STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF INGHAM BUSINESS COURT BLOCK 100 LIMITED. PARTNERSHIP, @ Minnesota limited partnership, CaseNo.18- | 1% -ce Hon, BOSEMARIE AQUIINA Plaintiff, VERIFIED COMPLAINT v CITY OF LANSING, a municipal corporation, BUSINES: E: and LANSING BUILDING AUTHORITY, CASE MEETS REQUIREMENTS TO BE a Michigan body corporate, ASSIGNED TO THE BUSINESS COURT Defendants, a, | George M. Brookover (P25391) GEORGE BROOKOVER PC Counsel for Plaintiff 1005 Abbot Rd East Lansing, MI. 48823-2613 (517) 336-4300 Melissa A. Hagen (P42868) Gail A. Anderson (P38396) Gregory L. McClelland (P28894) McCLELLAND & ANDERSON, LLP Co-Counsel for Plaintiff 1305 S. Washington Ave, Suite 102 Lansing, Ml 48910 (517) 482-4890 — LEG NOW COMES Plaintiff, Block 100 Limited Partnership (the “Partnership”), by its counsel, George Brookover PC and its co-counsel, McClelland & Anderson, LLP, and for its Verified Complaint against Defendants City of Lansing (the “City”) and Lansing Building Authority (the “Authority”) (collectively, “Defendants”, states: %» As! e vTHE PARTIES 1. The Partnership is a Minnesota Limited Partnership with its principal office located at 333 South 7% Street, Suite 3100, Minneapolis, Minnesota 55402 and which does business in Ingham County, Michigan. 2. The City is a Michigan municipal corporation with offices located at 316 N. Capitol Avenue, Lansing, Michigan 48933. 3. The Authority isa body corporate established by Act 31, Public Acts of Michigan, as amended and, in relevant part, authorized to own, maintain and lease parking rights. JURISDICTION 4, The Business Court has jurisdiction over this matter pursuant to MCL 600.8035(1), MCL 600.8031(2)(e) and (f) and for the reason that the Partnership is seeking declaratory and equitable relief. VENUE 5. Ingham County is the proper county in which to commence and try this action pursuant to MCR 600.8035 and for the reason that the real property which is the subject matter of this lawsuit, as well as the parties, are located in and/or do business in Ingham County, Michigan. GENERAL ALLEGATIONS 6. The City was the prior owner of real property located at 201 North Grand Avenue, Lansing Michigan 48933 and the parking structure located thereon (the “North Grand Ramp").the parking rights of the Hotel Parcel is void and without legal effect and that the Partnership and its customers are entitled to the parking spaces identified in the Parties’ agreements at prevailing rates without discrimination. WL, STATEMENT OF FACTS” A. The Parties and Their Current Property Interests As indicated, the Partnership is the current owner of the Hotel Parcel, The Authority is the current owner of the North Grand Ramp. The City does not currently own any property at issue in this lawsuit. The City was the owner of the North Grand Ramp, but conveyed the North Grand Ramp to the Authority on February 3, 1971. A copy of the recorded Warranty Deed is attached as Exhibit 2. B, The Transaction at Issue In 1985, the Parties entered into multiple integrated agreements in which the City and Authority agreed to provide parking for the benefit of the Hotel Parcel in consideration for the Partnership’s agreement to buy the Hotel Parcel and construct and operate the Radisson Hotel (the “Transaction”). Various agreements between the Parties relative to the Transaction were recorded together with the Ingham County Register of Deeds on July 10, 1984 at Liber 1517, Pa; 46-865. The specifics of those agreements are as follows. First, prior to the Partnership’s purchase of the Hotel Parcel, on May 20, 1985, the Authority, as “Declarant” and owner of the North Grand Ramp, entered into a Parking Rights License Declaration (“Parking Declaration”) with the City, as “Lessee.” Under such agreement, the Authority and the City established certain parking rights in the North Grand Ramp for the ° The facts as set forth herein are verified by the Affidavit of James J. Phelps (“Phelps Affidavit”), attached as Exhibit 1 and the other Exhibits attached hereto. The facts as set forth herein are undisputed ~ the City having failed to provide this Court with a recitation of any of the relevant facts of this case or any citation to the record or other supporting evidence. 3benefit_of the Hotel Parcel. The Parking Declaration refers to the Hotel Parcel as the “Dominant Parcel” and the North Grand Ramp as the “Servient Parcel” and provides: WHEREAS, as_a condition of the sale of land legally described in Exhibit A [the Hotel Parcel] which is attached hereto and made a part of this Declaration and is hereinafter referred to as the Dominant Parcel, the Declarant [the Authority] and Lessee [the City] have agreed to create certain parking rights in the Servient Parcel [the North Grand Ramp] for the benefit of the ‘Dominant Parcel [the Hotel Parcel]. NOW, THEREFORE, Declarant and Lessee hereby state as follows: 1. Subject to the terms of this Declaration, the Declarant, its successors and assigns, and Lessee hereby establish and grant the following non-exclusive license upon the Servient Parcel {the North Grand Ramp]: A license to use up to three hundred (300) parking spaces for the purpose of providing employee and guest parking for the benefit of the Dominant Parcel {the Hotel Parcel] at the prevailing rates which will be payable to the Declarant or Lessee and pursuant to the May 20, 1985 Parking Agreement agreed to between the Block 100 Limited Partnership and the Lessee as set forth, Parking Declaration, p 1, Exhibit 3 (emphasis supplied). Second, also on May 20, 1985, and also prior to the Partnership’s purchase of the Hotel Parcel, the Partnership acquired parking rights from the City in the North Grand Ramp for the benefit of the Hotel Parcel pursuant to the “Parking Agreement” referenced in the Parking Declaration. The Parking Agreement establishes the number, location and frequency of rights in parking spaces and a duration of those rights as follows: 7. The term of this Agreement and the right to provide parking within the North Grand Parking Garage shall be governed by this ‘Agreement and by the Parking Rights License Declaration granted by the Lansing Building Authority and the City of Lansing to the Block 100,Parking Agreement, 17, Exhibit 4 Third, in anticipation of the Partnership’s purchase of the Hotel Parcel and the construction and operation of the Radisson Hotel, the City and the Authority received an easement across the Hotel Parcel from the then owner of the Hotel Parcel — the Economic Development Corporation of the City of Lansing (the “EDC”). The purpose of the easement was for the construction of a pedestrian bridge connecting the Hotel Parcel and the North Grand Ramp. A copy of the “Pedestrian Bridge Easement” is attached as Exhibit 5. Fourth, the final piece of the Transaction was for the Partnership to acquire the Hotel Parcel via a certain “Land Contract” which it entered into with the EDC on July 10, 1985. The Partnership paid off the Land Contract in the mid 1990"s and received a deed for the Hotel Parcel on February 19, 2009. A copy of the Land Contract is attached as Exhibit 6. A copy of the “Hotel Parcel Deed” is attached as Exhibit 7. C. Parking Rights The Parking Agreement requires the City to provide up to 75 parking spaces in the “southeast and south central bays” of the ground floor of the North Grand Ramp to the Partnership for use by the Radisson Hotel for valet parking (the “Parking Spaces”). In consideration for the Parking Spaces, the Partnership agreed to pay the City the prevailing monthly rate for each parking space provided and reserve the spaces for a minimum timeframe of six (6) months. If the Partnership fails to pay, the City must provide notice of default and a 30-day opportunity to cure to the Partnership before the City can terminate its obligation to provide the Parking Spaces. Parking Agreement, 111-2, Exhibit 4, In addition, the Parking Agreement requires that, from time to time, the City to provide an additional 225 parking spaces, the location of which is in the sole discretion of the City,if given three (3) days written notice by the Partnership (the “Additional Parking Spaces”). In consideration for the City’s provision of the Additional Parking Spaces, the Partnership agreed to pay the prevailing rate for the spaces and only reserve the Additional Parking Spaces on a daily basis. Again, if the Partnership fails to pay, the City must provide notice of default and a 30-day opportunity to cure to the Partnership before the City can terminate its obligation to provide the Additional Parking Spaces. Parking Agreement, 13, Exhibit 4, Importantly, the Parking Agreement provides that its terms cannot be waived or modified unless executed in writing by both parties thereto - the City and the Partnership. And, the Parking Agreement cannot be terminated except for non-payment (as discussed above) or in accordance with the terms of the Parking Declaration. Specifically, the Parking Agreement states that the term or duration of the Parking Agreement “shall be governed by the [Parking] Agreement AND by the Parking. . . Declaration.” Parking Agreement, $7, Exhibit 4. In turn, the Parking Declaration provides that it and the Parking Agreement may be terminated only if: 1. the Hotel (Dominant) Parcel is no longer used as a hotel; 2. the North Grand Ramp (Servient Parcel) is no longer used as a parking garage; or 3. the Partnership fails to pay in accordance with the Parking Agreement after 30 days written notice of default. Parking Declaration, 12, Exhibit 3. Since completion of construction of the Radisson Hotel, the Partnership has used the Parking Spaces on a monthly basis and the Additional Parking Spaces as needed on a daily basis. for special events in downtown Lansing and the Convention Center, high occupancy or otherwise. Since completion of construction of the Radisson Hotel, the Partnership has timely * It should be noted that the “License” agreement mandates that, if the North Grand Ramp is ever decommissioned, it is incumbent on the City to provide “. . . comparable parking facilities + Within a reasonable proximity ....”paid the City for all amounts owed for parking under the Parking Agreement. D. Unilateral and Wrongful Termination In 2014, a dispute arose between the City and the Partnership about parking rates. At the time, the City was short on available parking, having earlier unilaterally demolished over half of the North Grand Ramp and, in the process, losing approximately 1000 parking spaces. This demolished North Grand Ramp “addition” had been specifically built in conjunction with the Lansing Center and the Radisson Hotel. Astonishingly, effective September 1, 2014, the City: (1) improperly attempted to terminate the Parking Declaration between itself and the Authority; and (2) improperly declared the Parking Agreement between itself and the Partnership terminated as being “coterminous” with the Parking Declaration. A copy of the August 4, 2014 City correspondence to the Authority and to the Partnership (the “Termination Notice”) is attached as Exhibit 8. ‘The Partnership immediately and continuously objected to and contested the City’s improper actions and the Termination Notice and requested that the Termination Notice be withdrawn. The office of the City attomey ignored these requests. See, for example, correspondence attached to Verified Complaint as Exhibit 8 and Exhibit 10 hereto. E, The Interim Parking Agreement and Negotiations Soon after the Partnership made its objections to the Termination Notice in 2014, it became apparent that there would be no quick resolution. Under the threat of immediate wrongful cancellation, and without cancelling, revoking, waiving or modifying the Parking Agreement or the Parking Declaration, the Partnership agreed to an “Interim Parking Agreement” under which the City could, or would, perform and which allowed the Partnership to continue providing valet parking to hotel customers without interruption.The Interim Parking Agreement temporarily instituted more specific terms as to parking operations. The Interim Parking Agreement further provided: ‘The parties hereby reserve any and all claims they have against each other and this Interim Parking Agreement does not waive, Parking Rights License Declaration _and Parking Agreement da 985. During the period the Interim Agreement is effective, the parties agree that they will refrain from initiating litigation against the other in reliance on the License and Parking Agreement with spect to the terms contained therein, Interim Parking Agreement, 113, Exhibit 9 (emphasis supplied). The Interim Parking Agreement became effective around September 1, 2014 and terminated on December 1, 2014, The Parties did not resolve their differences relating to the parking during the express term of the Interim Parking Agreement. Although the City failed to carry out its interim obligations, after the termination of the Interim Parking Agreement, the Partnership and the City simply continued to conduct their business relationship in accordance with the 1985 Agreements, F. The Lawsuit Throughout the remainder of 2014 and thereafter, the Partnership continued to request that the City withdraw the Termination Notice and the City continued to refuse. In 2017, the situation escalated when the Partnership advised the City that it wanted to proceed with a significant investment to the Hotel. The Plaintiff informed the City that, in order to do so, the Partnership still needed the City to withdraw the Termination Notice. A copy of the Partnership's November 2, 2017 correspondence to the City is attached as Exhibit 10. The City again refused to withdraw the Termination Notice. A copy of the City’s November 29, 2017 correspondence to the Partnership’s counsel is attached as Exhibit 11. Notwithstanding its refusal to withdraw the Termination Notice however, throughout 4+ years of negotiations,the City has never, until now, taken the position that the Interim Parking Agreement terminated and/or replaced the Parking Declaration and Parking Agreement. To the contrary, as referenced in the Interim Parking Agreement itself, the City and the Partnership have always agreed that the operative governing documents regarding parking rights were the Parking Declaration and the Parking Agreement. In January 2018, the City suddenly withdrew from its prior representations regarding resolution and backtracked to the untenable position now enunciated by Defendants in their Motion. As the Court can see, the Defendants now take the position that they have no obligations to the Plaintiff and the City’s promises of 1985 are meaningless and unenforceable, ‘The Partnership, therefore, became justifiably apprehensive that, absent a judicial declaration of its rights under the Parking Agreement and Parking Declaration, the City would once again unilaterally cease providing parking and/or otherwise obstruct and impede parking for the Radisson Hotel. This lawsuit is the unfortunate result of the City’s misguided attempt to pretend its legal promises mean nothing. IV, ARGUMENT A. Standard of Review A motion for summary disposition based on a failure to state a claim upon which relief may be granted is tested by the pleadings alone and examines only the legal basis of the complaint. MCR 2.116(C)(8). The motion for summary disposition will be denied unless the claim or defense is so clearly unenforceable as a matter of law that no factual development could Possibly justify recovery. Shirilla v City of Detroit, 208 Mich App 434; 528 NW2d 763 (1995). A motion for summary disposition pursuant to MCR 2.116(C)(10) tests whether there is factual support for a claim. If there are genuine issues of fact and/or the moving party is not‘The parties hereby reserve any and all claims they have against each other and this Interim Parking Agreement does not waive, extinguish, and/or release any claims any party has under the Parking Rights License Declaration and Parking Agreement dated May 20, 1985. During the period the Interim Agreement is effective, the parties agree that they will refrain from initiating litigation against the other in reliance on the License and Parking Agreement with respect to the terms contained therein, Interim Parking Agreement, 1113, Exhibit 9, This language demonstrates absolutely no consent on the part of both the Partnership and the City to replace the Parking Agreement with the Interim Parking Agreement. To the contrary, this language is the antithesis of consent to supercede or replace. The Partnership as well as the City expressly preserved the Parking Agreement and the Parking Declaration and any claims (including specific performance, declaratory relief, breach of contract, promissory estoppel and injunctive relief) they might have against each other “with respect to the terms contained therein.” ‘The City’s allegations to the contrary are without merit and border on being frivolous.’ 2, The Parking Declaration Applies In This Case The City also disputes that the Parking Declaration is a controlling agreement in this case for the reason that the Partnership is not a third-party beneficiary of the Parking Declaration. ‘The City’s argument in this regard is totally misplaced. The Partnership has not pled a claim under the third party beneficiary doctrine nor does the Partnership need to be a third party * Moreover, the City misrepresents the content of the Partnership's pleadings to this Court. ‘The Partnership's Complaint at 120 does not, as claimed by the City, “acknowledge” that the Interim Parking Agreement “replaced” the Parking Agreement. City’s Brief, p 8. Paragraph 20 of the Partnership's Complaint states: “Subsequent discussions between the City and the Partnership resulted in an ‘Interim Parking Agreement,’ which became effective on September 1, 2014 and terminated on October 31, 2014. A copy of the Interim Parking Agreement is attached as Exhibit 7.” Exhibit 7 was replaced by the Partnership’s Supplement to Verified Complaint filed on April 23, 2018. The fully executed and true and accurate Interim Parking Agreement is attached hereto as Exhibit 9 and verified by Mr. James Phelps in his Affidavit, Exhibit 1. uentitled to judgment as a matter of law, the motion must be denied. Smith v Globe Life Ins Co, 460 Mich 446, 454-455 and fn 2; 597 NW2d 28 (1999), “There is a genuine issue of material fact when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party.” Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008). “Circumstantial evidence can be evaluated and utilized in regard to determining whether a genuine issue of material fact exists for purposes of summary disposition.” Bergen v Baker, 264 Mich App 376, 387; 691 NW2d 770 (2004). B. _ The Controlling Agreements In This Case are the Parking Agreement And Parking Declaration 1. ‘The Parking Agreement Was Not Terminated Without citing any legal authority whatsoever, the City disputes that the terms of the Parking Agreement are controlling in this case, claiming it was terminated and replaced by the Interim Parking Agreement, allegedly resulting in anovation. This is untrue, A novation requires: (1) parties capable of contracting; (2) a valid obligation to be displaced; (3) consent of all parties to the substitution based upon sufficient consideration; and (4) the extinction of the old obligation and the creation of a valid new one. In the Matter of the Dissolution of F. Yeager Bridge & Culvert Co, 150 Mich App 386, 410; 389 NW2d 99 (1986) (emphasis supplied). The consent necessary for a novation may not be implied from the mere performance of any new agreement. Fender v Feighner, 265 Mich 536, 538; 251 NW 536 (1933). Here, the language of, and the absence of language in, the Interim Parking Agreement belies the City’s assertion that the Interim Parking Agreement terminated and replaced the Parking Agreement, The Interim Parking Agreement contains no language to indicate that it was intended to supercede or replace either the Parking Agreement or the Parking Declaration. To the contrary, the Interim Parking Agreement provides 10beneficiary in order to prevail on its claims made in this lawsuit. Under Michigan law, when parties enter into multiple agreements relating to the same subject matter, courts must read those agreements together to determine the parties” intentions. Culver v Castro, 126 Mich App 824, 826; 338 NW2d 232 (1983), citing Reber v Pearson, 155 Mich 593; 119 NW 897 (1909). This long-standing principle of Michigan law was recently reaffirmed by the Michigan Supreme Court in Wyandotte Electric Supply Co v Electrical Tech ‘Sys, Inc, 499 Mich 127; 881 NW2d 95 (2016), in which the Court concluded that agreements should be considered together where they are all “directed to the same end.” Id. at 148. Similarly, Michigan law requires courts to construe agreements together as a whole where they reference one another. In re Estate of Koch, Mich App __; __ NW2d __ (2017) (Docket No. 332583). The Koch Court relied on Whittlesey v Herbrand Co, 217 Mich 625; 187 NW 279 (1922) in which the Michigan Supreme Court explained: Since a contract must be construed as a whole, effect must be given to writings incorporated in the contract by reference. * * * The parties may if they choose, adopt an existing contract in writing by an express reference thereto. If a contract by which A agrees to sell to B a part of A’s right under A’s contract with C and the contract with A and B refers in express terms to the contract between A and C, both of such contracts must be construed together. Id, at 628, A similar factual scenario is present here, The Parking Agreement and Parking Declaration expressly reference one another. The Parking Declaration specifically references Paragraph 3 of the Parking Agreement as the proper manner in which to default the Partnership under the Parking Declaration (failure to pay after 30 days written notice of default). Parking Declaration, 12(c), Exhibit 3. Similarly, the Parking Agreement expressly states that its “term,” and “the right to provide parking within the North Grand [Ramp]” are governed by the 12Parking Declaration. Parking Agreement, 17, Exhibit 4. In addition, the Parking Agreement and Parking Declaration are part of the multiple agreements entered into by the Parties all relating to, and promoting, the development and operation of the Hotel Parcel with the Radisson Hotel. Therefore, as a matter of law, the Parking Agreement and the Parking Declaration must be construed together for purposes of establishing the parking rights and obligations attendant to the Hotel Parcel.> C. This Parking Agreement And The Parking Declaration Create Rights Which Benefit The Hotel Parcel And Which May Not Be Unilaterally ‘Terminated By The City The City claims that the Parking Declaration created only a license which the City may revoke at will. City’s Brief, p 6. The City’s argument is not supported by Michigan law and the undisputed facts of this case.° In Michigan, licenses are generally revocable unless they are either: (1) a license coupled with an interest; or (2) a license incidental to an interest in land (in other words, actually an easement). Forge v Smith, 458 Mich 198; 580 NW2d 876 (1998). In the second instance, allicense is not revocable when the terms of the written instrument make clear that something ‘more than a temporary use of land has been promised. In other words, if the terms of the written * Further, the City’s unsupported, unsubstantiated statements that “introductory clauses of contracts are informative, but not to be interpreted as controlling or creating rights” is simply false. City’s Brief, pp 4 and 10. A cardinal rule under Michigan law is that contracts are to be construed as a whole and all of their provisions are to be harmonized, giving effect to every word and phrase. Assoc Truck Lines, Inc v Baer, 346 Mich 106, 110; 77 NW2d 384 (1956); see also, Blue River Fin Group, Inc v Elevator Concepts Ltd, unpublished opinion per curiam of the Court of Appeals, issued July 29, 2014 (Docket No. 315971); 2014 WL 3747622, construing and relying on the “introductory paragraph” of the agreement therein at issue. Blue River, *4. For the Court’s convenience, a copy of the Blue River opinion is attached as Exhibit 12, * Interestingly, the City does not make the same claim with respect to the Parking Agreement, In fact, the only issue taken by the City with respect to the Parking Agreement is that it was terminated and replaced by the Interim Parking Agreement which, as previously discussed, is untrue. 13agreement in effect provide for easement rights or leasehold rights, those terms should be enforced. ‘Michigan law also demonstrates that, when distinguishing a license from an easement, “the label that the parties give the right does not dictate its legal effect.” Rather, “the critical factor is the parties’ intent.” Bruce and Ely, Law of Easements and Licenses in Land, §1:5. ‘Therefore, in Morrill v Mackman, 24 Mich 279; 1872 WL 3197, the Michigan Supreme Court held that a document labeled a “license” was not revocable where the terms of the written instrument made clear that something more than a temporary use of land had been promised. The Court stated: Where something beyond a mere temporary use of the land is promised; where the promise apparently is not founded on personal confidence, but has reference to the ownership and ‘occupancy of other lands, and is made to facilitate the use of those ands in a particular manner and for an indefinite period, and where the right to revoke at any time would be inconsistent with the evident purpose of the permission; wherever, in short, the purpose has been to give an interest in the land, there may be a license bi there will also be something more than a license, if the proper formalities for_the conveyance of the proposed interest have been observed. What that interest shall be called in the law may depend upon the character of the possession, occupancy or use, the promisee is to have, the time itis to continue, and perhaps upon the mode in which the compensation, if any, is to be made therefor. Itmay be an easement or it may be a lease hold interest; or if the proper grant or demise has not been executed for the creation of either of these, the permission to make use of the land may still constitute a protection to the party relying upon it, until withdrawn, 14Morrill, 24 Mich at 283 (emphasis supplied).’ Accordingly, while the Parking Declaration may be titled a “license,” that fact does not end the discussion on the nature of the rights created by the Parking Declaration and the Parking Agreement, as construed together. Here, there are numerous factors supporting the Partnership's position that the Hotel Parcel’s right to use the North Grand Ramp was intended to tun with the land and be terminable only in accordance with the express terms of the Parking Agreement and Parking Declaration First, and perhaps foremost, the Transaction was purposefully structured such that the Partnership would end up with fee simple title to the Hotel Parcel. The Partnership, not the City, owns the “Dominant” or Benefitted Parcel. The Authority, not the City, owns the “Servient” Parcel. In short, it is the Partnership, as owner of the “Dominant [Hotel] Parcel,” not the City, who pursuant to the Parking Declaration became the party in interest to the parking rights in the Servient [North Grand Ramp] parcel. The City, therefore, has no right to terminate Significant precedent in support of these legal principles exists in other states. For example, in Beal v Eastern Air Devices, Inc, 403 NE2d 438 (Mass App 1980), the court found an easement because the record left no doubt that a parking agreement was an integral part of a lease transaction bargained for by the tenant. Similarly, Oullette v Butler, 480 A2d 76 (NH 1984) involved a written instrument which stated that the first party “hereby gives a license” to the second party to use a parking area and a walkway area. The Court held that the use of the word “license” was not dispositive because the evidence showed that the actions of the grantor “were clearly intended to help persuade (the grantee) to make a major purchase of real estate,” and that this was inconsistent with an intent to create a revocable interest (citing Morrill v Mackman, supra). And, in Kansas City Area Trans Auth v Ashley, 485 SW2d 641 (Mo App 1972), plaintiff, Kansas City Transit (“KCT”), sold a subsidiary railway business, including three parking lots, to defendants Ashleys, The Ashleys agreed to “grant a license to [KCT] and its successors for the exclusive use [of the three parking lots], at a fixed charge of One Dollar ($1.00) per year. At closing, the parties executed an agreement titled “License Agreement,” containing such terms. Later, a dispute arose over the parking rights. The Ashleys claimed that the right granted by them to KCT for the use of the three parking lots was a “bare license,” relying on the fact that the title to, and the language used in, the document were “solely that oflicense.” The Court disagreed, concluding that the rights of KCT in these parking lots were either that of a lessee or, at the very least, rights in an easement. 15those parking rights ~ it does not own any of the involved property. In addition, the following terms and circumstances of the Transaction demonstrate that the parking rights benefitting the Hotel Parcel constitute more than a revocable license. 1, ‘The Parking Agreement and Parking Declaration were recorded at the same time with the Ingham County Register of Deeds, along with the Pedestrian Easement Agreement and the Land Contract. In the Parking Declaration, the Hotel Parcel is referred to as the “Dominant Parcel” and the North Grand Ramp as the “Servient Parcel” — typical easement terms. The Parking Declaration states that the City has agreed to create certain parking rights for the benefit of the Dominant (Hotel) Parcel as a condition of the purchase of the land by the Partnership — again, typical easement language. Prior to the conveyance of the Hotel Parcel to the Partnership, the EDC entered into the Pedestrian Bridge Agreement, pursuant to which the EDC gave the City an easement to construct a pedestrian bridge linking the Hotel Parcel with the North Grand Ramp, The termination provision in the Parking Declaration provides for termination only in the event: (a) the Dominant Parcel is no longer used as a Hotel; (©) the Servient Parcel is no longer used as a parking garage; or (c) the Hotel fails to pay the parking invoices. ‘The Parking Agreement provides that, in the event of nonpayment, the Hotel Parcel is to receive 30-day notice and an opportunity to cure before:the City can terminate the Parking Agreement ~ typical lease provision. The Parking Declaration provides that if, at any time the Servient Parcel is no longer used as a Parking Ramp, the City must provide the Hotel Parcel with alternative parking. The Parking Agreement says it may not be modified unless in writing executed by both parties. Accordingly, the undisputed facts and terms of the documents establish that the parking rights given to the Hotel Parcel in 1985 were intended to, and would be found to, run with the land and create parking rights in the Hotel Parcel which may be terminated only in accordance with the express terms of the Parking Agreement and Parking Declaration. 16In fact, the City acknowledges that if a purported license has the indicia of an easement or lease, it is not revocable at will and is to be treated as a lease or easement as opposed to alicense. City’s Brief, p 6. However, thereafter, the City asserts that such indicia of an easement or lease include the following which are not present here: 1. awritten statement of perpetuity as opposed to a limited term; 2. a statement of consideration or payment; 3, a description of the area to be controlled; and 4. ‘a statement of exclusive use or control of real property.® ‘The Partnership is not aware of any Michigan law expressly supporting the City’s legal assertion. Contrary to the City’s claims, as a factual matter, the Parking Declaration does contain such indicia, For example, the Parking Declaration does not have a limited term. Rather, at Paragraph 2, the Parking Declaration provides that it exists (in perpetuity) unless and until one of three events occur: (1) the Hotel Parcel is no longer used as a Hotel; (2) the North Grand Ramp is no longer used as a parking garage; or (3) the Hotel fails to pay the parking invoices. Inaddition, the Parking Declaration contains a statement of consideration; specifically, at paragraph 1 wherein the Partnership agrees to pay “prevailing rates” in exchange for parking for its guests and in the 4" paragraph on Page 1 where parking rights are consideration for the Partnership's purchase of the Hotel Parcel. And, at the top of Page 1, the Parking Declaration describes an area for the Partnership’s exclusive use — ® The City also claims that indicia of an easement also includes “a written statement that the interest is actually an easement.” City’s Brief, p 6. However, it seems implausible that any case involving an issue of the intent of the parties to create an easement or license would involve such a dispositive fact. A written statement that the interest is an easement seems to put all issues involving the nature of the property interest to rest. 17the “Southeast and South Central ground floor of North Grand Parking Garage.” Accordingly, the City’s claims as to the lack of indicia lack merit? D. The Parking Agreement Did Not, And Should Not, Terminate After 30 Years The City next claims that because the Parking Agreement has no explicit statement of term or duration, this Court should add a term — specifically, 30 years. The City is manifestly incorrect for at least two reasons, First, as with the Parking Declaration, the City is simply wrong. The Parking Agreement does contain statements of term or duration. At Paragraph 7, the Parking Agreement states: The term of this Agreement and the right to provide parking within the North Grand Parking Garage shall be governed by this Agreement and by the Parking Rights License Declaration granted by the Lansing Building Authority and the City of Lansing to the Block 100, Parking Agreement, 97, Exhibit 4. And, at Paragraphs 2 and 4, the Parking Agreement, like the Parking Declaration, recites consideration — parking in exchange for payment of prevailing rates. Second, adding @ term of 30 years would run counter to virtually every contract interpretation maxim under Michigan law — particularly in light of the express termination provisions already contained in the Parking Agreement and Parking Declaration. To arrive at the City’s interpretation, this Court would have to refuse to enforce clear and unambiguous contract language and rewrite the Parties’ agreement. This outcome is contrary to Michigan law. Reicher v SET Enterprises, Inc, 283 Mich App 657, 664-665; 770 NW2d 902 (2009). Michigan courts enforce contracts. Coates, supra at 503-504, 741 NW2d ° The City concludes its argument on this subject stating that the Partnership is not even a licensee and lacks standing to assert any use or possessory interest based on the license, The City makes this statement without identifying any evidence or authority to support it. Simply put, there isn’t any. Nor must this Court search for any. Blackburne & Brown Mortgage Co vZiomek, 264 Mich App 615, 619; 692 NW2d 388 (2004), 18539. We enforce contracts according to their terms, as a corollary to the parties[’] liberty to enter into a contract. Rory v Continental Ins Co, 473 Mich 457, 468; 703 NW2d 23 (2005). We examine contractual language and give the words their plain and ordinary meanings. Wilkie v Auto-Owners Ins Co, 469 Mich 41, 47; 664 NW2d 776 (2003). An ‘unambiguous contractual provision reflects the parties intent as a matter of law, and “[i]f the language of the contract is unambiguous, we construe and enforce the contract as written.” Quality Products & Concepts Co v Nagel Precision, Inc, 469 Mich 362, 375; 666 NW2d 251 (2003). Courts may not create ambiguity when contract language is clear. City of Grosse Pointe Park v Michigan Muni Liability & Prop Pool, 473 Mich 188, 198; 702 NW2d 106 (2005). Rather, this Court must honor the parties? contract, and not rewrite it. McDonald v Farm Bureau Ins Co, 480 Mich 191, 197; 747 NW2d 811 (2008); see also Coates, supra at 51107, 741 NW2d 539. Id This Court should not supplant Michigan law and add a 30-year term to the Parking Agreement. E. The Partnership Has Stated A Claim For Promissory Estoppel And ‘The City Can Be Enjoined The City promised parking rights to the Partnership which could not be unilaterally revoked. Phelps Affidavit, 15, Exhibit 1. The City should have reasonably expected this promise to induce the Partnership to buy the Hotel Parcel and develop a Radisson Hotel thereon - which it did. The Partnership has stated a claim for promissory estoppel. Nygard v Nygard, 156 Mich App 94, 100; 401 NW2d 323 (1986). ‘The Partnership has requested injunctive relief in this litigation only in the event that the City stops providing parking during the pendency of this lawsuit. The Partnership would be entitled to request this relief in order to maintain the status quo. Psychological Servs of Bloomfield, Inc v Blue Cross and Blue Shield of Michigan, 144 Mich App 182, 185; 375 NW2d 382 (1985). V. CONCLUSION/RELIEF REQUESTED In conclusion, the Parking Agreement and Parking Declaration, when properly 19construed together, establish parking rights which benefit the Hotel Parcel and may not be terminated by the City except in accordance with the express terms of those Agreements. ‘Accordingly, the Partnership respectfully requests that this Court deny the City’s Motion in its entirety, with prejudice, and grant partial summary disposition in favor of the Partnership pursuant to MCR 2.116((2) as to the entirety of Count I of the Partnership’s Complaint for declaratory relief. Specifically, this Court should enter a Declaratory Judgment, in recordable form, declaring that the parking rights created by the Parking Declaration and Parking Agreement, in favor of the real property owned by the Partnership (the “Hotel Parcel”), run with the land and may be revoked only in accordance with the express terms of the Parking Declaration and Parking Agreement. This Court should further find that the City’s unilateral attempt to terminate the parking rights of the Hotel Parcel is void and without legal effect and that the Partnership and its customers are entitled to the parking spaces identified in the Parties’ agreements at prevailing rates without discrimination. And, finally, this Court should award to the Partnership, actual attomey fees and costs incurred in having to defend against the City’s Motion pursuant to MCR 2.114(E) and MCR 2.625(1). GEORGE BROOKOVER PC Counsel for Plaintiff Ver. Le—~ By: Date: May 1, 2018 'M. Brookover (P25391) & ANDERSON, LLP fo) (oy By: Melissa A. Hagen (P42868) Gail A. Anderson (P38396) Date: May 1, 2018 Gregory L. McClelland (P28894) (doc\2600\C26281M001\Sum Disp - Resp Be docx