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CITY OF MUSKEGON
CITY COMMISSION MEETING
OCTOBER 11, 2016
CITY COMMISSION CHAMBERS @ 5:30 P.M.
AGENDA
□ CALL TO ORDER:
□ PRAYER:
□ PLEDGE OF ALLEGIANCE:
□ ROLL CALL:
□ HONORS AND AWARDS:
□ INTRODUCTIONS/PRESENTATION:
A. Diamond Sponsor Recognition
□ CITY MANAGER’S REPORT:
□ CONSENT AGENDA:
A. Approval of Minutes City Clerk
B. Demolition Agreement Between City and Kirksey Investment
Corporation – 1133 W. Western Avenue Planning & Economic
Development
C. 3rd Amendment to Employment Agreement City Manager
D. LC Walker Arena Vision and Branding City Manager
E. Lakeshore Museum Loan Agreement (LaFrance Fire Truck) Public
Safety
F. Heritage District Lighting Agreement Engineering
□ PUBLIC HEARINGS:
A. Create City Wide Special Assessment for Street Lights Treasurer
□ COMMUNICATIONS:
□ UNFINISHED BUSINESS:
Page 1 of 2
□ NEW BUSINESS:
A. Western Avenue Parking Lot- Agreement of Purchase & Sale between
the City of Muskegon and Core Financial Corporation City Manager
□ ANY OTHER BUSINESS:
□ PUBLIC PARTICIPATION:
► Reminder: Individuals who would like to address the City Commission shall do the following:
► Fill out a request to speak form attached to the agenda or located in the back of the room.
► Submit the form to the City Clerk.
► Be recognized by the Chair.
► Step forward to the microphone.
► State name and address.
► Limit of 3 minutes to address the Commission.
► (Speaker representing a group may be allowed 10 minutes if previously registered with City Clerk.)
□ CLOSED SESSION:
□ ADJOURNMENT:
ADA POLICY: THE CITY OF MUSKEGON WILL PROVIDE NECESSARY AUXILIARY AIDS AND SERVICES TO INDIVIDUALS
WHO WANT TO ATTEND THE MEETING UPON TWENTY-FOUR HOUR NOTICE TO THE CITY OF MUSKEGON. PLEASE
CONTACT ANN MARIE MEISCH, CITY CLERK, 933 TERRACE STREET, MUSKEGON, MI 49440 OR BY CALLING (231) 724-
6705 OR TTY/TDD DIAL 7-1-1- TO REQUEST A REPRESENTATIVE TO DIAL (231) 724-6705.
Page 2 of 2
Memorandum
To: Mayor and Commissioners
From: Frank Peterson
Re: City Commission Meeting
Date: October 6, 2016
Here is a quick outline of the items on next week’s agenda:
1. We have a number of items on the Work Session:
a. A presentation from Kevin Rico regarding activities at the HUB (formally the
MAREC Center).
b. A presentation by Planning and Economic Development Staff on PM Park and a
more general discussion about critical dune management going forward.
c. An update on miscellaneous on-going projects (mostly still in the initial planning
stages). An additional memo will follow this packet likely Friday providing more
information.
2. At the Tuesday meeting, we will be recognizing our Diamond Sponsors for the recent
Farmers Market fundraiser. They were Scrib’s Pizza, Jim Gawron, and Julie Balgooyen.
3. Under the Tuesday consent agenda, we are asking the Commission for approval of the
following:
a. Last meeting’s minutes.
b. A demolition agreement with Kirksey Investments to help facilitate the demolition
and redevelopment of the Anaconda Wire building.
c. An amendment to the City Manager’s Employment agreement. As discussed at the
City Manager’s performance review, the goal of the amendment is to reduce overall
costs.
d. Approval of an agreement with Rossetti to undertake a visioning and branding effort
for the LC Walker Arena. The goal of the visioning session will be to help us better
understand how we can utilize the arena during events and also during non-event
nights. We expect this will help us better understand how we can make the arena
better activate Western Ave and improve the fan experience at games, concerts, etc.
e. Approval of an agreement to loan the LaFrance Fire Truck to the Lakeshore Museum
Center (this is a renewal of an existing lease). The retired fire truck is on display that
the Center’s Clay Ave fire barn.
4. Under public hearings, we will host the first of two hearings associated with the proposed
LED Streetlight Assessment. As of today, the responses have been significantly fewer than
last year’s attempt and the ration of returned cards with support vs opposed has
improved greatly as well.
5. Under new business, we will be asking the Commission to approve a streetlight easement
agreement to facilitate the relighting of the Heritage District lights, which have been off
for about 5 years.
Under new business, we will also be seeking approval to sell a city-owned parcel on
Western Ave to Core Financial. This group recently purchased the Amazon Apartments
and a number of other buildings in the downtown. The agreement calls for a $300,000
sale price and the ability for the city to utilize the site for LC Walker Arena events until the
site is developed. Long-term plans for the site are still being developed, as is a timeline
for such development. However, the initial items discussed with staff seems to be very
compatible with the overall vision for Western Avenue, and would meet our newly
adopted form-based code.
Date: October 5, 2016
To: Honorable Mayor and City Commissioners
From: Ann Marie Meisch, City Clerk
RE: Approval of Minutes
SUMMARY OF REQUEST: To approve minutes of the September 27, 2016
Regular City Commission Meeting.
FINANCIAL IMPACT: None.
BUDGET ACTION REQUIRED: None.
STAFF RECOMMENDATION: Approval of the minutes.
CITY OF MUSKEGON
CITY COMMISSION MEETING
SEPTEMBER 27, 2016
CITY COMMISSION CHAMBERS @ 5:30 P.M.
MINUTES
The Regular Commission Meeting of the City of Muskegon was held at City Hall,
933 Terrace Street, Muskegon, MI at 5:30 p.m., Tuesday, September 27, 2016.
Mayor Stephen J. Gawron, opened the meeting with prayer, after which the
Commission and public recited the Pledge of Allegiance to the Flag.
ROLL CALL FOR THE REGULAR COMMISSION MEETING:
Present: Mayor Stephen J. Gawron, Vice Mayor Eric Hood, Commissioners Debra
Warren, Willie German, Jr., Dan Rinsema-Sybenga, and Byron Turnquist, City
Manager Franklin Peterson, City Attorney John Schrier, and City Clerk Ann
Meisch.
Absent: Commissioner Ken Johnson (Arrived at 5:40)
2016-73 CONSENT AGENDA:
A. Approval of Minutes City Clerk
SUMMARY OF REQUEST: To approve minutes of the September 12, 2016
Worksession and September 13, 2016 Regular City Commission Meeting.
FINANCIAL IMPACT: None
BUDGET ACTION REQUIRED: None
STAFF RECOMMENDATION: Approval of the minutes.
C. Fire Department Pickup Trucks DPW/Equipment
SUMMARY OF REQUEST: Authorize staff to purchase two 2017 Ford F 250 4x4
pickup trucks from Gorno Ford, the Mi-Deal State contract holder, for a
purchase price of $30,645 each.
FINANCIAL IMPACT: $61,290.00 or $30,645.00 each
BUDGET ACTION REQUIRED: None. The amount is accounted for in the
2016/17 budget.
STAFF RECOMMENDATION: Authorize staff to purchase two Ford F 250 4x4
pickups from Gorno Ford.
Page 1 of 5
D. Approval of Sale of City-owned home at 2324 Park Drive Community
and Neighborhood Services
SUMMARY OF REQUEST: To approve the resolution and instruct the Community
and Neighborhood Services department to complete the sales transaction with
Muhamer Nijaziu for the totally rehabilitated home at 2324 Park Drive: purchase
price $105,000.
FINANCIAL IMPACT: The proceeds from the sale will be used to continue the
rehabilitation of affordable homes through the HOME program and provide
funding for our Homebuyer’s Assistance Program.
BUDGET ACTION REQUIRED: None.
STAFF RECOMMENDATION: To approve the resolution and direct the CNS staff to
complete the sale.
E. Rezoning request for the properties located at 307 & 313 W Laketon
Avenue Planning & Economic Development
SUMMARY OF REQUEST: Request to rezone the properties at 307 and 313 W.
Laketon Avenue from I-2, General Industrial to B-4, General Business by Juan
Avreola Villa.
FINANCIAL IMPACT: None
BUDGET ACTION REQUIRED: None
STAFF RECOMMENDATION: Staff recommends approval of the rezoning.
COMMITTEE RECOMMENDATION: The Planning Commission unanimously
recommended approval of the request at their 9/15/16 meeting.
Motion by Commissioner Johnson, second by Commissioner German, to
approve the Consent Agenda as presented with the exception of Items B and F.
ROLL VOTE: Ayes: Gawron, Hood, Warren, German, Rinsema-Sybenga,
Turnquist, and Johnson
Nays: None
MOTION PASSES
2016-74 ITEMS REMOVED FROM CONSENT AGENDA:
B. Demolition of 1812 Lakeshore Drive – City “Grant” to Share in Costs
Planning & Economic Development Department
SUMMARY OF REQUEST: Dick Ghezzi recently purchased the property at 1812
Lakeshore Drive. This building has been a blight in the Lakeside Business District
for several years. Mr. Ghezzi is requesting “grant” assistance from the City in
demolishing the building (similar to the request approved for 1785 Beidler last
year). It is located along a critical commercial corridor, as well as adjacent to
the Lake Express Ferry Terminal. Mr. Ghezzi intends to demolish part of the
Page 2 of 5
building for a parking lot and will improve the remainder.
FINANCIAL IMPACT: Mr. Ghezzi received two quotes. The lowest quote is for
$14,200. It is recommended that the City pay $7,100 or half the amount of the
lowest quoted price, which will be paid from the City’s current budget for
building demolitions.
BUDGET ACTION REQUIRED: None.
STAFF RECOMMENDATION: To accept the cost share with Mr. Ghezzi for half the
amount of the lowest quote, which is $7,100. The payment will be made after
the demolition and parking improvements are completed.
Motion by Commissioner Turnquist, second by Commissioner Warren, to accept
the cost share with Mr. Ghezzi for half the amount of the lowest quote, which is
$7,100. The payment will be made after the demolition and parking
improvements are completed.
ROLL VOTE: Ayes: Hood, Warren, German, Rinsema-Sybenga, Turnquist,
Johnson, and Gawron
Nays: None
MOTION PASSES
F. Adopt a Resolution to Approve a Small Distillery, Thew’s Beverage
Company, LLC at 930 W. Sherman City Clerk
SUMMARY OF REQUEST: The Liquor Control Commission is seeking local
recommendation on a request from Thew’s Beverage Company, LLC, for a
Small Distillery License to be located at 930 W. Sherman.
FINANCIAL IMPACT: None
BUDGET ACTION REQUIRED: None
STAFF RECOMMENDATION: To adopt the resolution approving Thew’s Beverage
Company, LLC at 930 W. Sherman as a small distillery.
Motion by Commissioner Turnquist, second by Commissioner Rinsema-Sybenga,
to adopt the resolution approving Thew’s Beverage Company, LLC at 930 W.
Sherman as a small distillery.
ROLL VOTE: Ayes: Warren, German, Rinsema-Sybenga, Turnquist, Johnson,
Gawron, and Hood
Nays: None
MOTION PASSES
2016-75 PUBLIC HEARINGS:
A. Request to Conduct a Public Hearing of the Community &
Neighborhood Services Department Consolidated Annual Performance
Page 3 of 5
Evaluation Report (CAPER 2015) Community and Neighborhood
Services Department
SUMMARY OF REQUEST: To conduct a public hearing of the 2015-2016 CAPER
projects funded through CDBG and HOME allocations to the City of Muskegon
Community and Neighborhood Services department.
FINANCIAL IMPACT: None
BUDGET ACTION REQUIRED: None
STAFF RECOMMENDATION: To submit the 2015-2016 CAPER, including any public
comments received during the 30-day comment period ending September 27,
2016.
PUBLIC HEARING COMMENCED
Motion by Commissioner Rinsema-Sybenga, second by Vice-Mayor Hood, to
close the public hearing and submit the 2015-2016 CAPER, including any public
comments received during the 30-day comment period ending September 27,
2016.
ROLL VOTE: Ayes: German, Rinsema-Sybenga, Turnquist, Johnson, Gawron,
Hood, and Warren
Nays: None
MOTION PASSES
B. BID Special Assessment – Resolution Approving District Planning &
Economic Development Department
SUMMARY OF REQUEST: The Downtown Business Improvement District (BID)
Board is requesting that the special assessment district for downtown properties
be renewed. The previous BID district was only approved for one year. Since
the BID assessment is still very new, it is proposed that it be extended for another
one-year term to allow us to gauge its impact before committing to a longer
term. The assessments will continue to go towards various downtown
expenditures, including snow removal on sidewalks, spring/fall cleanup and
landscaping, events, directional signs, and marketing/advertising. The BID
assessment includes both a “Class A” and a “Class B” district.
FINANCIAL IMPACT: The total estimated cost of services within the BID is
$150,000 of which approximately 75% ($111,924) will be paid by the special
assessment to property owners.
BUDGET ACTION REQUIRED: None
STAFF RECOMMENDATION: To approve the resolution approving the special
assessment district and authorize the Mayor and Clerk to sign.
PUBLIC HEARING COMMENCED
Page 4 of 5
Dave Alexander with Downtown Muskegon Now spoke about the assessment.
The following objections were recorded/received by the Planning & Economic
Development Office:
Joyce Thebo – 100 W. Western Avenue – 24-205-555-0001-00 - opposed
William Carlston - Hairitage Properties, LLC – opposed
Tammy Jager – First & Clay - opposed
Motion by Commissioner Rinsema-Sybenga, second by Commissioner Johnson,
to close the public hearing and approve the resolution approving the special
assessment district and authorize the Mayor and Clerk to sign.
ROLL VOTE: Ayes: Rinsema-Sybenga, Turnquist, Johnson, Gawron, Hood, and
Warren
Nays: German
MOTION PASSES
PUBLIC PARTICIPATION: Public Comments were received.
ADJOURNMENT: The City Commission adjourned at 6:20 p.m.
Respectfully Submitted,
Ann Marie Meisch, MMC, City Clerk
Page 5 of 5
Commission Meeting Date: October 11, 2016
Date: October 4, 2016
To: Honorable Mayor & City Commission
From: Planning & Economic Development Department
RE: Demolition Agreement Between City and
Kirksey Investment Corp. – 1133 W Western
Ave.
SUMMARY OF REQUEST: On August 23, 2016, the City Commission
concurred with the findings of the Housing Board of Appeals that the structure
located at 1133 W. Western Ave. is unsafe, substandard, a public nuisance and
that it be demolished. The Commission allowed for time for City staff to work with
the property owner on an agreement for them to conduct the demolition process
themselves in a timely manner. An agreement has been reached requiring both
the demolition and the site restoration. The demolition is to be completed by
December 15, 2016, with restoration being completed by May 31, 2017.
Basement walls are to be removed to a minimum of 36 inches below grade and
the former basement is to be filled with clean sand, topped with black dirt, and
hydroseeded.
FINANCIAL IMPACT: Upon execution of the Agreement, Mr. Kirksey is to
deposit the sum of $75,000 with the City. If the demolition and restoration are
completed as specified, the funds will be returned to Mr. Kirksey. Otherwise, they
will be used by the City to complete the project.
BUDGET ACTION REQUIRED: None.
STAFF RECOMMENDATION: To approve the attached Demolition Agreement
and authorize the Mayor and Clerk to sign.
DRAFT
9/30/16
DEMOLITION AGREEMENT
This Demolition Agreement (“Agreement”) is made this _______ day of October, 2016
(“Effective Date”) by and among Kirksey Investment Corporation (“Kirksey”) and the City of
Muskegon (“City”) and, for purposes of the Waiver (as defined below), the City of Muskegon
Manager, Frank Peterson (“City Manager”), pursuant to the following terms.
RECITALS
1) Kirksey owns certain real property and improvements located in the City of Muskegon,
with a street address of 1133 West Western Avenue, Muskegon, Michigan (“Property”).
2) The Property contains a certain building (“Building”) that has been historically occupied
by various manufacturing companies and that is now vacant.
3) On July 7, 2016, the City’s Housing Board of Appeals declared the Building to be
substandard and dangerous, and issued an order of demolition with recommendation for
approval by the City Commission.
4) On August 23, 2016, the City Commission approved the Housing Board of Appeals order
of demolition.
5) Kirksey has obtained Demolition Permit No. PB160535 (“Permit”) to demolish the
Building and has authorization to begin demolition at the Property upon execution of this
Agreement.
6) Pursuant to Muskegon City Code (“City Code”) Section 10-135(b), Kirksey has
requested that the City Manager waive certain requirements under City Code Section 10-
135(a), which requires that all below-grade materials and structures be removed as part of
the demolition of buildings.
7) The City Manager agrees to waive the requirements under City Code Section 10-135(a),
subject to the terms and conditions provided in this Agreement.
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. WAIVER
Upon execution of this Agreement, pursuant to City Code Section 10-135(b), the
City Manager hereby waives the requirement under City Code Section 10-135(a)
to remove all below-grade materials and infrastructure at the Property (“Waiver”).
2. KIRKSEY OBLIGATIONS.
A. Upon execution of this Agreement, Kirksey shall remit to the City the Deposit
(as defined in Section 2(F) below) and shall commence demolition under the
Permit as soon as practical. If necessary, demolition may be divided into two
phases: (1) “Demolition,” which shall include demolition of the Building,
removal of debris, filling the former basement with clean sand and restoring
the Property to its original grade; and (2) “Restoration,” which shall include
hydroseeding the entire Property and repair or replacement of a portion of the
sidewalk (as described in Section 2(E) below).
B. Demolition shall be completed by December 15, 2016. Restoration shall be
completed by May 31, 2017.
C. As a part of the Demolition phase, Kirksey shall cause the basement walls of
the Building to be cut or removed to a minimum of 36 inches below grade.
Pursuant to City Code Section 10-138, Kirksey shall cause the former
basement to be filled with clean sand and shall cause the top three inches of
the area to be covered with black dirt.
D. As a part of the Restoration phase, Kirksey shall cause the hydroseeding of the
entire Property.
E. As a part of the Restoration phase, Kirksey shall replace that portion of the
sidewalk along Western Avenue in front of the Building, as depicted on
attached Exhibit A. In addition, to the extent that any portion of the sidewalk
between Franklin Street and the westerly property line of the Property is
damaged by demolition activities, Kirksey shall cause such portion of the
sidewalk to be repaired or replaced.
F. Upon execution of this Agreement, Kirksey shall deposit the sum of $75,000
(“Deposit”) with the City, which Deposit shall be held by the City and
subsequently refunded to Kirksey or, if necessary, applied by the City to pay
for the completion of Demolition and Restoration, according to the terms and
conditions of this Agreement.
G. Pursuant to City Code Section 10-135(b), Kirksey shall execute and record
with the Muskegon County Register of Deeds, a notice to future owners
indicating that underground materials or infrastructure remain on the Property,
in form substantial to the attached Exhibit B.
3. CITY OBLIGATIONS.
A. The City hereby authorizes Kirksey and its contractors to proceed forthwith
under the Permit to demolish the Building. The City shall process future
permit applications, if any, related to Demolition and Restoration activities
and final demolition inspections in its normal course and shall not
unreasonably delay either the issuance of any permit or the final inspection. In
the event that the City delays the issuance of a permit or the final inspection,
those deadlines imposed on Kirksey pursuant to Section 2(B) above shall be
extended to reasonably accommodate any such delay.
B. If Kirksey completes Demolition and Restoration in accordance with the
deadlines imposed in Section 2(B), Kirksey shall give written notice to the
City Manager with a copy to the City Attorney, c/o John Schrier, Parmenter
O’Toole, 601 Terrace Street, Suite 200, Muskegon, Michigan 49440 of its
completion of each phase (if completed separately) or both (if completed
simultaneously), and the City shall refund to Kirksey the Deposit as follows:
(i) If Demolition and Restoration are completed on or before
December 15, 2016, the City shall promptly remit to Kirksey the
entire Deposit balance of $75,000.
(ii) If only Demolition is completed on or before December 15, 2016,
the City shall promptly remit to Kirksey $50,000 of the Deposit
and retain the balance of $25,000 until Restoration is completed on
or before May 31, 2017, at which time the City shall promptly
remit to Kirksey the remaining Deposit balance of $25,000.
(iii) The City or its agent shall have 30 days after receipt of the above-
described notice(s) of completion to approve the work or to
provide a written objection specifying its reasons, as to its
dissatisfaction with the condition of the Property or to dispute that
Kirksey has otherwise satisfied its obligations under this
Agreement. If the City does not provide written objection within
30 days, Kirksey’s obligations shall be deemed to be satisfied, and
the City shall promptly refund the balance of the Deposit to
Kirksey in the manner described above. If the City provides
written objection within 30 days of notice(s), Kirksey shall have 30
days to cure any defect specified in the objection. If Kirksey fails
to cure such defect within the 30-day period, the City may apply
the Deposit (or any portion thereof) toward the cost of Demolition
and Restoration completion. If there is a remaining balance of the
Deposit after the City has paid for the Demolition and Restoration
completion, the City shall promptly remit such balance to Kirksey.
If the Deposit is not sufficient to cover the City’s cost to complete
Demolition and Restoration, the City shall invoice Kirksey for
such insufficient amount, in the manner described in Section
3(C)(iii) below.
C. In the event that Kirksey fails to perform its obligations in accordance with
the deadlines specified in Section 2(B) above, the City shall retain the
Deposit, subject to the following:
(i) If Demolition is not completed by December 15, 2016, the City
may retain the entire Deposit and apply any or all of the balance, as
necessary, for the completion of Demolition and Restoration.
(ii) If Demolition is completed on or before December 15, 2016, but
Restoration is not completed by May 31, 2017, the City may retain
the Deposit (less $50,000 pursuant to the terms of Section 3(B)(ii)
above), and apply any or all of the balance, as necessary, to
complete Restoration.
(iii) Within 45 days of completion of Demolition and Restoration, the
City shall remit to Kirksey any unused balance of the Deposit or, if
the cost of Demolition and/or Restoration exceeds the amount of
the Deposit in the possession of the City, the City shall invoice
Kirksey for the amount exceeding the retained Deposit and, if not
paid within 45 days, the City may assess an amount equal to the
invoiced amount to the tax bill for the Property and collect such
amount consistent with the collection of taxes.
4. INTERPRETATION.
This is the entire agreement, including attachments, between the parties as to its
subject. It shall not be amended or modified except in writing signed by the
parties. It shall not be affected by any course of dealing and the waiver of any
breach shall not constitute a waiver of any subsequent breach of the same or any
other provision. This Agreement shall be interpreted and construed in accordance
with Michigan law, and the parties agree to jurisdiction and venue within the
courts for the County of Muskegon.
5. BINDING.
This Agreement and the rights and obligations under this Agreement are not
assignable and not transferable by any party without the written consent of the
other parties, with the exception that the City may assign the obligations to make
inspections and notify Kirksey of compliance or non-compliance of the
Demolition and Restoration. This Agreement shall, however, be binding upon any
successors or permitted assigns of the parties. The City, Kirksey and the City
Manager have negotiated to reach the terms of this Agreement, have participated
in the drafting of this Agreement, and acknowledge that this Agreement is a joint
effort of all parties.
6. EXECUTION IN COUNTERPARTS.
This Agreement may be executed in counterparts and via facsimile signature, all
of which when signed and taken together, shall constitute one original agreement.
WHEREFORE, this Agreement has been executed as of the Effective Date.
Signatures on following page
EXHIBIT A
Portion Of Sidewalk To Be Repaired
Exhibit A
Exhibit B
Notice To Future Owners Regarding Underground Materials
NOTICE REGARDING UNDERGROUND MATERIALS OR INFRASTRUCTURE
Kirksey Investment Corporation, a Michigan corporation, of 1204 West Western
Avenue, Muskegon, Michigan (“Kirksey”), holds fee title to real property situated in the City
of Muskegon, County of Muskegon, State of Michigan, and described in the attached Exhibit
A (the “Property”).
Notice is hereby provided as follows:
1. Pursuant to Permit No. PB160535, issued by the City of Muskegon to Kirksey,
a structure formerly located on the Property was demolished in accordance with the Code
of Ordinances, City of Muskegon, Michigan (the “Code”).
2. Pursuant to Section 10-135(b) of the Code, the City Manager waived the
requirement under Section 10-135(a) for complete removal of all buildings or other
improvements on the Property, including basements or infrastructure below grade.
3. Section 10-135(b) of the Code requires that the landowner execute and
record a notice to future owners of the Property that underground materials or
infrastructure remain on the Property, and this notice, therefore, has been executed and
recorded by Kirksey to provide such notice.
4. The attached Exhibit B indicates where such remaining underground
materials or infrastructure are located at the Property.
Kirksey Investment Corporation, a
Michigan corporation
Dated: ________________, 2016 _______________________________________________
Name: Dennis A. Kirksey
Title: Vice President
STATE OF MICHIGAN )
_____________ COUNTY )
On this ___ day of ____________, 2016, before me personally came Dennis A. Kirksey, to
me known, who, being by me duly sworn, did depose and say that he is the Vice President
of Kirksey Investment Company, the corporation described in and which executed the
foregoing instrument, and that he signed his name thereto by order of the board of the said
corporation.
_____________________________________________
Name: _____________________________________
Notary Public, __________________ County, Michigan
Acting in ________________________ County, Michigan
My commission expires: ___________________________
Drafted by and when recorded return to:
Sueann T. Mitchell
GIELOW GROOM TERSPSTRA & MCEVOY
281 Seminole Road – 2nd Floor
Norton Shores, MI 49444
(231) 747-7160 Ext. 109
Exhibit A
Legal Description
Exhibit B
Location of Underground Materials at the Property
Exhibit B - Location of Subsurface Materials
Location of subsurface materials
- partial basement wall, footings,
foundation
Consumers
Substation
Kirksey Parcel
Legend:
Red lines: approx. location of Kirksey parcel
Blue lines: approx. location of subsurface materials
AGENDA ITEM NO. _______________
CITY COMMISSION MEETING __________________________
TO: Honorable Mayor and City Commissioners
FROM: Frank Peterson, City Manager
DATE: October 4, 2016
RE: 3rd Amendment to Employment Agreement – City Manager
SUMMARY OF REQUEST:
To amend the City Manager’s Employment Agreement as attached, with an effective date of October
1, 2016.
FINANCIAL IMPACT:
None.
BUDGET ACTION REQUIRED:
None.
STAFF RECOMMENDATION:
To approve the amendment to the City Manager’s Employment Agreement.
COMMITTEE RECOMMENDATION:
THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
CITY OF MUSKEGON - FRANKLIN PETERSON
Amendment effective October 1, 2016
Containing Retroactive Provisions
(As approved by the City Commission on October 11, 2016)
This is the Third Amendment to the Employment Agreement, between the CITY OF
MUSKEGON ("CITY") and FRANKLIN PETERSON ("MANAGER") concerning Franklin
Peterson’s services as City Manager of the CITY. The Employment Agreement and First
Amendment to Employment Agreement are amended in the following particulars:
1. Paragraph 3 (Pension) of the Employment Agreement and the attached Muskegon
City Manager Compensation Proposal shall be amended to eliminate contributions
to the ICMA 457 Plan; and
2. Paragraph 3 (Pension) of the Employment Agreement and the attached Muskegon
City Manager Compensation Proposal shall be amended to provide a mandatory
Manager contribution of 3% of W-2 wages and a City contribution of 15.23% of
W-2 wages.
3. Paragraph 5(b) of the Memorandum concerning the Muskegon City Manager
Compensation Proposal, which is an attachment to the Employment Agreement,
(Automobile Allowance) shall be revised to eliminate the automobile allowance
and mileage reimbursement.
This amendment was authorized by a vote of the City Commission on October 11, 2016,
and is determined to be effective October 1, 2016. All previous provisions shall remain in full
force and effect, except those that are changed by this amendment.
O:\CLERK\COMMON\WORD\AGENDA ITEMS FOR NEXT MEETING\2016\101116\12_10B8956-THIRD AMENDMENT TO
EMPLOYMENT.DOC
IN WITNESS WHEREOF, the parties execute this amendment to the agreement as of the
said effective date.
CITY OF MUSKEGON
By
Stephen J. Gawron, Its Mayor
and __________________________
Ann Marie Meisch, Its Clerk
MANAGER -
_____________________________
Franklin Peterson
O:\CLERK\COMMON\WORD\AGENDA ITEMS FOR NEXT MEETING\2016\101116\12_10B8956-THIRD AMENDMENT TO
EMPLOYMENT.DOC
AGENDA ITEM NO. _______________
CITY COMMISSION MEETING __________________________
TO: Honorable Mayor and City Commissioners
FROM: Frank Peterson, City Manager
DATE: October 4, 2016
RE: LC Walker Arena Vision and Branding
SUMMARY OF REQUEST:
The City’s recent decision to pursue a restaurant and distillery to occupy a portion of the LC Walker
Arena has led to inquiries from numerous other businesses looking to create similar and compatible
businesses at the LC. Before moving forward to consider any of these requests, city staff is asking to
have a professional arena designer/developer help create a vision for the arena. This visioning
exercise will help us better-understand current trends in area usage and develop the best product
for the community. Accordingly, staff is seeking permission to enter into an agreement with Rossetti
Architecture to create a conceptual plan for the re-visioning of the LC Walker Arena.
FINANCIAL IMPACT:
Not to exceed $10,000
BUDGET ACTION REQUIRED:
None.
STAFF RECOMMENDATION:
To approve agreement with Rossetti and authorize the City Manager to sign.
COMMITTEE RECOMMENDATION:
09/15/2016
Franklin Peterson, City Manager
City of Muskegon
933 Terrace Street
PO Box 536
Muskegon, MI 49443-0536
RE: L.C. Walker Rebrand
Dear Frank,
ROSSETTI is very pleased to submit this proposal to provide professional services for the conceptual
planning and re-visioning of the L.C. Walker Arena.
PROJECT UNDERSTANDING
The City of Muskegon wishes to develop a concept to rebrand the L.C. Walker Arena to enliven the
Western Avenue streetscape, create opportunities for new tenants within the arena, and provide concepts
for alternative fan areas. Design consideration will include relocation of existing toilets to make room for
additional program on the Western Ave side of the Arena, potential seating reduction to allow for flexible
program opportunities, and inclusion of new upper floor area for fans.
SCOPE OF SERVICES
ROSSETTI will perform basic services for this project in one phase:
Visualize
Rossetti will develop a plan(s) and (2) renderings to show the concept. We will:
Develop preliminary plans for review and confirmation of concept
Develop preliminary views of renderings for review
Develop final plan and renderings based on client review
The final deliverable will be a digital 11x17 presentation
ROSSETTI anticipates 1 in-person meeting, and 1 webex meeting.
CONSULTANTS
No consultants have been included in our fee for basic services.
PROFESSIONAL FEES
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9/16/2016 1:37:13 PM
Page 2
ROSSETTI’s fee for the project will be a stipulated sum of $10,000.
Reimbursable expenses are in addition to the above fee and are itemized below.
REIMBURSABLE EXPENSES
In addition to our fee, ROSSETTI and its consultants (if any) shall be reimbursed for the following items at
1.1 times cost:
Out-of-town Travel – airfare, hotel accommodations, local transportation, and subsistence expenses
incurred in connection with this project. Car mileage will be reimbursed at a rate not exceeding the
standard allowance determined by the U.S. Internal Revenue Service.
Reproductions of drawings, specifications or reports.
Renderings, models, photography and other special presentation material.
Regulatory Agency review fees.
Surveys, soil borings and other physical or chemical tests required for the design when not provided
by the owner.
Postage – express delivery and courier services.
Consultants not included in this proposal when approved in advance.
Conference calls and web based conference services such as WebEx or GoToMeeting.
SUPPLEMENTAL SERVICES
Supplemental services, if required and requested by you will be invoiced on an hourly basis in
accordance with our standard hourly rate schedule.
SCHEDULE
ROSSETTI is prepared to proceed upon receipt of your written authorization. We anticipate that the
effort will take 2-3 weeks to complete.
ASSUMPTIONS
This proposal is based upon the following assumptions:
This document serves as a record of the basic terms of our agreement. We propose to furnish
services described in AIA Document B-101 (2007 Edition) Standard Form of Agreement Between
Owner and Architect as modified by this letter.
Standard of Care – Services provided by ROSSETTI under this Agreement will be performed in a
manner consistent with that degree of care and skill ordinarily exercised by members of the same
profession currently practicing under similar circumstances.
Limitation of Liability – you will limit any and all liability or claim for damages, cost of defense, or
expenses to be levied against ROSSETTI to a sum not to exceed the amount of our fee, on account
of any design defect, error, omission, or professional negligence.
The services described herein cover only those services provided by ROSSETTI.
Page 3
Cost estimating services are not included. This service can be provided as a reimbursable expense if
requested.
This proposal is based upon the completion of our services by 11/01/2016
PAYMENT
All payments due ROSSETTI shall be made every four weeks upon receipt of the invoice for services
rendered. Unpaid invoices shall bear interest at the rate of 1% per month commencing thirty (30) days
after receipt of the invoice. ROSSETTI shall have the right to suspend work on the project upon invoice
past due more than sixty (60) days from presentation, unless or until ROSSETTI is satisfied that payment
is forthcoming.
A retainer in the amount of $2,000 will be required to initiate professional services. Upon completion of
services, the retainer will be applied toward payment of our final invoice.
ROSSETTI and the entire design team want to thank you for the opportunity to be involved in this project.
If this proposal meets with your approval and is consistent with your understanding, please sign both
enclosed copies and return one copy to our office. In the event we do not receive a signed copy of this
letter, and we are authorized to begin work verbally, we will assume the terms and conditions of this
proposal have been accepted by you. We look forward to working together with you and your colleagues.
Sincerely, Agreed to and accepted,
ROSSETTI
Matthew Taylor, AIA
Associate
By
Title
Date
ROD MASTER PLAN STUDY
VAN ANDEL ARENA
02.09.2012
PAGE 1
ROD MASTER PLAN STUDY ///
VAN ANDEL ARENA
02.09.2012
ROD MASTER PLAN STUDY
VAN ANDEL ARENA
02.09.2012 CONCEPTUAL Aesthetic
PAGE 2
industrial
contextual
ecclectic
tailored
VAN ANDEL MASTER PLAN AESTHETIC public
natural
classic
aged
warm
chic
rich
ROD MASTER PLAN STUDY
VAN ANDEL ARENA
02.09.2012 CONCEPT Arena Level
PAGE 3
2
1
LEVEL 01_ENTRY LEVEL
1. New Open area for Ticket, Retail, Lobby, Amenity 13,000 s.f.
2. New Relocated Offices 4,200 s.f.
ROD MASTER PLAN STUDY
VAN ANDEL ARENA
02.09.2012 CONCEPT Arena Level NEW OFFICE LAYOUT
PAGE 4
“natural day light into offices”
LEVEL 01_ENTRY LEVEL_Office Fit
1. New relocated offices with day light 4,200 s.f.
1
ROD MASTER PLAN STUDY
VAN ANDEL ARENA
02.09.2012 CONCEPT Arena Level OPTION A
PAGE 5
“retail storefront”
“back alley food court” 3
3
4
1
LEVEL 01_ENTRY LEVEL_option A
2
a 1. New Sponsored Vestiblue 1,700 s.f.
2. New Sponsored Amenity Zone 8,200 s.f.
note: 8,200 s.f. includes a,b,c and d
a. new concession 925 s.f.
b. new bar 425 s.f.
b
2 c. existing concession 1,300 s.f.
d. new club with bowl connection 1,500 s.f.
3. New Relocated Retail 2,000 s.f.
4. Relocated Ticket Windows with two Exterior 1,000 s.f.
c
2b
d
“back alley pub”
ROD MASTER PLAN STUDY
VAN ANDEL ARENA
02.09.2012 CONCEPT Arena Level OPTION B
PAGE 6
“retail object” 3
a
3 1
LEVEL 01_ENTRY LEVEL_option B
4
b 1. New Sponsored Vestiblue 1,700 s.f.
2. New Sponsored Club 8,200 s.f.
note: 8,200 s.f. includes a,b and c
a. new kitchen 2,075 s.f.
b. new bar 600 s.f.
2 c. new club with bowl connection 1,500 s.f.
3. New Relocated Retail 1,200 s.f.
4. Relocated Ticket Windows 1,350 s.f.
5. New Relocated Offices 4,200 s.f.
2
c
“bunker club / bar / lounge”
ROD MASTER PLAN STUDY
VAN ANDEL ARENA
02.09.2012
PAGE 7 “bunker suite lounge and bar”
5
3
1
2
LEVEL 01_ENTRY LEVEL_option C
4 1. New Sponsored Vestiblue 3,000 s.f.
2. New Bunker Suites 3,100 s.f.
3. New Relocated Retail 1,500 s.f.
4. Relocated Ticket Windows 1,300 s.f.
5. New Sponsored Bar 2,000 s.f.
2
5
“bunker suites”
ROD MASTER PLAN STUDY
VAN ANDEL ARENA
02.09.2012 CONCEPT Arena Level RESTAURANT OPTION
PAGE 8
3
a a
LEVEL 01_ENTRY LEVEL_New Restaurant
1. New Sponsored Restaurant 7,500 s.f.
a. make accesible from main entry
1 b. remove wall to create connection with the city
1 b (potential access to exterior?)
c
“urban restaurant”
ROD MASTER PLAN STUDY
VAN ANDEL ARENA
02.09.2012 CONCEPT Concourse Level
PAGE 9
“open flexible club”
2 4
a 1
b
LEVEL 02_CONCOURSE LEVEL
1 1. Expand Existing Club +1,400 s.f.
2. New Sponsored Amenity zone
a. New Bar
b. Exterior Patio (smoking)
3. New Sponsored Club
a. New Bar
b. Exterior Lounge
4. New Stair and Bridges above offer
new branding opportunity
3
1 1
b
4
a
ROD MASTER PLAN STUDY
VAN ANDEL ARENA
02.09.2012 CONCEPT Concourse Level SOUTH END OPTION A
PAGE 10
1b
1
a
“hidden lounge”
LEVEL 02_SOUTHEAST END OPTION A
1. Update and Brand Existing Party Deck 2,275 s.f.
note: 2,275 s.f. includes a and b
a. Expand to add 300 s.f.
b. Replace concession with new Sponsored Club 800 s.f.
2. New Sponsored Exterior Patio 800 s.f.
3. New Sponsored Concession zone 350 s.f.
2 2
b
3
3
“rooftop living room”
“corridor focal point and destination”
ROD MASTER PLAN STUDY
VAN ANDEL ARENA
02.09.2012 CONCEPT Concourse Level SOUTH END OPTION B
PAGE 11
“sponsored bar”
c
b b
LEVEL 02_SOUTHWEST END OPTION B
1. Update, Brand and consolidate existing Party Deck
and concession to create one Public Party Zone 2,600 s.f.
note: 2,600 s.f. includes a,b and c
a. Expand to add 300 s.f.
b. New Sponsored Bar 850 s.f.
c. New Sponsored Entry to Bar 475 s.f.
2. New Sponsored Exterior Patio (smoking) 1,200 s.f.
2
1 a
c
“branded entry”
ROD MASTER PLAN STUDY
VAN ANDEL ARENA
02.09.2012 CONCEPT Concourse Level SOUTH END OPTION C
PAGE 12
“branded focal point”
b b
1
LEVEL 02_SOUTHWEST END OPTION B
1. Update, Brand and consolidate existing Party Deck,
Concession and Storage to create one
Public Party Zone 3,400 s.f.
c note” 3,400 s.f. includes a,b and c
a. Expand to add 300 s.f.
b. relocate concession for visibility from concourse 350 s.f.
c. New Sponsored Bar visible from Bowl 400 s.f.
2. New Sponsored Exterior Patio (smoking) 1,200 s.f.
1
2
a
c
“sponsored bar and party deck”
ROD MASTER PLAN STUDY
VAN ANDEL ARENA
02.09.2012 CONCEPT Mechanical Level
PAGE 13
c “fire stair inspired” connection between concourse and new loft
1
a
b c b b
3
LEVEL 03_MECHANICAL LEVEL
1 1. New Sponsored Amenity Loft 2,7000 s.f.
note: 2,700 s.f. does not include a,b and c
a. Connect to Existing Elevator 675 s.f.
b. Connect to Existing Bowl 3 bridges @ 275 s.f.
c. New Stair connects to concourse below 12’-9” floor to floor
2. New Sponsored Loft Club 3,000 s.f.
note: 3,000 s.f. does not include a,b and c
a. Connect to Existing Elevator 675 s.f.
b. Connect to new Club Seats on Existing Bowl 3 bridges @ 675 s.f.
c. New Stair connects to concourse below 12’-9” floor to floor
3. New Sponsored Party Towers 1,000 s.f. each
3
2
b c b b
a
2
“sponsored loft” herman miller, knoll, etc.
ROD MASTER PLAN STUDY
VAN ANDEL ARENA
02.09.2012 CONCEPT Upper Bowl Level
PAGE 14
4
3 a
“industrial garden”
LEVEL 04_UPPER CONCOURSE
1. New “Penalty Box” Party Suite1,300 s.f.
2. New Sponsored Exterior Patio 11,000 s.f.
a. remove vending for new ramp
3. New Sponsored Bar 600 s.f.
a. New Exterior Lounge off of Bar 800 s.f.
4. New Branded Corridors 2 @ 1,000 s.f.
1 a
2 2
4
ROD MASTER PLAN STUDY
VAN ANDEL ARENA
02.09.2012 CONCEPT Section
PAGE 15
3 2
4 5 5 1
SECTION 01_EAST WEST
1. New “Loft” Amenity above existing toilets
2. New Bar and Exterior Lounge
3. New “Penalty Box” Party Suite
4. New “Loft” Club above existing toilets
5. 2 New Sponsored Towers with 3 floors @ 1,000 s.f.
5 “water towers”
ROD MASTER PLAN STUDY
VAN ANDEL ARENA
02.09.2012 CONCEPT Upper Bowl Level
PAGE 16
5
2 3 LEVEL 01_SITE PLAN
1. New Parking Entry and Exit
2. New Service Entry and Exit
3. Service Level 43,000 s.f.
4. Ramp to new Parking
5. New Storefront or Open air Market / Event space 40,000 s.f.
1 4
5
ROD MASTER PLAN STUDY
VAN ANDEL ARENA “parking terrace”
02.09.2012 CONCEPT Section
PAGE 17
“open air market / event space”
4
3
BRIDGE TO UPPER CONCOURSE >>>
4 b
1 BRIDGE TO NEW CLUB LEVEL >>> a
BRIDGE TO MAIN CONCOURSE >>> 2
3
“urban storefront”
SECTION 02_NORTH SOUTH
1. New Elevated Parking Deck to connect to Concourse levels 87,000 s.f. footprint
3 levels with approximately 300 spaces @ each level
2. New Bar and Exterior Lounge. tower level one
a. tower level two, 2 towers @ 1,000 s.f.
b. tower level three, 2 towers @ 1,000 s.f.
3. New Storefront @ street with Service Beyond
4. Parking Terrace offers daylight to Circulation Bridges
3
ROD MASTER PLAN STUDY
VAN ANDEL ARENA
02.09.2012 SOUTH EXPANSION Level 1 _ Plan
PAGE 18
TICKET LOBBY RELOCATON OF
(8,952 S.F.) EXISTING SPACES
(2,408 S.F.)
TICKET
OFFICE
(963 S.F.)
GRAND
STAIRS
CONCESSION
(418 S.F.)
RELOCATON OF
EXISTING SPACES
(2,351 S.F.)
N
ROD MASTER PLAN STUDY
VAN ANDEL ARENA
02.09.2012 SOUTH EXPANSION Level 2_Plan
PAGE 19
RELOCATON OF
EXISTING SPACES
(350 S.F.)
WOMEN
(539 S.F.)
MEN
(539 S.F.)
CONCESSION
(205 S.F.)
SEATING IN
LOWER BOWL
SUITES (7,310 S.F.)
(1,523 S.F.)
CONCOURSE
(20,480 S.F.)
(350 S.F.)
MEN
CONCESSION (539 S.F.)
(1,482 S.F.)
WOMEN
(539 S.F.)
(330 S.F.)
RELOCATON OF
EXISTING SPACES
VT
(415 S.F.)
N
ROD MASTER PLAN STUDY
VAN ANDEL ARENA
02.09.2012 SOUTH EXPANSION Level 4_Plan
PAGE 20
CONCOURSE
(3,385 S.F.)
VT SEATING IN
(239 S.F.) UPPER BOWL
(12,785 S.F.)
UNISEX
(193 S.F.)
N
ROD MASTER PLAN STUDY
VAN ANDEL ARENA
02.09.2012 SOUTH EXPANSION OPTION
PAGE 21
ROD MASTER PLAN STUDY
VAN ANDEL ARENA
02.09.2012 SOUTH EXPANSION Area Calculation
PAGE 22
Rooms Area (s.f.)
LEVEL 1
Ticket Lobby 8,952
Ticket Office 963
Concession 418
Relocation of Existing Spaces 4,759
Sub-total 15,092
LEVEL 2
Concourse 20,480
Concessions 1,687
Suites 1,523
Toilets 2,156
Vertical Transportation 877
Seating in Lower Bowl 7,310
Relocation of Existing Spaces 1,030
Sub-total 35,063
LEVEL 4
Concourse 3,385
Toilets 193
Vertical Transportation 239
Seating in Upper Bowl 12,785
Sub-total 16,602
Total 66,757
COMMISSION MEETING DATE: OCTOBER 11, 2016
Date: OCTOBER 4, 2016
To: Honorable Mayor and City Commissioners
From: Director of Public Safety Jeffrey Lewis
Re: Lakeshore Museum Loan Agreement
(LaFrance Fire Truck)
SUMMARY OF REQUEST: The Director of Public Safety requests that the City
Commission review and authorize the Lakeshore Museum Center Loan Agreement
relating to the 1923 American LaFrance Fire Truck with attached equipment.
Currently, the LaFrance is on display at the Fire House Museum (Clay Avenue).
FINANCIAL IMPACT: N/A
BUDGET ACTION REQUIRED: N/A
STAFF RECOMMENDATION: Staff recommends approval of this loan agreement.
AGENDA ITEM NO. _______________
CITY COMMISSION MEETING __________________________
TO: Honorable Mayor and City Commissioners
FROM: Frank Peterson, City Manager
Mohammed Al-Shatel, Engineering
DATE: October 6, 2016
RE: Heritage District Lighting Agreement
SUMMARY OF REQUEST:
Over the past two years, staff has worked with representatives from the Heritage District Association
as well as property owners in the Heritage District to accomplish the re-lighting of their decorative
street lights. We have negotiated an agreement that will allow for the lights to be activated and
eventually upgraded to LED fixtures.
FINANCIAL IMPACT:
None
BUDGET ACTION REQUIRED:
None.
STAFF RECOMMENDATION:
To approve lighting agreement and corresponding easement agreements as presented, and authorize the
reactivation of the Heritage District lights.
COMMITTEE RECOMMENDATION:
STREET LAMP EASEMENT AGREEMENT
This Easement Agreement (this “Agreement”) is effective as of , 2016, between the
City of Muskegon, a Michigan municipal corporation (“Grantee” or “City”), and ________________________,
(“Grantor”), on the following terms and conditions:
Recitals
A. Grantor is the owner of real property along Webster Avenue in the City of Muskegon, Muskegon
County, Michigan, legally described on Exhibit A (the “Burdened Property”).
B. Grantee desires to obtain an easement on, over, across, and through a portion of the Burdened
Property more particularly described on Exhibit A (“Easement Property”) for the maintenance and repair of street
lamps, and Grantor has agreed to grant to Grantee an easement for such purpose, as set forth herein.
C. A drawing of the area is attached as Exhibit B.
NOW, THEREFORE, for valuable consideration, including a payment by Grantee to Grantor of One Dollar
($1.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Easement. Grantor grants to Grantee, its successors and assigns, a non-exclusive easement and
right of way with respect to the Easement Property for the purposes, and on the terms and conditions, set forth
herein (the “Easement”).
2. Term. The term of the Easement shall be perpetual and shall run with the Burdened Property.
3. Use. The Easement shall be used for the purpose of the maintenance and repair of street lamps
and their appurtenances and accessories within the Easement Property. The Easement and right of way shall include
the City’s right to enter upon the Easement at such times as are reasonably necessary to construct, maintain, repair,
replace, reinstall and inspect its street lamps within the Easement Property. The Grantor shall not construct any
improvements within the Easement Property without the written permission of Grantee, or interfere with the use of
the Easement in any manner. Grantor shall reimburse the Grantee for all reasonable costs of removal of any
improvements placed within the Easement Property by Grantor.
4. Removal; Restoration. City shall have the right to remove trees, brush and undergrowth and
other obstructions within the Easement Property interfering with the location, construction, maintenance and repair
of the street lamps. City shall be obligated, at its sole expense, to restore the driveways and parking areas within the
Easement Property to their condition that existed prior to City’s work within the Easement.
5. Warranty. The parties warrant that they have the right and authority to enter into this Easement
Agreement.
6. Binding Effect. This Easement Agreement shall bind the parties, and their successors and assigns.
O:\CLERK\Common\Word\Agenda Items for Next Meeting\2016\101116\xNB_B 10F1780-Street Lamp Easement Agreement.DOC
1
7. Recording. Grantee shall record this Easement Agreement with the Muskegon County Register
of Deeds, and Grantee shall pay all recording costs.
8. Amendment. This Agreement shall not be amended or modified except in a writing signed by
both parties.
This Easement Agreement was entered into on the date set forth above.
Grantor –
By: ________________________________
Name: _________________
Title: _________________
Date: _________________
STATE OF MICHIGAN
COUNTY OF MUSKEGON
The foregoing was acknowledged before me this day of , 2016, by
_______________________.
Type/Print Name:
Notary Public, Muskegon County, Michigan
Acting in the County of Muskegon
My commission expires:
Grantee – CITY OF MUSKEGON
By: ________________________________
Name: Stephen Gawron
Title: Mayor
Date: ___________________
and: _______________________________
Name: Ann Marie Meisch
Title: Clerk
Date: ____________________
STATE OF MICHIGAN
COUNTY OF MUSKEGON
The foregoing was acknowledged before me this day of , 2016, by
Stephen Gawron, Mayor, and Anne Marie Meisch, Clerk, of the City of Muskegon, a Michigan municipal
corporation, on behalf of the corporation.
Type/Print Name:
Notary Public, Muskegon County, Michigan
Acting in the County of Muskegon
My commission expires:
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2
Prepared by and when recorded return to:
John C. Schrier
Parmenter O'Toole
P.O. Box 786
Muskegon, MI 49443-0786
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3
Exhibit A
Legal Description of Burdened Property:
Legal Description of Easement Property:
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4
AGENDA ITEM NO._________
CITY COMMISSION MEETING: October 11, 2016
TO: HONORABLE MAYOR AND CITY COMMISSIONERS
FROM: Kenneth D. Grant, Treasurer
DATE: October 6, 2016
RE: Public Hearing
Create City Wide Special Assessment for Street Lights.
SUMMARY OF REQUEST:
To hold a public hearing on the proposed special assessment for the entire city and appoint two City
Commissioners to the Board of Assessors if it is determined to proceed with the project.
FINANCIAL IMPACT:
BUDGET ACTION REQUIRED:
None
STAFF RECOMMENDATION:
To create the special assessment for all eligible parcels for the entire city and assign to
City Commissioners to the Board of Assessors by adopting the attached resolution.
COMMITTTEE RECOMMENDATION:
SEPTEMBER 20, 2016
NAME PROPERTY ADDRESS
ADDRESS PROPERTY NUMBER
CITY ST ZIP
NOTICE OF HEARING ON SPECIAL ASSESSMENT
Dear Property Owner:
The Muskegon City Commission is considering the creation of a special assessment district
that would assess your property for LED street lighting upgrades:
The proposed special assessment district will be for all eligible tax parcels located in the City
of Muskegon with a State Equalized Value of one thousand dollars ($1,000) and above at the
time the assessment roll is approved.
It is proposed that all of the above LED street light conversion costs will be paid by special
assessment against properties in the aforementioned district. Following are conditions of the
proposed special assessment which are important to you:
Public Hearings
An initial public hearing for the creation of the special assessment district will be held at the
City of Muskegon City Commission Chambers on OCTOBER 11, 2016 at 5:30 P.M. Affected
property owners are encouraged to appear at this hearing, either in person, or by agent.
Property owners may also express their approval or objection concerning the proposed special
assessment in writing by returning the enclosed Hearing Response Card to the City Clerk.
Written objections or appearances must be made at or prior to the hearing. THE SPECIAL
ASSESSMENT WILL BE EITHER CREATED OR NULLIFIED AT THIS HEARING, SO IT IS
IMPORTANT FOR YOU TO EITHER RETURN THE RESPONSE CARD OR COMMENT AT
THIS HEARING.
A second public hearing will be held to confirm the special assessment roll after the project is
under way. You will be mailed a separate notice for the second hearing. At this second
hearing, the special assessment costs will be spread to the affected properties accordingly.
YOU HAVE A RIGHT TO PROTEST YOUR ASSESSMENT AMOUNT EITHER IN WRITING
OR IN PERSON AT THIS HEARING AS WELL. IF THE SPECIAL ASSESSMENT ROLL IS
CONFIRMED AT THE SECOND HEARING, YOU WILL HAVE THIRTY (30) DAYS FROM
THE DATE OF CONFIRMATION OF THE ROLL TO FILE A WRITTEN APPEAL WITH THE
MICHIGAN STATE TAX TRIBUNAL. HOWEVER, UNLESS YOU PROTEST AT ONE OF THE
PUBLIC HEARINGS, EITHER IN PERSON, BY AGENT, OR IN WRITING, AS DESCRIBED
ABOVE, YOUR RIGHT TO APPEAL TO THE MICHIGAN TAX TRIBUNAL WILL BE LOST.
By City Charter, if the owners of more than one-half of the properties being assessed formally
object to the assessment in writing at or before the hearing, the improvements cannot be made
unless the City Commission votes unanimously that the safety or health of the public
necessitates the special assessment.
Estimated Costs
It is hereby determined that, based on the estimates of cost for street lights, the City will
assess $188.50 per parcel with a state equalized value of over $1,000 at the time the
assessment roll is approved, including all City owned parcels, payable in ten (10) equal
installments commencing with the Winter 2016 tax bill, which means that approximately 100%
of the cost of the LED street lighting upgrade will be paid by special assessments.
Please convey your support or opposition by returning the enclosed hearing response card
indicating your preference or doing so at the scheduled public hearing. If you would rather use
email, you can scan or photograph your response card and send to [email protected].
However, if you intend to appeal the assessment to the Michigan Tax Tribunal, you must either
return the hearing response card or attend one of the public hearings and voice your
opposition.
Your views are important to the City and to your neighbors. Additional information, including
preliminary project plans and cost estimates, will be available online at
www.shorelinecity.com/LED and in the City Clerk’s Office located on the first floor of City Hall.
Regular business hours are from 8:30 A.M. to 5:00 P.M. Monday through Friday except
holidays.
Sincerely,
Kenneth D. Grant
City Treasurer
231-724-1196
CITY OF MUSKEGON
Resolution No. _____
Resolution at First Hearing Creating Special Assessment District
For Street Lights
Location and Description of Properties to be assessed:
See Exhibit A attached to this resolution
RECITALS:
1. By resolution of the City Commission, a hearing has been held on October 11, 2016, at
5:30 o’clock p.m. at the City Commission Chambers. Notice was given by mail and
publication as required by law.
2. That estimates of costs of the project, a feasibility report and valuation and benefit
information are on file with the City and have been reviewed for this hearing.
3. At the hearing held on October 11, 2016, there were _____________ objections by the
owners of the property in the city registered at the hearing either in writing received
before or at the hearing or by owners or agents present at the hearing, and the
Commission has considered the advisability of proceeding with the project.
FINDINGS:
1. The City Commission has examined the estimates of cost, including all assessable
expenses, and determines them to be reasonable.
2. The City Commission has considered the value of the property to be assessed and the
value of the benefit to be received by each property to be assessed in the district with the
continuation of street lighting. The City Commission determines that the assessments of
costs of the City project will enhance the value of the property to be assessed in an
amount at least equivalent to the assessment and that the improvement thereby constitutes
a benefit and remove a burden from the property associated with the loss of street lighting
to the property.
THEREFORE, BE IT RESOLVED:
1. The City Commission hereby declares a special assessment district to include all of the
property in the city.
2. The City Commission determines to proceed with the special assessment.
3. The City Commission hereby appoints a Board of Assessors consisting of City
Commissioners _______________________________ and ______________________
and the City Assessor who are hereby directed to prepare an assessment roll. Assessments
shall be made upon a benefit basis.
4. It is hereby determined that, based on the estimates of cost for street lights, the City will
assess $185.50 per parcel with a state equalized value of over $1,000 including all City
owned parcels, payable in ten equal installments commencing with the Winter 2016 tax
bill, which means that approximately 100% of the cost of LED street lighting will be paid
by special assessments. (A tax parcel having a state equalized value of over $1,000 will
pay an extra $18.85 per year for ten years for LED street lighting.)
5. Upon submission of the special assessment roll, the City staff is hereby directed to notify
all owners and persons interested in properties to be assessed of the hearing at which the
City Commission will consider confirmation of the special assessment roll.
This resolution adopted.
Ayes ___________________________________________________________________
______________________________________________________________________________
Nays ___________________________________________________________________
______________________________________________________________________________
CITY OF MUSKEGON
By _________________________________
Ann Marie Meisch, Clerk
CERTIFICATION
This resolution was adopted at a meeting of the City Commission, held on
_______________, 2016. The meeting was properly held and noticed pursuant to the Open
Meetings Act of the State of Michigan, Act 267 of the Public acts of 1976.
CITY OF MUSKEGON
By _________________________________
Ann Marie Meisch, Clerk
Exhibit A
All eligible parcels located inside the City of Muskegon with a state equalized value of over $1,000.
Commission Meeting Date: October 11, 2016
Date: October 5, 2016
To: Honorable Mayor & City Commission
From: City Manager
RE: Western Avenue Parking Lot- Agreement of
Purchase & Sale between the City of Muskegon
and Citiparc, LLC.
SUMMARY OF REQUEST: Harold Back of Citiparc, LLC, has offered
$300,000 to purchase the City’s Western Avenue Parking Lot between
Fourth & Fifth Streets. Citiparc, LLC will continue to use the property for
public parking, including commitments agreed to for Lumberjack
parking, for a year. After that time, the purchaser expects to develop the
property (see “Agreement of Purchase & Sale” attached). The property
includes one lot that is technically owned by the DDA (lot farthest to the
east). This lot will need approval to sell by the DDA, as well.
FINANCIAL IMPACT: The City will receive $300,000 as the purchase
price for the property. The proceeds are expected to go into the
“Economic Development Project Fund” (formerly “Sappi Economic
Development Fund”).
BUDGET ACTION REQUIRED: None.
STAFF RECOMMENDATION: To approve the Agreement of Purchase
& Sale between the City of Muskegon and Citiparc, LLC and authorize
the Mayor and Clerk to sign all necessary documents, including closing
documents at the time of sale, on the condition the DDA approves the
sale of their lot as part of this transaction.
AGREEMENT OF PURCHASE AND SALE
[505, 495, 489 & 479] [CONFIRM] West Western Avenue, Muskegon MI
ARTICLE 1: BASIC TERMS
1.1 Certain Basic Terms. The underlined terms shall have the following meanings:
(a) Purchaser: Citiparc, LLC, a Delaware limited liability company
(b) Purchaser’s Notice Address:
c/o Core Financial Corporation
6991 East Camelback Road, Suite D-300
Scottsdale, AZ 85251
Telephone: (312) 909-9936
E-mail: [email protected]
with a copy to:
Katten Muchin Rosenman LLP
525 West Monroe Street
Chicago, Illinois 60661
Attn: Brooks T. Giles, Esq.
Telephone: (312) 902-5386
E-mail: [email protected]
Attn: Brian M. Spangler, Esq.
Telephone: (312) 902-5402
E-mail: [email protected]
(c) Seller: The City of Muskegon, a Michigan municipal corporation (the
“City”), and the Muskegon Downtown Development Authority, an
agency of the City (the “DDA”; the DDA and the City are
hereinafter referred individually and collectively, as the context may
imply, as the “Seller”)
(d) Seller’s Notice Address:
City of Muskegon
933 Terrace Street
Muskegon, Michigan 49443
Attention: City Manager
Director Community & Economic Development
Telephone: (231) 724-6724
E-mail: [email protected] ________________________
21690612_4_387409_00002
with a copy to:
Parmenter O’Toole
601 Terrace Street
Muskegon, MI 49443-0786
Attn: John C. Schrier
Telephone: (231) 722-5401
E-mail: [email protected]
(e) Title Company:
Transnation Title Agency
570 Seminole Rd., Suite 102
Muskegon, Michigan 49444
Attn: Teresa Lavigne
Telephone: (231) 737-9111
E-mail: [email protected]
(f) Escrow Agent:
Transnation Title Agency
570 Seminole Rd., Suite 102
Muskegon, Michigan 49444
Attn: Teresa Lavigne
Telephone: (231) 737-9111
E-mail: [email protected]
(g) Execution Date: The later date of execution by Seller and Purchaser, as
indicated on the signature pages hereto.
(h) Purchase Price: $300,000.
(i) Due Diligence Period: Subject to extension as set forth in Paragraphs 2.2
and 3.2 hereof, the period beginning on the Execution Date and ending at 11:59p.m. (Central
Time) on the business day immediately preceding the Closing Date.
(j) Closing Date: October 14, 2016, subject to postponement as set forth in
Paragraphs 3.2, 4.3. and 5.2(c). Purchaser and Seller may accelerate the Closing Date to an
earlier date upon the joint written agreement of the parties.
1.2 Property. Subject to the terms and conditions of this Agreement of Purchase and
Sale (this “Agreement”), Seller agrees to sell to Purchaser, and Purchaser agrees to purchase
from Seller, the property described in Paragraphs 1.2(a) and 1.2(b) below (collectively, the
“Property”):
(a) The “Real Property,” being (i) the land owned by the City legally
described in Exhibit A-1 attached hereto, commonly known as [____________________] (the
“City Land”), (ii) the land owned by the DDA legally described in Exhibit A-2 attached hereto,
commonly known as [____________________] (the “DDA Land”; the DDA Land and the City
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Land are hereinafter referred to collectively as the “Land”) (ii) any improvements located on the
Land (the “Improvements”), (iii) all and singular of Seller’s interest in and to the rights, benefits,
privileges, easements, tenements, hereditaments, and appurtenances thereon or in anywise
appertaining to the Land, and (iv) all right, title, and interest of Seller in and to all strips and
gores and any land lying in the bed of any street, road or alley, open or proposed, adjoining such
Land.
(b) Intentionally Omitted.
The term “Property” shall not include (i) any cash on hand or other liquid assets of Seller,
or (ii) any minute books, membership ledgers or governing documents of Seller (collectively, the
“Excluded Assets”).
ARTICLE 2: INSPECTION
2.1 Seller’s Delivery of Specified Documents. Seller shall provide to Purchaser the
following (collectively, the “Property Information”) within 5 days after the Execution Date:
(a) Lease Documentation. Copies of any leases, including, but not limited to
the Lumberjacks Sublease, as hereinafter defined (the “Leases”), affecting the Property and all
documentation pertaining thereto;
(b) Intentionally Omitted;
(c) Environmental Reports. Any environmental reports in Seller’s possession
related to the Real Property, including, but not limited to, any and all existing soil reports,
baseline environmental assessments, due care notices and phase I and phase II environmental
assessments, provided, however that the phase I and phase II environmental assessments required
to be delivered by Seller to Purchaser hereunder need only be delivered at least two (2) business
days prior to closing in accordance with Section 4.2(b) hereof. ;
(d) Existing Title and Survey Documents. Copies of Seller’s existing title
insurance policy and any existing ALTA, boundary and/or as-built survey of the Real Property;
and
(e) Other Documentation. Books, records and other materials in Seller’s
possession that pertain to the Property (except for the Excluded Assets) and are reasonably
required for Purchaser’s investigation and proposed development, operation and management of
the Property.
Upon delivery of the last item of Property Information, Seller shall deliver to Purchaser a
written notice certifying that all such deliveries have been completed, together with a list of the
documents and other items delivered or made available to Purchaser. Seller shall have an
ongoing obligation at the earliest possible occasion prior to Closing and during the survival
period of this Agreement to provide Purchaser with any document described above and coming
into Seller’s possession or produced by Seller after the initial delivery of Property Information.
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2.2 Due Diligence.
(a) Purchaser, from and after the Execution Date, shall have through the last
day of the Due Diligence Period in which to examine, inspect, analyze and investigate the
Property, applicable laws and regulations, the Property Information, the Title Commitment, the
Survey, any Amended Report or Revised Survey and any and all other information Seller is
required to provide to Purchaser hereunder. Purchaser, in its sole and absolute judgment and
discretion, may elect to terminate this Agreement by giving written notice of such election to
Seller (the “Due Diligence Termination Notice”) on or before the last day of the Due Diligence
Period. If this Agreement terminates pursuant to this Paragraph 2.2, all further rights and
obligations of the parties under this Agreement shall terminate, except for such rights and
obligations as expressly survive the termination of this Agreement. Purchaser, by written notice
to Seller and Escrow Agent, may waive its right to terminate this Agreement pursuant to this
Paragraph prior to the last day of the Due Diligence Period and the Due Diligence Period shall be
deemed to have ended on the date such notice is received by Seller. If Purchaser fails to deliver
to Seller a Due Diligence Termination Notice prior to the expiration of the Due Diligence Period,
this Agreement shall continue in full force and effect, and the Due Diligence Period shall end on
the date determined in accordance with this Agreement.
(b) Purchaser, from and after the Execution Date shall have access to the Real
Property at all reasonable times for the purpose of conducting surveys, architectural, engineering,
geotechnical and environmental inspections and tests (including intrusive inspection and
sampling), and any other inspections, studies, or tests reasonably required by Purchaser.
Purchaser shall keep the Property free and clear of any liens and shall indemnify, defend, and
hold Seller harmless from all claims and liabilities for physical damage caused to persons or
property asserted against Seller as a result of and to the extent caused by any such entry or
activities by Purchaser, its agents, employees or representatives. If any inspection or test
disturbs the Property, Purchaser shall restore the Property to the same condition as existed prior
to any such inspection or test. Purchaser and its agents, employees, and representatives shall
have a continuing right of access to the Property at any reasonable time prior to Closing for the
purpose of performing non-intrusive inspections and investigations, examining and making
copies of all books and records and other materials relating to the Property in Seller’s or its
property manager’s possession (except for the Excluded Assets), and, with Seller’s consent, for
any other reasonable purpose. Purchaser shall have the right to conduct a “walk-through” of the
Real Property at any reasonable time prior to the Closing. In the course of its investigations,
Purchaser may make inquiries to third parties, including, without limitation, tenants, lenders,
contractors, subcontractors, property managers, parties to agreements affecting the Property, and
municipal, local and other government officials and representatives, and Seller consents to such
inquiries. If this Agreement terminates or the Closing does not occur for any reason, Purchaser
shall promptly return to Seller all original documents and materials provided to Purchaser by or
on behalf of Seller, shall destroy all copies of all documents provided to Purchaser by or on
behalf of Seller, and shall keep any information disclosed by or on behalf of Seller to Purchaser
in connection with this Agreement confidential between the parties hereto. The obligations of
Purchaser under this Paragraph shall survive the termination of this Agreement.
2.3 Intentionally Omitted..
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ARTICLE 3: TITLE AND SURVEY REVIEW
3.1 Delivery of Title Commitment and Survey. Purchaser shall cause to be prepared
(a) a current, effective commitment for title insurance (the “Title Commitment”) issued by the
Title Company, in the amount of the Purchase Price with Purchaser named as the proposed
insured, and accompanied by true, complete, and legible copies of all documents referred to in
the Title Commitment; and (b) a current ALTA/NSPS Land Title Survey of the Real Property
(the “Survey”) in a form acceptable to Purchaser. The costs of procuring the Title Commitment
and the Survey shall be allocated between Purchaser and Seller pursuant to Section 3.4 below.
3.2 Title Review and Cure.
(a) Seller shall remove at or prior to Closing (i) liens of an ascertainable
dollar amount created by, under or through Seller, or (ii) any exceptions or encumbrances to title
which are created by, under or through Seller after the Execution Date without Purchaser’s
consent (together, the “Prohibited Liens”). If the Title Company, after the delivery of the initial
Title Commitment and less than 5 business days prior to Closing, issues a supplemental or
amended title report adding or modifying title exceptions (other than Prohibited Liens) or adding
or modifying the conditions to obtaining the Title Policy or any of Purchaser’s Endorsements
previously requested by Purchaser (an “Amended Report”), or the surveyor, less than 5 business
days prior to Closing, revises the Survey to disclose any material matters not appearing on the
Survey previously delivered to Purchaser (a “Revised Survey”), Purchaser may elect by written
notice to Seller to adjourn the closing for a period of 5 business days to provide Purchaser
sufficient time to review the Amended Report or Revised Survey, as applicable. Any matter
shown on the Title Commitment, the Survey, any Amended Report or any Revised Survey at
Closing (other than Prohibited Liens, which Seller shall be obligated to cause to be released at or
prior to Closing), as the case may be, shall be deemed to have been approved by Purchaser and
shall be deemed to be a Permitted Exception.
(b) If Seller does not release prior to Closing any Prohibited Lien, Purchaser
may (i) elect to terminate this Agreement by delivering a Due Diligence Termination Notice to
Seller, or (ii) elect to close the transaction notwithstanding the Prohibited Lien, utilize such
portion of the Purchase Price at Closing as may be necessary to remove or release any such
Prohibited Lien, and pursue any other remedy available to Purchaser hereunder as set forth in
Paragraph 8.1 below.
(c) The term “Permitted Exceptions” shall mean (i) any exception disclosed
by the Title Commitment, an Amended Report, the Survey or a Revised Survey, except for the
Prohibited Liens, and (ii) general real estate taxes not yet due and payable.
3.3 Delivery of Title Policy at Closing. As a condition to Purchaser’s obligation to
close, the Title Company shall deliver to Purchaser at Closing an ALTA Owner’s Policy of Title
Insurance in substance satisfactory to Purchaser in accordance with Paragraph 3.2 above (the
“Title Policy”), with extended coverage (i.e., with all ALTA and any state specific general
exceptions deleted), issued by the Title Company as of the date and time of the recording of the
Deeds, in the amount of the Purchase Price, containing the Purchaser’s Endorsements, insuring
Purchaser as owner of good, marketable and indefeasible fee simple title to the Real Property,
5
and subject only to the Permitted Exceptions. “Purchaser’s Endorsements” shall mean, to the
extent such endorsements are available under the laws of the state in which the Real Property is
located and are not waived by Purchaser: (a) owner’s comprehensive; (b) access; (c) survey
accuracy; (d) same as survey/legal description equivalency; (e) separate tax lot; (f) subdivision;
(g) zoning 3.1, with parking; (h) contiguity (if applicable); (i) environmental 8.1; (j) waiver of
arbitration; (k) creditor’s rights; and (l) such other endorsements available in the state in which
the Real Property is located as Purchaser may require based on its review of the Title
Commitment, Survey and any Amended Report and Revised Survey. Seller shall execute and
deliver at Closing such affidavits, indemnities, lien waivers and other documents as the Title
Company shall reasonably require for the issuance of the Title Policy with Purchaser’s
Endorsements. The Title Policy may be delivered after the Closing if, at the Closing, the Title
Company issues a currently duly-executed “marked-up” Title Commitment providing title
coverage effective as of the Closing Date and irrevocably commits in writing to issue the Title
Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.
3.4 Title and Survey Costs. Seller shall pay, at or prior to Closing, (i) the one half of
the cost of the Survey, including any revisions necessary to make the Survey conform to the
requirements of this Agreement, (ii) the search and examination fee and other fees charged in
connection with the Title Commitment, (iii) the base premium for the Title Policy, including the
premium for extended coverage, and (iv) any additional costs associated with satisfying the Title
Company’s requirements or conditions to the issuance of the Title Policy. Purchaser shall pay,
at or prior to Closing, (i) the one-half of the cost of the Survey, including any revisions necessary
to make the Survey conform to the requirements of this Agreement, (ii) the cost of any
Purchaser’s Endorsements, and (iii) the cost of any mortgagee title insurance coverage.
ARTICLE 4: COVENANTS, OPERATIONS AND RISK OF LOSS
4.1 Ongoing Operations. During the pendency of this Agreement and prior to
Closing:
(a) Maintenance of the Property. Seller shall continue to maintain the
Property in a manner consistent with the manner in which Seller has maintained the Property
prior to the Execution Date.
(b) Performance under Leases and Other Agreements. Seller shall continue to
perform all of its obligations under the Leases and shall perform its material obligations under
any other agreements that may affect the Property.
(c) New Contracts. Seller will not enter into or permit to exist any (i) contract
that will be an obligation of Purchaser or otherwise affecting the Property, or Purchaser’s
proposed development thereof, subsequent to Closing, or (ii) any oral or written amendment,
supplement, modification or termination of or any supplement to any existing contract that shall
affect the Property, or Purchaser’s proposed development thereof, subsequent to Closing.
(d) Listings and Other Offers. Seller will not list the Real Property with any
broker or otherwise solicit any offers to sell the Real Property or enter into any binding contracts
or agreements (whether binding or not) regarding any disposition of the Real Property.
6
(e) Leasing Arrangements. Seller will not enter into any lease of all or any
part of the Property without Purchaser’s prior written consent.
(f) Actions Regarding Representations and Warranties. Seller shall not take
any action, or fail to take any action, which would cause any of the representations and
warranties of Seller contained in Article 7 hereof to no longer be true and correct.
4.2 Environmental Covenants.
(a) Seller covenants and agrees that, from and after the Closing Date, Seller
shall use its best efforts to cooperate with Purchaser in providing all reports, test results, and
other documents as may be required by the Michigan Department of Environmental Quality (the
“MDEQ”) to limit Purchaser’s liability under MICH. COM. LAWS §324.20101 et. seq. (commonly
known as the Natural Resources and Environmental Protection Act, and hereinafter referred to as
the “NREPA”), including, but not limited to §324.21323a of the NREPA, with respect to the
Real Property. This covenant shall survive the Closing and shall not be deemed merged with the
Deeds under any circumstance.
(b) Seller shall delver to Purchaser at least two (2) business days prior to
Closing a Phase I and Phase II environmental assessment, prepared at Seller’s sole cost and
expense, in a form and substance reasonably satisfactory to Purchaser and necessary to obtain a
baseline environmental assessment in accordance with the NREPA, and file a plan for due care
compliance for the Real Property with the MDEQ in accordance with §324.20114g of the
NREPA.
ARTICLE 5: CLOSING
5.1 Closing. The consummation of the transaction contemplated herein (“Closing”)
shall occur on the Closing Date, through an escrow with, Escrow Agent. Funds shall be
deposited into and held by Escrow Agent in a closing escrow account with a bank satisfactory to
Purchaser and Seller. Upon the satisfaction or completion of unwaived Closing Conditions and
deliveries, the parties shall direct Escrow Agent to immediately record and deliver the closing
documents to the appropriate parties and make disbursements according to the Closing
Statement. Escrow Agent shall agree in writing with Purchaser by way of the joint order escrow
instructions by and among Purchaser, Seller and Escrow Agent (the “Joint Order Escrow
Instructions”) that (1) recordation of the Deeds constitutes its representation that it is holding the
closing documents, closing funds and Closing Statement and is prepared and irrevocably
committed to disburse the closing funds in accordance with the Closing Statement and Joint
Order Escrow Instructions, and (2) the release of funds to Seller shall irrevocably commit the
Title Company to record the Deeds and to issue the Title Policy in accordance with the Joint
Order Escrow Instructions and this Agreement.
5.2 Conditions to the Parties’ Obligations to Close.
(a) Seller’s Closing Conditions Defined. In addition to all other conditions set
forth in this Agreement to Seller’s obligation to consummate the transactions contemplated
hereunder, the obligation of Seller to consummate the transactions contemplated hereunder shall
also be subject to the fulfillment, on or before the Closing Date, of all of the following
7
conditions, any or all of which may be waived by Seller in its sole discretion (collectively with
all other conditions to Seller’s obligation to close set forth in this Agreement, the “Seller’s
Closing Conditions,” and each, a “Seller Closing Condition”):
(i) Purchaser’s representations and warranties contained herein shall
be true and correct in all material respects as of the Execution Date and the Closing Date. For
purposes of this clause (i) only, a representation that is limited to Purchaser’s knowledge or
notice shall be false if the factual matter that is the subject of the representation is false
notwithstanding any lack of knowledge or notice to Purchaser;
(ii) As of the Closing Date, Purchaser shall have performed its
obligations required hereunder to be performed by the Closing Date in all material respects and
all deliveries to be made by Purchaser at or prior to Closing shall have been tendered;
(iii) There shall exist no pending or threatened actions, suits,
arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors,
insolvency, bankruptcy, reorganization or other proceedings, pending or threatened against
Purchaser that would materially and adversely affect Purchaser’s ability to perform its
obligations under this Agreement; and
(iv) There shall exist no pending or threatened action, suit or
proceeding with respect to Purchaser before or by any court or administrative agency which
seeks to restrain or prohibit, this Agreement or the consummation of the transactions
contemplated hereby.
(b) Purchaser’s Closing Conditions Defined. In addition to all other
conditions set forth in this Agreement to Purchaser’s obligation to consummate the transactions
contemplated hereunder, the obligation of Purchaser to consummate the transactions
contemplated hereunder shall also be subject to the fulfillment on or before the Closing Date of
all of the following conditions, any or all of which may be waived by Purchaser in its sole
discretion (collectively with all other conditions to Purchaser’s obligation to close set forth in
this Agreement, the “Purchaser’s Closing Conditions,” and each, a “Purchaser Closing
Condition,” and Purchaser’s Closing Conditions and Seller’s Closing Conditions, together, shall
be referred to herein as the “Closing Conditions” and each, a “Closing Condition”):
(i) Seller’s representations and warranties contained herein shall be
true and correct in all material respects as of the Execution Date and the Closing Date;
(ii) As of the Closing Date, Seller shall have performed its
obligations required hereunder to be performed by the Closing Date and all deliveries to be made
by Seller at or prior to Closing shall have been tendered;
(iii) There shall exist no pending or threatened actions, suits,
arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors,
insolvency, bankruptcy, reorganization or other proceedings, pending or threatened against Seller
that would materially and adversely affect the operation or value of the Property or Seller’s
ability to perform its obligations under this Agreement;
8
(iv) There shall exist no pending or threatened action, suit or
proceeding with respect to Seller before or by any court or administrative agency which seeks to
restrain or prohibit, or to obtain damages or a discovery order with respect to, this Agreement or
the consummation of the transactions contemplated hereby; and
(v) Seller has delivered to Purchaser a Phase I and Phase II
environmental assessment, prepared at Seller’s sole cost and expense, in a form and substance
reasonably satisfactory to Purchaser and necessary to obtain a baseline environmental assessment
in accordance with the NREPA, and file a plan for due care compliance for the Real Property
with the MDEQ in accordance with §324.20114g of the NREPA.
(c) Failure of a Closing Condition.
(i) Seller’s Closing Condition Failure. So long as Seller is not in
default hereunder, if any Seller Closing Condition hereunder has not been satisfied by Purchaser
or waived by Seller, in each instance as of the Closing Date, Seller may (1) as its sole remedy,
terminate this Agreement by delivering written notice to Purchaser on or before the second
business day following the Closing Date, or (2) elect to consummate the transactions
contemplated hereby notwithstanding the non-satisfaction of any one or more Seller Closing
Conditions, in which event Seller shall be deemed to have waived any such Seller Closing
Condition. In the event Seller elects to close, notwithstanding the non-satisfaction of any one or
more Seller Closing Conditions, there shall be no liability on the part of Purchaser for breaches
of representations and warranties of which Seller had knowledge at the Closing. Except as
provided above, the failure of a Seller Closing Condition due to Purchaser’s breach shall not
relieve Purchaser from any liability it would otherwise have hereunder.
(ii) Purchaser’s Closing Condition Failure. So long as Purchaser is
not in default hereunder, if any Purchaser Closing Condition hereunder has not been satisfied by
Seller or waived by Purchaser, in each instance as of the Closing Date, Purchaser may, in its sole
discretion, (1) elect to terminate this Agreement by delivering written notice of such election to
Seller on or before the second business day following the Closing Date, (2) elect to adjourn the
Closing for a period or periods not to exceed 90 days in the aggregate to permit Seller to cause
such Purchaser Closing Condition to be satisfied, except that Purchaser may withdraw such
election to adjourn at any time prior to Seller’s cure of all unsatisfied Purchaser Closing
Conditions and select any other remedy available to Purchaser hereunder, or (3) elect to
consummate the transactions contemplated hereby notwithstanding the non-satisfaction of any
one or more Purchaser Closing Conditions, in which event Purchaser shall be deemed to have
waived any such Purchaser Closing Condition. In the event Purchaser elects to close,
notwithstanding the non-satisfaction of any one or more Purchaser Closing Conditions, there
shall be no liability on the part of Seller for breaches of representations and warranties of which
Purchaser had knowledge at the Closing. Except as provided above, the failure of a Purchaser
Closing Condition due to Seller’s breach shall not relieve Seller from any liability it would
otherwise have hereunder.
5.3 Seller’s Deliveries in Escrow. At least one business day prior to the Closing Date,
Seller shall deliver in escrow to Escrow Agent the following:
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(a) City Deed. A quitclaim deed (or special or limited warranty deed, if
required by the Title Company to issue the Title Policy) in the form attached hereto as Exhibit B,
duly executed and acknowledged by the City, conveying to Purchaser good, indefeasible and
marketable fee simple title to the portion of the Real Property owned by the City, in recordable
form, subject only to the Permitted Exceptions (the “City Deed”);
(b) DDA Deed. A quitclaim deed (or special or limited warranty deed, if
required by the Title Company to issue the Title Policy) in the form attached hereto as Exhibit B,
duly executed and acknowledged by the DDA, conveying to Purchaser good, indefeasible and
marketable fee simple title to the portion of the Real Property owned by the DDA, in recordable
form, subject only to the Permitted Exceptions (the “DDA Deed”; the DDA Deed and the City
Deed are referred to collectively herein as the “Deeds”);
(c) Intentionally Omitted;
(d) Intentionally Omitted;
(e) State Law Disclosures. Such disclosures and reports as are required by
applicable state and local law in connection with the conveyance of real property;
(f) FIRPTAs. Foreign Investment in Real Property Tax Act affidavits
executed by each of the City and the DDA. If Seller fails to provide the necessary affidavits
and/or documentation of exemption on the Closing Date, Purchaser may proceed with
withholding provisions as provided by law;
(g) Title Requirements. Any and all lien waivers of any contractors and
subcontractors and any and all sworn statements or other affidavits and other documentation
reasonably required by the Title Company to issue to the Title Policy;
(h) CCRs. If the Real Property is subject to a declaration of covenants,
conditions and restrictions or similar instrument (“CCRs”) governing or affecting the use,
operation, maintenance, management or improvement of the Real Property, estoppel certificates,
in form and substance satisfactory to Purchaser, from the declarant, association, committee,
agent and/or other person or entity having governing or approval rights under the CCRs, and to
the extent applicable, a recordable assignment, in form and substance satisfactory to Purchaser,
assigning any and all developer, declarant or other related rights or interests of Seller (or any
Affiliate of Seller) in or under the CCRs;
(i) Authority. Evidence of the existence, organization and authority of each
of the City and the DDA and of the authority of the persons executing documents on behalf of
Seller reasonably satisfactory to Escrow Agent and the Title Company;
(j) Intentionally Omitted;
(k) Joint Order Escrow Instructions. The Joint Order Escrow Instructions, in
form reasonably acceptable to the parties hereto, executed by Seller;
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(l) Lumberjacks Sublease Amendment. An amendment to that certain
Sublease Agreement (the “Lumberjacks Sublease”) dated as of July, 2015, entered into by and
between the City and WC Hockey, LLC, a Michigan limited liability company (“Lumberjacks”),
terminating the Lumberjacks’ right to park on the Property (the “Lumberjacks Sublease
Amendment”), in form and substance reasonably satisfactory to Purchaser and Seller, and duly
executed and acknowledged by the City and Lumberjacks;
(m) Parking License Agreement. A license agreement in the form attached
hereto as Exhibit C (the “Parking License”), duly executed and acknowledged by the City and
Purchaser, granting to the City a license to use and to sublicense the use of the Real Property
upon the terms and conditions set forth in the Parking License;
(n) Additional Documents. Any additional documents that Purchaser, Escrow
Agent or the Title Company may reasonably require for the proper consummation of the
transaction contemplated by this Agreement.
5.4 Purchaser’s Deliveries in Escrow. Except as specified below, at least one
business day prior to the Closing Date, Purchaser shall deliver in escrow to Escrow Agent the
following:
(a) Purchase Price. On the Closing Date, the Purchase Price, plus or minus
applicable prorations (collectively, the “Net Closing Payment”);
(b) Intentionally Omitted;
(c) Intentionally Omitted;
(d) State Law Disclosures. Such disclosures and reports as are required by
applicable state and local law in connection with the conveyance of real property;
(e) Parking License. A duly executed counterpart to the Parking License;
(f) Joint Order Escrow Instructions. The Joint Order Escrow Instructions, in
form reasonably acceptable to the parties hereto, executed by Purchaser; and
(g) Additional Documents. Any additional documents that Seller, Escrow
Agent or the Title Company may reasonably require for the proper consummation of the
transaction contemplated by this Agreement.
5.5 Closing Statements. On or prior to the Closing Date, Seller and Purchaser shall
deposit with Escrow Agent the final executed closing statement consistent with this Agreement
in the form required by Escrow Agent (the “Closing Statement”).
5.6 Title Policy. The Title Company shall deliver to Purchaser the Title Policy in
accordance with the provisions of Paragraph 3.3.
5.7 Possession. Seller shall deliver possession of the Property to Purchaser on the
Closing Date immediately following Closing, subject only to the Permitted Exceptions,
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5.8 Delivery of Books and Records. Immediately after, if not prior to, Closing, to the
extent in Seller’s custody or control and to the extent not previously provided to Purchaser,
Seller shall deliver to Purchaser: (i) copies or originals of any agreement being assumed by
Purchaser, if any; (ii) copies or originals of all books and records of account, copies of
correspondence with suppliers, receipts for deposits, unpaid bills and other papers or documents
which pertain to the Property; (iii) all advertising materials, booklets, keys and other items, if
any, used in the operation of the Property; (iv) the any original plans and specifications; and (v)
any other material documentation which pertains to the Property and that is reasonably required
for Purchaser’s development, operation and management of the Property. To the extent
information reasonably necessary to Purchaser’s development, operation and management of the
Property is not in Seller’s custody or control at Closing and has not been previously provided to
Purchaser, Seller shall reasonably facilitate Purchaser’s access to and cooperate with Purchaser
to obtain such information. Seller shall cooperate with Purchaser after Closing to transfer to
Purchaser any such information stored electronically.
ARTICLE 6: PRORATIONS
6.1 Prorations. The following items shall be prorated on an accrual basis between
Seller and Purchaser as of the close of business on the day immediately preceding the Closing
Date, the Closing Date being a day of income and expense to Purchaser:
(a) Taxes and Assessments. Purchaser shall receive a credit for any accrued
but unpaid real estate taxes and any irrigation assessments, improvement lien assessments and
other special assessments (including without limitation any assessments imposed by private
covenant) (“Taxes”), if any, applicable to any period before the Closing Date, even if such taxes
and assessments are not yet due and payable. If the amount of any such Taxes have not been
determined as of Closing, such credit shall be based upon the latest available information and
shall be reprorated upon issuance of the final tax bill. In no event shall Purchaser be liable for
any real estate taxes or assessments payable with respect to the portion of the 2016 tax year
occurring prior to the Closing Date, provided, however, that Purchaser shall pay the entire 2016
Business Improvement District Special Assessment which may be levied on the December, 2016
tax bill and a street light special assessment which may be levied on the December, 2016 tax bill,
both of which would be with respect to the Property assessed in 2016 and becomes due payable
in 2017.
(b) Intentionally Omitted.
(c) Sales, Transfer, and Documentary Taxes. Seller shall pay all sales, gross
receipts, compensating, stamp, excise, documentary, transfer, deed or similar taxes and fees
imposed in connection with this transaction under applicable state or local law. Purchaser shall
pay the recording fees for the recording of the Deeds (excluding any transfer taxes or similar
taxes imposed under applicable state or local law).
(d) Utility Deposits. Seller shall receive a credit for the amount of deposits, if
any, with utility companies that are transferable and that are assigned to Purchaser at the Closing.
(e) Sales Commissions. Each of Seller and Purchaser represents and warrants
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to the other that it has not dealt with any real estate broker, sales person or finder in connection
with this transaction. The foregoing representation shall survive the Closing indefinitely.
6.2 Other Closing Costs.
(a) At Closing, Seller and Purchaser each agree to pay one-half (1/2) of the
escrow charges. Any other closing costs not otherwise addressed in this Agreement shall be paid
by Purchaser and Seller according to the usual and customary practice in Muskegon County,
Michigan. All closing costs payable by Seller shall be deducted from Seller’s proceeds at
Closing. On or before the Closing Date, Purchaser shall deposit with Escrow Agent cash in an
amount sufficient to pay all closing costs payable by Purchaser.
(b) No expense related to the ownership or operation of the Property, other
than those specifically identified by this Agreement as being chargeable to Purchaser or those
obligations expressly assumed by Purchaser, shall be charged to or paid or assumed by
Purchaser, whether allocable to any period before or after the Closing. Likewise, Seller shall not
be responsible for payment of any charge or expense against the Property specifically identified
by this Agreement as being chargeable to Purchaser or for those obligations expressly assumed
by Purchaser. If Seller and Purchaser retain services from the same third party in connection
with this Agreement, and the responsibility for payment of such services is not specifically
addressed by this Agreement, then Seller and Purchaser shall each pay for the services initiated
by it, unless the other party hereto has agreed to pay for such service in writing.
6.3 Reproration. Either party shall be entitled to a post-Closing adjustment for any
incorrect proration or adjustment once the actual amount of any item so prorated is available.
ARTICLE 7: REPRESENTATIONS AND WARRANTIES
7.1 Seller’s Representations and Warranties. As a material inducement to Purchaser
to execute this Agreement and consummate this transaction, Seller represents and warrants to
Purchaser that:
(a) Authority. Seller has been duly formed and is validly existing and is in
good standing under the laws of the State of Michigan and is qualified to do business in the state
in which the Real Property is located. Seller has the full right and authority and has obtained any
and all consents required to enter into this Agreement and to consummate or cause to be
consummated the transactions contemplated hereby. This Agreement has been, and all of the
documents to be delivered by Seller at the Closing will be, authorized and properly executed and
constitutes, or will constitute, as appropriate, the valid and binding obligation of Seller,
enforceable in accordance with their terms.
(b) Ownership of Land. The City is the sole, fee simple owner of the City
Land. The DDA is the sole, fee simple owner of the DDA Land.
(c) Conflicts and Pending Actions or Proceedings. There is no agreement to
which Seller is a party or binding on Seller that is in conflict with this Agreement and there is no
(i) default or violation under any agreements to which Seller is a party, nor (ii) any action or
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proceeding pending or, to Seller’s knowledge, threatened against Seller, that challenges or
impairs Seller’s ability to execute or perform its obligations under this Agreement.
(d) Contractors and Suppliers. All amounts due as of Closing to any
contractors, subcontractors, suppliers, architects, engineers, mechanics, materialmen, vendors
and others who have performed services or labor or have supplied materials in connection with
Seller’s acquisition, development, ownership, or management of the Property, have been paid in
full and all liens arising therefrom (or claims which with the passage of time or giving of notice,
or both, could mature into liens) have been satisfied and released. Seller shall provide Purchaser
and the Title Company with reasonably satisfactory evidence of such payment.
(e) Leases and Licenses. Other than the Lumberjacks Sublease, there are no
leases affecting the Real Property, no licenses affecting the Property, and no leasing, licensing or
other fees or commissions are due, nor shall any become due, and no understanding or agreement
with any party exists as to payment of any leasing or licensing commissions or fees regarding
future leases or licenses or as to the procuring of tenants or licensees with respect to the Property,
other than as disclosed in writing to Purchaser prior to the expiration of the Due Diligence
Period.
(f) Contracts. There are no management, service, supply, equipment rental, or
other contracts related affecting the Property which would which would impose upon Purchaser
any obligation from or after the Closing Date.
(g) Permits. Seller has obtained and shall maintain in effect all permits
required for the ownership and operation of the Property, if any.
(h) Notice of Violations or Defects. Seller has received no written notice: (i)
that the Property or the use thereof violates any governmental law or regulation or any covenants
or restrictions encumbering the Real Property; (ii) of any material physical defect in the
Improvements; or (iii) from any insurance company or underwriter of any defect that would
materially adversely affect the insurability of the Real Property or cause an increase in insurance
premiums.
(i) Bankruptcy. Seller has not (a) made a general assignment for the benefit
of creditors, (b) admitted in writing its inability to pay debts as they become due, (c) filed a
petition seeking, or consent to, reorganization or relief under any applicable federal or state law
relating to bankruptcy, or (d) consented to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official), or otherwise suffered the attachment or judicial
seizure, of its or a substantial part of its property.
(j) Environmental. Seller has no knowledge of any underground storage tank
(in use or abandoned) on or about the Real Property or any previously existing underground
storage tank on or about the Real Property that was not removed in compliance with all
applicable laws, rules, regulations and orders. Seller has no knowledge of any violation of
Environmental Laws related to the Real Property or the presence or release of Hazardous
Materials on or from the Real Property except as disclosed in the Property Information. Seller
has not manufactured, introduced, released or discharged from or onto the Real Property any
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Hazardous Materials or any toxic wastes, substances or materials (including, without limitation,
asbestos), and Seller has not used the Property or any part thereof for the generation, treatment,
storage, handling or disposal of any Hazardous Materials, in violation of any Environmental
Laws. The term “Environmental Laws” includes without limitation the NREPA, the Resource
Conservation and Recovery Act and the Comprehensive Environmental Response Compensation
and Liability Act and other federal laws governing the environment as in effect on the Execution
Date together with their implementing regulations and guidelines as of the Execution Date, and
all state, regional, county, municipal and other local laws, regulations and ordinances that are
equivalent or similar to the federal laws recited above or that purport to regulate Hazardous
Materials. The term “Hazardous Materials” includes petroleum, including crude oil or any
fraction thereof, natural gas, natural gas liquids, liquified natural gas, or synthetic gas usable for
fuel (or mixtures of natural gas or such synthetic gas), asbestos and asbestos containing materials
and any substance, material waste, pollutant or contaminant listed or defined as hazardous or
toxic under any Environmental Law.
(k) Intentionally Omitted.
(l) Obligations. Other than as set forth in the Lumberjacks Sublease, Seller
has made no commitment to any governmental authority, utility company, association or any
group, individual, or group of individuals relative to or in connection with the Real Property
which would impose upon Purchaser any obligation to make any contribution or dedication of
land or to construct, install or maintain any improvements of a public or private nature on or off
the Real Property.
(m) Assessments and Rights of Way. Except for a special assessment for the
Business Improvement District and a special assessment for street lights, both of which may be
adopted and may be levied commencing on the December, 2016 tax bill, Seller has no
knowledge of any proposed special assessments against the Real Property or any changes in any
rights of way or other roads bordering or providing access to the Real Property.
(n) Intentionally Omitted.
(o) Independent Unit. The Real Property is an independent unit which does
not now rely on any facilities (other than facilities covered by Permitted Exceptions or facilities
of municipalities or public utilities) located on any property that is not part of the Real Property
to fulfill any municipal or other governmental requirement, or for the furnishing to the Real
Property of any essential building systems or utilities (including drainage facilities, catch basins,
and retention ponds). No other building or other property that is not part of the Real Property
relies upon any part of the Real Property to fulfill any municipal or other governmental
requirement, or to provide any essential building systems or utilities.
(p) Withholding Obligation. Seller’s sale of the Property is not subject to any
federal, state or local withholding obligation of Purchaser under the tax laws applicable to Seller
or the Property.
7.2 Survival of Representations and Warranties. The representations and warranties
set forth in this Article 7 are made as of the Execution Date and shall be automatically remade by
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Seller as of the Closing Date and shall not be deemed to be merged into or waived by the
instruments of Closing, but shall survive the Closing until the date that is the second anniversary
of the Closing Date. Seller and Purchaser shall have the right to bring an action thereon only if
Seller or Purchaser, as the case may be, has given the other party written notice of the
circumstances giving rise to the alleged breach within the survival period.
ARTICLE 8: DEFAULT AND REMEDIES
8.1 Seller’s Default. If this transaction fails to close as a result of Seller’s default, the
Purchaser shall be entitled to (i) terminate this Agreement, in which event the parties shall be
relieved of all obligations under this Agreement, except for those obligations which expressly
survive Closing pursuant to the terms of this Agreement; or (ii) initiate an action against Seller
for specific performance within sixty (60) days after the event of default. Notwithstanding the
foregoing, if Seller willfully, through act, omission or failure to act, defaults under this
Agreement for purposes of selling the Property to another buyer, then, in such event, Seller shall
pay to Purchaser the amount of Purchaser’s reasonable out-of-pocket costs and expenses incurred
in connection with this Agreement and the transaction contemplated herein, including reasonable
attorneys’ fees and expenses and due diligence expenditures, up to a maximum of Thirty
Thousand Dollars ($30,000). The foregoing reimbursement obligation shall survive the
termination of this Agreement.
8.2 Purchaser’s Default. If this transaction fails to close due to the default of
Purchaser, then Seller’s sole remedy in such event shall be to terminate this Agreement, Seller
waiving all other rights or remedies in the event of such default by Purchaser. Notwithstanding
the above, if this transaction fails to close for any reason, Purchaser shall promptly return all
original documents and materials provided to Purchaser by or on behalf of Seller, shall destroy
all copies of all documents provided to Purchaser by or on behalf of Seller, and shall keep any
information disclosed to Purchaser in connection with this Agreement confidential between the
parties hereto.
8.3 Notice of Default. Except for a party’s failure to close on the Closing Date when
otherwise obligated by the terms of this Agreement to do so, neither party shall have the right to
declare a default by the other party and terminate this Agreement because of a failure by such
other party to perform under the terms of this Agreement unless the other party shall fail to cure
such failure to perform within 5 days after its receipt of written notice of such failure to perform.
8.4 Other Expenses. If this Agreement is terminated due to the default of a party,
then the defaulting party shall pay any fees due to Escrow Agent.
ARTICLE 9: MISCELLANEOUS
9.1 Assignment, Parties Bound. Neither party may assign this Agreement without the
prior written consent of the other, and any such prohibited assignment shall be void; provided,
however, that Purchaser may assign this Agreement without Seller’s consent to an Affiliate that
assumes Purchaser’s obligations hereunder, provided, further, that Purchaser shall not be
released from its obligations hereunder. Regardless of any consent, an assignment (including an
assignment to an Affiliate) shall not release Purchaser or Seller, as the case may be, from its
16
obligations under this Agreement. Subject to the foregoing, this Agreement shall be binding
upon and shall inure to the benefit of the respective legal representatives, successors, assigns,
heirs, and devisees of the parties. For the purposes of this Paragraph, the term “Affiliate” means
an entity that directly or indirectly controls, is controlled by or is under common control with
Purchaser whose common or equity interest is entirely owned, directly or indirectly, by Harold
Back; and the term “control” means the power to direct the management of such entity through
voting rights, ownership or contractual obligations.
9.2 Headings. The article and paragraph headings of this Agreement are for
convenience only and in no way limit or enlarge the scope or meaning of the language hereof.
9.3 Invalidity and Waiver. If any portion of this Agreement is held invalid or
inoperative, then so far as is reasonable and possible the remainder of this Agreement shall be
deemed valid and operative, and, to the greatest extent legally possible, effect shall be given to
the intent manifested by the portion held invalid or inoperative. The failure by either party to
enforce against the other any term or provision of this Agreement shall not be deemed to be a
waiver of such party’s right to enforce against the other party the same or any other such term or
provision in the future.
9.4 Governing Law. This Agreement shall, in all respects, be governed, construed,
applied, and enforced in accordance with the law of the state in which the Real Property is
located.
9.5 Survival. Except as otherwise provided herein, the provisions of this Agreement
that contemplate performance after the Closing and the obligations of the parties not fully
performed at the Closing shall survive the Closing until the date that is the second anniversary of
the Closing Date and such provisions shall not be deemed to be merged into or waived by the
instruments of Closing
9.6 No Third Party Beneficiary. This Agreement is not intended to give or confer any
benefits, rights, privileges, claims, actions, or remedies to any person or entity as a third party
beneficiary, decree, or otherwise.
9.7 Entirety and Amendments. This Agreement embodies the entire agreement
between the parties hereto and supersedes all prior agreements and understandings relating to the
Property. This Agreement may be amended or supplemented only by an instrument in writing
executed by the party against whom enforcement is sought.
9.8 Time. Time is of the essence in the performance of this Agreement.
9.9 Intentionally Omitted.
9.10 Attorneys’ Fees. Should either party employ attorneys to enforce any of the
provisions hereof, the party against whom any final judgment is entered agrees to pay the
prevailing party all reasonable costs, charges, and expenses, including reasonable attorneys’ fees,
expended or incurred in connection therewith.
17
9.11 Notices. All notices required or permitted hereunder shall be in writing and shall
be served on the parties at the addresses set forth in Paragraph 1.1. Any such notices shall be (a)
sent by overnight delivery using a nationally recognized overnight courier, (b) sent by portable
document format via electronic mail; or (c) sent by personal delivery. Notices shall be
considered given and effective upon receipt by the party addressee, unless the failure to receive
is due to the refusal of the addressee to accept delivery or is caused by a change of address of
which no notice was given, and in either such event, notice shall be considered given and
effective 1 business day after it was sent. Any copies of notices that are required to be sent to
individuals or entities that are not parties to this Agreement are for informational purposes only
and a failure to give or receive such copies shall not be deemed a failure to give proper notice.
Notices given by counsel to Purchaser shall be deemed given by Purchaser and notices given by
counsel to Seller shall be deemed given by Seller.
9.12 Construction. The parties acknowledge that the parties and their counsel have
reviewed and revised this Agreement and agree that the normal rule of construction, which
dictates that any ambiguities are to be resolved against the drafting party, shall not be employed
in the interpretation of this Agreement or any exhibits or amendments hereto.
9.13 Calculation of Time Periods, Business Days. Unless otherwise specified, in
computing any period of time described herein, the day on which the act or event triggering the
designated period of time is not to be included in computing such period of time and the last day
of such period is to be included, unless such last day is a Saturday, Sunday or legal holiday for
national banks in the location where the Real Property is located, in which event the period shall
run until the end of the next day that is not a Saturday, Sunday, or legal holiday. The last day of
any period of time described herein shall be deemed to end at 6:00 p.m. Chicago, Illinois time.
9.14 Execution in Counterparts. This Agreement may be executed in counterparts, all
of which counterparts collectively shall constitute one agreement, binding on the parties hereto
notwithstanding that all of the parties hereto are not signatories to the same counterpart. For
purposes of this Agreement, each of the parties hereto agree that a facsimile or electronically
mailed copy of the signature of the person executing this Agreement on any party’s behalf shall
be effective as an original signature and legally binding and effective as an execution counterpart
hereof. Each of the undersigned parties authorizes the assembly of one or more original copies
of this Agreement through the combination of the several executed counterpart signature pages
with one or more bodies of this Agreement, including the exhibits to this Agreement, such that
this Agreement shall consist of the body of this Agreement, counterpart signatures pages which
collectively will contain the signatures of the undersigned parties hereto and the exhibits to this
Agreement. Each such compilation of this Agreement shall constitute one complete original or
copy, as the case may be, of this Agreement.
9.15 Limitation of Liability. None of the officers, employees, managers or members of
Purchaser or Seller assumes any personal liability for obligations entered into by or on behalf of
Purchaser or Seller, respectively.
9.16 Further Assurances. In addition to the acts and deeds recited herein and
contemplated to be performed, executed and/or delivered by either party at Closing, each party
agrees to perform, execute and deliver, but without any obligation to incur any additional
18
liability or expense, on or after the Closing any further deliveries and assurances as may be
reasonably necessary to consummate the transactions contemplated hereby or to further perfect
the conveyance, transfer and assignment of the Property to Purchaser.
[Execution Pages Follow]
19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year written below.
SELLER:
CITY:
Dated: , 2016 By:
_____________________________________
Stephen Gawron, Mayor
By:
_____________________________________
Ann Marie Meisch, City Clerk
CITY OF MUSKEGON, a Michigan municipal
corporation
By:
Name:
Title:
DDA:
Dated: , 2016 MUSKEGON DOWNTOWN
DEVELOPMENT AUTHORITY
By:
_____________________________________
Eugene Fethke, Its Chairman
By:
_____________________________________
Michael Kleaveland, Its Secretary
By:
Name:
Title:
PURCHASER:
Dated: , 2016 CITIPARC, LLC, a Delaware limited liability
company
By:
Name:
Title:
EXHIBITS
A-1 - Legal Description of City Portion of the Real Property
A-2 - Legal Description of DDA Portion of the Real Property
B - Form of Deed
C - Parking License Agreement
EXHIBIT A-1
LEGAL DESCRIPTION OF CITY PORTION OF THE REAL PROPERTY
[TO BE INSERTED]
Ex. A-1
EXHIBIT A-2
LEGAL DESCRIPTION OF DDA PORTION OF THE REAL PROPERTY
[TO BE INSERTED]
Ex. A-2
EXHIBIT B
FORM OF DEED
[SELLER TO PROPOSE]
EXHIBIT C
FORM OF PARKING LICENSE AGREEMENT
[TO BE ATTACHED]
F-1