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CITY OF MUSKEGON
CITY COMMISSION MEETING
AUGUST 14, 2018 @ 5:30 P.M.
MUSKEGON CITY COMMISSION CHAMBERS
933 TERRACE STREET, MUSKEGON, MI 49440
AGENDA
□ CALL TO ORDER:
□ PRAYER:
□ PLEDGE OF ALLEGIANCE:
□ ROLL CALL:
□ HONORS AND AWARDS:
□ INTRODUCTIONS/PRESENTATION:
A. Presentation of 2018 Beautification Awards
□ CITY MANAGER’S REPORT:
□ CONSENT AGENDA:
A. Approval of Minutes City Clerk
B. Special Event Liquor License – Farmers Market for Farm to Table Dinner –
City Clerk
C. Designation of Voting Delegates for the Michigan Municipal League
Annual Business Meeting City Clerk
D. Annex Lease City Manager
E. Purchase Agreement – 880 First City Manager
F. 1000 West Western Avenue Sale and Development Agreement City
Manager
G. Memorandum of Understanding – Justice Assistance Grant Public
Safety Director
H. Rezoning Request for a Portion of the Property at 710 Pulaski Avenue
2nd Reading Planning & Economic Development
I. Sale of City-Owned Property at 1870 Huizenga Street & 1080 E. Holbrook
Avenue Planning & Economic Development
J. Sale of City-Owned Property in the Seaway Industrial Park Planning &
Economic Development
Page 1 of 2
K. Launch Ramp Ordinance Change Department of Public Works
L. City Survey Services Department of Public Works
M. Landscaping DPW/Filtration
N. Fence Replacement DPW/Filtration
O. Excavating DPW/Filtration
P. Membrane Roof on Clearwells DPW/Filtration
Q. Salt Box DPW/Equipment
R. Concrete Breaker DPW/Equipment
S. Back Hoe DPW/Equipment
T. City Manager Employment Agreement Mayor’s Office
U. Adopt a Resolution Approving the Liquor License Application for Pigeon
Hill Brewing Company, LLC City Clerk
V. Arena Lease and Management Agreement – Rad Dad’s City Manager
□ PUBLIC HEARINGS:
□ COMMUNICATIONS:
□ UNFINISHED BUSINESS:
□ NEW BUSINESS:
A. City-MDOT Agreement; Black Creek Road; Sherman Blvd to Latimer Drive
DPW/Engineering
B. City Hall Duct Cleaning Department of Public Works
C. Steven Street Storm Sewer Outlet Repairs Department of Public Works
D. 2018 Capital Improvements Projects – McGraft Park Lot Resurfacing
Department of Public Works
□ 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: August 9, 2018
Here is a quick outline of the items on our very full agenda(s):
WORK SESSION
1. Sale of 880 1st Street. Staff has exercised the termination provisions in the option
agreement with Port City Construction. John Essex’s original purchase offer of $425,000
remains valid. John is working to partner with Smith Equities and 616 Development to
move the project forward ASAP. It is our understanding that they should be in a position
to break ground in the next 120 days and would carry a 9-10 month building schedule.
Staff is recommending the sale.
2. Sale and Development Agreement at 1000 West Western Ave. This has been in process
for over a year, and is now ready for formal approval. Derek Coppes from 616
Development will be in attendance to talk about the project.
3. We have finalized the language and costs associated with the lease for Rad Dad’s Tacos
and Tequila. The project was more costly than originally anticipated, but the original lease
document allows automatic increases in the lease payments to account for the additional
development costs. We have two documents that will need to be approved:
a. We have a lease agreement that will outline the lease rate and the obligations of
both parties. This lease is unchanged from the lease used to obtain preliminary
commission approval, except that we have updated the lease rate and added
some language to better protect the city in the event we enter into agreements
related to the arena’s events that are incompatible to Rad Dad’s operations.
Examples could include our advertising deals with Pepsi and Bud Light. The lease
rate will be set at $19.93/sf for 4,100 square feet = $7,475.03 monthly. The lease
is effective retroactively to May 1, 2018.
b. We have a management agreement that will be in place temporarily until we can
make a number of changes to the arena’s liquor license. We anticipate that these
changes will be in place prior to the end of the year. While the management
agreement is in place, Rad Dad’s will keep 100% of all non-alcoholic related
income (food, pop, merchandise, etc.), and the city will keep 100% of all alcohol-
related income. The city would distribute 10% of alcohol-related income to Rad
Dad’s as part of the management agreement and use the remaining 90% to cover
the cost of the lease and buildout. Any dollars that the city collects above the
actual cost of the lease will be used to buy down Rad Dad’s rent in the same
manner rent was increased as building costs exceeded original estimates.
4. Sale of city-owned property at 1870 Huizenga Street and 1080 E Holbrook. These vacant
parcels are zoned industrially, but have been unattractive to industrial end users for a
number of years. Newkirk Electric owns property adjacent to these properties and has
asked to acquire them and incorporate them into their business plans. Staff is
recommending that we sell the parcels for $30,000 and return them to the tax roll.
5. Sale of city-owned property in the Seaway Industrial Park. The city issued an RFP for
Medical Marihuana related purchases. We received one proposal and will be
recommending approval. The purchase price will be $300,000 for Lots 1 and 2.
6. Annex Lease Termination. We are proposing that the attached lease termination
agreement be approved. The operation has not worked out the way we anticipated, and
both parties see the value in parting ways. We will take some obligations as part of the
termination in exchange for personal property related to the business’s operation. We
will also begin collecting the sub-lease income from Mercy Health effective July 1, 2018.
We have a new operator lined up and hope to be in a position to bring him in front of the
commission soon.
REGULAR MEETING
1. We will honor our Beautification Awards winners!
2. Under the Consent Agenda, we are asking the Commission to consider the following:
a. Approval of meeting minutes from the most-recent City Commission meeting.
b. Approval of a special event liquor license for the Farm to Table Dinner at the
Farmers Market. This is our third annual fundraiser.
c. Designation of voting delegates for the MML’s annual business meeting at the
Convention in Grand Rapids next month. The Mayor will serve in that capacity
and I will be the alternate.
d. Annex lease termination agreement, as presented at the work session.
e. 880 First Purchase Agreement, as presented at the work session.
f. Sale of 1000 West Western, as presented at the work session.
g. Agreement for the distribution of the 2018 Justice Assistance Grant between
Muskegon and Muskegon Heights.
h. Rezoning of 710 Pulaski Ave from Light Industrial to B-4 General Business, as
recommended by the Planning Commission.
i. Sale of 1870 Huizenga and 1080 Holbrook to Newkirk Electric, as presented at the
work session.
j. Sale of City-owned property in the Seaway Industrial Park, as presented at the
work session.
k. Approval of changes to the launch ramp ordinance
l. Authorization to enter into a contract with Fleis & VandenBrink Engineering for
survey work associated with upcoming projects. The cost will not exceed $27,110.
m. Authorization to proceed with capital improvements (landscaping) at the
Filtration Plant. The cost is $35,495.
n. Authorization to proceed with capital improvements (fencing) at the Filtration
Plant. The cost is $89,500.
o. Authorization to proceed with capital improvements (excavating) at the Filtration
Plant. The cost is $88,365.
p. Authorization to proceed with capital improvements (membrane roof) at the
Filtration Plant. The cost is $440,000.
q. Purchase of one salt box from Arista Truck Systems. The cost is $14,999.
r. Purchase of one concrete breaker from Midland Engine. The cost is $12,500.
s. Purchase of one backhoe from Michigan Cat. The cost is $97,053.00
t. City Manager Employment Agreement
3. Under the New Business, we are asking the Commission to consider the following:
a. We are seeking approval to enter into a contract with MDOT for the Black Creek
Road construction between Sherman and Latimer. The city’s cost is estimated at
$228,100.
b. Cleaning of duct work at city hall. We would like to contract with Modernistic at
a cost of $9,899.
c. Staff is seeking permission to spend $15,143.20 to repair the Stevens Street Sewer
Outlet. The sewer outlet is failing and is in need of repair. DPW crews will provide
the labor.
d. McGraft Park Parking Lot Resurfacing. We are seeking permission to enter into an
agreement with Accurate Excavators for $108,512.29.
Let me know if you have any questions/comments/concerns
Date: August 8, 2018
To: Honorable Mayor and City Commissioners
From: Ann Marie Meisch, City Clerk
RE: Approval of Minutes
SUMMARY OF REQUEST: To approve minutes of the July 24, 2018 Regular
Meeting.
FINANCIAL IMPACT: None.
BUDGET ACTION REQUIRED: None.
STAFF RECOMMENDATION: Approval of the minutes.
CITY OF MUSKEGON
CITY COMMISSION MEETING
JULY 24, 2018 @ 5:30 P.M.
MUSKEGON CITY COMMISSION CHAMBERS
933 TERRACE STREET, MUSKEGON, MI 49440
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, July 24, 2018. Reverend
Robert Henderson, First Wesleyan Church, 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
Ken Johnson, Byron Turnquist, and Debra Warren, City Manager Frank Peterson,
City Attorney John Schrier, and City Clerk Ann Meisch.
Absent: Commissioners Willie German Jr., and Dan Rinsema-Sybenga
2018-55 CONSENT AGENDA:
A. Approval of Minutes City Clerk
SUMMARY OF REQUEST: To approve minutes of the July 9, 2018 Worksession
Meeting and the July 10, 2018 Regular Meeting.
FINANCIAL IMPACT: None
BUDGET ACTION REQUIRED: None
STAFF RECOMMENDATION: Approval of the minutes.
B. L-3 Communication Quote DPW
SUMMARY OF REQUEST: The Equipment Division is requesting permission to order
new Police in-car DVR units along with new computer server to download DVR
video for storage. Current server is at end of life and will no longer be supported
past the end of August.
FINANCIAL IMPACT: $68,658.35 from the Equipment Budget and $16,452.00
from the Public Safety Budget.
Page 1 of 4
BUDGET ACTION REQUIRED: None. Amount is what was budgeted.
STAFF RECOMMENDATION: Authorize staff to order new server and DVR units
from L-3 Mobile Visions.
C. Rezoning Request for a Portion of the Property at 710 Pulaski Ave Planning
& Economic Development
SUMMARY OF REQUEST: Request to rezone a portion of the property at 710
Pulaski Avenue from I-1, Light Industrial to B-4, General Business.
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 July 12 meeting, with four
members absent.
D. Launch Ramp Ordinance Change DPW - REMOVED PER STAFF REQUEST
E. First Amendment to Contract for Housing Exemption for Royale Glen
Townhomes Planning & Economic Development
SUMMARY OF REQUEST: Hackley-Barclay and the City entered into a Contract
for Housing Exemption on November 23, 1993, in which the City granted
Hackley-Barclay a payment in lieu of taxes (PILOT) to help finance the
construction of 78 townhouses at Royale Glen Townhomes. The PILOT that was
granted was under the City’s old PILOT exemption ordinance, which stated that
the PILOT exemption would terminate if the property receiving the exemption
was refinanced; however, the City’s PILOT ordinance has since been amended
in a way that would allow Hackley-Barclay to obtain the necessary financing
and still maintain the PILOT exemption.
FINANCIAL IMPACT: None
BUDGET ACTION REQUIRED: None
STAFF RECOMMENDATION: Approval of the amended contract.
Motion by Commissioner Turnquist, second by Commissioner Johnson, to
approve the consent agenda as presented.
ROLL VOTE: Ayes: Hood, Warren, Turnquist, Johnson, and Gawron
Nays: None
MOTION PASSES
2018-56 NEW BUSINESS:
A. Concurrence with the Housing Board of Appeals Notice and Order to
Demolish Public Safety
Page 2 of 4
328 Catherine Ave
720 Amity Ave
1774 6th Street (Commercial Storage Building)
SUMMARY OF REQUEST: This is to request that the City Commission concur with
the findings of the Housing Board of Appeals that the structures are unsafe,
substandard, a public nuisance and that they be demolished within thirty (30)
days or infraction tickets may be issued. It is further requested that administration
be directed to obtain bids for the demolition of the structures and that the
Mayor and City Clerk be authorized and directed to execute contracts for
demolition with the lowest responsible bidder or staff may issue infraction tickets
to the owner, agent or responsible party if they do not demolish the structure.
FINANCIAL IMPACT: General Funds
BUDGET ACTION REQUIRED: None
STAFF RECOMMENDATION: To concur with the Housing Board of Appeals
decision to demolish.
Motion by Commissioner Turnquist, second by Commissioner Johnson, to concur
with the Housing Board of Appeals decision to demolish 328 Catawba, 720
Amity, and 1774 6th Street (Commercial Storage Building).
ROLL VOTE: Ayes: Warren, Turnquist, Johnson, Gawron, and Hood
Nays: None
MOTION PASSES
B. Rezoning Request for a Portion of the Property at 306 Campbell St
Planning & Economic Development
SUMMARY OF REQUEST: Request to rezone a portion of the property at 306
Campbell Street from R-1, Low Density Single Family Residential to I-1, Light
Industrial.
FINANCIAL IMPACT: None
BUDGET ACTION REQUIRED: None
STAFF RECOMMENDATION: Staff does not recommend approval of the
rezoning, based on the findings in the Master Land Use Plan.
COMMITTEE RECOMMENDATION: The Planning Commission unanimously
recommended denial of the request at their July 12 meeting, with four members
absent.
Motion by Vice Mayor Hood, second by Commissioner Warren, to concur with
the Planning Commission and staff recommendation to deny the application for
rezoning at 306 Campbell Street.
Page 3 of 4
ROLL VOTE: Ayes: Turnquist, Johnson, Gawron, Hood, and Warren
Nays: None
MOTION PASSES
ANY OTHER BUSINESS: Commissioner Warren asked for a review of our
ordinances related to dogs. There are many sides to this ordinance and an
overview was provided by Chief Lewis.
PUBLIC PARTICIPATION: Public comments were received.
ADJOURNMENT: The City Commission meeting adjourned at 7:02 p.m.
Respectfully Submitted,
Ann Marie Meisch, City Clerk, MMC
Page 4 of 4
Date: August 8, 2018
To: Honorable Mayor and City Commissioners
From: CITY CLERK’S OFFICE
RE: Special Event Liquor License – Farmers Market
for Farm to Table Dinner
SUMMARY OF REQUEST: The Muskegon City Clerk’s Office is organizing our 3rd
annual Farm-to-Table fundraiser dinner to benefit the Muskegon Farmers Market and
is seeking City Commission approval to apply for a license for Beer, Wine, and Spirit
sales for this event. The Farmer’s Market does have a liquor license but the licensed
area does not extend beyond the barn.
FINANCIAL IMPACT: $50 permit from the State for every date requested.
BUDGET ACTION REQUIRED: None.
STAFF RECOMMENDATION: To approve a special liquor license for the
September 6, 2018 Farm-to-Table Fundraiser dinner.
Date: August 8, 2018
To: Honorable Mayor and City Commissioners
From: Ann Marie Meisch, City Clerk
RE: Designation of Voting Delegates for the Michigan
Municipal League Annual Business Meeting
SUMMARY OF REQUEST: To designate by action of the Commission,
one of our officials who will be in attendance at the Convention as an
official representative to cast the vote of the municipality at the Annual
Meeting; and, if possible, to designate on other official to serve as an
alternate.
FINANCIAL IMPACT: None.
BUDGET ACTION REQUIRED: None.
STAFF RECOMMENDATION: Approval.
AGENDA ITEM NO. _______________
CITY COMMISSION MEETING __________________________
TO: Honorable Mayor and City Commissioners
FROM: Frank Peterson, City Manager
DATE: July 14, 2015
RE: Annex Lease
SUMMARY OF REQUEST:
The City entered into a lease with ImaJam, Inc. in 2015. ImaJam planned to operate a sports training
facility on the site. The owner has been unsuccessful in his attempts to do so. Both parties feel that
it is in the best interest of the community to terminate the lease and allow the city to find a new
operator for the site. As part of the lease termination, the City will maintain the existing lease with
Mercy Health, Inc., which has three years remaining on the in initial term and one additional 5-year
extension. Additionally, the City will take ownership of the personal property located on site as well
as the related financial obligations associated with that personal property. City staff has been working
with local investor that has a strong interest in stepping in to operate the facility; an agreement should
be ready for Commission consideration in the next 60 days.
FINANCIAL IMPACT:
None at this time
BUDGET ACTION REQUIRED:
None at this time
STAFF RECOMMENDATION:
To approve the request and authorize staff to sign the lease termination.
COMMITTEE RECOMMENDATION:
None.
TERMINATION OF LEASE
This Termination of Lease (“Agreement”) is made effective as of _______________, 2018
(“Effective Date”), by and between the City of Muskegon, a Michigan municipal corporation
(“Landlord”), and ImaJam, Inc., a Wyoming corporation (“Tenant”), with regard to the following facts:
Background
Landlord owns certain real property commonly known and designated as part of 955 Fourth
Street, Muskegon, Michigan 49440 (“Premises”). The Premises are connected to the facility commonly
known as the LC Walker Arena. Landlord and Tenant entered into that certain LC Walker Annex Lease
Agreement dated August 6, 2015, by which Landlord leased the Premises to Tenant for the limited purpose of
conducting a sports performance and physical therapy rehab center and related activities (“Lease”). The
parties agree to terminate the lease and all other agreements related to the Lease, whether written or
unwritten, between the above-listed parties related to the use or occupancy of the Premises upon the terms
and conditions of this Agreement.
Therefore, the parties agree as follows:
1. Termination of Lease. As of the Effective Date of this Agreement, the Lease is hereby
revoked and terminated.
2. Payments. Tenant shall be responsible to pay past utility bills, and other charges due in
relation to Tenant’s occupancy of the Premises on or before the termination of the lease.
3. Property. The parties agree that the Personal Property and trade fixtures shall remain on the
Premises and become the property of Landlord as of the Effective Date.
4. Tenant Representations. Tenant represents that (a) Tenant owns the Personal Property free
and clear and has good right to transfer the Personal Property to Landlord; (b) nothing has been done or
suffered by which the leasehold interest under the Lease has been encumbered in any way whatsoever
other than any encumbrance created by Landlord; (c) Tenant owns the leasehold interest under the Lease
and has good right to surrender the Lease to Landlord; and (d) no person other than Tenant has acquired,
through or under Tenant, any right, title, or interest in or to the leasehold interest under the Lease or in or
to the Premises. Tenant further represents that as of the date of this Agreement, Landlord is not in default
in any manner under the Lease.
5. Landlord Responsibilities. Landlord agrees to honor the terms of the executed lease
between tenant and Mercy Health Partners. Landlord further agrees to compensate with Muskegon
Quality Builders for past construction activities at a rate of one-thousand five hundred dollars ($1,500)
monthly for 70 consecutive months beginning January 1, 2019. Landlord further agrees to compensate
The Muskegon Angels for past personal property investments at a rate of one-thousand dollars ($1,000)
monthly for 60 consecutive months beginning January 1, 2019.
6. Release. Effective upon the performance by both parties of all of their respective obligations
under this Agreement, Landlord and Tenant mutually release, acquit and discharge each other from any
and all claims and actions, causes of action, demands, rights, damages, costs, expenses, penalties and
compensation of any nature that each may have against the other related to the Lease.
7. Counterpart/Fax Copies. This Agreement may be executed in counterparts and shall be
binding on the parties when all parties have received counterpart signatures. Fax copies of signature
pages shall be fully effective and binding.
The parties have executed this Agreement to be effective as set forth in this Agreement.
Landlord – City of Muskegon, a Michigan Tenant – ImaJam, INC., a Wyoming
municipality corporation
By: _______________________________ By: _______________________________
Name: ________________ Name: Terrence J. Williams
Title: _________________ Title: _________________
Date: March ___, 2018 Date: March ___, 2018
AGENDA ITEM NO. _______________
CITY COMMISSION MEETING __________________________
TO: Honorable Mayor and City Commissioners
FROM: Frank Peterson, City Manager
DATE: August 7, 2018
RE: Purchase Agreement - 880 First
SUMMARY OF REQUEST:
City staff is seeking permission to enter into a purchase agreement with Core Development for 880
First Street. This building was acquired by the City of Muskegon in 2015. The $425,000 purchase price
will reimburse the City’s Public Improvement Fund most of the $500,000 invested in the property to-
date. The remainder of the investment will be recovered in the initial years of completion of the
development as a result of income tax revenues. The property is located in the Downtown
Development Authority, and any incremental property tax growth will benefit that component unit of
the City’s budget.
FINANCIAL IMPACT:
$425,000 minus closing costs deposited into the City’s Public Improvement Fund.
BUDGET ACTION REQUIRED:
None at this time.
STAFF RECOMMENDATION:
To authorize the city manager to enter into a sales agreement to sell the property at 880 First Street for
$425,000 to Core Development.
COMMITTEE RECOMMENDATION:
dotloop signature verification: www.dotloop.com/my/verification/DL-364846828-7-M2B3
dotloop signature verification: www.dotloop.com/my/verification/DL-364846828-7-M2B3
B. John Essex
dotloop verified
07/03/18 2:10PM EDT
SCPV-RJQE-7P3A-PF97
dotloop signature verification: www.dotloop.com/my/verification/DL-364846399-7-1WL1
JE
07/03/18
2:10PM EDT
dotloop signature verification: www.dotloop.com/my/verification/DL-364846399-7-1WL1
JE
07/03/18
2:10PM EDT
dotloop signature verification: www.dotloop.com/my/verification/DL-364846399-7-1WL1
JE
07/03/18
2:10PM EDT
dotloop signature verification: www.dotloop.com/my/verification/DL-364846399-7-1WL1
JE
07/03/18
2:10PM EDT
dotloop signature verification: www.dotloop.com/my/verification/DL-364846399-7-1WL1
JE
07/03/18
2:10PM EDT
dotloop signature verification: www.dotloop.com/my/verification/DL-364846399-7-1WL1
JE
07/03/18
2:10PM EDT
dotloop signature verification: www.dotloop.com/my/verification/DL-364846399-7-1WL1
dotloop verified
B. John Essex 07/03/18 2:10PM EDT
RQHI-IQ3R-ZQEC-FQTO
dotloop signature verification: www.dotloop.com/my/verification/DL-364846399-7-1WL1
AGENDA ITEM NO. _______________
CITY COMMISSION MEETING __________________________
TO: Honorable Mayor and City Commissioners
FROM: Frank Peterson, City Manager
DATE: March 13, 2018
RE: 1000 West Western Ave Sale and Development Agreement
SUMMARY OF REQUEST:
The City Commission accepted a $249,000 purchase offer from Smith Equities in 2016. After a lengthy
due diligence period, the parties entered into a letter of intent that would help guide the development
of a purchase agreement. The purchase agreement is in final draft form, and the terms are agreeable
to both Smith Equities and City Staff.
The Purchase Agreement outlines the purchase price as well as the development obligations of both
parties. The City has a number of obligations in development agreement, including the relocation of
infrastructure – such as the bike path and the roadway to the Hartshorn Launch Ramp – and the
implementation of improvements at the marina’s facilities. The City’s costs associated with this
infrastructure will be recovered as part of a Brownfield Reimbursement Plan. Additionally, the marina
amenity improvements will result in increased revenue from both the new condominium association
and the marina slip holders. It is anticipated that the initial phase of the development will result in
approximately $170,000 in new property tax revenue annually, which will be captured as part of the
Brownfield Plan and used to reimburse the City’s expenses. Additional phases of the development
will likely result in significantly more property tax revenue. It is also anticipated that the initial phase
of the development will result in $40,000-$60,000 in new local Income Tax revenues.
The proceeds from the initial land sale will benefit the City’s Public Improvement Fund.
FINANCIAL IMPACT:
$250,000 minus closing costs – deposited to the City’s Public Improvement Fund
BUDGET ACTION REQUIRED:
None.
STAFF RECOMMENDATION:
To authorize the city manager to enter into the sale and development agreement with Harbor West, LLC,
consistent with the terms of the Letter of Intent dated March 2018.
COMMITTEE RECOMMENDATION:
FIRST AMENDED AND RESTATED REAL ESTATE SALE AND DEVELOPMENT
AGREEMENT
THIS FIRST AMENDED AND RESTATED REAL ESTATE SALE AND
DEVELOPMENT AGREEMENT ("Agreement") has been made as of the Effective Date
(defined below), by the CITY OF MUSKEGON, a Michigan municipal corporation, of 933
Terrace Street, Muskegon, Michigan 49442 ("Seller"), and HARBOR WEST, LLC, a Michigan
limited liability company, of 108 South University, Suite 6, Mt. Pleasant, Michigan 48858
("Buyer").
Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, on the
terms and subject to the conditions set forth in this Agreement, that parcel of real estate
commonly known as 1000 W. Western Avenue (Parcel 4) as depicted on Exhibit A-1, attached
hereto, and legally described on, Exhibit A-2, adjacent to the Hartshorn Marina (the "Marina"),
together with all improvements, fixtures, easements, division rights, hereditaments and
appurtenances associated with that real estate (collectively, "Property").
1. Project. Buyer is proposing to construct approximately 23+/- residential
condominium units and associated site improvements on the Property (the "Project"). As part of
Buyer undertaking the Project, Seller agrees to provide Buyer with up to Six Hundred Thousand
and 00/100 US Dollars ($600,000.00) in order for Buyer to complete Buyer’s brownfield eligible
activities (as defined by Act 381 of 1996, as amended) on the Property ("Brownfield Eligible
Costs"). Seller shall pay on behalf of Buyer the Buyer’s Brownfield Eligible Costs as Buyer
incurs such costs within thirty (30) days of receipt of Buyer’s invoice for the same. Seller shall
have first priority for reimbursement to recoup the Brownfield Eligible Costs paid by Seller
pursuant to and in accordance with a brownfield plan that will be adopted for the Property.
Buyer may incur additional brownfield reimbursable eligible costs in excess of the Brownfield
Eligible Costs (the "Other Brownfield Costs"). Buyer’s Other Brownfield Costs will be
included in the brownfield plan for the Property/Project and will be reimbursable to Buyer
following reimbursement of the Brownfield Eligible Costs to Seller from tax increment revenues
generated from the Project. Buyer shall be responsible for any costs related to the Project that
are not Brownfield Eligible Costs or Other Brownfield Costs except for the Marina
Improvements defined in Paragraph 2 or the costs described in Paragraph 3.
2. Marina Improvements. In conjunction with the Project, Seller agrees to
complete various public improvements to the Marina that may include but are not limited to
docks, clubhouse, pool and utility improvements (the "Marina Improvements"). Buyer and
Seller shall coordinate on the overall development of the Marina Improvements, and Buyer shall
be permitted to review and approve the plans for the Marina Improvements. Buyer and Seller
agree that the Marina Improvements shall be considered a Marina amenity and limited in use by
the Marina slip lessees and the Project unit owners. Such exclusive use shall be set forth in
Marina slip leases and in the Project condominium documents. The Project’s condominium
association shall participate in the ongoing maintenance of the Marina Improvements by
agreeing to pay a portion of such maintenance costs on a semi-annual basis. The details
regarding the association’s portion of such costs and the types of maintenance costs that will be
covered shall be set forth in a Marina Maintenance Agreement to be negotiated in good faith by
Seller and Buyer prior to the Closing Date.
3. Relocation of Roads and Utilities. Seller, at its sole cost, and in coordination
with Buyer, shall, following closing, be responsible for the vacation, abandonment, or relocation,
as the case may be, of any existing roadways, utilities, bike paths, fence, or other improvements
required to be relocated as part of the Project or the Marina Improvements. Buyer and Seller
agree to pursue completion of the obligations listed in Paragraphs 1, 2 and 3 in accordance with
the schedule attached as Exhibit F to this Agreement, unless otherwise modified by the parties.
Buyer’s and Seller’s obligations outlined in Paragraphs 1, 2 and 3 shall survive the closing of
this Agreement.
4. Purchase Price. The purchase price for the Property shall be Two Hundred
Forty-Nine Thousand and 00/100 U.S. Dollars ($249,000.00) ("Purchase Price"), payable at
Closing (as defined below) by bank money order, cashier's check, or wire transfer of
immediately available funds.
5. Deposit; Default.
(a) Seller and Buyer acknowledge that following Buyer’s execution of the
original Real Estate and Development Agreement, dated April 23, 2018 ("Original
Agreement"), Buyer deposited the sum of Five Thousand and 00/100 U.S. Dollars ($5,000.00)
("Deposit") in escrow with the Title Company (defined below) as evidence of good faith and to
bind this Agreement. If the purchase and sale contemplated by this Offer ("Purchase") is closed,
the Deposit shall be applied to the Purchase Price at closing. If Buyer terminates this Agreement
pursuant to any termination right granted by this Agreement, the Deposit shall be promptly
returned to Buyer.
(b) If Buyer defaults in Buyer's obligations under this Agreement so that the
Purchase is not closed, then as Seller's sole remedy Seller may terminate this Agreement by
notice to Buyer, the Deposit shall be paid to Seller as liquidated damages, and neither Seller nor
Buyer shall have any further liability to the other under this Agreement.
(c) If Seller defaults in Seller's obligations under this Agreement so that the
Purchase is not closed, then Buyer may terminate this Agreement by notice to Seller, in which
case the Deposit shall be promptly returned to Buyer, and neither Seller nor Buyer shall have any
further liability to the other under this Agreement. Alternatively, Buyer may pursue any other
right or remedy available at law or in equity, including, without limitation, injunctive relief and
specific performance of this Agreement.
6. Title; Survey.
(a) Seller agrees to convey good and marketable title to the Property to Buyer
by covenant deed ("Covenant Deed"). As evidence of Seller’s title, within twenty (20) days
after the Effective Date, Seller shall at Seller’s expense furnish Buyer with a commitment ("Title
Commitment") from Transnation Title Agency (the "Title Company") to issue an owner's title
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insurance policy insuring Buyer in the amount of the Purchase Price, without the standard
printed exceptions, and which shall be in the latest form approved by the American Land Title
Association ("ALTA"). The Title Commitment must show good and marketable title to be in
Seller’s name, subject only to beneficial easements and restrictions of record that are acceptable
to Buyer in its sole discretion and the requirements to be satisfied under the Title Commitment
and shall disclose no other easements, restrictions or encumbrances whatsoever.
(b) Buyer shall obtain, at Buyer’s expense, a current staked survey of the
Property in a form acceptable to Buyer and Buyer’s lender, if any, including, without limitation
the form of certification ("Survey"). Buyer and Seller acknowledge and agree that the legal
description for the Property shall be that as set forth in the Title Commitment to be obtained by
Seller, and furnished to Buyer under this Agreement, or the Survey obtained by Buyer. In the
event of a conflict between the legal description in the Title Commitment and the Survey
obtained by Buyer, the legal description contained in the Survey shall control.
(c) Buyer shall notify Seller prior to the expiration of the Inspection Period
(defined below) if the Title Commitment discloses any exceptions not permitted by this
Agreement or if the Survey shows any deviation from apparent boundaries or represented
acreage, violation of zoning ordinances, or building and use restrictions, flood hazard area,
encroachment, or condition that poses a problem for Buyer's lender, if any, or that, in Buyer's
judgment, could interfere with Buyer's intended use of the Property (individually and
collectively, a "Defect"). Seller shall remove each Defect at Seller's expense prior to the closing.
In addition, Seller shall satisfy the requirements set forth in the Title Commitment on or before
the closing date. If Seller fails or refuses to remove any Defect, then Buyer may: (i) proceed to
closing, waiving the Defect at issue; (ii) terminate this Agreement by a written notice to Seller, in
which case the Deposit shall be promptly returned to Buyer, and neither Seller nor Buyer shall
have any further liability to the other under this Agreement; or (iii) proceed to closing and cure
any Defect that is capable of being cured or satisfied by the payment of a sum certain, using sale
proceeds otherwise payable to Seller.
7. Inspections.
(a) Buyer and its agents, consultants, and designees ("Buyer's Agents") may
from time to time inspect the Property prior to the closing, and may enter the Property to perform
the inspections referenced in this Agreement. Promptly upon Seller’s execution of this
Agreement, Seller shall provide to Buyer, or make available for review by Buyer and/or Buyer's
agents, copies of the following documents to the extent that they are in Seller's possession or
control ("Seller's Documents"): (i) all building permits, wetlands, and fill permits, zoning
variances and approvals, and environmental reports with respect to the Property; (ii) all surveys
of the Property; (iii) all site, "as-built", architectural, and engineering plans and specifications for
any existing and planned improvements to the Property; (iv) any notices with respect to the
Property received from a governmental agency; and (v) all maintenance and other contracts
affecting the Property ("Contracts"). For purposes of this Agreement, documents in Seller’s
“possession and control” shall be deemed to be documents found by Seller following reasonable
investigation.
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(b) Without limiting the generality of the foregoing, Buyer and Buyer's Agents
shall have the right to conduct an environmental assessment of the Property in one or more
phases, including the procurement and analysis of samples of soil, groundwater, surface water,
indoor air, or any other environmental medium, and any building component or other material
located at the Property. The cost of the environmental assessment shall be borne by Seller.
Buyer and Seller agree to cooperate in good faith to maximize any available development
incentives, including without limitation, so-called “Brownfield” incentives with respect to the
Property. Seller shall provide access and information to, and otherwise cooperate with, Buyer
and Buyer's Agents in the environmental assessment. Buyer shall have the right to interview
employees and representatives of Seller who have or may have knowledge of conditions and
events relevant to the operating history or environmental condition of the Property. Prior to
conducting a Phase II, Buyer shall provide Seller a written work plan for approval that describes
the proposed scope and content of the Phase II. Seller shall have seven days from receipt of the
proposed Phase II scope of work to make any objections. If Seller does not make any objections,
the proposed Phase II work plan shall be deemed approved. Buyer shall proceed with a Phase II
if the parties agree upon a mutually-acceptable work plan. If the parties cannot agree upon a
Phase II work plan within 10 days after Seller’s receipt of the work plan, Buyer, in its sole
discretion, may terminate this Agreement and the Deposit shall be returned to Buyer. Any Phase
II work performed on the Property shall only be done in accordance with an approved work plan.
If the Property is a "facility" within the meaning of Part 201 of the Michigan Natural Resources
and Environmental Protection Act, MCL 324.20101 et seq. ("Part 201"), Buyer may, at Buyer's
expense, prepare and submit to the Michigan Department Environmental Quality ("MDEQ") a
"baseline environmental assessment, pursuant to Section 26 of Part 201, MCL 324.20126. Buyer
may also, at Buyer's expense, prepare a plan ("Due Care Plan") to meet due care obligations at
the Property imposed under MCL 324.20107a. Buyer may, at its option and Buyer's expense,
submit the Due Care Plan to MDEQ for approval as a no further action report under Section 14d
of Part 201m MCL 324.20114d. Except to the extent arising solely from the negligence, gross
negligence or willful misconduct of Seller, Buyer expressly agrees to defend, indemnify and hold
Seller harmless from any and all liabilities, claims, losses, suits, actions, judgments, damages,
costs (including reasonable attorneys’ fees) or penalties arising out of Buyer’s exercise of its
right to conduct the inspections under this paragraph 7.
8. Seller's Representations and Warranties. Seller represents and warrants to
Buyer, which representations and warranties shall be true to the closing date, as follows:
(a) There are no pending or threatened condemnation proceedings against the
whole or any part of the Property;
(b) There are no claims, litigation, proceedings, inquiries, investigations, or
disputes pending or threatened against or relating to the Property except for the Remedial Action
Plan dated November 14, 2000 ("RAP"), which has been delivered to Buyer;
(c) To the best of Seller’s knowledge, Seller has at all times operated the
Property in compliance with all applicable laws, ordinances, orders, codes, rules, regulations,
building and use restrictions, and other legal requirements, including, without limitation, Seller's
timely application for, possession of, and compliance with all applicable environmental permits
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(collectively, "Applicable Law"), and the Property is free and clear of all violations of
Applicable Law;
(d) Seller, through the person(s) executing this Agreement, has full power and
authority to enter into this Agreement, and to assume and perform all of Seller's obligations
under this Agreement;
(e) There are no agreements, contracts, or leases, written or oral, which affect
the Property in any manner other than this Agreement and the Contracts, none of which are in
default and any agreements disclosed by the Title Commitment;
(f) To the best of Seller's knowledge, all buildings and fixtures that constitute
a portion of the Property are in good condition and working order, reasonable wear and tear
excepted, and contain no defects which may impair Buyer's intended use of them;
(g) There is no pending or proposed special assessment affecting or which
may affect the whole or any part of the Property;
(h) Seller has and can deliver to Buyer good and marketable title to the
Property, subject only to the exceptions permitted by this Agreement, and the Property have legal
and physical access from a publicly dedicated and improved right-of-way; and
(i) All necessary action to approve, execute, deliver, and perform this
Agreement has been taken by Seller, and this Agreement is the valid and binding obligation of
Seller, enforceable against Seller in accordance with its terms.
Seller shall hold Buyer harmless, indemnify, and at Buyer's option, defend Buyer, from and
against any loss, including, without limitation, reasonable attorney fees, incurred by reason of
Seller's breach of any of the foregoing representations and warranties. For purposes of this
Agreement, the “best of Seller’s knowledge” shall refer only to the actual present knowledge of
City of Muskegon, following a reasonable investigation.
9. Buyer’s Representations and Warranties. Buyer represents and warrants to
Seller, which representations and warranties shall be true to the closing date, as follows:
(a) Buyer is a Michigan limited liability company duly organized, validly
existing and in good standing under the laws of the State of Michigan.
(b) Buyer has the power and authority to enter into and perform Buyer’s
obligations under this agreement.
(c) Buyer is aware that the Property is a “facility” as defined in Part 201 and
that the Property is encumbered by certain Restrictive Covenants set forth in a warranty deed
dated November 16, 1999 and recorded at Liber 2312, Page 958, Muskegon County Records.
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10. Contingencies. The obligation of Buyer to close the Purchase shall be contingent
upon:
(a) Buyer's reasonable satisfaction with the results of its investigation of the
compliance of the Property with applicable laws, ordinances and regulations, to be performed at
Buyer's discretion and expense within sixty (60) days after the Effective Date, except that Buyer
may unilaterally extend this date by an additional thirty (30) days as may be required to complete
its environmental investigation of the Property (the "Inspection Period");
(b) Buyer's satisfaction, in its sole discretion, with the results of all
inspections of the Property that Buyer desires, to be performed at Buyer's discretion and expense
within the Inspection Period;
(c) All representations and warranties of Seller set forth in this Agreement
being true as of the closing date;
(d) Seller having timely performed and complied in all respects with all
covenants, obligations, and agreements to be performed or complied with by Seller under this
Agreement;
(e) Seller’s approval of a brownfield plan and development and
reimbursement agreement for the Property/Project with eligible activities, as defined by Act 381
of 1996, as amended, of at least an amount equal to the Brownfield Eligible Costs and Other
Brownfield Costs. The brownfield plan shall include Buyer’s and Seller’s proposed eligible
activities for redevelopment of the Property. The brownfield plan and development and
reimbursement agreement shall also include Seller’s agreement to pay on behalf of Buyer an
amount up to the Brownfield Eligible Costs for Buyer’s site work on the Property, Buyer’s Other
Brownfield Costs, any additional eligible brownfield costs, as well as the terms and priority of
reimbursement. Seller shall have first reimbursement priority of the costs incurred for the
Brownfield Eligible Costs. Following reimbursement to Seller for the Brownfield Eligible Costs,
Buyer shall be reimbursed for Other Brownfield Costs incurred at the Project. Any remaining
costs included in the brownfield plan and incurred by parties will be split on a prorata basis for
reimbursement.
(f) Buyer's satisfaction, in its sole discretion, with its review of Seller's
Documents and the condition, permitted use and development prospects for the Property,
including, without limitation: (i) mutual agreement with Seller on the
vacation/abandonment/relocation of any existing public roadways, utilities, bike paths, railways
or other improvements required to be relocated, all of which shall be conducted at Seller’s
expense; (ii) mutual agreement with Seller on the Marina Improvements and the Marina
Maintenance Agreement. Buyer shall perform such review, at its expense, within the Inspection
Period. If Buyer is not satisfied with such review and inspections, then, as Buyer's sole remedy,
Buyer may terminate this Agreement by a written notice to Seller, in which case the Deposit
shall be promptly returned to Buyer, and neither Seller nor Buyer shall have any further liability
to the other under this Agreement; and
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(g) Buyer's satisfaction, in its sole discretion, with the environmental
condition of the Property.
Buyer shall promptly commence and proceed diligently and in a reasonable manner to attempt to
satisfy each of the contingencies set forth above, at Buyer's expense. Seller agrees to cooperate
in such endeavor. If Buyer is unable to satisfy one or more of the contingencies, and is not
willing to waive the contingency(ies), then Buyer may terminate this Agreement by a written
notice to Seller, in which case the Deposit shall be promptly returned to Buyer, and neither Seller
nor Buyer shall have any further liability to the other under this Agreement.
11. Closing.
(a) The closing shall take place as soon as reasonably possible following the
satisfaction of the conditions and contingencies set forth in this Agreement, but no later than
August 31, 2018, or such later date as is mutually agreed upon by Seller and Buyer (the "Closing
Date"). Within these limitations, the closing shall take place at such time and place and on such
date as shall be specified by Buyer on at least one week's notice to Seller, or in the absence of
such notice, at 10 a.m. on the last day permitted for closing, at the offices of Buyer's attorney.
(b) At closing, Seller shall execute and deliver the following:
(i) The Covenant Deed, in recordable form;
(ii) A real estate transfer tax valuation affidavit;
(iii) A closing statement setting forth the Purchase Price and closing
adjustments;
(iv) Affidavit(s) in the form prescribed by the Title Company for the
removal of its standard printed exceptions;
(v) A corporate resolution or other evidence of authorization of the
Purchase acceptable to the title company;
(vi) A certificate of nonforeign status;
(vii) An approved form of lease for Buyer’s lease of boat slips in the
Marina, attached as Exhibit B;
(viii) A memorandum of Buyer’s right of first refusal in the form set
forth on Exhibit C, setting forth Buyer’s right to purchase or operate the Marina property
adjacent to the Property, as generally depicted on Exhibit A-3. Buyer shall be permitted to
record the memorandum.
(ix) A memorandum of Buyer’s right of first refusal in the form set
forth on Exhibit D, establishing Buyer’s right to annually lease up to twenty-three (23) boat slips
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at the Marina adjacent to the Property pursuant to Section 16 of this Agreement. Buyer shall be
permitted to record the memorandum.
(x) A restrictive covenant in the form of Exhibit E that prohibits
construction of any structures in the charter park area between the Marina and the Property that
would obstruct sightline views of from the Project.
(xi) A waiver of commercial real estate broker's lien executed by
Broker (as defined below) in a form prescribed by the Title Company.
(xii) Actual physical possession of the Property, free of all tenants or
other occupants. Seller shall deliver possession of the Property to Buyer in good condition, and
in at least as good a condition as on the date of this Agreement, reasonable wear and tear
excepted. Seller shall continue to maintain any buildings, fixtures, lawn and other components
of the Property in their current condition until the closing.
(xiii) An ALTA owner's title insurance policy which shall insure Buyer's
title as required by Paragraph 3 above; and
(xiv) Any other documents reasonably necessary or legally required to
evidence the Purchase.
(c) At closing, Buyer shall execute and/or deliver the following:
(i) The Purchase Price, as adjusted by prorations and other charges
under this Agreement;
(ii) A closing statement setting forth the Purchase Price and closing
adjustments; and
(iii) Any other documents reasonably necessary or legally required to
evidence the Purchase.
(d) At closing, Seller shall pay all recording and filing costs in connection
with curing its title to the Property, the transfer taxes for the Covenant Deed and the title
insurance premium for Buyer's owner's policy of title insurance. Buyer shall pay the recording
fee for the Covenant Deed. Seller and Buyer shall each pay one-half of any closing fee charged
by the title company conducting the closing.
12. Condition of Property. No implied warranties of habitability, quality, condition,
fitness for a particular purpose, or any other implied warranties shall operate between Seller and
Buyer, and Buyer expressly waives any and all such implied warranties. Buyer understands and
agrees that the Property are taken "AS IS" subject only to the representations and warranties set
forth in this Agreement. Buyer represents that by closing on the purchase of the Property, Buyer
will be purchasing the Property as a result of its inspection and investigation of the Property and
that Buyer is satisfied with the condition of the land and the improvements thereon. Buyer
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further represents and warrants that it is not purchasing the Property based on any representations
made by or on behalf of Seller except as specifically set forth in this Agreement.
13. Taxes and Assessments. All real estate and personal property taxes and special
assessments with respect to the Property, whether or not payable in installments or deferrable
without penalty or interest to a later date, that first become due and payable (or in the case of
special assessments, a lien upon the Property) on or before the Closing date, or which are
assessed retroactively for the period of time prior to the Closing Date, shall be paid by Seller
prorated as provided below. Buyer shall be responsible for all other subsequent taxes and
assessments with respect to the Property. Real estate and personal property taxes that first
became or will become due and payable during the year of the closing shall be prorated on a
calendar year basis.
14. Real Estate Brokers. Seller and Buyer each agrees and represents to the other
that no broker is involved in the Purchase who is entitled to a commission, other than Core
Realty Partners LLC, and its listing member, Troy Wasserman ("Broker"). Seller shall be solely
responsible for paying the commission owing to Broker pursuant to a separate agreement
between Seller and Broker. If another broker makes a claim for remuneration in connection with
the Purchase, Seller and Buyer each shall indemnify and hold harmless the other from any
amount that the other may be required to pay to a broker that the other did not retain, including,
without limitation, reasonable attorney fees expended to defend against such claim.
15. Condemnation; Fire; Other Casualty. Seller shall promptly notify Buyer of
any impending or actual condemnation proceedings against the whole or any part of the Property
of which Seller has actual notice or any fire or other casualty to the Property. If any portion of
the Property is threatened to be taken or is taken as a result of condemnation proceedings or is
damaged as a result of fire or other casualty prior to the closing, Buyer shall have the right:
(a) To terminate this Agreement by a written notice to Seller within ten (10)
days after receipt of notice of such proceedings or damage, in which case the Deposit shall be
promptly returned to Buyer, and neither Seller nor Buyer shall have any further liability to the
other under this Agreement; or
(b) To proceed to closing as provided in this Agreement, agreeing to take the
Property in its then-current condition, in which case Buyer will be entitled to receive all of the
condemnation or insurance proceeds payable as a result of such condemnation or such damage,
which Seller will assign to Buyer at closing pursuant to an assignment that is reasonably
acceptable to Buyer.
16. Marina Right of First Refusal. Buyer and Seller agree that as part of the
Purchase contemplated under this Agreement, Buyer shall have a right of first refusal to purchase
or operate the Marina as shown on Exhibit A-3, together with all right, title and interest to the
same and all associated easements and other interests benefitting the Marina should Seller
choose to cease its current operational duties or sell the Marina (this "ROFR") on the following
terms and conditions, and Buyer shall be permitted to record a memorandum of this ROFR:
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(a) Exercise of Right of First Refusal. If at any time (i) the Marina or the
operational responsibilities thereof are ever to be (or intended by Seller to be) sold, assigned,
leased, subleased or transferred in any manner, or (ii) Seller receives a bona fide third party offer
(which may consist of a letter of intent or term sheet containing only essential agreed terms, an
offer, a purchase agreement, lease agreement, management agreement or anything else
constituting an offer) to sell the Marina or transfer the operational responsibilities thereof which
Seller desires to accept (an "Offer"), then Seller shall provide to Buyer a written notice of the
detailed facts of the proposed sale, assignment, transfer or Offer, with a copy of any such Offer
or similar document setting forth the terms of sale, assignment, or transfer. Buyer shall have
sixty (60) days from its receipt of such written notice and Offer from Seller to elect to purchase
or operate the Marina on the same terms and conditions as in the Offer, or if there is no Offer to
purchase the Marina, to elect to purchase the Marina on the following terms. If there is no Offer
to purchase the Marina, then the purchase price for the Marina shall be an amount equal to the
appraised value as determined by an appraiser agreeable to both parties, and the other terms and
conditions shall be as set forth below. If, following proper notice from Seller, Buyer fails to
timely elect as provided above, then Seller may proceed to sell the Marina or transfer the Marina
operations in accordance with the Offer but if such sale is not closed with the party making the
Offer, then Buyer’s rights hereunder remain in effect for any subsequent Offer.
(b) ROFR Price for Marina Purchase. If there is no Offer to purchase the
Marina, the purchase price shall be payable as follows:
(i) Within five (5) business days after the exercise of the ROFR to
purchase the Marina, Buyer shall deposit the sum of Five Thousand Dollars ($5,000) (the
"Deposit") payable to a title company acceptable to Buyer and Seller, as escrow agent.
The Deposit shall be deposited in escrow in an interest bearing account.
(ii) On the ROFR to purchase the Marina Closing Date (as hereinafter
defined), Buyer shall pay to Seller such additional sum so that the Deposit plus such
additional sum equals the purchase price set forth above.
(c) Closing. If the closing date is not specifically set forth in the Offer, the
closing shall occur on or before one hundred twenty (120) days following exercise of the ROFR
by Buyer, such date being the “ROFR Closing Date” subject to extension by mutual agreement.
In the event the ROFR Closing Date falls on a Saturday, Sunday or legal holiday, the ROFR
Closing Date shall be automatically extended to the end of the next following business day.
(d) Title for Marina Purchase. Notwithstanding the terms of any Offer to
purchase the Marina, the following terms regarding title shall apply. At closing, Seller shall
convey good, marketable title to the Marina to Buyer by covenant deed, subject only to the lien
of taxes, which are not yet due and payable, and other encumbrances, which are approved by
Buyer (altogether "Permitted Exceptions"). Seller, at its expense, shall furnish Buyer at closing
with an extended ALTA Owner’s Policy of Title Insurance, without standard exceptions in the
amount of the purchase price, insuring Buyer’s interest in the Marina, subject only to the
Permitted Exceptions ("Policy").
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(e) No later than twenty (20) days after the exercise of the ROFR by Buyer
for the purchase of the Marina, Seller shall obtain and provide Buyer with a copy of a title
commitment for the Policy on the Marina, together with copies of all exceptions of record
referenced therein. Buyer shall notify Seller no later than ten (10) days prior to the ROFR
Closing Date for the purchase of the Marina, in writing, of Buyer’s disapproval of any
exceptions shown on the title commitment or survey other than the Permitted Exceptions. If
Buyer shall not have notified Seller of such disapproval within the aforementioned time period,
the title commitment and exceptions to title set forth thereon shall be deemed approved. In the
event of any such disapproval, Seller shall have until the ROFR Closing Date to purchase the
Marina to eliminate such disapproved exceptions from the survey or from the policy of title
insurance to be issued to Buyer and obtain all required covenant or easement holder
approvals/estoppels and notices under applicable law, title requirements, or agreements. If such
exceptions are not eliminated by the ROFR Closing Date to purchase the Marina, Buyer may: (i)
terminate its agreement to purchase the Marina with respect to the exercise of the ROFR and the
ROFR Deposit shall be returned to Buyer, (ii) may set off from the purchase price the cost of
cure or insurance over the exception, or (iii) may proceed to closing and accept the Marina with
such exceptions.
(f) Prorations and Expenses. Notwithstanding the terms of any Offer to
purchase the Marina, at closing property taxes shall be prorated between Buyer and Seller on a
calendar year basis. Seller shall pay the cost of any transfer tax and shall pay for any
documentation and recording fees or other expenses related to cure or discharge of any title
exceptions, mortgage, loan, or financing documents filed as to the Marina, and for preparation of
and recording of any needed plat amendments, land divisions, and covenants, conditions and
restrictions per title objections or requirements, and obtaining required municipal approvals, if
any. Buyer and Seller shall each pay one-half of any title company fees. All other expenses
relating to closing on the purchase of the Marina or transfer of operations (excepting the title
insurance premium and any title company documentation fee for the purchase of the Marina,
which shall be paid by Seller) shall be divided between Buyer and Seller in accordance with the
Offer, or if there is no Offer, then in accordance with the real estate customs in Muskegon
County. If Buyer is purchasing the Marina, Buyer shall receive credit on the purchase price for
any interest accumulated upon the ROFR Deposit.
(g) Possession. Notwithstanding the terms of any Offer, possession of the
Marina or Marina operations shall be delivered to Buyer on the ROFR Closing Date, free of any
tenancies, licenses or rights of possession (other than Buyer’s) with title in the condition as
required in subsection (d) if Buyer is purchasing the Marina.
(h) Remedies. If Buyer defaults in Buyer's obligations so that the ROFR
purchase or transfer is not closed, then as Seller's sole remedy Seller may retain the ROFR
Deposit as liquidated damages in the event of the purchase of the Marina or proceed with the
Offer in the event of a transfer or operation of the Marina, and neither Seller nor Buyer shall
have any further liability to the other related to the ROFR. If Seller defaults in Seller's
obligations so that the ROFR purchase or transfer is not closed, then the Deposit shall be
promptly returned to Buyer in the event of a purchase of the Marina, and neither Seller nor Buyer
shall have any further liability to the other under this Agreement, or Buyer may pursue any other
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right or remedy available at law or in equity, including, without limitation, injunctive relief and
specific performance related to transfer of the Marina operations.
(i) Survival. This ROFR shall survive the closing of this Agreement.
17. Marina Slips Right of First Refusal. Seller covenants and agrees that Buyer shall
annually have a right of first refusal for the lease of up to twenty-three (23) boat slips in the
Marina. Buyer shall exercise its right of first refusal for some or all of the twenty-three (23) slips
by November 1 of each year for the following season. If Buyer fails to exercise such right by
November 1, or, alternatively, only exercises such right with respect to a portion of the twenty-
three (23) slips, then Seller shall have the right thereafter to lease the remaining slips to other
parties. Buyer shall be permitted to record a memorandum of this right of first refusal, a form of
which is attached as Exhibit D. This right of first refusal shall survive the closing of this
Agreement.
18. Miscellaneous.
(a) This Agreement shall bind and benefit Seller, Buyer and their respective
successors, assigns, heirs, executors, and personal representatives. Buyer may freely assign this
Agreement to an entity of which the equity owners of Buyer own a majority of the equity
ownership, but Buyer shall not be released from liability under this Agreement. Buyer shall
promptly notify Seller of any such assignment.
(b) Seller and Buyer recognize that the law firm of Warner Norcross & Judd
LLP ("Legal Counsel") is representing Buyer in the Purchase. Seller has either hired
independent legal counsel or knowingly elected not to hire independent counsel to represent
Seller in the Purchase. In such capacity, Legal Counsel has prepared this Agreement and may be
called upon to prepare other documents necessary to close the Purchase. No ambiguity or
inconsistency in this Agreement shall be construed against Buyer solely because Legal Counsel
prepared this Agreement.
(c) All notices under this Agreement shall be in writing and shall be delivered
to Seller and Buyer at their respective addresses set forth above, or at another address designated
by like notice to one another. Personal delivery, facsimile transmission, or mailing of a notice by
certified mail, postage prepaid, or delivery by recognized overnight service shall be sufficient
notice. Notice shall be effective upon receipt, if personally delivered or faxed, upon mailing, if
mailed, or upon deposit with the overnight delivery service.
(d) The "Effective Date" of this Agreement shall be the date of the last
signature on this Agreement. Time is of the essence of this Agreement, except that Buyer may
waive this provision for the purpose of meeting conditions and contingencies under this
Agreement. If the date for closing, for the delivery of a document, or for giving of a notice, falls
on a Saturday, Sunday or bank holiday, then it shall be automatically deferred to the next day
that is not a Saturday, Sunday or bank holiday.
-12-
(e) This Agreement may not be amended, altered or modified except by
means of a writing signed by the person against whom enforcement of any waiver, change,
modification, or discharge is sought.
(f) The representations, warranties and agreements set forth in this Agreement
shall survive the closing of the Purchase for a period of one year.
(g) This Agreement may be signed in one or more counterparts, and by
different parties to this Agreement on separate counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same document. Faxed signatures,
or scanned and electronically transmitted signatures, on this Agreement or any notice delivered
pursuant to this Agreement, shall be deemed to have the same legal effect as original signatures
on this Agreement.
(h) This Agreement and the exhibits to this Agreement contain all of the
representations and statements by Seller and Buyer to one another and express the entire
understanding between Seller and Buyer with respect to the Purchase. All prior and
contemporaneous communications concerning the Purchase are merged in and replaced by this
Agreement.
(i) This Agreement amends, restates and supersedes the Original Agreement,
which is hereby terminated and neither Buyer nor Seller has any further liability under the
Original Agreement.
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EXHIBIT A-1
Property Map
EXHIBIT A-2
Parcel 4:
THOSE PARTS OF BLOCKS 574 AND 575, REVISED PLAT (OF 1903) OF THE CITY OF MUSKEGON,
MUSKEGON COUNTY, MICHIGAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEASTERLY
CORNER OF BLOCK 574 OF SAID REVISED PLAT (OF 1903) OF THE CITY OF MUSKEGON; THENCE
NORTH 88°43’ WEST 270.42 FEET (M=NORTH 84°41’53” WEST 270.27 FEET) TO A POINT ON THE
NORTHERLY LINE OF WEST WESTERN AVENUE FOR A POINT OF BEGINNING;
THENCE WESTERLY ALONG THE NORTHERLY LINE OF WEST WESTERN AVENUE 457.28 FEET
(M=NORTH 80°29’18” WEST 457.02 FEET); THENCE NORTH 2 °04’ WEST 492.92 FEET; THENCE SOUTH
47°05’ EAST 236.7 FEET; THENCE CONTINUING SOUTH 47°04’ EAST TO A POINT 100 FEET NORTH OF
AND NORTH 1°40’ WEST OF THE POINT OF BEGINNING. TOGETHER WITH THE C & O RAILWAY
COMPANY RIGHT OF WAY RUNNING THROUGH THE ABOVE DESCRIBED PARCEL, EXCEPT THAT PART
WHICH WAS DEEDED TO THE CITY OF MUSKEGON AS RECORDED IN LIBER 2138, PAGES 751 AND 752.
The property address and tax parcel number listed below are provided solely for informational
purposes, without warranty as to accuracy or completeness. If the information listed below is
inconsistent in any way with the legal description listed above, the legal description listed above
shall control.
Property Address: 1000 W. Western Avenue, Muskegon, Michigan
Tax Parcel No.: 61-24-205-574-0001-10
EXHIBIT A-3
Marina Property
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EXHIBIT B
Form of Lease (Boat Slips)
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Hartshorn Municipal Marina
Boat Slip Lease Information
DATE: __________________________
DESIGNATED BOAT SLIP:
Hartshorn Marina (the “Marina”), Pier ___________ Slip ____________
LESSEE:
Name: _____________________________________________
Address: _____________________________________________
City, State, Zip _____________________________________________
Primary Phone: __________________________________
Alternate Phone: __________________________________
Email Address: __________________________________
LESSEE’S CRAFT:
Boat Name: ______________________________________________
Make: ______________________________________________
Model: ______________________________________________
Year: ______________________________________________
MI Registration Certificate Number: __________________________________
Length: ________ feet
MONTHLY RENTAL:
$____________ per month, plus any Utility Costs as described in Section 3 of the Lease.
SECURITY DEPOSIT:
$____________ due from Lessee on the Date above.
TERM:
Beginning Date: _______________________________
End Date: (Subject to Section 2): _______________________________
1
Hartshorn Municipal Marina
Boat Slip Lease
This Boat Slip Lease (this “Lease”) is made on the Date set forth on this ______ day of
_____________, _______, by and between the City of Muskegon, a Michigan municipal corporation,
of _________________________, Muskegon, Michigan _____ (“Lessor”) and Lessee.
1. Lease. Lessor grants to Lessee the right to occupy and use, for or in connection with the
berthing of Lessee’s Craft (but no other maritime vessel) subject to the terms of this Lease, (a) the
Designated Boat Slip, (b) the pier appurtenant to such Designated Boat Slip, to the extent reasonably
required to provide access from the land to Lessee’s Craft, and (c) the dock box, if any, that is
appurtenant to such Designated Boat Slip. Lessor also grants to Lessee the right to use, on a non-
exclusive and non-guaranteed basis, the parking area at the Marina and other amenities (including
water and electrical utilities) appurtenant to the Designated Boat Slip.
2. Term of Lease. The Lease is subject to early termination as otherwise described in this
Lease. Upon expiration of the Term, (a) this Lease shall continue on a month-to-month basis, for the
Monthly Rental subject to 30-days prior written notice by Lessee, or (b) the Term may be extended by a
written extension agreement between Lessor and Lessee, in which event (x) the “Term” of the Lease
thereafter shall mean the term set forth in such written extension agreement, (y) the Monthly Rental
under this Lease thereafter shall be the Monthly Rental set forth in such written extension agreement,
and (z) any and all other provisions of the written extension agreement that are inconsistent with any
provisions in this Lease shall supersede and amend such inconsistent provisions, and the “Agreement”
shall mean this Lease as so extended and amended. Lessor has the right to immediately terminate this
Lease if Lessor has falsified any information in this Lease or in the Lessee’s application for the
Designated Boat Slip. The Lessee shall remove the Lessee’s Craft and all of Lessee’s associated property
from the Marina and adjacent or nearby City of Muskegon mooring and Department of Public
Works/Leisure Services boat and trailer storage areas within fifteen days after the termination of this
Lease. Early termination of this Lease without cause entitles the Lessee to a pro-rata refund of rental
fees paid in advance. The Lessee is not entitled to a refund when this Lease is terminated due to
Lessee’s falsification of information in Lessee’s application for the Designated Boat Slip or this Lease,
Lessee’s violation of Hartshorn Marina’s Rules and Regulations or failure to comply with any condition
stipulated therein, or termination pursuant to a default described in Section 12 of this Lease.
3. Payment of Monthly Rental, Including Utility Costs. The Monthly Rental is payable in
advance, without demand, deduction, setoff, or abatement, on the first day of each month during the
Term. Lessee shall be assessed a late payment fee of $25.00 for (a) any payment of Monthly Rental not
timely received and (b) for any returned check. If Lessor separately meters Lessee’s electrical service
and/or water service, then Lessee shall be responsible for paying the actual costs of such service
(collectively, the “Utility Costs”), and the Monthly Rental due as of any particular date shall mean and
include the Utility Costs that are due as of such date. The Monthly Rental shall be payable at such
address and in such manner as Lessor may from time to time reasonably direct, it being understood that
Lessor may reasonably require payment, among other methods of payment, by way of automatic credit
card debit, automatic bank draft, or by check drawn on nationally insured banking institution.
1
4. Insurance. Lessee shall maintain in force, throughout the Term and with carriers
licensed to do business and in good standing in the State of Michigan (a) comprehensive general liability
insurance with minimum coverage amounts of $300,000 per occurrence and in the aggregate, insuring
against death or injury to any person and damage or loss or loss of use of any property. Lessee shall
cause Lessee’s insurer to issue endorsements to both such policies (x) naming Hartshorn Marina as an
interested party, and (y) waiving any right of subrogation against Hartshorn Marina. Within 10 business
days of the commencement of the Term, Lessee shall furnish to Lessor certificates of insurance
evidencing such coverage. Upon the written request of Lessor at any time during the Term, Lessee shall,
within 10 business days of such request, furnish to Lessor certificates of insurance evidencing that all of
the coverage remains in full force and effect.
5. Lessee’s Maintenance & Related Obligations. Lessee shall maintain Lessee’s Craft and
the Designated Boat Slip (including any dock box, any appurtenant utility connections) in a safe and
clean condition, and shall keep the Marina deck free and clear of obstructions that could pose any
danger to others using such Marina deck. Without limiting the foregoing, Lessee shall secure and safely
route all utility hoses and cables so as not to pose any hazard across any area of the dock or along any
fender. Lessee shall secure any dock box so as not to blow open during high winds, and shall be solely
responsible for any damage caused by an improperly secured dock box. Lessee shall not discharge or
otherwise dispose of sewage, trash, fuel oil, or any other contaminant in or on the Marina property, or
into the water surrounding the Marina property, except in a manner and at a time expressly approved
by Lessor. In Lessee’s use of the Designated Boat Slip and Lessee’s Craft, Lessee shall comply with all
applicable local, state, and federal environmental and other rules, regulations, and laws. Lessee shall
promptly, at its sole cost and expense, cause to be repaired in a good and workmanlike manner any
damage caused by Lessee to the Designated Boat Slip, or the appurtenances thereto, or to the Marina.
Lessee shall not modify or alter any portion of the Designated Boat Slip or any of Marina deck or
facilities appurtenant to the Designated Boat Slip without the prior written consent of Lessor, which
consent may be withheld or denied in Lessor’s sole discretion.
6. Security Deposit. Lessor shall have the right, but not the obligation, to apply all or any
part of the Security Deposit to any past due obligation of Lessee for Monthly Rental, and/or for the cost
of curing any default by Lessee under this Lease, and/or to pay attorneys’ fees incurred by Lessor in
connection with any such default by Lessee. Within 5 business days of any such application by Lessor of
all or any part of the Security Deposit hereunder, Lessee shall be obligated to fully restore to Lessor the
amount so applied.
7. Indemnity. Lessee shall fully and forever indemnify, hold harmless, and defend Lessor,
Lessor’s agents, and Lessor’s employees from and against any and all claims, demands, causes of action,
liabilities, damages, and costs (including costs of court and attorneys’ fees) in connection with, related
to, or arising out of any action or omission by Lessee — or by any of Lessee’s invitees, agents,
contractors, or subcontractors — in any way related to Lessee’s Craft and/or the Designated Boat Slip.
Guests, relatives, and members of the Lessee’s immediate family within the Marina or the City of
Muskegon mooring and Department of Public Works/Leisure Services boat and trailer storage areas
shall be presumed to be Lessee’s invitees under all provisions of this Lease. Ownership of any watercraft
docked using the Lessee’s Designated Boat Slip will be assumed and accepted by the Lessee as owner or
agent of the owner. Lessee’s indemnity, hold harmless, and defense obligations shall apply even in
instances in which Lessor or any third party is negligent; accordingly, Lessee hereby acknowledges
that Lessee is obligated to indemnify, hold harmless, and defend Lessor even against the
consequences of Lessor’s own negligence. However, notwithstanding the foregoing, Lessee shall have
2
no obligation to indemnify, hold harmless, or defend Lessor in instances in which Lessor is solely
negligent.
8. Lessor’s Disclaimers and Lessee’s Waivers. Lessee acknowledges that: (a) Lessor shall
have absolutely no obligation to provide any security to persons or property at the Marina or
nearby or adjacent City of Muskegon mooring and Department of Public Works/Leisure Services
boat and trailer storage areas; (b) Lessor shall have absolutely no obligation to carry any insurance
of any nature, for its own benefit or for the direct or indirect benefit of any other party, including
Lessee; (c) Lessor, Lessor’s agents, and Lessor’s employees shall have absolutely no liability to
Lessee or to any of Lessee’s invitees, agents, contractors, or subcontractors for any claim, liability,
or damage to person or property; and (d) Lessee accepts the Designated Boat Slip, the
appurtenances thereto, and any and all other portions of the Marina “as is, where is,” with all faults
and defects, whether latent or patent. Lessee waives any such claim it may have against Lessor
arising out of any of the foregoing.
9. Rules & Regulations. Lessee acknowledges receipt of a copy of the Rules & Regulations
of Hartshorn Marina, and agrees to comply with such Rules & Regulations, as same may be amended
from time to time.
10. Assignment and Subletting. The Lease created by this Lease and the rights granted
under this Lease are personal to Lessee. Lessee may not assign all or any part of its rights under this
Lease, or otherwise sublet the Designated Boat Slip or any part thereof, without the prior written
consent of Lessor, which consent may be withheld or denied in Lessor’s sole discretion This Lease
shall be binding upon and inure to the benefit of Lessor and its successors and assigns.
11. Default by Lessor. In the event of any default by Lessor, Lessee shall give to Lessor
written notice of such default, specifying the nature of the default. Lessor shall have 10 days within
which to cure such default. If Lessor timely fails to cure such default, then Lessee shall have the right, by
giving written notice to Lessor, to terminate this Lease, with such termination being effective as of the
final day of the month on which such notice of termination is given. Lessee’s right to terminate shall be
Lessee’s sole remedy under this Lease in the event of such a Lessor default, and Lessor shall not on any
account be liable in money damages (including without limitation for any attorneys’ fees or costs of
court) to Lessee. Notwithstanding the foregoing, Lessee shall have no right to give Lessor any notice of
default, and shall have no right to terminate this Lease before the expiration of its stated Term, at any
time that Lessee has any Monthly Rental due to Lessor, or is otherwise in default of any of Lessee’s
other obligations under this Lease.
12. Default by Lessee. If Lessee fails to make payment of any Monthly Rental within fifteen
days of delivery by Lessor of notice of any Monthly Rental that is past due, or fails to cure any other
default under this Lease within ten days of delivery by Lessor of such default, then a “Lessee Event of
Default” shall exist and Lessor shall have the following remedies, which shall be cumulative rather than
exclusive:
a. the right to terminate this Lease, and the grant of the Lease hereunder, which
termination right may be exercised by written notice by Lessor to Lessee, and which termination
shall be effective as of the date of such notice;
3
b. the right to immediately enter upon and repossess the Designated Boat Slip and
all appurtenances thereto, by forcible entry and detainer suit, or otherwise;
c. the right to remove Lessee’s Craft (and any personal property then inside
Lessee’s Craft from its mooring, and to store Lessee’s Craft (and such personal property), with all
risk of loss belonging solely to Lessee, and with no liability whatsoever to Lessor, and with all
costs of storage being deemed to be including among the past due Monthly Rental under this
Lease;
d. the right to make any required repairs to the Designated Boat Slip, or to expend
any other sums required to cure any defaults by Lessee under this Lease, with all such sums
expended being deemed to be included among the past due Monthly Rental under this Lease;
e. the right to terminate Lessee’s rights of possession with regard to the
Designated Boat Slip and all appurtenances thereto, without demand or notice of any kind and
without terminating this Lease, in which event Lessor may, but shall be under no obligation to,
relet all or any part of the Designated Boat Slip for credit to Lessee’s account, on such terms and
conditions as Lessor in its sole discretion shall deem appropriate; and
f. the right to exercise Lessor’s rights under the Michigan Uniform Commercial
Code with regard to the security interest granted to Lessor in the Secured Property.
In the event of any Lessee Event of Default, Lessor shall have the right to recover from Lessee,
whether by way of sale of the Secured Property, or by means of execution and levy on a judgment, or by
means of voluntary payment by Lessee, or by some combination thereof: (a) all Monthly Rental that is
past due, including any late payment fees due in connection therewith, (b) all Monthly Rental to come
due during the remainder of the Term (assuming that Lessor has not terminated this Lease and the
Lease hereunder), (c) Lessor’s reasonable and necessary attorneys’ fees and costs of court, (d) pre-
judgment at the lesser of 8% per annum or the maximum allowed by law, and (e) post-judgment interest
at lesser of 10% per annum or the maximum allowed by law.
13. Notice. Any notice required or permitted to be given to Lessor shall be given by
certified or registered United States mail, postage prepaid, to the address of Lessor set forth on the
first page of this Lease, or to any revised address of which Lessor may from to time to time notify
Lessee. Such notice to Lessor shall be deemed to have been given on the postmark date or, if any
such notice is not postmarked within the State of Michigan, five days after the postmark date. Any
notice required or permitted to be given to Lessee may be given either by (a) certified or registered
United States mail, postage prepaid, to the address of Lessee set forth on the first page of this
Lease, or to any revised address of which Lessee may from to time to time notify Lessor, or (b) via
email to the email address of Lessee set forth on the first page of this Lease. Any mailed notice by
Lessor shall be deemed to have been given on the postmark date, and any email notice by Lessor
shall be deemed to have been given at the time the email is sent, and shall be deemed to have been
properly given and received if sent to the email address of Lessee reflected on the first page of this
Lease, regardless of whether actually received by Lessee.
14. Relocation of Designated Boat Slip. Lessor shall have the right, from time to time, upon
no fewer than 10 days’ notice to Lessee to change the location of the Designated Boat Slip; provided,
however, that Lessee may not make any such change in order merely to accommodate another user or
4
potential user of the Lessee’s Designated Boat Slip, and in connection with any such relocation: (a)
Lessee shall be entitled to the waiver of one month’s Monthly Rental, and (b) Lessor shall offer to Lessee
a substitute boat slip of at least equal size and with comparable appurtenances (such as any dock box or
utility connections), which shall thereupon become Lessee’s Designated Boat Slip.
15. Miscellaneous.
a. This Lease (including the Rules & Regulations referred to herein) sets forth the
entire agreement between Lessor and Lessee, and supersedes and takes the place of all prior
representations, warranties, and agreements, and may be amended only by written instrument
signed by the party to be bound.
b. This Lease shall be governed by the laws of the State of Michigan, and exclusive
venue for the adjudication of any dispute arising under this Lease shall be in a court of
competent jurisdiction in Muskegon County.
c. If any provision or portion of a provision of this Lease is determined to be
unenforceable, then the unenforceable provision shall be deemed to have been severed and
excised from the Agreement, and the remainder of the Agreement shall remain in full force and
effect.
d. Lessee warrants that Lessee is the owner of Lessee’s Craft, free and clear of any
adverse liens or claims, save and except claims by any lender of a security interest therein
arising prior to the Date of this Lease.
e. Any request for a refund of rent or security deposits must be given to Lessor in
writing. Lessor will issue refunds in the full amount within 60 days in which they are requested.
IN WITNESS WHEREOF, Lessor and Lessee have signed this Lease on the date set forth above.
LESSOR: LESSEE:
CITY OF MUSKEGON ________________________________________
By: ____________________________________ Name: _________________________________
Name: _________________________________ Date: ______________________
Title: _______________________
Date: ______________________
5
EXHIBIT C
Memorandum of Right of First Refusal for Marina and Marina Operation
-19-
MEMORANDUM OF RIGHT OF FIRST REFUSAL
This MEMORANDUM OF RIGHT OF FIRST REFUSAL ("Memorandum") is
executed as of ___________, 2018, by and between THE CITY OF MUSKEGON, a Michigan
municipal corporation, of 933 Terrace Street, Muskegon, Michigan 49442 (the "Grantor"), and
HARBOR WEST, LLC, a Michigan limited liability company, of 108 South University, Suite 6,
Mt. Pleasant, Michigan 48858 (the "Grantee"), based upon the following facts:
Grantor and Grantee have entered into a First Amended and Restated Real Estate
and Development Agreement ("Purchase Agreement") dated as of August _______, 2018,
which Purchase Agreement contains a right of first refusal for the benefit of Grantee ("First
Refusal"). Under the First Refusal, Grantor has granted to Grantee a right of first refusal
relating to certain real estate located in the City of Muskegon, County of Muskegon, State of
Michigan, more fully described on Exhibit A attached to this Memorandum, together with all the
improvements, fixtures, easements, and appurtenances associated with that real estate and all
assets located on the real estate. This First Refusal is a covenant running with the land owned by
Grantor and described herein.
This Memorandum is executed for the purpose of giving record notice of the
existence of the First Refusal. All terms and conditions of the First Refusal are incorporated into
this Memorandum by reference. Anyone wishing to refer to the First Refusal may do so by
referring to the Liber and Page in which this Memorandum is recorded.
[Remainder of Page Intentionally Left Blank]
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Grantor and Grantee executed this Memorandum of Right of First Refusal as of the date
first set forth above
THE CITY OF MUSKEGON, a Michigan
municipal corporation
By: ________________________________
Its: ________________________________
Grantor
STATE OF MICHIGAN )
)ss:
COUNTY OF _________________ )
Acknowledged before me in ___________ County, Michigan, on
______________, 2018, by _________________, as _____________ of the City of Muskegon, a
Michigan municipal corporation, on behalf of the municipal corporation.
Notary public, State of Michigan, County of
My commission expires
Acting in the County of ________________
-21-
Legal Description of Marina
EXHIBIT A
PARTS OF BLOCKS 574 AND 575, REVISED PLAT (OF 1903) OF THE CITY OF MUSKEGON, MUSKEGON
COUNTY, MICHIGAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEASTERLY CORNER OF
BLOCK 574 OF SAID REVISED PLAT (OF 1903) OF THE CITY OF MUSKEGON; THENCE NORTH 84
DEGREES 41 MINUTES 53 SECONDS WEST, A DISTANCE OF 270.27 FEET, TO A POINT ON THE
NORTHERLY LINE OF WEST WESTERN AVENUE, THENCE CONTINUING, NORTH 80 DEGREES 29
MINUTES 37 SECONDS WEST, ALONG SAID NORTHERLY LINE OF WEST WESTERN AVENUE, A DISTANCE
OF 456.87 FEET, THENCE NORTH 01 DEGREES 57 MINUTES 31 SECONDS EAST, A DISTANCE OF 612.15
FEET, THENCE NORTH 44 DEGREES 45 MINUTES 24 SECONDS EAST, A DISTANCE OF 13.02 FEET TO THE
POINT OF BEGINNING;
THENCE CONTINUING, NORTH 44 DEGREES 45 MINUTES 24 SECONDS EAST, A DISTANCE OF 124.65
FEET;
THENCE NORTH 00 DEGREES 00 MINUTES 00 SECONDS WEST, A DISTANCE OF 109.49 FEET;
THENCE NORTH 88 DEGREES 55 MINUTES 28 SECONDS EAST, A DISTANCE OF 289.48 FEET;
THENCE SOUTH 31 DEGREES 36 MINUTES 02 SECONDS EAST, A DISTANCE OF 349.49 FEET;
THENCE SOUTH 31 DEGREES 23 MINUTES 22 SECONDS EAST, A DISTANCE OF 77.30 FEET;
THENCE SOUTHWESTERLY, A DISTANCE OF 407.78 FEET, ALONG A CURVE TO THE RIGHT (CURVE
DATA BEING: RADIUS=167.20 FEET, DELTA=139°44’23”, LONG CHORD=313.97 FEET, LONG CHORD
BEARING=SOUTH 41 DEGREES 40 MINUTES 50 SECONDS WEST);
THENCE NORTH 50 DEGREES 20 MINUTES 22 SECONDS WEST, A DISTANCE OF 125.14 FEET;
THENCE NORTH 43 DEGREES 10 MINUTES 59 SECONDS WEST, A DISTANCE OF 431.76 FEET TO THE
POINT OF BEGINNING.
BOAT SLIP AREA CONTAINS 5.29 ACRES, MORE OR LESS.
EXHIBIT D
Memorandum of Right of First Refusal (Marina Slips)
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MEMORANDUM OF RIGHT OF FIRST REFUSAL
This MEMORANDUM OF RIGHT OF FIRST REFUSAL ("Memorandum") is
executed as of ___________, 2018, by and between THE CITY OF MUSKEGON, a Michigan
municipal corporation, of 933 Terrace Street, Muskegon, Michigan 49442 (the "Grantor"), and
HARBOR WEST, LLC, a Michigan limited liability company, of 108 South University, Suite 6,
Mt. Pleasant, Michigan 48858 (the "Grantee"), based upon the following facts:
Grantor and Grantee have entered into a First Amended and Restated Real Estate
and Development Agreement ("Purchase Agreement") dated as of August ______, 2018, which
Purchase Agreement contains a right of first refusal for the benefit of Grantee ("First Refusal").
Under the First Refusal, Grantor has granted to Grantee a right of first refusal relating to the
availability of certain slip leases in a marina on real estate owned by Grantor located in the City
of Muskegon, County of Muskegon, State of Michigan, more fully described on Exhibit A
attached to this Memorandum. This First Refusal is a covenant running with the land owned by
Grantor and described herein.
This Memorandum is executed for the purpose of giving record notice of the
existence of the First Refusal. All terms and conditions of the First Refusal are incorporated into
this Memorandum by reference. Anyone wishing to refer to the First Refusal may do so by
referring to the Liber and Page in which this Memorandum is recorded.
[Remainder of Page Intentionally Left Blank]
-25-
Grantor and Grantee executed this Memorandum of Right of First Refusal as of the date
first set forth above
THE CITY OF MUSKEGON, a Michigan
municipal corporation
By: ________________________________
Its: ________________________________
Grantor
STATE OF MICHIGAN )
)ss:
COUNTY OF _________________ )
Acknowledged before me in ___________ County, Michigan, on
______________, 2018, by _________________, as _____________ of the City of Muskegon, a
Michigan municipal corporation, on behalf of the municipal corporation.
Notary public, State of Michigan, County of
My commission expires
Acting in the County of ________________
-26-
Legal Description of Marina
EXHIBIT A
PARTS OF BLOCKS 574 AND 575, REVISED PLAT (OF 1903) OF THE CITY OF MUSKEGON, MUSKEGON
COUNTY, MICHIGAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEASTERLY CORNER OF
BLOCK 574 OF SAID REVISED PLAT (OF 1903) OF THE CITY OF MUSKEGON; THENCE NORTH 84
DEGREES 41 MINUTES 53 SECONDS WEST, A DISTANCE OF 270.27 FEET, TO A POINT ON THE
NORTHERLY LINE OF WEST WESTERN AVENUE, THENCE CONTINUING, NORTH 80 DEGREES 29
MINUTES 37 SECONDS WEST, ALONG SAID NORTHERLY LINE OF WEST WESTERN AVENUE, A DISTANCE
OF 456.87 FEET, THENCE NORTH 01 DEGREES 57 MINUTES 31 SECONDS EAST, A DISTANCE OF 612.15
FEET, THENCE NORTH 44 DEGREES 45 MINUTES 24 SECONDS EAST, A DISTANCE OF 13.02 FEET TO THE
POINT OF BEGINNING;
THENCE CONTINUING, NORTH 44 DEGREES 45 MINUTES 24 SECONDS EAST, A DISTANCE OF 124.65
FEET;
THENCE NORTH 00 DEGREES 00 MINUTES 00 SECONDS WEST, A DISTANCE OF 109.49 FEET;
THENCE NORTH 88 DEGREES 55 MINUTES 28 SECONDS EAST, A DISTANCE OF 289.48 FEET;
THENCE SOUTH 31 DEGREES 36 MINUTES 02 SECONDS EAST, A DISTANCE OF 349.49 FEET;
THENCE SOUTH 31 DEGREES 23 MINUTES 22 SECONDS EAST, A DISTANCE OF 77.30 FEET;
THENCE SOUTHWESTERLY, A DISTANCE OF 407.78 FEET, ALONG A CURVE TO THE RIGHT (CURVE
DATA BEING: RADIUS=167.20 FEET, DELTA=139°44’23”, LONG CHORD=313.97 FEET, LONG CHORD
BEARING=SOUTH 41 DEGREES 40 MINUTES 50 SECONDS WEST);
THENCE NORTH 50 DEGREES 20 MINUTES 22 SECONDS WEST, A DISTANCE OF 125.14 FEET;
THENCE NORTH 43 DEGREES 10 MINUTES 59 SECONDS WEST, A DISTANCE OF 431.76 FEET TO THE
POINT OF BEGINNING.
BOAT SLIP AREA CONTAINS 5.29 ACRES, MORE OR LESS.
EXHIBIT E
Restrictive Covenant
29
RESTRICTIVE COVENANT
This RESTRICTIVE COVENANT made as of this ______ day of ______, 2018, by
THE CITY OF MUSKEGON, a Michigan municipal corporation, of 933 Terrace Street,
Muskegon, Michigan 49442 ("Declarant"), and HARBOR WEST, LLC, a Michigan limited
liability company, of 108 South University, Suite 6, Mt. Pleasant, Michigan 48858 ("Buyer").
WHEREAS, Declarant owns fee simple title to that certain parcel of real estate located
in the City of Muskegon, County of Muskegon, State of Michigan, as shown on Exhibit A
attached hereto and incorporated herein by reference (the "Declarant’s Property");
WHEREAS, Buyer entered into a First Amended and Restated Real Estate Sale and
Development Agreement dated August ____, 2018 (the "Purchase Agreement"), with
Declarant, under the terms of which Buyer agreed to purchase and Declarant has agreed to sell a
tract of property immediately adjacent to Declarant’s Property, and legally described on Exhibit
B attached hereto and incorporated herein by reference and as shown on Exhibit B ("Buyer’s
Property");
WHEREAS, as a condition to Buyer’s purchase of Buyer’s Property, Buyer and
Declarant have agreed to place a certain restriction against Declarant’s Property for the benefit of
Buyer and the successors and assigns of Buyer’s Property; and
WHEREAS, in order to comply with the requirements set forth in the Purchase
Agreement, Declarant wishes to and by this document intends to have a certain restriction placed
upon the Property.
NOW THEREFORE, for Ten Dollars ($10.00) and other good and valuable
consideration, the adequacy and receipt of which is hereby acknowledged, Declarant does hereby
publish, declare and impose the following restriction:
1. Restriction. For the period set forth in Paragraph 2 below, Declarant shall not build,
install or allow to be built or installed any improvements or structures in the area of the
Property as shown in “cross hatch” on Exhibit A ("Restricted Area"), provided that
Declarant may use the Restricted Area for landscaping so long as the “line of sight” from
Buyer’s buildings on Buyer’s Property adjacent to Declarant’s Property and the Marina,
as shown on Exhibit A attached hereto, remains free, clear and unimpaired by
landscaping in the Restricted Area.
2. Duration. This Restrictive Covenant shall exist in perpetuity and run with the land as
a burden on the Declarant’s Property, for the benefit of the Buyer’s property, and shall be
enforceable by Buyer or their successors or assigns until terminated by mutual agreement
of the parties.
30
3. Benefit. The Restrictive Covenant is only for the benefit of Buyer, its affiliates, and its
heirs, successors and assigns, who shall have the right to invoke and enforce the
Restrictive Covenant contained herein by any and all means available at law or in equity.
4. Amendments. This Restrictive Covenant may be amended, modified, or terminated (in
whole or in part) from time to time by written document executed and acknowledged by
Declarant and Buyer, or their respective successors and assigns, and duly recorded in the
Muskegon County Register of Deeds, Michigan, or in such other office as may from time
to time by law be charged with the duty of maintaining the public records of Muskegon
County, Michigan, and shall not otherwise by amended, modified, or terminated during
the term hereof.
5. Governing Law. This Restrictive Covenant shall be governed by and construed in
accordance with the laws of the State of Michigan.
6. Entire Agreement. This Restrictive Covenant contains the entire understanding of the
parties hereto, and such parties acknowledge that there have been no representations or
understandings other than those expressly set forth in this Restrictive Covenant.
7. Counterparts. This Restrictive Covenant may be executed in one or more counterparts,
each such counterpart being deemed an original and all such counterparts taken together
constituting but one and the same instrument.
8. Transfer Taxes. This Restrictive Covenant is exempt from the real estate transfer taxes
under MCLA §§ 207.505(a) and 207.526(a) because the value of the consideration given
is less than One Hundred Dollars ($100).
(THE REST OF THIS PAGE HAS BEEN LEFT INTENTIONALLY BLANK)
31
IN WITNESS WHEREOF, the undersigned have caused this instrument to be signed
and sealed as of this _____ day of _______________, 2018.
DECLARANT:
THE CITY OF MUSKEGON,
a Michigan municipal corporation
By: _____________________________
Name: __________________________
Title: ___________________________
STATE OF MICHIGAN
COUNTY OF ________________
Acknowledged before me in ___________ County, Michigan, on ______________,
2018, by _________________, as _____________ of the City of Muskegon, a Michigan
municipal corporation, on behalf of the municipal corporation.
Notary public, State of Michigan, County of
My commission expires
Acting in the County of ____________________________
PREPARED BY AND RETURN TO:
Jared T. Belka
WARNER NORCROSS & JUDD LLP
900 Fifth Third Center
111 Lyon Street, NW
Grand Rapids, Michigan 49503-2487
Telephone: (616) 752-2000
17209911
33
EXHIBIT A
Depiction of City’s Property
34
EXHIBIT B
Parcel 4:
THOSE PARTS OF BLOCKS 574 AND 575, REVISED PLAT (OF 1903) OF THE CITY OF MUSKEGON,
MUSKEGON COUNTY, MICHIGAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEASTERLY
CORNER OF BLOCK 574 OF SAID REVISED PLAT (OF 1903) OF THE CITY OF MUSKEGON; THENCE
NORTH 88°43’ WEST 270.42 FEET (M=NORTH 84°41’53” WEST 270.27 FEET) TO A POINT ON THE
NORTHERLY LINE OF WEST WESTERN AVENUE FOR A POINT OF BEGINNING;
THENCE WESTERLY ALONG THE NORTHERLY LINE OF WEST WESTERN AVENUE 457.28 FEET
(M=NORTH 80°29’18” WEST 457.02 FEET); THENCE NORTH 2 °04’ WEST 492.92 FEET; THENCE SOUTH
47°05’ EAST 236.7 FEET; THENCE CONTINUING SOUTH 47°04’ EAST TO A POINT 100 FEET NORTH OF
AND NORTH 1°40’ WEST OF THE POINT OF BEGINNING. TOGETHER WITH THE C & O RAILWAY
COMPANY RIGHT OF WAY RUNNING THROUGH THE ABOVE DESCRIBED PARCEL, EXCEPT THAT PART
WHICH WAS DEEDED TO THE CITY OF MUSKEGON AS RECORDED IN LIBER 2138, PAGES 751 AND 752.
The property address and tax parcel number listed below are provided solely for informational
purposes, without warranty as to accuracy or completeness. If the information listed below is
inconsistent in any way with the legal description listed above, the legal description listed above
shall control.
Property Address: 1000 W. Western Avenue, Muskegon, Michigan
Tax Parcel No.: 61-24-205-574-0001-10
35
EXHIBIT F
Project Timeline
36
1 Establish Overall Concept of Phase 1 5 days 8/2/18 8/7/18
2 Civil Design and Construction Documents 110 days 7/24/18 11/11/18
3 Architectural Design and Construction Documents 90 days 7/1/18 9/29/18
4 Owner Review and Approval 5 days 9/29/18 10/4/18
5 Planned Unit Development (PUD) - Site 22 days 10/4/18 10/31/18
6 Application Submission 1 day 10/4/18 10/4/18
7 PUD Review and Revisions (if necessary) 20 days 10/5/18 10/25/18
8 PUD Approval 1 day 10/26/18 10/26/18
9 Building Permit - Clubhouse 27 days 9/30/18 10/27/18
10 Application Submission 1 day 9/30/18 9/30/18
11 Plan Review and Revisions (if necessary) 25 days 10/1/18 10/26/18
12 Building Permit Issuance 1 day 10/27/18 10/27/18
13 Bidding Phase (Site and Clubhouse) 39 days 10/25/18 12/3/18
14 Create Bid Packages/Project Manual 5 days 10/25/18 10/30/18
15 Out to Bid 15 days 10/31/18 11/15/18
16 Formulate Bid Tabulation/Schedule Post-Bids 3 days 11/16/18 11/19/18
17 Post-Bids 5 days 11/20/18 11/25/18
18 Establish Final GMP 2 days 11/26/18 11/28/18
19 Owner Review and Approval 2 days 11/29/18 12/1/18
20 Owner Contract Executed 2 days 12/1/18 12/3/18
21 Trade Contracts Executed 3 days 12/4/18 12/7/18
22 Brownfield/TIF 120 days 8/30/18 11/30/18
23 Precon Meeting 1 day 12/10/18 12/10/18
24 Mobilize 2 days 12/11/18 12/13/18
25 Under Construction 335 days 12/14/18 11/14/19
26 Earthwork Removal 20 days 12/14/18 1/3/19
27 Underground Utilities 65 days 1/4/19 3/10/2019
28 Infill/Site Balancing 30 days 3/11/19 4/11/19
29 Roadways/Pathways/Hardscapes 60 days 4/12/19 6/12/19
30 Construction of Clubhouse and Surrounding Amenities 135 days 4/18/19 10/23/19
31 Construction of Townhomes (Phase 1 Only) 220 days 5/9/19 3/11/20
Date: August 14, 2018
To: Honorable Mayor and City Commissioners
From: Jeffrey A. Lewis
Director of Public Safety
RE: Memorandum of Understanding – Justice Assistance Grant
SUMMARY OF REQUEST:
The Director of Public Safety requests that the Commission authorize the Director and the
City Manager to enter into an agreement with the City of Muskegon Heights and Muskegon
County in regards to the disbursement of the FY 2018 Justice Assistance Grant. It if further
requested that the Mayor be authorized to sign the Memorandum of Understanding. Note that
time is of the essence as this grant requires a governing body review period and the grant
submission and the grant deadline is August 22nd.
Although the Bureau of Justice Assistance has designated us as being in a disparate funding
situation due to the County providing more than 50% of the jail facilities, our proposal is to
keep the allocations exactly as they initially came down from the BJA which is as follows:
County of Muskegon $0; City of Muskegon $23,030 and City of Muskegon Heights
$14,941. Note that BJA uses crime data versus population in making these allocation
decisions.
The City of Muskegon portion is planned to be used in continuation of the manner in which
the previous year’s JAG funding was used which is for the prosecution of city ordinance cases
dealing primarily with neighborhood issues.
FINANCIAL IMPACT:
None.
BUDGET ACTION REQUIRED:
None.
STAFF RECOMMENDATION:
Staff recommends approval of this request.
MEMORANDUM OF UNDERSTANDING
THE CITY OF MUSKEGON
THE COUNTY OF MUSKEGON
THE CITY OF MUSKEGON HEIGHTS
FY 2018 JUSTICE ASSISTANCE GRANT (JAG) PROGRAM AWARD
Regular Funding/Local Solicitation
This Agreement is made and entered into on the _______ day of ___________, 2018,
by and between the County of Muskegon, acting by and through its governing body, the
Board of County Commissioners, located at 990 Terrace Street, Muskegon, Michigan 49442
and the City of Muskegon, acting by and through its governing body, the City Commission,
located at 933 Terrace Street, Muskegon, Michigan 49443-0536, and the City of Muskegon
Heights, acting by and through its governing body, the City Council, located at 2724 Peck
Street, Muskegon Hts., MI 49444, all of Muskegon County, State of Michigan, witnesseth:
WHEREAS, the CITY OF MUSKEGON has agreed to serve as the applicant/fiscal agent
for the joint funds under the: Justice Assistance Grant(Local Solicitation) as the Bureau of
Justice Assistance has designated the allocation to the law enforcement communities in
Muskegon County as a disparate allocation; and
WHEREAS, each governing body, in performing governmental functions or in paying for
the performance of governmental functions, hereunder, shall make that performance or
those payments from current revenues legally available to that party; and
WHEREAS, each governing body find that the performance of this Agreement is in the
best interest of all parties, that the undertaking will benefit the public, and that the division
of costs fairly compensates the performing party for the services or functions under this
Agreement; and
Page 1 of 3
WHEREAS, the breakdown of allocated funding agreed upon by those entities involved
in the disparate funding is $ 23,030 to the CITY OF MUSKEGON and $ 14,941 to the CITY
OF MUSKEGON HEIGHTS; and
WHEREAS, the CITY OF MUSKEGON, CITY OF MUSKEGON HEIGHTS and COUNTY OF
MUSKEGON believe it to be in their best interests to allocate the JAG funds as specified in
this Agreement.
NOW THEREFORE, THE COUNTY OF MUSKEGON, CITY OF MUSKEGON AND CITY OF
MUSKEGON HEIGHTS agree as follows:
AGREEMENT
1. THE CITY OF MUSKEGON will act as the fiscal agent/applicant agency.
2. The total eligible joint allocation for the disparate jurisdictions of $ 37,971 will be
allocated as follows: COUNTY OF MUSKEGON - $ 0; CITY OF MUSKEGON - $23,030
CITY OF MUSKEGON HEIGHTS - $ 14,941
3. Each municipality will be responsible for its actions in the use of any equipment
purchased under this Agreement and the fiscal agent shall not be liable for any civil
liability that may arise from the purchase of the use of the equipment.
4. The CITY OF MUSKEGON HEIGHTS will be responsible for submitting quarterly
reports to the CITY OF MUSKEGON by the third day of the month following the
quarter in the reporting fashion required by the CITY OF MUSKEGON and for any
month in which an expenditure under the grant has occurred the CITY OF
MUSKEGON HEIGHTS will submit a reimbursement request to the CITY OF
MUSKEGON by the third day of the following month along with backup
documentation such as invoices.
5. The CITY OF MUSKEGON HEIGHTS will be responsible for the accuracy of all data
submitted to the CITY OF MUSKEGON for submission to the Bureau of Justice
Page 2 of 3
Programs and will be liable for penalties as a result of submitting the data late and
for any inaccurate data.
6. Nothing in the performance of this Agreement shall impose any liability for claims
against the CITY OF MUSKEGON passing from this program or from the CITY OF
MUSKEGON HEIGHT’s expenditure of the JAG funds.
7. By entering into this Agreement, the parties do not intent to create any obligations,
express or implied, other than those set out herein. Further, this Agreement shall
not create any rights in any party not a signatory hereto.
COUNTY OF MUSKEGON
Dated:_______________, 2018 By:____________________________
Benjamin E. Cross, Chairman
County Board of Commissioners
CITY OF MUSKEGON
Dated:_______________, 2018 By:____________________________
Stephen Gawron, Mayor
CITY OF MUSKEGON HEIGHTS
Dated:_______________, 2018 By:_____________________________
Kimberley Sims, Mayor
Page 3 of 3
Commission Meeting Date: August 14, 2018
Date: August 10, 2018
To: Honorable Mayor and City Commissioners
From: Planning & Economic Development
RE: Rezoning Request for a Portion of the Property at 710 Pulaski Ave
SUMMARY OF REQUEST:
Request to rezone a portion of the property at 710 Pulaksi Ave from I-1, Light Industrial to B-4,
General Business.
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 July 12
meeting, with four members absent.
1
SUMMARY
1. The property is zoned I-1, Light Industrial. The building is used by Ramos Towing.
The northern half of the property is vacant.
2. The applicant would like to rent space to a dance studio, but that use in not allowed
in industrial districts. The applicant would like to rezone a portion of the property to
B-4 to allow for the dance studio and also for their future development plans on the
northern portion of the property.
3. This area has a mixture of several different uses, with business being the most
prominent. Northern Machine Tool and Ramos Towing are the only industrial
properties on the block. The Seaway Industrial Park is located just to the northeast of
this property.
4. Notice was sent to all property owners/tenants within 300 feet of this property. At
the time of this writing, staff had not received any comments from the public.
710 Pulaski Ave looking east. The owner is seeking to use the space on the left as a
dance studio.
2
Aerial Map
Zoning Map
3
Portion to rezone to B-4 in Red
4
CITY OF MUSKEGON
MUSKEGON COUNTY, MICHIGAN
ORDINANCE NO.
An ordinance to amend the zoning map of the City to provide for a zone change for a portion
of the property from I-1, Light Industrial to B-4, General Business.
THE CITY COMMISSION OF THE CITY OF MUSKEGON HEREBY ORDAINS:
The zoning map of the City of Muskegon is hereby amended to change the zoning for a portion of
the following described property from I-1, Light Industrial to B-4, General Business.
CITY OF MUSKEGON SEC 31 T10N R16W E 409 FT OF S 829 FT OF NW FRL 1/4 OF SW FRL 1/4
SEC 31 T 10 N R 16 W EXC THAT PT TH'OF DEEDED TO STATE OF MI FOR HWY PURPOSES
ALSO EXC E 62 FT TH'OF ALSO E 1/2 OF VAC BEIDLER ST ADJ TO SD DESC
This ordinance adopted:
Ayes:
Nayes:
Adoption Date:
Effective Date:
First Reading:
Second Reading:
CITY OF MUSKEGON
By: __________________________
Ann Meisch, MMC
City Clerk
5
CERTIFICATE
(Rezoning a portion of 710 Pulaski Ave I-1 to B-4)
The undersigned, being the duly qualified clerk of the City of Muskegon, Muskegon County,
Michigan, does hereby certify that the foregoing is a true and complete copy of an ordinance
adopted by the City Commission of the City of Muskegon, at a regular meeting of the City
Commission on the 14th day of August, 2018, at which meeting a quorum was present and
remained throughout, and that the original of said ordinance is on file in the records of the City of
Muskegon. I further certify that the meeting was conducted and public notice was given pursuant
to and in full compliance with the Michigan Zoning Enabling Act, Public Acts of Michigan No. 33
of 2006, and that minutes were kept and will be or have been made available as required thereby.
DATED: ___________________, 2018 ________________________________
Ann Meisch, MMC
Clerk, City of Muskegon
Publish: Notice of Adoption to be published once within ten (10) days of final adoption.
6
CITY OF MUSKEGON
NOTICE OF ADOPTION
Please take notice that on August 14, 2018, the City Commission of the City of Muskegon adopted
an ordinance amending the zoning map to provide for the change of zoning for a portion of the
property from I-1 to B-4:
CITY OF MUSKEGON SEC 31 T10N R16W E 409 FT OF S 829 FT OF NW FRL 1/4 OF SW
FRL 1/4 SEC 31 T 10 N R 16 W EXC THAT PT TH'OF DEEDED TO STATE OF MI FOR HWY
PURPOSES ALSO EXC E 62 FT TH'OF ALSO E 1/2 OF VAC BEIDLER ST ADJ TO SD DESC
Copies of the ordinance may be viewed and purchased at reasonable cost at the Office of the City
Clerk in the City Hall, 933 Terrace Street, Muskegon, Michigan, during regular business hours.
This ordinance amendment is effective ten days from the date of this publication.
Published ____________________, 2018 CITY OF MUSKEGON
By ___________________________
Ann Meisch, MMC
City Clerk
---------------------------------------------------------------------------------------------------------------------
PUBLISH ONCE WITHIN TEN (10) DAYS OF FINAL PASSAGE.
Account No. 101-80400-5354
7
Commission Meeting Date: August 14, 2018
Date: August 10, 2018
To: Honorable Mayor and City Commissioners
From: Planning & Economic Development
RE: Sale of City-Owned Property at 1870 Huizenga St & 1080 E
Holbrook Ave
SUMMARY OF REQUEST:
Newkirk Electric, located at 1875 Roberts St, has requested to purchase the two vacant,
industrially-zoned properties to expand their outdoor storage area. They are offering
$30,000 and to split the closing costs. 1870 Huizenga is considered a buildable lot, but
1080 E Holbrook is not large enough to be considered buildable. Staff is requesting
permission to enter into a purchase agreement with the applicant.
FINANCIAL IMPACT:
The City will see increased revenue from the sale of the lots.
BUDGET ACTION REQUIRED:
None
STAFF RECOMMENDATION:
Staff recommend approval of the sale.
COMMITTEE RECOMMENDATION:
None
8/10/2018
True Cash Values:
1870 Huizenga - $28,000
1080 E Holbrook - $17,500
8/10/18
Commission Meeting Date: August 14, 2018
Date: August 10, 2018
To: Honorable Mayor and City Commissioners
From: Planning & Economic Development
RE: Sale of City-Owned Property in the Seaway Industrial Park
SUMMARY OF REQUEST:
MTC Enterprises of Michigan, Inc has requested to purchase lots 1 and 2 in the Seaway
Industrial Park. They are offering $300,000 total for both lots and are proposing to construct
a provisioning center on one parcel and either a cultivation building or processing center on
the other parcel. The offer is contingent upon unencumbered title and their ability to obtain
State and local licensing within 120 days of acceptance of the proposal. If they need
additional time to obtain licensing and all necessary approvals, they will agree to pay the
City $3,000 per month non-refundable but credited to wards the purchase price at closing.
Staff is requesting permission to enter into a purchase agreement with the applicant.
FINANCIAL IMPACT:
The City will see increased revenue from the sale of the lots.
BUDGET ACTION REQUIRED:
None
STAFF RECOMMENDATION:
Staff recommend approval of the sale.
COMMITTEE RECOMMENDATION:
None
8/10/2018
True Cash Values:
Lot 1 - $190,750
Lot 2 - $28,000
8/10/18
Date: August 14, 2018
To: Honorable Mayor and City Commission
From: Department of Public Works
RE: Launch Ramp Ordinance Change
________________________________________________________
SUMMARY OF REQUEST: To amend Chapter 58 Parks and Recreation ordinance to
clarify daily and annual launch ramp permit parameters, vessel and trailer size restrictions,
and commercial use of city of Muskegon launch ramps.
FINANCIAL IMPACT:
None
BUDGET ACTION REQUIRED:
None.
STAFF RECOMMENDATION:
Approve the modified language for the ordinance.
1
CITY OF MUSKEGON
MUSKEGON COUNTY, MICHIGAN
ORDINANCE NO. _____
THE CITY COMMISSION OF THE CITY OF MUSKEGON HEREBY ORDAINS:
1. Section 58-3 is amended to read as follows:
58-3. Public boat launch permit; violation as a municipal civil infraction.
No person shall launch a vessel at city launch ramp facilities without a permit from the
city. Daily permits are valid for the 24-hour period of the date purchased and must be
clearly displayed on the vehicle dashboard with date and permit number visible from
outside the vehicle. Annual permits are valid for the calendar year in which it was
purchased for the launching of vessels at city launch ramp facilities. The annual permit
must be fully adhered to the vehicle windshield and completely visible from the outside
of the vehicle used to launch the vessel.
Vessels larger than thirty-feet, or those transported on a trailer with three or more axles,
shall not use City of Muskegon launch ramp facilities. Pontoon boats are excluded.
Private or for-profit businesses may launch commercial vessels from city launch ramp
facilities with a commercial launching permit issued by the City of Muskegon. Each
permit is valid for the calendar year in which it was purchased, for vessels up to thirty-
feet in length, and transported on a trailer with one or two axles. Pontoon boats excluded.
Permits are non-transferable and may not be re-sold, with the exception that permits will
be transferable between vehicles owned by the permit purchaser for business purposes
and must be visible from outside the vehicle. Violations of this section shall be a
municipal civil infraction.
Copies of the ordinance may be viewed and purchased at reasonable cost at the Office of
the City Clerk in the City Hall, 933 Terrace Street, Muskegon, Michigan, during regular business
hours.
O:\CLERK\COMMON\WORD\AGENDA ITEMS FOR NEXT MEETING\2018\081418\K2_BOAT LAUNCH ORDINANCE
AMENDMENT.DOCX
This ordinance adopted:
Ayes: __________________________________________________________________
Nays: __________________________________________________________________
Adoption Date: ________________________
Effective Date: _________________________
First Reading: _________________________
Second Reading: ________________________
CITY OF MUSKEGON
By __________________________
Ann Marie Meisch, MMC
City Clerk
O:\CLERK\COMMON\WORD\AGENDA ITEMS FOR NEXT MEETING\2018\081418\K2_BOAT LAUNCH ORDINANCE
AMENDMENT.DOCX
CERTIFICATE
The undersigned, being the duly qualified clerk of the City of Muskegon, Muskegon
County, Michigan, does hereby certify that the foregoing is a true and complete copy of an
ordinance adopted by the City Commission of the City of Muskegon, at a regular meeting of the
City Commission on the _____ day of ______________, 2018, at which meeting a quorum was
present and remained throughout, and that the original of said ordinance is on file in the records
of the City of Muskegon. I further certify that the meeting was conducted, and public notice was
given, pursuant to an in full compliance with Act No. 267, Public Acts of Michigan of 1976, as
amended, and that minutes were kept and will be or have been made available as required
thereby.
DATED: ____________, 2018
_________________________________
Ann Marie Meisch, MMC
Clerk, City of Muskegon
Publish: Notice of Adoption to be published once within ten (10) days of final adoption.
O:\CLERK\COMMON\WORD\AGENDA ITEMS FOR NEXT MEETING\2018\081418\K2_BOAT LAUNCH ORDINANCE
AMENDMENT.DOCX
CITY OF MUSKEGON
NOTICE OF ADOPTION
TO: ALL PERSONS INTERESTED
Please take notice that on _________________ ______, 2018, the City Commission of
the City of Muskegon amended Chapter 58, Article I by amending Sections 58-3.
Section 58-3 has been amended to allow for the purchase of a 24-hour or annual permit to
launch vessels at city launch ramp facilities. It is required that the permits be properly
adhered to the windshield or dashboard of the vehicle for complete visibility.
Additionally, vessels larger than thirty-feet, or vessels transported on a trailer with three
or more axles, are prohibited from being launched at city launch ramp facilities, pontoon
boats excluded. Transferring or selling permits between individuals, except for the
transfer of permits between vehicles owned by the permit purchaser for business
purposes, is prohibited.
Copies of the ordinance may be viewed and purchased at reasonable cost at the Office of
the City Clerk in the City Hall, 933 Terrace Street, Muskegon, Michigan, during regular business
hours.
This ordinance amendment is effective ten (10) days from the date of this publication.
CITY OF MUSKEGON
Published: _________________, 2018 By: _____________________________
Ann Marie Meisch, MMC, Its Clerk
---------------------------------------------------------------------------------------------------------------------
PUBLISH ONCE WITHIN TEN (10) DAYS OF FINAL PASSAGE
O:\CLERK\COMMON\WORD\AGENDA ITEMS FOR NEXT MEETING\2018\081418\K2_BOAT LAUNCH ORDINANCE
AMENDMENT.DOCX
Date: August 6th, 2018
To: Honorable Mayor and City Commissioners
From: Department of Public Works
RE: City Survey Services
SUMMARY OF REQUEST:
Authorize staff to enter into an engineering services agreement with Fleis &
VandenBrink Engineering to provide survey services for upcoming projects. The value
of the agreement shall not exceed $27,110.00
Requests for Proposals were solicited for this contract with Westshore Consulting and
Fleis & VandenBrink Engineering submitting proposals. Both proposals were reviewed
by staff and the Fleis & VandenBrink proposal is recommended.
FINANCIAL IMPACT:
Not to exceed $27,110.00
BUDGET ACTION REQUIRED:
None. Contract will be funded out of capital projects included in the 2018/2019 budget.
STAFF RECOMMENDATION:
Authorize staff to enter into an engineering services agreement with Fleis and VandenBrink
Engineering.
City Survey Services - Proposal Bids Comparisson
RFP Received - 8/3/2018
RFP Reviewed - 8/6/2018
Commission Consent Agenda - 8/14/18
Lump Sum Guaranteed Tasks: Fleis & VandenBrink Westshore Consulting
Olthoff Drive & Sheridan Drive - Road Survey $12,800.00 $24,900.00
SUBTOTAL (Guaranteed Items) $12,800.00 $24,900.00
Lump Sum Optional Tasks:
Marsh Street / Walton Avenue - Road Survey $2,980.00 $5,800.00
3rd Street (Merril to Muskegon) - Road Survey $2,980.00 $7,200.00
SUBTOTAL (Optional Items) $5,960.00 $13,000.00
As-Needed Hourly Tasks:
1 Man Field Crew $160.00 $110.00
2 Man Field Crrew $245.00 $130.00
3 Man Field Crew $330.00 $150.00
Office Rate / Processing $100.00 $85.00
SUBTOTAL (Based on 10 Hours Each Item) $8,350.00 $4,750.00
GRAND TOTAL $27,110.00 $42,650.00
Date: 8/14/2018
To: Honorable Mayor and City Commissioners
From: Department of Public Works - Filtration
RE: Landscaping
SUMMARY OF REQUEST:
Authorize staff to enter into a landscaping agreement at Water Filtration Plant with
Weesies Brothers Garden Center since they submitted the lowest responsible bid of
$35,495.
FINANCIAL IMPACT:
$35,495.
BUDGET ACTION REQUIRED:
The project is funded in FY 2018-19.
STAFF RECOMMENDATION:
Authorize staff to enter into an agreement with Weesies Brothers Garden Center for a
cost of $35,495.
O:\CLERK\Common\Word\Agenda Items for Next Meeting\2018\081418\M1_landscaping.doc
CITY OF MUSKEGON
BID TABULATION
PROJECT: WATER FILTRATION PLANT- MEMBRANE ON CLEARWELLS - LANDSCAPING
DATE: 29-Jul-18 REQUISTION LANDSCAPING
Name of Bidder Name of Bidder Name of Bidder
Vendor Landscape Design Services Weesies Brothers Landscaping
Telephone 616-399-1734 231-206-5513
Quoted By Bob Sterling Juli Beushuizen
Quantity Description Unit Price Total Price Unit Price Total Price Unit Price Total Price
1. Install Sod $ 29,075.00 $ 27,950.00
2. Install Hydro-Seed $ 3,115.00 $ 3,200.00
3. Maintenance Strip-Vents $ 1,182.00 $ 1,775.00
4. Maintenance Strip-Front $ 2,058.00 $ 2,235.00
5. Aluminum Edging $ 4,856.74 $ 4,085.00
6. Install Patio $ 8,932.81 $ 8,300.00
7. Install Lighting $ 10,513.25 $ 5,750.00
8. Standard Finish Grading $ 1,725.00 $ 950.00
9. Install Irrigation $ 9,775.00 $ 9,200.00
Option: Maintenance Strip-Fence $ 5,050.00
Option: CCT or RGB Bulbs No Charge $ 55.00
TOTAL (Items 2 to 9), Hydro seed option $ 42,157.80 $ 35,495.00 $ -
Date: 8/14/2018
To: Honorable Mayor and City Commissioners
From: Department of Public Works - Filtration
RE: Fence Replacement
SUMMARY OF REQUEST:
Authorize staff to enter into a fence replacement agreement at Water Filtration Plant
with Justice Fence since they submitted the lowest responsible bid of $89,500.
FINANCIAL IMPACT:
$89,500.
BUDGET ACTION REQUIRED:
The project is funded in FY 2018-19.
STAFF RECOMMENDATION:
Authorize staff to enter into an agreement with Justice Fence for a cost of $89,500.
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CITY OF MUSKEGON
BID TABULATION
PROJECT: WATER FILTRATION PLANT- MEMBRANE ON CLEARWELLS - FENCE
DATE: 29-Jul-18 REQUISTION FENCING
Name of Bidder Name of Bidder Name of Bidder
Vendor Affordable Fence Co. Inc. Justice Fence West Michigan Fence Consultants
Telephone 231-736-2264 269-964-1596 616-438-2084
Quoted By Al Luke Richard Ostrander Wayne Allen
Quantity Description Unit Price Total Price Unit Price Total Price Unit Price Total Price
Fence Replacement $ 118,994.29 $ 89,500.00 $ 101,793.00
TOTAL $ 118,994.29 $ 89,500.00 $ 101,793.00
Date: 8/14/2018
To: Honorable Mayor and City Commissioners
From: Department of Public Works - Filtration
RE: Excavating
SUMMARY OF REQUEST:
Authorize staff to enter into an excavating agreement at Water Filtration Plant with
Jackson-Merkey Contractors since they submitted the lowest responsible bid of
$88,365.
FINANCIAL IMPACT:
$88,365.
BUDGET ACTION REQUIRED:
The project is funded in FY 2018-19.
STAFF RECOMMENDATION:
Authorize staff to enter into an agreement with Jackson-Merkey for a cost of $88,365.
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CITY OF MUSKEGON
BID TABULATION
PROJECT: WATER FILTRATION PLANT- MEMBRANE ON CLEARWELLS - EXCAVATION
DATE: 29-Jul-18 REQUISTION EXCAVATING
Name of Bidder Name of Bidder Name of Bidder
Vendor Jackson Merkey Swidorski Bros. Excavating Terra Contractors
Telephone 231-728-9344 231-723-7244 231-755-4450
Quoted By Brian Delong Paul Swidorski Scott Drier
Quantity Description Unit Price Total Price Unit Price Total Price Unit Price Total Price
Excavating $ 88,365.00 $ 98,200.00 $ 105,000.00
TOTAL $ 88,365.00 $ 98,200.00 $ 105,000.00
Date: 8/14/2018
To: Honorable Mayor and City Commissioners
From: Department of Public Works - Filtration
RE: Membrane Roof on Clearwells
SUMMARY OF REQUEST:
Authorize staff to enter into a roof installation agreement on clearwells at Water
Filtration Plant with Ostrander Roofing since they submitted the lowest responsible bid
of $440,000.
FINANCIAL IMPACT:
$440,000.
BUDGET ACTION REQUIRED:
The project is funded in FY 2018-19.
STAFF RECOMMENDATION:
Authorize staff to enter into an agreement with Ostrander Roofing for a cost of
$440,000.
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CITY OF MUSKEGON
BID TABULATION
PROJECT: WATER FILTRATION PLANT- MEMBRANE ON CLEARWELLS - ROOF
DATE: 29-Jul-18 REQUISTION ROOFING
Name of Bidder Name of Bidder Name of Bidder
Vendor Bob's Roofing IRT Commercial Services Ostrander Roofing
Telephone 231-510-8311 616-438-2084 616-240-0553
Quoted By Jeremy Novak Kevin Hole Richard Ostrander
Quantity (sq.ft) Description Unit Price Total Price Unit Price Total Price Unit Price Total Price
30,000 Base Bid $ 11.304 $ 339,120.00 $ 12.50 $ 375,000.00 $ 11.00 $ 330,000.00
10,000 Additional $ 11.300 $ 113,000.00 $ 12.50 $ 125,000.00 $ 11.00 $ 110,000.00
TOTAL $ 452,120.00 $ 500,000.00 $ 440,000.00
Date: 8/14/2018
To: Honorable Mayor and City Commissioners
From: DPW/Equipment
RE: Salt Box
SUMMARY OF REQUEST:
The Equipment Division is requesting permission to purchase one (1) Salt Box from
Arista Truck Systems, Inc. This unit was ordered by another community that could not
complete the sale, therefore, Arista is offering this unit at a considerable discount. The
price of this unit is $14,999.00 compared to $18,807.00 a savings of $3,808.00
FINANCIAL IMPACT:
$14,999.00
BUDGET ACTION REQUIRED:
None. Amount is what was budgeted.
STAFF RECOMMENDATION:
Authorize staff to purchase one (1) Salt Box from Arista Truck Systems, Inc.
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Date: 8/14/2018
To: Honorable Mayor and City Commissioners
From: DPW/Equipment
RE: Concrete Breaker
SUMMARY OF REQUEST:
The Equipment Division is requesting permission to purchase one (1) Concrete Breaker
from Midland Engine the lowest qualified bidder.
FINANCIAL IMPACT:
$12,500.00
BUDGET ACTION REQUIRED:
None. Amount is what was budgeted.
STAFF RECOMMENDATION:
Authorize staff to purchase one (1) Concrete Breaker from Midland Engine.
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Date: 8/14/2018
To: Honorable Mayor and City Commissioners
From: DPW/Equipment
RE: Back Hoe
SUMMARY OF REQUEST:
The Equipment Division is requesting permission to purchase one (1) Back Hoe from
Michigan Cat for a purchase price of $97,053.61. With our buyback program, Michigan
Cat is the most cost effective machine to buy.
FINANCIAL IMPACT:
$97,053.00
BUDGET ACTION REQUIRED:
None. Amount is what was budgeted.
STAFF RECOMMENDATION:
Authorize staff to purchase one (1) Back Hoe from Michigan Catapillar.
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AGENDA ITEM NO. _______________
CITY COMMISSION MEETING __________________________
TO: Honorable Mayor and City Commissioners
FROM: Mayor’s Office
DATE: August 9, 2018
RE: City Manager Employment Agreement
SUMMARY OF REQUEST:
Approval of the Agreement as submitted
FINANCIAL IMPACT:
None
BUDGET ACTION REQUIRED:
None at this time.
STAFF RECOMMENDATION:
To approve the employment agreement and authorize the Mayor and Clerk to sign.
COMMITTEE RECOMMENDATION:
None.
EMPLOYMENT AGREEMENT
CITY OF MUSKEGON – FRANKLIN PETERSON
Effective July 1, 2018
This employment agreement is made and entered into by and between the CITY OF
MUSKEGON ("CITY") and FRANKLIN PETERSON ("MANAGER").
Recitals
A. The CITY desires to continue the employment of MANAGER as the City
Manager of the City of Muskegon as provided in the Charter of the City of Muskegon and
desires to establish conditions of employment, provide certain benefits and set working
conditions for said MANAGER.
B. MANAGER desires to continue his employment as City Manager of the City of
Muskegon in accordance with the terms and provisions of the Agreement.
C. This Agreement supersedes all prior agreements.
Agreement
NOW THEREFORE, THE CITY AND MANAGER AGREE AS FOLLOWS:
1. EMPLOYMENT. CITY employs MANAGER as City Manager to perform the
functions and duties specified in the City Charter and ordinances and to perform such other
legally permissible and proper duties and functions as the City Commission may, from time to
time, assign, and MANAGER accepts such employment.
MANAGER agrees to remain in the employment of the CITY until termination is
effected as hereinafter provided. MANAGER agrees to devote full time to his duties as City
Manager and may undertake other incidental employment, subject to the right of the City to
require Manager to terminate other incidental employment.
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2. SALARY. Effective July 1, 2018, CITY agrees to pay MANAGER as
compensation for services rendered, an annual salary of $140,000 per year. MANAGER shall be
entitled to cost of living adjustments approved by the City Commission for department heads on
the first of each year, commencing January 1, 2019, and a merit adjustment will be considered
and, if granted, would be effective July 1 of each year, commencing July 1, 2019.
3. FRINGE BENEFITS. In addition to the base salary, CITY shall afford
MANAGER the fringe benefits provided for as follows:
3.1 Longevity Pay: MANAGER commits not to increase his student loan debt. City
shall open an EdAssist account for MANAGER. City shall pay $600 per month to
MANAGER’S student loan servicer. If MANAGER maintains his employment with the
City through June 30, 2023 and is employed on June 30, 2023, City shall fully discharge
the remaining MANAGER’S student loan debt, but not to exceed $33,000.
3.2 Health Insurance: City shall provide the same HMO health insurance plan
provided to other department heads. MANAGER shall contribute toward the health
insurance premium at the same rate as other department heads and follow the same
wellness program required of other department heads. MANAGER may opt out of the
health insurance and receive an annual stipend equal to the stipend offered to other
department heads.
3.3 Disability Insurance: City provides short-term and long-term (60% of pre-
disability earnings) disability insurance.
3.4 Life, Vision and Dental Insurance: City provides life insurance (200% of base
salary to a maximum of $200,000), vision insurance, and dental insurance.
3.5 Flexible Spending Account: Employees may contribute pre-tax income to a
flexible spending account for medical and dependent care.
3.6 Health Care Savings Plan: City offers a Health Care Savings Plan. There is a
mandatory 2% employee pre-tax contribution and a 2% City match.
3.7 Defined Contribution Plan: City provides a defined contribution plan through
the Municipal Employees Retirement System (MERS). There is a mandatory employee
contribution of 3% and a City contribution of 15.23% of W-2 wages.
3.8 Holidays: City offers the standard 11 recognized holidays.
3.9 Vacation Time: City will credit 30 vacation days to MANAGER’S vacation
bank effective January 1, 2018. 20 days can be carried over from one year to the next.
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3.10 Personal Leave: City grants 2 personal leave days per year, which cannot be
carried over from one year to the next.
3.11 Sick Leave: Sick leave is earned at 3.6923 hours bi-weekly (12 days per year).
Sick leave may be accumulated to a maximum of 132 days. Once an employee has
accumulated 160 hours, an employee may be paid (50%) or deposit into a deferred
compensation plan, ROTH IRA or Michigan Education Savings Plan (100%). There are
certain restrictions on the payout.
3.12 Bereavement Leave and Jury Duty Leave is provided.
3.13 Membership Dues: City will pay membership dues to Michigan Municipal
League Local Government Management Association, ICMA membership, and one civic
organization. City will reimburse expenses to attend the two Michigan Municipal League
conferences, the ICMA annual conference and ICMA conferences in the state.
In addition to the fringe benefits set forth above, and to the extent that this paragraph
does not duplicate or conflict with the above paragraph which shall prevail, the MANAGER
shall have the same fringe benefits as are available to the highest level department heads
employed by the CITY from time to time.
4. TERM. It is understood by both CITY and MANAGER that employment may be
terminated at the will of either party.
5. SEVERANCE PAY UPON TERMINATION BY CITY. If CITY terminates
MANAGER'S employment without “cause”, or if termination occurs pursuant to section 7
(except the last paragraph thereof), MANAGER shall receive the following:
a) severance pay in an amount equal to twelve (12) months salary; and
b) 50% of any unused sick leave pay and 100% of any unused vacation time pay.
“Cause” is defined as i) conduct involving harm, even nominal, or threats to the City or its
employees, elected officials, customers, residents, or others with an actual or potential
relationship with the City; ii) conduct that could damage, serious or not, or the City’s image; iii)
conduct that reasonably makes it difficult or impossible for City employees, elected officials,
customers, residents, or others with an actual or potential relationship with the City to deal with
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the City; or iv) public attacks, physical or verbal, on the City or its employees, elected officials,
customers, residents, or others with an actual or potential relationship with the City.
If termination is for “cause”, MANAGER is not entitled to the severance pay or pay for
unused sick leave or vacation time.
6. TERMINATION OF EMPLOYMENT BY MANAGER. MANAGER may
terminate employment at any time after providing the CITY with a thirty (30) day notice.
7. SEVERANCE PAY UPON TERMINATION BY MANAGER. In the event the
CITY refuses, following written notice, to comply with any material provisions of this agreement
which would financially benefit MANAGER, or MANAGER resigns following the simultaneous
suggestion, whether formal or informal, by a majority of the members of the City Commission
that MANAGER resign without “cause” to terminate employment, then, in that event, the
MANAGER may at his option be deemed to be terminated without “cause” at the date of such
failure to comply or simultaneous suggestion. In such case, the MANAGER shall be deemed to
have been terminated by the CITY without “cause” and entitled to the severance benefits set
forth above.
In the event the MANAGER terminates his employment for reasons other than
those stated in this paragraph, he shall receive fifty percent (50%) of his unused sick leave bank
and all unused vacation pay, but no other severance pay or benefit, except as required by law.
8. MERGER OF NEGOTIATIONS. This agreement constitutes the entire contract
of employment between CITY and MANAGER. No statement, promise, agreement, or
obligation that conflicts with the terms of this agreement shall modify, enlarge, or invalidate this
agreement or any provisions hereof.
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IN WITNESS WHEREOF, the CITY and MANAGER have executed this agreement this
______ day of _____________, 2018.
CITY OF MUSKEGON
By_________________________________
Stephen J. Gawron, Its Mayor
and_________________________________
Ann Marie Meisch, Its Clerk
MANAGER
____________________________________
Franklin Peterson
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Date: August 10, 2018
To: Honorable Mayor and City Commissioners
From: Ann Marie Meisch, City Clerk
RE: Adopt a Resolution Approving the Liquor License
Application for Pigeon Hill Brewing Company, LLC
SUMMARY OF REQUEST: To adopt a resolution approving the request for a
Liquor License for Pigeon Hill Brewing Company, LLC to be licensed as a
Micro Brewer, Small Wine Maker, Manufacturer of Mixed Spirit Drink, and
Small Distiller.
FINANCIAL IMPACT: None.
BUDGET ACTION REQUIRED: None.
STAFF RECOMMENDATION: Adopt a resolution approving the request.
Michigan Department of Licensing and Regulatory Affairs
Business ID:
Liquor Control Commission (MLCC)
Toll-Free: 866-813-0011 - www.michigan.gov/lcc Request ID:
Manufacturer & Wholesaler License & Permit Application (For MLCC Use Only)
For information on manufacturer and wholesaler licenses and permits, including a checklist of required documents for a completed application, please
visit the Liquor Control Commission's frequently asked questions website by clicking this link.
Part 1 - Applicant Information
Individuals, please state your legal name. Corporations or Limited Liability Companies, please state your name as it is filed with the State of Michigan Corporation Division.
Applicant name(s): Pigeon Hill Brewing Company, LLC
Address to be licensed: 895 Fourth St
City: Muskegon Zip Code: 49440
City/township/village where license will be issued: City of Muskegon County: Muskegon County
Federal Employer Identification Number (FEIN):
Leave Blank - MLCC Use Only
1. Are you requesting a new license? Yes No
2. Are you applying ONLY for a new permit or permission? Yes No
3. Are you buying an existing license? Yes No
4. Are you modifying the size of the licensed premises? Yes No
If Yes, specify: Adding Space Dropping Space Redefining Licensed Premises
5. Are you transferring the location of an existing license? Yes No
6. Is this license being transferred as the result of a default or court action? Yes No
7. Do you intend to use this license actively? Yes No
Part 2 - License Transfer Information (If Applicable)
If transferring ownership of a license ONLY and not transferring the location of a license, fill out only the name of the current licensee(s)
Current licensee(s):
Current licensed address:
City: Zip Code:
City/township/village where license is issued: County:
Part 3 - Licenses, Permits, and Permissions
Applicants for Manufacturer & Wholesaler licenses, permits, and permissions must complete the attached Schedule A and return it with
this application. Transfer the fee calculations from the Schedule A to Part 4 below.
Part 4 - Inspection, License, and Permit Fees - Make checks payable to State of Michigan
Inspection Fees - Pursuant to MCL 436.1529(4) a nonrefundable inspection fee of $70.00 shall be paid to the Commission by an applicant
or licensee at the time of filing of a request for a new license or permit, a request to transfer ownership or location of a license, or a request
to increase or decrease the size of the licensed premises. Requests for a new permit in conjunction with a request for a new license or
transfer of an existing license do not require an additional inspection fee.
License and Permit Fees - Pursuant to MCL 436.1525(1), license and permit fees shall be paid to the Commission for a request for a new
license or permit or to transfer ownership or location of an existing license.
Inspection Fees: License & Permit Fees: TOTAL FEES:
LCC-150 (02-17) LARA is an equal opportunity employer/program. Auxiliary aids, services and other reasonable accommodations are available upon request to individuals with disabilities. Page 1 of 4
Schedule A - Licenses, Permits, & Permissions
Licenses, permits, and permissions selected on this form will be investigated as part of your request. Please verify your information prior to submitting
your application, as some licenses, permits, or permissions cannot be added to your request once the application has been sent out for investigation by
the Enforcement Division.
License Type: Base Fee: Fee Code Permits: Base Fee: Fee Code
MLCC Use MLCC Use
Only Only
Brewer $50.00 Sunday Sales Permit (AM) $160.00
Micro Brewer $50.00 Sunday Sales Permit (PM) 15%**
(Under 60,000 barrels annually) Catering Permit $100.00
Wine Maker $100.00 Beer and Wine Tasting Permit No Charge
Small Wine Maker $25.00 Outdoor Service No Charge
(Under 50,000 gallons annually) Entertainment Permit No Charge
Winery Tasting Room $100.00 Dance Permit No Charge
Spirit Tasting Room $100.00 Topless Activity Permit No Charge
Brandy Tasting Room $100.00 Living Quarters No Charge
Manufacturer of Brandy $100.00 Specific Purpose Permit (list activity below):
Manufacturer of Mixed Spirit Drink $100.00 Days/Hours requested:
Manufacturer of Spirits $1,000.00 Extended Hours Permit (check type below): No Charge
Small Distiller $100.00 Dance Entertainment
(Under 60,000 gallons annually) Days/Hours requested:
Outstate Seller of Beer $1,000.00 Off-premise Storage No charge
Outstate Seller of Wine $300.00 Direct Connection(s) No charge
Outstate Seller of Mixed Spirit Drink $300.00
Wholesaler $300.00
For delivery vehicle decal fees please use Report of Delivery
Vehicles form (LCC-351). Inspection, License, Permit, & Permission Fee Calculation
Number of Licenses: x $70.00 Inspection Fee
Warehouser $50.00
Industrial Manufacturer $10.00 Total Inspection Fee(s):
Seller of Alcohol $10.00
Total License Fee(s):
Limited Alcohol Buyer $10.00
Consumer Sampling Event License No charge Total Permit Fee(s):
*Sunday Sales Permit (AM) allows the sale of liquor, beer, and wine on Sunday TOTAL FEES DUE:
mornings between 7:00am and 12:00 noon, if allowed by the local unit of
government.
Make checks payable to State of Michigan
**Sunday Sales Permit (PM) allows the sale of liquor on Sunday afternoons
and evenings between 12:00 noon and 2:00am (Monday morning), if allowed
by the local unit of government. No Sunday Sales Permit (PM) is required for
the sale of beer and wine on Sunday after 12:00 noon. The Sunday Sales
Permit (PM) fee is 15% of the fee for the license that allows the sale of liquor.
Additional bar fees and B-Hotel room fees are also calculated as part of the
permit fee.
Licenses, permits, and permissions selected on this form will be investigated
as part of your request. Please verify your information prior to submitting
your application, as some licenses, permits, or permissions cannot be added
to your request once the application has been sent out for investigation by
the Enforcement Division.
LCC-150 (02-17) LARA is an equal opportunity employer/program. Auxiliary aids, services and other reasonable accommodations are available upon request to individuals with disabilities. Page 2 of 4
AGENDA ITEM NO. _______________
CITY COMMISSION MEETING __________________________
TO: Honorable Mayor and City Commissioners
FROM: Frank Peterson, City Manager
DATE: August 9, 2018
RE: Arena Lease and Management Agreement - Rad Dad’s
SUMMARY OF REQUEST:
City staff is requesting approval of the attached lease agreement and corresponding management
agreement for the operations of Rad Dad’s Tacos and Tequila in the LC Walker Arena.
FINANCIAL IMPACT:
None
BUDGET ACTION REQUIRED:
None at this time.
STAFF RECOMMENDATION:
To approve the agreements and authorize the Mayor and Clerk to sign.
COMMITTEE RECOMMENDATION:
None.
PARTICIPATING MANAGEMENT AGREEMENT
This Participating Management Agreement is entered into as of ___________, 2018 (the
“Effective Date”), between City of Muskegon, a Michigan municipal corporation, of 933
Terrace St., Muskegon, Michigan 49440 (the “Owner”), and RAD DAD'S L.L.C., of 470 W.
Western Ave., Muskegon, MI 49440 (the “Manager”), with reference to the following facts:
Background
A. The Owner desires to hire a manager to oversee the business activities of the
Owner’s alcohol operations (the “Business”) within the leased premises located in the south-east
corner of the LC Walker Arena located at 470 W Western Ave., Muskegon, MI 49440 (the
“Location”), which is currently leased to Manager. Owner holds the following licenses and
permits issued by the Michigan Liquor Control Commission (“MLCC”): Class C Liquor License
# L-000001962 together with related permits for Sunday Sales, Dance-Entertainment, Food
Service, Additional Bars, and Outdoor Service (collectively, the “License”).
B. The Manager desires and is willing to assume the duties and obligations of the
management of the Business at the Location;
C. The Parties desire to enter into a written agreement stating the duties and
obligations of the Manager in the lawful management of the Owner’s Business;
D. The Parties acknowledge that this Agreement is subject to the approval and
consent of the MLCC.
Therefore, for good and valuable consideration, the parties agree as follows:
1. Purpose. The purpose of this Agreement is to establish provisions regulating the
everyday management and operation of the activities of Owner’s Business (in the ordinary
course of business), and define the duties and obligations of the Manager.
2. Engagement of Services. The Owner engages the Manager during the Term (as
defined in paragraph 3), and Manager agrees to accept the terms and conditions as provided in
this Agreement.
3. Term. The term of this Agreement shall be for one (1) year from the Effective
Date (“Term”), unless terminated sooner pursuant to the terms of this Agreement. The Term
may be modified, provided that the modification is in writing, executed by the Parties, and a
copy of the modification is provided to the MLCC.
4. Consideration. Manager shall receive 10% of the net profit of the Business, paid
on a monthly basis. Manager shall provide Owner monthly reports of the profit of the Business
in a form acceptable to Owner. The Consideration as provided in this Agreement is subject to
the approval of the MLCC.
Page 1
5. Responsibility. The Owner shall remain responsible for the conduct and
operation of the licensed Business and the actions of the Manager as they relate to the
management and conduct of the licensed Business. Such responsibility shall be the same as the
Owner has for the actions of any other employee.
6. Liability and Control. The Owner shall not in any way assign or transfer to
Manager:
a. Owner’s liability for Owner’s existing contracts, including by way of
example and not limitation, rental and lease agreements, utility bills, taxes, or other
licensing costs and expenses, either as required or that are incidental to the operation of
the Business; and
b. Owner’s obligations and duties that are necessary for the retention of the
“incidents of ownership” and control of the Business by the Owner.
7. Duties. The Manager shall have the following duties on behalf of and for the
benefit of Owner:
a. To manage and operate the Business under its name or legally adopted
assumed name at the Location.
b. To negotiate contracts for the purchase of merchandise inventory,
alcoholic beverages, and stock, provided, however, that all alcoholic beverage purchases
are subject to the approval of Owner.
c. To purchase merchandise inventory, alcoholic beverages, and stock out of
the income of the Business to facilitate its daily operations, provided, however, that all
alcoholic beverage purchases are subject to the approval of Owner.
d. To hire or dismiss employees as necessary to run the everyday operations
of the Business.
e. To oversee and arrange for the following:
i. Payment in a timely manner of all taxes related to the operation of
the Business, including, but not limited to, Employment, Unemployment, Sales,
and Payroll Taxes.
ii. Timely filing and payment of all reports, returns, and all associated
liability payments.
iii. On a monthly, quarterly, and/or annual basis, the Manager shall
provide to the Owner copies of the required tax returns prior to the due date, along
with the check for payment or proof of payment.
Provided, however:
Page 2
i. The payment of the Owner’s Business’ tax liability resulting from
net profit during the Term of this Agreement shall be paid out of the gross
proceeds of the Business by the Manager; and
ii. Manager shall have no duty to file the Owner’s annual tax returns
required by the various governmental agencies.
f. To manage and operate the Business in a business-like manner governed
by a first class restaurant standard.
g. To pay all maintenance and repair costs or other expenses related to the
everyday operation of the Business, including payment of all creditors, on behalf of
Owner out of the gross operating income, including rental payments.
h. To cause the Business to be operated during all regularly scheduled hours
of the day and during all normal operating days of the week.
i. To maintain inventory of beverages adequate for the normal conduct of
the activities of the Business.
j. To operate the activities of the Business in the best interests of the Owner.
k. To comply with all municipal, state, and federal laws, rules, and
regulations, and particularly the laws, rules, and regulations administered by, and subject
to, the jurisdiction of the MLCC.
l. To cooperate at all times, fully and completely, with the accountant for the
Business; keeping and maintaining the books of account and records of the activities of
the Business that are fully correct, accurate, and consistent with the directions given by
the accountant for the Business.
m. To deposit all receipts, in whatsoever form, from the activities of the
Business in the bank or other financial institution depository as designated by the Owner,
and in the Owner’s name.
n. To perform such other and further duties that are consistent with the
management of the activities of the Business or that shall be directed by the Owner.
o.
8. Insurance. Manager shall indemnify Owner and save Owner harmless from any
liability or claim for damages that may be asserted against Owner (including attorney fees) by
reason of any accident or casualty occurring on or about the Location. Manager shall, at its own
cost and expense, obtain and keep in force a policy or policies of public liability insurance with
an insurance company approved by Owner, with liability coverage of an amount as
recommended by Owner’s insurance agent that, for the initial coverage, shall be not less than
$1,000,000 for injury or death to any one person, $3,000,000 for injury or death to more than one
Page 3
person, and $1,000,000 regarding damage to property, and not less than $1,000,000 in liquor
liability (dram shop) coverage. Manager shall furnish Owner with certificates or other evidence
acceptable to Owner indicating that the insurance is in effect and providing that Owner shall be
notified in writing at least 30 days before cancellation of any material change in or renewal of
the policy. All insurance policies shall name Owner and any persons designated by Owner as
insured parties. Any insurance policy maintained by Manager shall include a clause or
endorsement under which Manager waives its rights of subrogation against Owner.
9. Termination. This Agreement may be terminated by either the Manager or the
Owner upon 60 days written notice to the other party. All written notices shall be personally
delivered to the other Party, or, in lieu of personal service, registered mail with return receipt
requested may be used for the notices, which shall be mailed to the mailing addresses of the
Parties listed on the first page of this Agreement. Notwithstanding anything in this Agreement to
the contrary, Owner may terminate this Agreement immediately, without notice, in the event
Manager breaches any of the terms of this Agreement, or through its actions or inactions, causes
Owner’s License to be in jeopardy with the MLCC.
10. Covenants Regarding Ownership.
a. The Owner shall retain the “incidents of ownership” as required by the
MLCC; however, the daily management decisions shall be made by the Manager, subject
to the terms of this Agreement.
b. The Manager shall not in any way represent Manager to be the Owner or
licensee of the MLCC, and shall in no way attempt to injure or harm the Business, its
reputation, or goodwill.
11. Covenants Regarding Inventory. In connection with the inventory, the Parties
agree as follows:
a. The Manager and Owner shall arrange to have an inventory taken of the
merchandise and alcoholic beverages prior to the Manager assuming its duties.
b. During the Term of this Agreement, the inventory shall be maintained in a
wholesale amount equal to when the Manager took control of the business.
12. Approval by MLCC. This Agreement is conditioned on the Parties obtaining
approval by the MLCC. The Parties shall take all steps that are reasonably necessary to obtain
its approval by making a request to the MLCC. In the event the MLCC does not approve this
Agreement, the Parties shall terminate this Agreement. However, if the MLCC requests
modifications to this Agreement as a precondition to its approval, the Parties may either (i) agree
to adopt such modifications that do not substantively affect their rights under this Agreement, or
(ii) elect to terminate this Agreement.
13. Miscellaneous.
Page 4
a. This Agreement is entered into on the date first set forth above, and shall
be binding on the Parties, their heirs, assigns, or successors in interest, and shall be
interpreted pursuant to the laws of the State of Michigan.
b. This Agreement may not be modified unless in writing, signed by the
Parties.
c. The paragraph headings are solely for convenience, and shall not be used
to effect or interpret the terms or intent of this Agreement.
d. If the pronouns and relative words used are written in the masculine and
singular, and more than one person joins in the execution as Owner or Manager, or if
either party is of the feminine sex, a partnership, or a corporation, then such words shall
be read as if written in the feminine, plural, or neuter, respectively.
e. In the event of a breach of this Agreement, Manager consents to Owner obtaining
injunctive relief, and Owner shall be entitled to its actual costs and attorney fees from
Manager in enforcing this Agreement.
The Parties have executed this Agreement on the date(s) set forth below, to be effective
as of the Effective Date.
MANAGER: OWNER:
RAD DAD’S, L.L.C. CITY OF MUSKEGON
By: _______________________________ By: _______________________________
Name: _______________________ Name: ________________________
Title: _______________________ Title: ________________________
Date: _______________________ Date: ________________________
Page 5
LEASE
This lease (“Lease”), is made effective as of May 1, 2018 (Effective Date”) by and
between the City of Muskegon, a Michigan municipal corporation, 933 Terrace Street,
Muskegon, MI 49440 (“City” or “Landlord”), and Rad Dad’s, L.L.C., a Michigan limited
liability company, of 470 W. Western Ave., Muskegon, MI 49440 (“Tenant”).
BACKGROUND
A. City is the owner of the L.C. Walker Arena and Conference Center located at 470
West Western Avenue, Muskegon, Michigan 49440 (“Arena”).
B. Tenant desires to lease from City, and City desires to lease to Tenant, a portion of
the Arena to operate a full service restaurant. City owns a liquor license for the Arena, (Class C
License No. 1962-2015 issued by the Michigan Liquor Control Commission (“Liquor
License”)), and is willing to allow Tenant to use the Liquor License under a management
agreement, based on the terms and conditions contained herein, and consent of the Michigan
Liquor Control Commission.
AGREEMENT
1. Description of Premises and Leased Premises. In consideration of the rents and
covenants to be paid, performed and observed by Tenant, Landlord leases to Tenant and Tenant
accepts from Landlord 3,749 square feet of indoor space and 900 square feet of outdoor space, as
depicted on the drawing attached as Exhibit A (“Leased Premises”) in what is commonly known
as the LC Walker Arena, including the Annex located at 470 W. Western Ave., Muskegon, MI
49440 as legally described on Exhibit B and consisting of 59,847 square feet (“Premises”).
2. Term. The initial term of this lease shall be for 5 years, with three 3 year options,
which may be exercised by Tenant providing Landlord with written notice of such not less than
ninety (90) days from the expiration of the application term or option. The first day of the term
is the Effective Date. Each renewal period shall be on the same terms and conditions as this
Lease. After the initial 5 year term, Rent (as defined below) shall increase by 2% per lease year.
3. Rent
a. Base Rent. Tenant shall pay to Landlord annual rent of $19.93 per square
foot of rentable lease space as shown on Exhibit A. The rent shall be payable in equal
monthly installments (the “Rent”) in advance on the 1st day of each month of the term.
The Rent shall be payable at the above office of Landlord without abatement, deduction
or setoff. For example, if Tenant rents 4,100 square feet, rent would be $7,475.03 per
month.
b. Additional Rent. Tenant shall also pay to Landlord as “Additional Rent,”
on demand, an amount equal to its “Pro-Rata Share” (which for purposes of this Lease
shall be a fraction, the numerator of which is the square footage of the Leased Premises
1
and the denominator of which is the total square footage of the Premises) of all expenses
actually incurred by Landlord for (a) CAM (as defined below) expenses incurred by
Landlord; (b) commonly used dumpsters; and, (c) garbage service. Tenant shall pay a
monthly amount equal to Landlord’s reasonable estimate of these annual costs, and which
Tenant shall pay in advance, on the first day of each month during the Term.
Not less often than once every 12 months, Landlord shall provide to Tenant a statement
of costs, and with the statement a reconciliation of the monthly estimate of Tenant’s Pro-
Rata Share as appropriate, with any excess or deficiency being applied or added to
Tenant’s next installment of Additional Rent. All other sums that Tenant is required to
pay under the terms of this Lease shall also be paid as Additional Rent. Tenant shall be
entitled on reasonable advance written notice to Landlord, and at Tenant’s cost, to inspect
Landlord’s books and records as they may relate to the statements submitted by Landlord
to Tenant for Additional Rent.
c. Property Taxes. Tenant shall also pay before delinquent, all real estate
taxes for the Leased Premises and personal property taxes for personal property used
therein.
4. Common Areas. So long as Tenant is not in default under this Lease, Tenant, its
agents, employees, customers, and invitees, shall have the use, in common with all others to
whom the Landlord has granted or may later grant rights to use them, of the sidewalks, parking
areas, and drives designated by Landlord, as these shall exist from time to time, for the Premises
(“Common Areas”). During the Term Landlord, Landlord’s agents or permitted third parties
shall perform all necessary maintenance (“CAM”) to the Common Areas (including, without
limitation, general cleaning, snow removal, grass cutting, parking lot cleanup, repairs of exterior
light fixtures, and light bulb replacement).
5. Utilities. The Leased Premises may be separately metered for gas, electricity,
water and sewer. Tenant shall pay all charges for gas, electricity, water, power, telephone cable
television and internet service used, rendered or supplied upon or in connection with the Leased
Premises, and shall indemnify the Landlord against any liability or damages on such account.
Tenant will have no responsibility to pay for utilities outside of the Leased Premises, provided all
of Tenants exterior signage shall be wired through meter serving the Leased Premises. In the
event Tenant uses utilities that are not separately metered, Landlord shall reasonably apportion
Tenant’s share of the usage, and bill Tenant for such amount as Additional Rent.
6. Right of Landlord to Lease. The Landlord covenants and warrants that it is in
lawful possession and control of said Leased Premises, and has the authority to enter into this
lease agreement.
7. Quiet Enjoyment. Landlord covenants that Tenant, on payment of all the
aforesaid installments and performing all the covenants aforesaid, shall and may peacefully and
quietly have, hold and enjoy the said Leased Premises for the term hereof. Landlord agrees that
there are no restrictions applicable to the Leased Premises which affect and limit the right of
Tenant to exercise any of the rights granted to Tenant by this Lease. Notwithstanding anything
in this paragraph to the contrary, Landlord reserves the right to hold and conduct meetings,
2
sporting events, practices, graduation ceremonies, job fairs, circuses, concerts, and other
activities determined appropriate in the sole discretion of Landlord, within the Arena, and that
such activities do not violate this paragraph. During any ticketed activity in the Arena, Landlord
may (i) require Tenant to pay a fee of up to 10% of its gross food sales during the activity, or (ii)
require all of Tenant’s patrons to buy a ticket to the activity. Further, Landlord may require
Tenant to be closed during silent or formal activities, such as graduation ceremonies, weddings,
meetings, etc., not to exceed 20 days per year.
8. Use of Premises. Tenant is granted the right during the term of this lease, or any
renewals hereof, to occupy and use the Leased Premises for operating a bar and restaurant.
Landlord and Tenant have entered into a Management Agreement for Tenant to operate
Landlord’s alcohol sales within the Leased Premises portion of the Arena (“Management
Agreement”). In the event Tenant obtains its own liquor license, or is added as a co-licensee to
the Liquor License, the parties shall terminate the Management Agreement. The parties will
reasonably cooperate to add Tenant as a co-licensee to the Liquor License upon Landlord being
satisfied with Tenant’s operations and performance, in its sole discretion. Tenant shall comply
with all existing vendor and brand exclusivity agreements entered into by Landlord that are
binding on the Arena. Landlord shall not enter into any new agreements that are binding on the
Arena without first discussing the terms of such agreements with Tenant.
9. Tenant's Acceptance of Leased Premises As Is. Tenant has accepted the
Leased Premises\ in its “AS IS, WHERE IS” condition. Tenant acknowledges that Landlord shall
not be required to make any renovations or improvements to the Leased Premises. Tenant
waives any warranties, express or implied, of fitness, liability, and usefulness for Tenant’s
particular purpose or otherwise, with regard to the Leased Premises.
10. Maintenance. Tenant shall, at its own expense, make all necessary repairs and
replacements within the Leased Premises, including pipes, heating system, plumbing system,
window glass, fixtures and all other appliances belonging thereto, all equipment used in
connection with the Leased Premises, and the sidewalks, curbs and vaults adjoining or
appurtenant to the Leased Premises. Such repairs and replacements ordinary as well as
extraordinary and structural and non-structural, shall be made promptly, when necessary. All
repairs and replacements shall be in quality and class at least equal to the original work. On
default of Tenant in making necessary repairs or replacements, Landlord may, but shall not be
required to make such repairs and replacements for Tenant's account, and the expenses thereof
shall constitute and be collectible as Additional Rent. Landlord shall be solely responsible for all
necessary repairs and maintenance of the Premises except for the Leased Premises.
11. Alterations or Improvements. Tenant shall not make any alterations, additions,
or improvements to the Premises except with the written consent of Landlord. Any alteration,
addition or improvement made by the Tenant after such consent shall have been given, and any
fixtures installed as part thereof, shall at the Landlord's option become the property of the
Landlord upon the expiration or other sooner termination of this lease, provided, however, that
Landlord shall have the right to require Tenant to remove such fixtures, additions or
improvements at the Tenant's cost upon such termination of this lease provided that in the event
3
of any such removal, Tenant shall make all repairs necessitated by such removal so as to leave
the premises in like condition as when taken except for ordinary wear and tear.
12. Public Orders and Zoning. Tenant shall, at its own expense, make all
alterations, improvements, or repairs in the Leased Premises that may be ordered by public
authorities, or required by changes in or additions to state and local zoning ordinances.
13. Mechanical Failures. Landlord shall not be liable for any damage to persons or
property on account of the stoppage or failure of operation of any part of the mechanical plant of
the building, or heating, air conditioning, plumbing or electrical facilities, whether for necessary
or desirable repairs or improvements thereof, or occasioned by accident or other cause. All
personal property in the Leased Premises shall be at the risk of Tenant only, and Landlord shall
not be liable for any loss of or damage to said personal property, to said premises or to Tenant
arising from the bursting, stoppage or leaking of water, gas, sewer or steampipes, the stoppage or
failure of operation of any part of the mechanical plant of the building, or heating, air
conditioning, plumbing or electrical facilities, or from any acts or neglect of co-tenants or other
occupants of the building, or any other persons.
14. Security. Landlord shall not be liable for any injury to the person or property of
the Tenant or any other persons caused by the criminal acts of third persons occurring at the
Leased Premises.
15. Insurance. Tenant shall indemnify Landlord and save Landlord harmless from
any liability or claim for damages that may be asserted against Landlord (including attorney fees)
by reason of any accident or casualty occurring on or about the Premises. Tenant shall, at its
own cost and expense, obtain and keep in force a policy or policies of public liability insurance
with an insurance company approved by Landlord, with liability coverage of an amount as
recommended by Landlord’s insurance agent that, for the initial coverage, shall be not less than
$1,000,000 for injury or death to any one person, $3,000,000 for injury or death to more than one
person, and $1,000,000 regarding damage to property, and not less than $1,000,000 in liquor
liability (dram shop) coverage. Tenant shall furnish Landlord with certificates or other evidence
acceptable to Landlord indicating that the insurance is in effect and providing that Landlord shall
be notified in writing at least 30 days before cancellation of any material change in or renewal of
the policy. All insurance policies shall name Landlord and any persons designated by Landlord
as additional insured parties. Any insurance policy maintained by Tenant shall include a clause
or endorsement under which Tenant waives its rights of subrogation against Landlord.
16. Compliance with Laws. Tenant, under penalty of forfeiture and damages, agrees
to promptly comply with all requirements of law and with all ordinances, regulations or orders of
any state, municipal or other public authority affecting all or any part of the Leased Premises and
with all requirements of the Board of Fire Underwriters or similar body and of any liability
insurance company insuring the Landlord against liability for accidents in or connected with all
or any part of the Leased Premises, and Tenant further agrees to save Landlord harmless from
any and all penalties, fines or liabilities that may result from Tenant's failure to so comply.
4
17. Destruction of Building. In the event the Premises or Leased Premises shall be
partially or totally destroyed by fire or other casualty insured under the insurance carried by
Landlord, as to become partially or totally untenantable, the damage to the Premises and Leased
Premises shall be promptly repaired by Landlord, unless Landlord shall elect not to rebuild as
provided below. All other reconstruction within the Leased Premises shall be the sole
responsibility of Tenant. In no event shall Landlord be required to repair or replace Tenant’s
trade fixtures, furnishings or equipment. If any such fire or other casualty shall occur within
eighteen (18) months of the end the term of this Lease or any renewal term, Landlord or Tenant
may, at its option, terminate this Lease with written notice to the other party within thirty days of
the destruction.
18. Risk of Loss. During the term of this lease, and any extension or renewal thereof,
the risk of loss with respect to all risks insurable under a fire and extended coverage insurance
policy meeting the requirements of the laws of the State of Michigan, together with the risk of
loss with respect to all uninsurable losses to the premises which are subject to the control or
prevention by Tenant, shall rest upon Tenant. (The parties agree that for purposes of interpreting
the foregoing provision, an example of an uninsurable loss which shall be the responsibility of
Tenant would be Tenant's failure, as possessor of the premises, to detect a malfunction in the
heating system during the winter, resulting in the freezing and bursting of water pipes in the
premises. If the freezing and bursting of the water pipes and consequent damage flowing
therefrom is not covered by the insurance required to be maintained by Tenant, all such damages
resulting therefrom are the responsibility of and must be paid for by Tenant.)
19. Subrogation. Tenant, its officers, agents or employees shall not be liable for
damage to the Leased Premises or for interruption of rent resulting from any of the perils covered
by fire and extended coverage insurance, or which would be covered if such insurance were in
force, and Landlord agrees not to sue for such damage and that every applicable policy of
insurance will contain or be endorsed with the standard waiver of subrogation clause. Landlord
shall not be liable for damage to the property or business of Tenant in or on the Leased Premises
resulting from any of the perils covered if such insurance were in force, and Tenant agrees not to
sue for such damage and that every applicable policy of insurance will contain or be endorsed
with the standard waiver of subrogation clause.
20. Liens and Encumbrances. Tenant covenants that Tenant will not create or
permit to be created or to remain, and will promptly discharge, at Tenant's sole cost and expense,
any lien, encumbrance or charge upon the Leased Premises or any part thereof, or upon Tenant's
leasehold interest therein, which lien, encumbrance or charge arises out of the use or occupancy
of the Leased Premises by Tenant or by reason of any labor or materials furnished or claimed to
have been furnished to Tenant or by reason of any construction, alteration, addition, repair or
demolition of any part of the Leased Premises. The existence of any construction, mechanic's,
laborer's, materialman's, supplier's or vendor's lien, or any right in respect thereof, shall not
constitute a violation of this paragraph, if payment is not yet due upon the contract or for the
goods or services in respect of which any such lien has arisen or where there is a good faith
dispute relating thereto, provided that in such event Tenant shall promptly prosecute an action to
resolve the validity of the lien. Nothing in this lease contained shall be construed as constituting
the consent or request of Landlord, expressed or implied, to any contractor, subcontractor,
5
laborer, materialman or vendor to or for the performance of any labor or construction, alteration,
addition, repair or demolition of or to the Leased Premises or any part thereof. Notice is hereby
given that Landlord will not be liable for any labor, services or materials furnished or to be
furnished to Tenant, or to anyone holding the Leased Premises or any part thereof through or
under Tenant, and that no mechanic's or other liens for any such labor or materials shall attach to
the interest of Landlord in and to the Leased Premises.
21. Assignment or Subletting. Tenant shall not sublease, assign, mortgage, or
encumber this lease without the prior written consent of the Landlord in each instance, which
consent shall not be unreasonably withheld. If this lease is assigned, or if the Leased Premises or
any part thereof is sublet, or occupied by anybody other than the Tenant, the Landlord may, after
default by the Tenant, collect rent from the assignee, subtenant, or occupant and apply the net
amount collected to the rent herein reserved. No such assignment, subletting, occupancy or
collection shall be deemed a waiver of this covenant, or the acceptance of the assignee as tenant,
or a release of the Tenant from the further performance by the Tenant of the covenants in this
lease. The consent by the Landlord to an assignment shall not be construed to relieve the Tenant
from obtaining the consent in writing of the Landlord to any further assignment.
22. Eminent Domain. If the Leased Premises are taken by a public authority under
power of eminent domain, Tenant shall be entitled to a pro rata refund of any rent paid in
advance. Landlord and Tenant, in any condemnation proceedings, shall each be entitled to
recover their own damages, provided that Tenant agrees to cooperate with Landlord in
Landlord's attempt to recover damages in any such condemnation proceedings and to furnish any
and all information that Landlord may request in such attempt and provided further that Landlord
agrees to cooperate with Tenant in Tenant's attempt to recover damages in any such
condemnation proceedings and to furnish any and all information that Tenant may request in
such attempt.
23. Default and Repossession. If the Leased Premises shall be deserted or vacated,
or if proceedings are commenced against the Tenant in any court under a bankruptcy act or for
the appointment of a trustee or receiver of the Tenant's property either before or after the
commencement of the lease term, or if there shall be a default in the payment of rent or any part
thereof for more than five days after written notice of such default by the Landlord, or if there
shall be default in the performance of any other covenant, agreement, condition, rule or
regulation herein contained or hereafter established on the part of the Tenant for more than
twenty days after written notice of such default by the Landlord, this lease (if the Landlord so
elects) shall thereupon become null and void, and the Landlord shall have the right to reenter or
repossess the Leased Premises, either by force, summary proceedings, surrender, or otherwise,
and dispossess and remove therefrom the Tenant, or other occupants thereof, and their effects,
without being liable to any prosecution therefor. In such case, the Landlord may, at its option,
relet the Leased Premises or any part thereof, as the agent of the Tenant, and the Tenant shall pay
the Landlord the difference between the rent hereby reserved and agreed to be paid by the Tenant
for the portion of the term remaining at the time of reentry or repossession and the amount, if
any, received or to be received under such reletting for such portion of the term. The Tenant
hereby expressly waives the service of notice of intention to reenter or of instituting legal
6
proceedings to that end. Tenant agrees to pay all expenses and damages incurred by Landlord as
a result of Tenant's default, including Landlord's attorney fees.
24. Curing of Tenant's Default. If Tenant shall fail to perform any of its obligations
hereunder, Landlord may, if it so elects, and after five (5) days prior notice to Tenant, cure such
default at Tenant's expense, and Tenant agrees to reimburse Landlord (as Additional Rent) for all
costs and expenses incurred as a result thereof upon demand.
25. Right to Show the Premises. Tenant agrees that ninety (90) days prior to the
expiration of the term of this lease, or any extension hereof, Landlord may display in and about
the Leased Premises “For Rent” or “For Sale” signs and may have reasonable access to the
Leased Premises for the purpose of exhibiting same to prospective tenants.
26. Surrender. Tenant shall quit and surrender the premises at the expiration of the
lease term, in as good a state and condition as the premises were at the commencement of the
term, reasonable use and wear thereof excepted.
27. Holding Over. It is agreed that any holding over by the Tenant upon expiration
of the term of this lease or any extension hereof, shall operate as an extension of this lease from
month to month only.
28. Notices. Any notice required to be given in writing under the provisions of this
lease shall be deemed to be delivered if given personally to the party entitled to such notice or if
deposited in the U.S. mail and addressed with the business address of the party entitled to such
notice with postage thereon fully prepaid.
29. Waiver. One or more waivers of any covenant or condition by Landlord shall not
be construed as a waiver of a subsequent breach of the same covenant or condition.
30. Laws of Michigan to Govern. This lease agreement shall be interpreted under
the laws of the State of Michigan.
31. Binding upon Successors and Assigns. This lease shall be binding upon the
parties hereto and their respective heirs, administrators, personal representatives, successors and
assigns, provided, however, that Tenant shall not be permitted to assign this Lease without the
express written consent of Landlord.
32. Liquor License. In the event the Michigan Liquor Control Commission
(“MLCC”) requires the owner of the Liquor License to take any action, or refrain from any
action, Tenant shall immediately take steps to satisfy the MLCC, and keep the Liquor License in
compliance. Tenant shall indemnify Landlord for any fine or violation issued by the MLCC. In
the event the MLCC disapproves of Tenant’s use of the Liquor License in any way, Tenant shall
immediately cease such use, or Landlord may terminate this Lease.
7
33. Restated. This Lease restates and supersedes any prior lease agreement or
development agreement entered into between the parties for the Leased Premises, and any such
agreements are deemed null and void.
LANDLORD –
City of Muskegon,
a Michigan municipal corporation
By: ________________________________
Name:
Title:
Date: ____________, 2018
TENANT–
Rad Dad’s, LLC,
a Michigan limited liability company
By: ________________________________
Name:
Title:
Date: ____________, 2018
8
EXHIBIT A
Leased Premises
EXHIBIT B
Premises
The part of Lot 1, Block 567 of the Revised Plat of 1903 of the City of Muskegon, Muskegon
County, Michigan, described as follows: Commencing at the Southwesterly corner of said Block
567; thence North 50°55'50" East along the Northwesterly line of Western Avenue 175.29 feet
for POINT OF BEGINNING; thence North 39°01'35" West 172.00 feet to the Northwesterly line
of Thayer Avenue; thence South 50°55'50" West along said Northwesterly line 116.00 feet to the
Northeasterly line of Fifth Street; thence North 39°01'35" West along said Northeasterly line
188.65 feet to the Southeasterly right of way line of Shoreline Drive; thence Northeasterly along
said Southeasterly line on the arc of a 5187.69 foot curve to the right a distance of 159.20 feet
(the central angle of said curve is 1°45'30" and the long chord bears North 39°09'22" East 159.20
feet); thence continuing Northeasterly along said Southeasterly line on the arc of a 1107.00 foot
radius curve to the left a distance of 198.97 feet (the central angle of said curve is 10°17'54" and
the long chord bears North 34°53'10" East 198.70 feet) to the Southwesterly line of Fourth
Street; thence Southeasterly along said Southwesterly line on the arc of a 619.21 foot curve to
the right a distance of 5.65 feet (the central angle of said curve is 00°31'20" and the long chord
bears South 58°52'07" East 5.65 feet); thence South 59°07'47" East along said Southwesterly line
128.42 feet; thence continuing Southeasterly along Southwesterly line of the arc of a 138.77 foot
radius curve to the right a distance of 119.33 feet (the central angle of said curve is 49°16'12"
and the long chord bears South 34°29'41" East 115.69 feet); thence South 09°51'35" East
along said Southwesterly line 4.10 feet; thence Southeasterly along said Southwesterly line on
the arc of a 186.93 foot curve to the left a distance of 49.53 feet (the central angle of said curve is
15°10'50" and the long chord bears South 17°27'00" East 49.38 feet); thence South 25°02'25"
East along said Southwesterly line 48.60 feet; thence Southeasterly along said Southwesterly line
on the arc of a 423.00 foot curve to the left a distance of 103.39 feet (the central angle of said
curve is 14°00'15" and the long chord bears South 32°02'32" East 103.13 feet); thence South
39°02'40" East along said Southwesterly line 7.81 feet to the Northwesterly line of Western
Avenue; thence South 50°55'50" West along said Northwesterly line 223.25 feet to Point of
Beginning.
Date: July 20, 2018
To: Honorable Mayor and City Commissioners
From: Engineering
RE: City – MDOT Agreement;
Black Creek Road; Sherman Blvd. to Latimer Dr.
SUMMARY OF REQUEST:
Approve the attached contract with MDOT for the Black Creek Road construction
between Sherman Boulevard and Latimer Drive and approve the attached resolution
authorizing the Mayor and City Clerk to sign the contract.
FINANCIAL IMPACT:
MDOT’s participation is limited to the approved federal funds of $340,000. The
estimated total construction cost is $568,100 plus engineering cost.
BUDGET ACTION REQUIRED:
None at this time, this project is included in the 18-19 budget.
STAFF RECOMMENDATION:
Approve the attached contract and resolution authorizing the mayor & clerk to sign
both.
COMMITTEE RECOMMENDATION:
RESOLUTION
RESOLUTION FOR APPROVAL OF A CONTRACT AGREEMENT BETWEEN THE
MICHIGAN DEPARTMENT OF TRANSPORTATION AND THE CITY OF
MUSKEGON FOR THE HOT MIXED ASPHALT PAVEMENT WORK ALONG
BLACK CREEK ROAD, FROM SHERMAN BLVD NORTH TO LATIMER DR
TOGETHER WITH OTHER NECESSARY RELATED WORK ITEMS AND
AUTHORIZATION FOR MAYOR STEPHEN J. GAWRON AND CITY CLERK, ANN
MEISCH, TO EXECUTE SAID CONTRACT
Moved by COMMISSIONER JOHNSON and supported by VICE MAYOR HOOD
that the following Resolution be adopted:
WHEREAS, entry by the City of Muskegon into Contract no. 18-5340 between the
Michigan Department of Transportation and the City of Muskegon for the Hot Mixed
Asphalt Pavement work along Black Creek Road from Sherman Boulevard
north to Latimer Drive within the City is in the best interests of the City of
Muskegon.
RESOLVED, that entry by the City into Contract Agreement Number 18-5340 be and
the same is hereby authorized and approved and the Mayor and Clerk are
authorized to execute said contract for and on behalf of the City of Muskegon.
Adopted this 26TH day of APRIL, 2016.
BY
Stephen J. Gawron, Mayor
ATTEST
Ann Meisch, City Clerk
CERTIFICATION
This resolution was adopted at a meeting of the City Commission, held on
APRIL 26, 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 Meisch, City Clerk
Date: 8/14/2018
To: Honorable Mayor and City Commissioners
From: Department of Public Works
RE: City Hall Duct Cleaning
SUMMARY OF REQUEST:
Award a contract for duct cleaning at City Hall to Modernistic, the lowest responsible
bidder. Three contractors were contacted, and two supplied bids as follows.
Modernistic $9,899
Stanley Steamer $13,832
FINANCIAL IMPACT:
$9,899
BUDGET ACTION REQUIRED:
None. A City Hall upgrade project is included in the capital project list of the 2018/2019
budget.
STAFF RECOMMENDATION:
Award the project to the low bidder, Modernistic.
Date: July 26th, 2018
To: Honorable Mayor and City Commissioners
From: Department of Public Works
RE: Steven Street Storm Sewer Outlet Repairs
SUMMARY OF REQUEST:
The DPW is requesting permission to rent equipment and purchase materials necessary
to complete repairs to the Stevens Street Storm Sewer Outlet. The storm sewer outlet
has partially collapsed and is causing substantial erosion. An MDEQ permit has been
obtained for the work and bids were taken where feasible for the rental of equipment
and purchase of materials necessary for the repairs. Labor to be completed by
Highway Department staff.
FINANCIAL IMPACT:
Materials - $12,208.20 ($4,208.20 Pipe + $8,000.00 Drainage Structure
Equipment - $2,935.00 (Excavator Rental)
Total - $15,143.20 from Local Street Fund
BUDGET ACTION REQUIRED:
None at this time. Equipment and material purchases will be funded from the Local
Street Fund.
STAFF RECOMMENDATION:
Authorize staff to rent equipment and materials to make repairs to the Stevens Street Storm
Water Outlet.
Quotation
ejco.com
800 626 4653
Account Name City of Muskegon Quote Number 00229257
Ship to 1350 East Keating Ave, Muskegon, Ml, US, 49442 Quote Name HP Pipe Quote
Bill to Attention Accounts Payable 1350 East Keating Ave, Muskegon, Ml, US, Created Date 7/26/2018
49442 Expiration Date
Full Name Mike Vander Molen
Prepared by
Business Phone Email [email protected]
Email Phone 616-538-2040
Business Fax
Fax 616-538-4990
Close Date 7/26/2018
40 90300000 ADS 48" HP DUAL WALL 20' 60.03 2401.20
20 90300000 ADS 60" HP DUAL WALL 20' 90.35 1807.00
Subtotal 4208.20 USO
Grand Total 4208.20 USO
Notes and Comments
QUOTATION� EJ USA, Inc. Terms and Conditions apply, which are located at http://r.ejco.com/ustc. Material takeoff quantities not
Page 1 of 1
guaranteed. Price subject to change.
RENTAL QUOTATION
Contractors Rental Corp. Phone: 616-538-2400
600 AIS Drive Fax: 616-538-0617
Grand Rapids, Ml 49548 Mobile: 616-250-9867
To: City of Muskegon From: Alex VanKampen
E-Mail:
Date: 7 / 24/ 18
Phone:
I appreciate you giving me the opportunity to quote you the following rates for the equipment you have
requested. The following rates are based on 10 hours run time per day, 50 hours per week, and 200
hours per month. Additional charges apply if exceeded. Your rates are as follows:
Job Site: Muskegon, Ml
Trucking
Komatsu PC240LC Excavator $1,020 $2,935 $8,035 $400
Please let me know if you have any further questions. The following rates do not include sales tax (6%).
Customer is required to provide proof of insurance for rented and leased equipment coverage listing
Contractors Rental Corp as additional insured and loss payee. If insurance coverage is not supplied, a
non-refundable 14% damage waiver fee will apply to the quoted and billed rate of each machine listed.
Thank you for the opportunity to quote you on this project. I look forward to earning your business.
Sincerely,
Alex Van Kampen
Rental Coordinator
Vern Berndt
From: Rick Kerber
Sent: Tuesday, July 24, 2018 10:33 AM
To: Vern Berndt
Cc: Rick Kerber
Subject: RE: Excavator Rental
Hi Vern,
Our Cat 329 Exe will lift the 16,000lbs.
Your rate on this machine is $1255.00 a day/$3355.00 a week/$9585.00 a month. Freight to Muskegon is quoted at
$450.00 each way.
Thank you!
Best regards,
:Ridi �
Rental Coordinator
Michigan Cat.
7700 Caterpillar Dr, Grand Rapids, Mi
'Iii': 616-827-8000 EXT. 2740 I J: 616-262-1155 I i,::\:866-451-0961
Leo Evans
From: Vern Berndt
Sent: Thursday, July 26, 2018 10:27 AM
To: Leo Evans
Subject: FW: Message from "DPW-RICOH6001"
Attachments: 20180726092406643.pdf
Leo,
Attached are cost for equipment and pipe for Stevens St, $8000.00 is the cost on the structure from Bush Concrete.
Vern Berndt
Highway Department Supervisor
City of Muskegon
231-724-6992
-----Original Message-----
From: [email protected]
Sent: Thursday, July 26, 2018 9:24 AM
To: Vern Berndt
Subject: Message from "DPW-RICOH6001"
This E-mail was sent from "DPW-RICOH6001" (Aficio MP 6001).
Scan Date: 07.26.2018 09:24:06 (-0400)
Queries to: [email protected]
1
DEQ-WRD
WRP012567 v1.0
Approved
Issued On:07/23/2018
Expires On:07/23/2023
DEQ-WRD
WRP012567 v1.0
Approved
Issued On:07/23/2018
Expires On:07/23/2023
DEQ-WRD
WRP012567 v1.0
Approved
Issued On:07/23/2018
Expires On:07/23/2023
DEQ-WRD
WRP012567 v1.0
Approved
Issued On:07/23/2018
Expires On:07/23/2023
DEQ-WRD
WRP012567 v1.0
Approved
Issued On:07/23/2018
Expires On:07/23/2023
DEQ-WRD
WRP012567 v1.0
Approved
Issued On:07/23/2018
Expires On:07/23/2023
DEQ-WRD
WRP012567 v1.0
Approved
Issued On:07/23/2018
Expires On:07/23/2023
Date: August 10th, 2018
To: Honorable Mayor and City Commissioners
From: Department of Public Works
RE: 2018 Capital Improvement Projects – McGraft Park Lot Resurfacing
SUMMARY OF REQUEST:
Award the resurfacing contract (H-1716) for crushing and shaping of the existing
parking lot and driveway at McGraft Park to the low bidder. Three contractors submitted
bids for this project as follows:
Accurate Excavators .................................................... $108,512.29
Jackson-Merkey Contractors........................................ $112,453.90
Epic Excavating ............................................................ $113,951.45
FINANCIAL IMPACT:
$108,512.29
BUDGET ACTION REQUIRED:
None at this time. The project will be funded through a planned capital improvement
project and from the McGraft Park Trust Fund.
STAFF RECOMMENDATION:
Award the project to the low bidder, Accurate Excavators.
City Of Muskegon
Project Description: McGraft Park - Parking Lot Resurfacing Project Number: H-1716
Project Engineer: Fred Pease Bid Opening: 7-Aug-18 Engineers Estimate Accurate Excavators Jackson-Merkey Contrators Epic Excavating
Line
Item Pay Code Description Units Quantity Unit Price Total Unit Price Total Unit Price Total Unit Price Total
1 1500001 Mobilization, Max LSUM 1 $ 3,322.00 $ 3,322.00 $ 5,000.00 $ 5,000.00 $ 17,800.00 $ 17,800.00 $ 10,000.00 $ 10,000.00
2 2030011 Dr Structure, Rem, Modified Ea 2 $ 275.00 $ 550.00 $ 850.00 $ 1,700.00 $ 665.00 $ 1,330.00 $ 375.00 $ 750.00
3 2040021 Curb, Rem Ft 443 $ 5.00 $ 2,215.00 $ 4.00 $ 1,772.00 $ 5.00 $ 2,215.00 $ 8.00 $ 3,544.00
4 2040055 Sidewalk, Rem Syd 23 $ 5.00 $ 115.00 $ 25.00 $ 575.00 $ 12.00 $ 276.00 $ 16.00 $ 368.00
5 2080020 Erosion Control, Inlet Protection, Fabric Drop Ea 6 $ 75.00 $ 450.00 $ 200.00 $ 1,200.00 $ 75.00 $ 450.00 $ 100.00 $ 600.00
6 2090001 Project Cleanup LSUM 1 $ 500.00 $ 500.00 $ 1,200.00 $ 1,200.00 $ 500.00 $ 500.00 $ 100.00 $ 100.00
7 3020001 Aggregate Base Ton 20 $ 16.00 $ 320.00 $ 24.00 $ 480.00 $ 25.00 $ 500.00 $ 20.00 $ 400.00
8 3050002 HMA Base Crushing and Shaping Syd 3498 $ 1.50 $ 5,247.00 $ 4.23 $ 14,796.54 $ 3.75 $ 13,117.50 $ 2.25 $ 7,870.50
9 3050010 Material, Surplus and Unsuitable, Rem, LM Cyd 316 $ 7.00 $ 2,212.00 $ 6.00 $ 1,896.00 $ 18.75 $ 5,925.00 $ 11.00 $ 3,476.00
10 3060021 Maintenance Gravel, LM Cyd 25 $ 20.00 $ 500.00 $ 25.00 $ 625.00 $ 6.00 $ 150.00 $ 5.00 $ 125.00
11 4037001 Dr Structure, Adj, Add Depth, Modified Ft 1.5 $ 250.00 $ 375.00 $ 380.00 $ 570.00 $ 520.00 $ 780.00 $ 300.00 $ 450.00
12 4037030 Dr Structure Cover, Modified Lb 330 $ 1.25 $ 412.50 $ 1.25 $ 412.50 $ 1.10 $ 363.00 $ 1.25 $ 412.50
13 4037050 Dr Structure Cover, Adj, Case 1, Modified Ea 3 $ 400.00 $ 1,200.00 $ 400.00 $ 1,200.00 $ 965.00 $ 2,895.00 $ 750.00 $ 2,250.00
14 5010031 HMA, 3C Ton 310 $ 65.00 $ 20,150.00 $ 92.50 $ 28,675.00 $ 84.00 $ 26,040.00 $ 84.00 $ 26,040.00
15 5010034 HMA, 36A Ton 310 $ 70.00 $ 21,700.00 $ 95.00 $ 29,450.00 $ 90.50 $ 28,055.00 $ 90.50 $ 28,055.00
16 8027001 Curb and Gutter, Conc, Det F4, Modified Ft 472 $ 12.50 $ 5,900.00 $ 25.00 $ 11,800.00 $ 15.25 $ 7,198.00 $ 25.00 $ 11,800.00
17 8030010 Detectable Warning Surface Ft 5 $ 40.00 $ 200.00 $ 50.00 $ 250.00 $ 55.00 $ 275.00 $ 60.00 $ 300.00
18 8030034 Sidewalk Ramp, Conc, 4 inch Sft 57 $ 5.00 $ 285.00 $ 12.00 $ 684.00 $ 4.15 $ 236.55 $ 6.75 $ 384.75
19 8030044 Sidewalk, Conc, 4 inch Sft 149 $ 3.00 $ 447.00 $ 9.00 $ 1,341.00 $ 3.10 $ 461.90 $ 4.75 $ 707.75
20 8110231 Pavt Mrkg, Waterborne, 4 inch, White Ft 1093 $ 0.50 $ 546.50 $ 0.25 $ 273.25 $ 0.55 $ 601.15 $ 1.75 $ 1,912.75
21 8110293 Pavt Mrkg, Waterborne, for Rest Areas, Parks, & Lots, 4 inch, Blu Ft 156 $ 0.65 $ 101.40 $ 0.25 $ 39.00 $ 0.55 $ 85.80 $ 1.95 $ 304.20
22 8117050 Pavt Mrkg, Waterborne, Handicap, Sym, Blue Ea 2 $ 150.00 $ 300.00 $ 60.00 $ 120.00 $ 35.00 $ 70.00 $ 75.00 $ 150.00
23 8120022 Barricade, Type III, High Intensity, Lighted, Furn Ea 2 $ 50.00 $ 100.00 $ 30.00 $ 60.00 $ 50.00 $ 100.00 $ 50.00 $ 100.00
24 8120023 Barricade, Type III, High Intensity, Lighted, Oper Ea 2 $ 1.00 $ 2.00 $ 30.00 $ 60.00 $ 1.00 $ 2.00 $ 1.00 $ 2.00
25 8120170 Minor Traf Devices LSUM 1 $ 500.00 $ 500.00 $ 1,000.00 $ 1,000.00 $ 1,200.00 $ 1,200.00 $ 9,000.00 $ 9,000.00
26 8120250 Plastic Drum, High Intensity, Furn Ea 25 $ 17.00 $ 425.00 $ 10.00 $ 250.00 $ 8.00 $ 200.00 $ 15.00 $ 375.00
27 8120251 Plastic Drum, High Intensity, Oper Ea 25 $ 1.00 $ 25.00 $ 10.00 $ 250.00 $ 1.00 $ 25.00 $ 1.00 $ 25.00
28 8120350 Sign, Type B, Temp, Prismatic, Furn Sft 74 $ 4.00 $ 296.00 $ 2.25 $ 166.50 $ 2.00 $ 148.00 $ 7.50 $ 555.00
29 8120351 Sign, Type B, Temp, Prismatic, Oper Sft 74 $ 1.00 $ 74.00 $ 2.25 $ 166.50 $ 1.00 $ 74.00 $ 1.00 $ 74.00
30 8160062 Topsoil Surface, Furn, 4 inch Syd 300 $ 3.00 $ 900.00 $ 6.00 $ 1,800.00 $ 3.00 $ 900.00 $ 9.00 $ 2,700.00
31 8167011 Hydroseeding Syd 300 $ 1.00 $ 300.00 $ 1.50 $ 450.00 $ 1.00 $ 300.00 $ 3.00 $ 900.00
32 8030030 Curb Ramp Opening, Conc Ft 10 $ 10.00 $ 100.00 $ 25.00 $ 250.00 $ 18.00 $ 180.00 $ 22.00 $ 220.00
Totals: $ 69,770.40 $ 108,512.29 $ 112,453.90 $ 113,951.45
As-Read $108,143.25 $112,453.90 $113,951.45
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