel for the drainage of storm water on, over, across and through the Storm Water System.
2. Construction.
(a) The Responsible Owner of the Shops Parcel shall construct or cause
to be constructed the Leads and the Storm Water System in accordance with the plans prepared by
dated , all applicable laws, codes and regulations
and in a lien free and good and workmanlike manner. During such construction, the Responsible
Owner of the Shops Parcel and its agents and employees shall not unreasonably interfere with the
business being conducted on the Mentor Parcel, the Bradley Parcel, the Business Parcel or the
Airport Parcel.
(b) Within thirty (30) days after completion of construction of the Leads
and the Storm Water System by the Responsible Owner of the Shops Parcel, the Responsible Owner
of the Mentor Parcel shall pay to the Responsible Owner of the Shops Parcel an amount equal to the
product of the costs incurred by the Responsible Owner of the Shops Parcel in connection with
constructing the Leads and the Storm Water System and a fraction, the numerator of which is the
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total acreage of the Mentor Parcel and the Bradley Parcel as set forth on the Site Plan and the
denominator of which is the total acreage of the Property. Notwithstanding the foregoing, the
Responsible Owner of the Mentor Parcel shall have no obligation to pay to the Responsible Owner
of the Shops Parcel an amount in excess of One Hundred Thousand Dollars ($100,000.00) with
respect to the construction of the Leads and the Storm Water System.
(c) At anytime construction (or any other activity in connection herewith)
is being performed on or about the Property, the Responsible Owner responsible for the construction
and its agents and employees shall (i) use best efforts to insure that at all times there shall be clear
vehicular access to the Parcels, (ii) promptly repair any damage to any of the Parcels to a
substantially comparable condition to their condition prior to such construction, (iii) not
unreasonably interfere with the use and operations (including, but not limited to the parking) of the
Parcels; and (iv) use best efforts to provide forty-eight (48) hours prior notice of such construction
to the Owner of the Parcel on which such construction is to take place.
3. Maintenance and Repair.
(a) The Responsible Owner of the Shops Parcel shall at all times, cause
the Leads and the Storm Water System to be continually maintained, repaired and/or replaced.
(b) The Owners shall pay their pro rata share of all costs incurred by the
Responsible Owner of the Shops Parcel in connection with the fulfillment of its responsibilities set
forth in Section 3(a) of this Agreement (which costs shall include, without limitation, an
administrative fee in the amount of five percent (5%) of the costs incurred in connection with the
fulfillment of the responsibilities set forth in Section 3(a) of this Agreement) (collectively,
the "Maintenance Expenses"). Each Owner's pro rata share of the Maintenance Expenses shall be
determined by dividing the acreage of such Owner's Parcel as set forth on the Site Plan by the total
acreage of the Property.
(c) The Owners shall pay their pro rata share of the Maintenance Expenses
to the Responsible Owner of the Shops Parcel within thirty (30) days after receipt by such Owner
of an itemized statement showing the Maintenance Expenses actually incurred and the computation
of their pro rata share from the Responsible Owner of the Shops Parcel. The Responsible Owner of
the Shops Parcel shall not bill the other Owners for their pro rata share of the Maintenance Expenses
more often then once every thirty (30) days.
(d) Once each calendar yew', any of the Owners shall have the right to
have an audit made of the books and records pertaining to the Maintenance Expenses for the
preceding calendar year upon ten (10) days prior written notice to the Responsible Owner of the
Shops Parcel. Such audit shall be performed by a certified public accountant. The party performing
the audit shall promptly provide a copy of the audit upon its completion to the Responsible Owner
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of the Shops Parcel. In the event the audit discloses that the party conducting the audit or any other
Owner has paid more than required under the terms of this Agreement with respect to the
Maintenance Expenses and the Responsible Owner of the Shops Parcel does not dispute the audit
as provided below, the Responsible Owner of the Shops Parcel shall promptly pay the excess to the
affected Owner or Owners. In the event the audit discloses that the party conducting the audit or any
other Owner has paid less than required under the terms of this Agreement with respect to the
Maintenance Expenses, the Owner or Owners in question shall promptly pay the deficiency to the
Responsible Owner of the Shops Parcel. The Responsible Owner of the Shops Parcel shall have the
right to review and dispute the audit in writing (setting forth the reasons for such dispute) if it varies
from the itemized statement prepared by the Responsible Owner of the Shops Parcel within thirty
(30) days of receipt of the audit. If the audit discloses that the party conducting the audit has paid
five percent (5%) or more than required under the terms of this Agreement, than the Responsible
Owner of the Shops Parcel shall reimburse the party conducting the audit for the cost of such audit.
If the parties cannot resolve their dispute, the parties shall select an independent third party certified
public accountant to perform an audit of the books and records pertaining to the Maintenance
Expenses for the preceding calendar year, which third party audit shall be binding on the parties.
The parties shall share the costs of such third party audit.
(e) In the event an Owner (a "Defaulting Owner") is not fulfilling its
obligations set forth in this Agreement, and except in the case of an emergency for which no notice
or cure period shall be required, if such failure continues for a period of thirty (30) days after receipt
of written notice of noncompliance (unless the Defaulting Owner shall have commenced to perform
the same within such period and shall be diligently proceeding to perform the same), then any of the
other Responsible Owners may elect, by written notice to the Defaulting Owner, to fulfill the
obligations the Defaulting Owner pursuant to this Agreement and within thirty (30) days of the
delivery by the Responsible Owner who cured the default (the "Curing Owner") of a statement for
the actual reasonable out-of-pocket costs incurred by the Curing Owner in connection with the
fulfillment of the obligations of the Defaulting Owner pursuant to this Agreement, the Defaulting
Owner shall reimburse the Curing Owner for such costs together with interest thereon from the date
such costs were incurred at a rate of twelve percent (12%) per annum or the highest rate permitted
by law, whichever is lower. Notwithstanding the foregoing, if a Defaulting Owner, for a period of
time in excess of six (6) months, fails to fulfill 'its obligations set forth in this Agreement to a
standard of quality comparable to similar properties in the greater Troy, Michigan Metropolitan
Area, and such failure is material to the use and operation of the Property, any other Responsible
Owner may elect, (i) by written notice to the other Responsible Owners, to temporarily or
permanently undertake the obligations of the Defaulting Owner under this Agreement and
temporarily or permanently discharge the Defaulting Owner of its obligations under this Agreement,
and/or (ii) to seek remedies at law or in equity. Any such Responsible Owner permanently or
temporarily undertaking the obligations of the Defaulting Owner under this Agreement may seek
reimbursement for its costs in accordance with and in the manner and method set forth in this
Agreement. Nothing contained herein shall obligate any of the Responsible Owners (other than the
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Responsible Owner of the Shops Parcel) to undertake any obligations set forth in Sections 2(a) and
3(a).
(0 In the event an Owner fails to pay any sums due pursuant to this
Agreement (a "Defaulting Owner"), the Responsible -Owner to whom the money is owed
(the "Nondefaulting Owner") shall be paid by the Defaulting Owner within thirty (30) days of
presentation of the appropriate statement therefor together with interest thereon from the date said
payment was due at the rate of twelve percent (12%) per annum or the highest rate permitted by law,
whichever is lower.
(g) At anytime maintenance (or any other activity in connection herewith)
is being performed on or about the Property, the Responsible Owner responsible for the maintenance
and its agents and employees shall (i) use best efforts to insure that at all times there shall be clear
vehicular access to the Parcels, (ii) promptly repair any damage to any of the Parcels to a
substantially comparable condition to their condition prior to such maintenance, (iii) not
unreasonably interfere with the use and operations (including, but not limited to the parking) of the
Property, and (iv) use best efforts to provide forty-eight (48) hours prior notice of such maintenance
to the Owner of the Parcel on which such maintenance is to take place.
4. Taxes and Insurance.
(a) The Responsible Owner of the Shops Parcel shall obtain and
continuously maintain (i) comprehensive general liability insurance on the Shops Storm Water
Easement Areas, the Airport Storm Water Easement Areas, the Detention Pond Parcel, the Leads and
the Storm Water System in the amount of $3,000,000.00, combined single limit, (ii) an umbrella
policy in an amount of $10,000,000.00, (iii) at anytime construction work is being performed within
any easement created pursuant to this Agreement, worker's compensation and builder's risk, and
(iv) a policy covering third-party bodily injury and property damage claims, including first party
cleanup costs, as a result of pollution conditions that arise from on-going operational exposures with
limits of coverage of at least Three Million Dollars ($3,000,000.00) per incident, and Five Million
Dollars ($5,000,000.00) aggregate.
(b) The Responsible Owner of the Shops Parcel and the Responsible
Owner of the Airport Parcel, if the Responsible Owner of the Airport Parcel is obligated to pay real
estate taxes or assessments on the Airport Parcel, shall pay or cause to be paid the real estate taxes
and assessments assessed against its Parcel within sixty (60) days prior to the time when any such
non-payment could result in the loss or impairment of -any of the easement rights set forth in this
Agreement.
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(c) Reimbursement of Insurance Costs.
(i) The Owners, except Oakland, shall pay their pro rata
share of all costs incurred by the Responsible Owner of the Shops Parcel in maintaining the
insurance required above in Section 4(a). Each Owner's pro rata share of insurance costs shall be
determined by dividing the acreage of such Owner's Parcel as set forth on the Site Plan by the total
acreage of the Property less the Airport Parcel.
(d) Insurance Requirements. The foregoing insurance coverage shall
(i) name the other Responsible Owners, except Oakland, as additional insureds, (ii) be written by
an insurance company with an AM Best rating of A or better (of if AM Best is no longer rating
insurance companies, an insurance rating company comparable to AM Best) and licensed to do
business in Michigan, and (iii) provide that the insurer will not cancel, materially change or fail to
renew the coverage provided without first providing the other Responsible Owners thirty (30) days
prior written notice thereof. The Responsible Owner carrying the foregoing insurance coverage shall
annually provide the other Responsible Owners with a certificate certifying to the issuance of the
insurance. The Responsible Owner of the Shops Parcel shall be responsible for the payment of any
deductible to be paid in connection with any such insurance claim; provided, however, that any of
the other Owners, except Oakland, shall reimburse the Responsible Owner of the Shops Parcel for
such deductible if and to the extent: (i) the incident giving rise to the insurance claim was
Environmental Damages (as defined below) which occurred or arose on the Parcel of such Owner;
and (ii) such deductible is not fully and completely reimbursed as a reimbursable operating expense
of the Shops Parcel under any document or agreement with respect to the operation of such Parcel
thereof.
5. Easements Run With Land. All easements, covenants and restrictions
contained in this Agreement shall run with and against the Property and shall be a benefit thereto and
a burden thereon. It is understood that if any one or more Parcel(s) may hereafter be divided into one
or more separate parcels, the terms of this Agreement shall be deemed to continue to apply to and
benefit and burden the subparcels of each Parcel, or any one or more of them, and to create the same
rights, easements and obligations as between and among such subparcels as are herein created with
respect to the Parcels.
6. No Dedication to the Public. Nothing contained in this Agreement shall be
deemed to be a gift or dedication of any portion of the Parcels to the general public or for any public
use or purpose whatsoever, it being the intention of the parties hereto that this Agreement is for the
exclusive benefit of the parties hereto and their successors, assigns, mortgagees and tenants, and that
nothing in this Agreement, expressed or implied, shall confer upon any person other than the parties
hereto and their successors, assigns, mortgagees and tenants any rights or remedies under or by
reason of this Agreement. The parties hereto shall have the right from time to time to close all or
any portion of the Parcels to such extent as may be necessary to prevent a dedication thereof to the
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public or the accrual of any rights in any person, not expressly granted rights hereunder, provided,
however, such closure shall not unreasonably interfere with access to or use of the Property by the
Owners and their mortgagees, lessees, sublessee, employees, agents, customers, licensees and
invitees.
7. Effectiveness of this Agreement. The parties hereto intend that upon
execution and recordation of this Agreement with the Oakland County Register of Deeds, this
Agreement and the easements and other terms and conditions contained in this Agreement shall be
superior to the interest of all subsequent mortgages, liens, and other interest of any person or entity
with respect to the Property.
8. Amendment, Modification or Termination. This Agreement may be amended
or modified at any time by either a declaration in writing or an amendment to this Agreement
mutually agreed to, executed and acknowledged by the parties hereto or their successors or assigns
and any first mortgagee then encumbering the Parcels and thereafter duly recorded in the Office of
the Register of Deeds of Oakland County, Michigan.
9. Indemnity. The Responsible Owner of the Shops Parcel ("Indemnitor") shall
pay, defend, indemnify and save harmless the other Owner(s) (individually, an "Indemnitee" and
collectively, the "Indemnitees") from and against, all liabilities, losses, damages, costs, expenses
(including reasonable attorneys' fees and expenses), causes of action, suits, claims, demands or
judgments of any nature arising from any injury to or death of a person or loss of or damage to
property, including real property and personal property, resulting from the negligent acts or
omissions or willful misconduct of the Indemnitor, its agents or contractors (to the extent such agent
or contractor was at the time of the incident, under the direction or control of the Indemnitor) or its
employees (to the extent such employee was, at the time of such incident, engaged in the scope of
such employee's employment with the Indemnitor) to the extent not covered by the insurance
policies described in Section 4 of this Agreement.
10. Environmental Covenants and Indemnity
(a) Each Owner shall operate their respective Parcels in compliance with
Environmental Laws, and shall obtain and comply with all applicable Environmental Permits, each
as defined herein.
(b) Each Owner shall not use, store, generate, handle, dispose or cause a
release or threatened release of any Hazardous Substances on, at or from their respective parcels
except in compliance with Environmental Laws.
(c) Each Owner shall promptly notify the other Owners upon becoming
aware of the release or threatened release of any Hazardous Substances on, at or from their respective
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Parcels which is not in compliance with any permits that such Owner may have or with all applicable
Environmental Laws that enters, has the potential to enter, or that actually or may have the potential
to be exposed to or to come in contact with snow, ice, storm water, groundwater or other waters that
may drain from such Parcels and enter the Leads or the Storm Water System, and each Owner shall
upon request also provide the other Owners with a copy of all notices or other written materials they
may give or receive with respect to any such past (but not further back than ten (10) years from the
date of this Agreement) or present release or threatened release of any such Hazardous Substance
on, at or from their respective Parcels.
(d) Each Owner shall undertake and complete all investigations, studies,
removal and other response or remedial actions to contain and clean-up Hazardous Substances
determined to be present at their respective Parcels or which occur at their respective Parcels to the
extent required by Environmental Laws or as otherwise may be required to prevent the discharge or
release of such Hazardous Substances into the Storm Water System.
(e) An Owner, except Oakland, will pay and indemnify, defend and hold
harmless the other Owners from and against all liabilities, losses, damages, obligations, costs,
expenses (including attorneys' fees and expenses), causes of action, suits, claims, demands,
settlements or judgments actually paid of any nature arising from: (1) such Owner's breach of any
covenant, obligation or agreement set forth in this paragraph 10; and (2) the release or threatened
release of any Hazardous Substances from such Owner's Parcel into the Leads or Storm Water
System (collectively, "Environmental Damages"). Any successor to Oakland's interest in the
Airport Parcel will not be exempt from the provisions of this Section, unless the successor is exempt
or precluded by law from providing indemnification. Oakland will remain exempt from the
indemnification obligations of this Section under any circumstances. Any exemption of Oakland
from the indemnification obligations of this Section will survive the cancellation or termination of
this Agreement.
(f) If a Hamdous Substances spill or release occurs on the Airport Parcel
and is caused by or results from an activity of a tenant or other party using the Airport Parcel (other
than Oakland), and Hazardous Substances from that spill or release reach or have the potential to
reach the Storm Water System and/or the Leads, thereby necessitating a cleanup of the Storm Water
System and/or the Leads, then any of the Responsible Owners (other than Oakland) may give notice
to Oakland of such event and Oakland shall, promptly upon receipt of such notice, give notice to the
responsible tenant or other party using the Airport Parcel to remove and/or rernediate such
Hazardous Substances in accordance with all applicable laws. If the responsible tenant or other party
using the Airport Parcel has not had such Hazardbus Substances removed or remediated in
accordance with all applicable laws within a reasonable period of time warranted by the type of
Hazardous Substances and the magnitude of the pill or release and/or is not diligently pursuing the
same, then Oakland shall permit the other Responsible Owners, to the extent allowable by law or
contract, to exercise a concurrent right with or without Oakland's participation, to enforce any right
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Oakland may have against the responsible tenant or other party using the Airport Parcel (including,
without limitation, legal action and the recovery of attorney fees) to cause such party to have the
Hazardous Substances removed and/or remediated in accordance with all applicable laws. Any such
permission shall be without prejudice to the rights of Oakland against the responsible tenant or other
party using the Airport Parcel. Notwithstanding the foregoing, nothing contained in this Agreement
shall give any other Responsible Owner the right to either act as an agent for Oakland, or to exclude
Oakland, for any reason, from pursuing any cause of action it might have against a tenant or other
party using the Airport Parcel arising out of, or resulting from, a spill or release of Hazardous
Substances on the Airport Parcel.
(g) For the purposes of this, the following terms shall have the meanings
set forth below:
(i) "Environmental Laws" means all federal, state and local laws,
rules, regulations and ordinances relating to pollution or the protection of the environment including,
but not limited to, those governing the use, storage, treatment, handling, production or disposal of
Hazardous Substances and/or the emission, discharge or release of Hazardous Substances into the
environment.
(ii) "Hazardous Substances" means any hazardous or toxic
substance, waste, material or pollutant as defined or regulated under any applicable Environmental
Law.
(iii) "Environmental Permits" means any and all permits, licenses,
approvals, authorizations or consents required under any Environmental Law in connection with the
ownership, use, and/or operation of any Parcel.
11. Successors. This Agreement shall be binding upon and inure to the benefit of
the parties designated herein, their heirs, executors, administrators, beneficiaries, successors and
assigns, provided that the respective Owners of the Parcels forming the Property shall be liable in
money damages and subject to an action for specific performance only for breaches of the
undertakings contained in this Agreement occurring during their respective periods of ownership of
each Parcel; provided further, however, that any successor-in-title to any of the Parcels shall be
subject to an action for specific performance with respect to breaches of undertakings hereunder
which occurred during the ownership of any predecessor-in-title.
Notwithstanding anything to the contrary set forth in this Agreement, so long
as the Bradley Parcel is owned by Bradley or an affiliate of Bradley, Mentor shall pay the Bradley
Parcel's pro rata share of the Maintenance Expenses as set forth in Section 3(b) hereof and the
annual reports for the Bradley Parcel in connection therewith shall be sent to Mentor.
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12. Governing. Law. This Agreement shall be construed in accordance with the
laws of the State of Michigan and all proceedings shall be heard at the Oakland County Circuit Court
or the Federal District Court for the Eastern District of Michigan.
13. Headings. The paragraph headings in this Agreement are for convenience
only, shall in no way define or limit the scope or content of this Agreement and shall not be
considered in any construction or interpretation of this Agreement or any part thereof.
14. No Partnership. Nothing in this Agreement shall be construed to make the
parties hereto partners or joint venturers or render any of said parties liable for the debts or
obligations of the others.
15. Notices.
(a) Any notice, demand, request, consent, approval, designation, or other
communication made pursuant to this Agreement by one Owner to another Owner shall be in writing
and shall be given or made or communicated by personal delivery, by United States registered or
certified mail, return receipt requested, by facsimile, with confirmation confirmed and followed by
a copy sent in the United States mail, or by prepaid Federal Express or other recognized overnight
delivery service addressed at the addresses set forth on Page 1 of this Agreement. All notices to
Mentor shall be sent to the attention of its Real Estate Department. Any Owner may designate a
different address by notice similarly given. Any mortgagee of any Parcel must furnish to the Owners
of the other Parcels an address for notices in compliance with this Section in order to be entitled to
notices under this Agreement.
(b) Any notice, demand, request, consent, approval, designation or other
communication so sent shall be deemed to have been given, made or communicated, as the case may
be, on the date the same was personally delivered or delivered by the United States mail as registered
or certified mail, with postage thereon fully prepaid or by Federal Express or other recognized
overnight delivery service.
(c) No party other than Business, Shops, Mentor, Bradley or Oakland
shall be entitled to notice as a Responsible Owner unless such party shall have recorded a notice of
its designation as Responsible Owner as provided in this Agreement with a description of the Parcel
with respect to which it is a Responsible Owner with the Oakland County Register of Deeds.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when so executed and delivered, shall be deemed to be an original, but
all such counterparts taken together shall constitute one and the same Agreement.
11
195215.12
17. Severability. In the event any provision or portion of this Agreement is held
by any court of competent jurisdiction to be invalid or unenforceable, such holding will not effect
the remainder hereof, and the remaining provisions shall continue in full force and effect at the same
extent as would have been the case had such invalid or unenforceable provision or portion never
been a part hereof (unless the provision or portion held invalid or unenforceable effectively voids
this Agreement) and the parties shall negotiate in good faith a valid and enforceable provision or
portion similar in intent and effect to such invalid or unenforceable provision or portion.
18. Equitable Remedies. In the event of any violation or threatened violation of
any of the provisions of this Agreement by one of the parties, the other parties shall have the right
to apply to a court of competent jurisdiction for an injunction against such violation or threatened
violation, and/or for a decree of specific performance.
19. Additional Parties. No Owner shall grant to another property owner adjacent
to the Property (unless such property owner is already a party to this Agreement) the right to use any
of the easements set forth in this Agreement without the written consent of all of the Owners
benefitted and/or burdened by such easement.
20. Miscellaneous.
(a) Time is of the essence in the performance of the parties' obligations
hereunder.
(b) For the purposes of this Agreement "Owner" shall mean any person
or entity who or which is the record owner of fee simple title to the Business Parcel, the Shops
Parcel, the Mentor Parcel, the Bradley Parcel or the Airport Parcel, or any portion thereof. For
purposes of this Agreement, "Responsible Owner" shall mean the Owner of the Business Parcel, the
Owner of the Shops Parcel, the Owner of the Mentor Parcel, the Owner of the Bradley Parcel and
the Owner of the Airport Parcel; provided, however, that if any such Owner shall convey its interest
in any portion of a Parcel in such a manner as to create multiple Owners of a Parcel, then such
multiple Owners shall designate one of their number to act on behalf of all such Owners in the
performance of the provisions of this Agreement, which Owner so designated shall be herein referred
to as the "Responsible Owner". Any such designation shall be in writing, duly executed and
acknowledged by all multiple Owners of a Parcel including the Owner so designated, and recorded
with the Office of the Register of Deeds of Oakland County. A copy of such designation shall be
sent to each other Responsible Owner in the Property. In the absence of any such written, recorded
and mailed designation, the Owner of the largest subflarcel of any such divided Parcel shall be the
Responsible Owner of such Parcel; provided, however, that for so long as Business is the Owner of
any portion of the Business Parcel, it shall be deemed to be and shall be the Responsible Owner of
the Business Parcel; for so long as Shops is the owner of any portion of the Shops Parcel, it shall be
deemed to be and shall be the Responsible Owner of the Shops Parcel; for so long as Mentor is the
'12
195215.12
Owner of any portion of the Mentor Parcel, it shall be deemed to be and shall be the Responsible
Owner of the Mentor Parcel; for so long as Bradley is the Owner of any portion of the Bradley
Parcel, it shall be deemed to be and shall be the Responsible Owner of the Bradley Parcel; and for
so long as Oakland is the Owner of any portion of the Airport Parcel, it shall be deemed to be and
shall be the Responsible Owner of the Airport Parcel.
(c) No walls, fences, or barriers of the sort that could reasonably prevent
or impair the use or exercise of any of the easements granted herein shall be constructed, maintained
or altered in any portion of the Parcels without the prior written consent of the other Owners.
Notwithstanding the foregoing, it is acknowledged by the Owners that Oakland is required by the
Federal Aviation Administration to maintain certain fences and barriers on the Airport Parcel which
may impair the ability to construct and maintain the Leads and the Storm Water System in
accordance with Sections 2(a) and 3(a) hereof, but Oakland will reasonably permit access onto the
Airport Parcel for such construction and maintenance in accordance with this Agreement.
(d) Any Owncr shall have the right to enforce the provisions of this
Agreement by an appropriate action at law or in equity, including, without limitation, an action for
specific performance.
IN WITNESS WHEREOF, the parties hereto have hereunto set their respective authorized
signatures as of the day and year first above written.
WITNESSES: CAMBRIDGE CROSSINGS BUSINESS #1, L.L.C.,
a Michigan limited liability company
By: _
David R. Nelson
Its: Sole Member
13
195215.12
STATE OF MICHIGAN
COUNTY OF OAKLAND
The foregoing instrument was acknowledged before me this day of , 1999
by David R. Nelson, the Sole Member of Cambridge Crossings Business #1, L.L.C., a Michigan
limited liability company, on behalf of the company.
Notary Public, Oakland County,
State of Michigan
My Commission Expires:
CAMBRIDGE CROSSINGS SHOPS #1, L.L.C., a
Michigan limited liability company
By:
'David R. Nelson
Its: Sole Member
STATE OF MICHIGAN )
) ss.
COUNTY OF OAKLAND )
The foregoing instrument was acknowledged before me this day of , 1999
by David R. Nelson, the Sole Member of Cambridge Crossings Shops #1, L.L.C., a Michigan limited
liability company, on behalf of the company.
Notary Public, Oakland County,
State of Michigan
My Commission Expires:
) ss.
14
195215.12
MERITOR HEAVY VEHICLE SYSTEMS, LLC, a
Delaware limited liability company
By:
Its:
STATE OF MICHIGAN )
) ss.
COUNTY OF OAKLAND )
The foregoing instrument was acknowledged before me this day of , 1999
by , the of Mentor Heavy Vehicle Systems, LLC, a
Delaware limited liability company, on behalf of the company.
Notary Public, Oakland County,
State of Michigan
My Commission Expires:
15
Its:
SS.
195215.12
ALLEN-BRADLEY COMPANY, a Delaware
corporation
By:
STATE OF MICHIGAN )
COUNTY OF OAKLAND )
The foregoing instrument was acknowledged before me this day of
by Allen-Bradley Company, a Delaware corporation, on behalf of the corporation.
, 1999
Notary Public, Oakland County,
State of Michigan
My Commission Expires:
16
195215.12
COUNTY OF OAKLAND, a Michigan constitutional
and municipal corporation
By:
Its:
STATE OF MICHIGAN
) ss.
COUNTY OF OAKLAND
The foregoing instrument was acknowledged before me this day of , 1999
by County of Oakland, a Michigan constitutional and municipal corporation, on behalf of the
corporation.
Notary Public, Oakland County,
State of Michigan
My Commission Expires:
DRAFTED BY AND AFTER
RECORDING RETURN TO:
Karen R. Pifer, Esq.
DYKEMA GOSSETT PLLC
1577 North Woodward Avenue, Suite 300
Bloomfield Hills, Michigan 48304
17
195215.12
EXHIBIT "A"
BUSINESS PARCEL
195215.12
EXHIBIT "B"
SHOPS PARCEL
195215.12
EXHIBIT "C"
MERITOR PARCEL
195215.12
EXHIBIT "D"
BRADLEY PARCEL
D-1
t a 4 IIP f
195215.12
EXHIBIT "E"
AIRPORT PARCEL
E-1
•• I Pt I
195215.12
EXHIBIT "F"
SITE PLAN
NORTH LINE OF SECTION 32
to 111 ' rl Z
z 0
I xi • 2 I tO 04*. at.4 —• CA 0 —a
M I 3
N89381341iW 412.61'
N8938'34"W
76.92'
rn
fa- M. 117,0 1.00S P
S
• 3
496, 04 .
1158.36'
_
SE1812' 22*W 373.63'
414'
CO
- CO
C.4
P P•3
431 - h) 7 U) m sits ...CT 0
.sec%S.1 NJ°
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o
848.21'
\N . 22 22/".1/4
POND EASEMENT
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Sf19'.38'21 °E tik S8953'40*E
MAPLE ROAD 120 E. WD.
00—s, sst\
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489.74'
(A. 4).
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260.01'
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N89•30111WW
\k\s, PROPOSED
01111inual.
OF A4/6
tr,
.4teo 1 JAMES P. ist 7,t1
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= EN.GJEEER
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• •
EXHIBIT
. •
LEGAL DESCRIPT1ON-PROPO8ED POND EASEMENT
Port of the Northeast 1/4 of Section 32, T. 2 N., R. 11 E., City of Troy, Oakland County,
Michigan, being more particularly described as commencing at the North 1/4 Corner of
said Section 32; thence S.0029'31*W., 1,503.52 feet along the North and South 1/4 line
of said Section 32; thence S. 891011" E., 233.59 feet to the point of beginning; thence
S. 8910'11 . E., 1,108.22 feet; thence S. 66 -04'57'` E., 145.76 feet; thence N. 88'3222 E.,
156.12 feet; thence N. 65'20'24" E. 147.66 feet; thence S. 0010 .52. W., 78.20 feet;
thence S. 8812 122 W., 373.63 feet; thence S. 0010 141 W.. 112.29 feet; thence
N. 88'08'45 W., 1158.36 feet; thence N. 0003'45 E., 165.65 feet to the point of beginning.
NOWAK & FRAN = Civil Engineers Land Surveyors
1310 N. Stecherroon-Highooy •Taj- (240 3S0-01184
RÔ Otic, Michigan 48067-1508 Fax. (248) 395—oect5
XS No. SHEET
A.—R217 2 of 2
DATED:
08-10-99
Ii
Resolution #99339 December 16, 1999
Moved by Palmer supported by Garfield the resolution be adopted.
AYES: Obrecht, Palmer, Patterson, Schmid, Sever, Suarez, Taub, Amos,
Appel, Causey-Mitchell, Colasanti, Coleman, Dingeldey, Douglas, Galloway,
Garfield, Gregory, Jensen, Law, McCulloch, McPherson, Melton, Millard,
Moffitt. (24)
NAYS: None. (0)
A sufficient majority having voted therefor, the resolution was adopted.
I HEREBY E POREGOING RESOLUTION
ooks Pattoprok County Exec:IAN, Dato
STATE OF MICHIGAN)
COUNTY OF OAKLAND)
I, G. William Caddell, Clerk of the County of Oakland, do hereby certify that the
foregoing resolution is a true and accurate copy of a resolution adopted by the
Oakland County Board of Commissioners on December 16, 1999 with the original
record thereof now remaining in my office.
In Testimony Whereof, I have hereunto set my hand and affixed the seal of the
County of Oakland at Pontiac, Michigan this 16th day of December, 1999.
4it=1,21.,
William Caddell, County Clerk