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CITY OF MUSKEGON
CITY COMMISSION MEETING
SEPTEMBER 13, 2022 @ 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, AWARDS, AND PRESENTATIONS:
□ PUBLIC COMMENT ON AGENDA ITEMS:
□ CONSENT AGENDA:
A. Approval of Minutes City Clerk
B. Flag Policy City Clerk
C. General Fund Transfers for FY2021-22 Finance
D. PowerMIFleet Enrollment Public Works
E. Shoreline Drive Engineering Amendment Public Works
F. Wastewater Committee Public Works
G. Shoreline Drive Traffic Control Public Works
H. MDEGLE Grant Agreement Public Works
I. Back Hoe Purchase DPW/Equipment
J. Rezoning of 2043, 2051, 2065, and 2075 Dowd to From Based Code, Urban
Residential Planning
K. US Army Corps of Engineers Lease City Manager
L. Juneteenth Holiday City Manager
M. Email Migration to the Cloud with Enhanced Security, Backup, and User
Training Information Technology
N. District Library Board Appointment City Clerk
□ PUBLIC HEARINGS:
Page 1 of 2
□ UNFINISHED BUSINESS:
□ NEW BUSINESS:
A. Adelaide Pointe Cooperative Use Agreement City Manager
B. Designation of Voting Delegates for the Michigan Municipal League
Annual Meeting City Commission
□ ANY OTHER BUSINESS:
□ PUBLIC COMMENT ON NON-AGENDA ITEMS:
► 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 7-1-1-22 TO REQUEST A REPRESENTATIVE TO DIAL (231) 724-6705.
Page 2 of 2
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 13, 2022 Title: Approval of Minutes
Submitted By: Ann Marie Meisch, MMC Department: City Clerk
Brief Summary: To approve the minutes of the August 8, 2022 Worksession and the August 9,
2022 Regular Meeting.
Detailed Summary: N/A
Amount Requested: N/A Amount Budgeted: N/A
Fund(s) or Account(s): N/A Fund(s) or Account(s): N/A
Recommended Motion: To approve the minutes.
For City Clerk Use Only:
Commission Action:
CITY OF MUSKEGON
CITY COMMISSION WORKSESSION
Monday, August 8, 2022
5:30 p.m.
City Commission Chambers
933 Terrace Street, Muskegon, MI 49440
MINUTES
2022-72
Present: Mayor Johnson, Vice Mayor German, Commissioners Gorman, St.Clair, and
Emory
Absent: Commissioners Hood and Ramsey
Farmers Market Presentation
Ann Meisch, City Clerk, presented information about the Muskegon Farmer’s Market.
The presentation included information about staffing, advantages of the Muskegon
Farmers Market, Seasonal and Daily vendors, multiple programs like SNAP/EBT –
Senior POP, Kids POP, Flea Market, Winter Market, Event Rentals, City Events,
Kitchen 242, Challenges at the Market, and future goals. The presentation will be made
available on the City’s website.
Update on City’s ARPA Allocation
Peter Wills, Director of Strategic Initiatives, provided a staff update on the City’s
allocation of American Rescue Plan Act (ARPA) funds.
Staff previously provided an update to the Commission on the use of ARPA funds at
a Special Meeting on February 28, 2022. Since that time, staff continues to meet to
strategize on the use and implementation of the ARPA funds to realize the highest
long term gain for our community. Staff is also targeting and evaluating federal grant
opportunities that continue to be released throughout the year as part of the
Infrastructure Investment and Jobs Act (IIJA) implementation process.
Staff intends to provide a review of the funding allocations and commitments made
thus far. We will also work with the Commission to develop options for handling the
remaining funds and engaging with our neighbors.
Periodic engagement also continues with the National League of Cities (NLC) as
part of our participation in their ARPA Grant Navigator program to explore additional
opportunities for federal funding.
Table 1.
Status of Committed ARPA Funds
Project Purpose Committed Status
Infill Housing – West Infill Housing $4.275M Sub-recipient Agreement
Urban Properties signed
Infill Housing – LRS Infill Housing $750,000 Current staff consultation
Enterprises with LRS
Infill Housing – Infill Housing $250,000 Full Award expended
Community
enCompass
General Fund GF FY22 $900,000 Budgeted
contribution
General Fund GF FY23 $650,000 Budgeted
contribution
Water/Sewer Houston Ave project $800,000 Budgeted
Trinity Health Restrooms, ADA $750,000 Budgeted
Arena/Thayer Ave improvements, etc
Trinity Health Arena FY22 Budget $675,000 Budgeted
Convention Center Outstanding project $2.5M Budgeted
expenses
CSXT Purchase Removal of rail line $2.0M $185,480.54 expended
Agreement per Agreement
Boys & Girls Club Fundraising $1.0M Full Award expended
campaign
contribution
Muskegon Museum Fundraising $1.0M Full Award expended
of Art campaign
contribution
Frauenthal Center Utility relocation $1.0M Full Award expended
expenses
Subtotal $16,550,000
ARPA Balance $6,331,894
• 23% - percentage of funding currently committed to infill housing initiative
• 13% - percentage of funding currently committed to local non-profit agencies
Table 2. - projects included within the permitted Standard Allowance “umbrella”
intended to replace up to $10M of lost public sector revenue.
Commitment of Funds to replace lost public
sector revenue, up to $10M (Standard
Allowance)
Infill Housing $5.275M
Convention Center $2.5M
General Fund FY22 $900,000
General Fund FY23 $650,000
Trinity Health Arena $675,000
FY22
Total $10,000,000
Parks Donation Policy
Staff has prepared the draft policy to administer donation requests received for the
City Parks Department. The draft policy is meant to provide guidance and
consistency for those wishing to make a donation to the City Parks system and the
staff charged with reviewing requests and coordinating for installation. The most
common donations are benches, but can also include options for trees, plaques, etc.
The policy also sets a precedent in place for pre-existing donations in that they will not
be maintained at city expense in perpetuity.
Staff is seeking input on the draft policy with the hopes of refining the policy and
bringing it back for formal approval by the Commission at a later date.
Discussion took place regarding the draft Policy and this item will appear on the
agenda for approval at a later date.
ARP Infill Housing Working Cash Fund Request
Jake Eckholm, Economic Development Director, presented information to Commission
regarding the ARP Infill Housing Working Cash Fund Request.
Staff is requesting authorization to issue an inter-fund loan from the General Fund (101)
to the Public Improvement Fund (404) of one million dollars ($1,000,000) to ensure
working capital on hand for the ARP Infill Housing Program being implemented by
Briggs Builders and West Urban Properties.
We are working diligently on infilling owner occupied housing in the community
through the five million dollar commitment from the City Commission from American
Rescue Plan Act funds. Mr. Briggs is working with the City to secure additional
financing through the Community Foundation in order to infill 6 total homes in
Jackson Hill, and Mr. Dusendang has a working total of 34-36 units depending on
pricing that will primarily be placed in McLaughlin and Nelson. 18 are currently in the
permitted stage at various levels of completion, and therein lies the issue. The
structure of the agreements for both developers indicates that the city make them
whole for their half of the investment in each house 45 days after Certificate of
Occupancy is issued, or at time of sale. With the rate of building that is necessary to
keep various subcontractors engaged during this very difficult labor market, it is
likely that we will run into cash on hand issues in the ARP program wherein all of our
money is “tied up in inventory.”
Staff is requesting that the General Fund, which currently has a fund reserve of 9.6
million dollars, make a temporary interfund loan to the Property Improvement Fund of 1
million dollars, which is enough to fully implement 4 builds at the contracted prices. This
should be enough cushion to keep our building partners and their contractors working
consistently through project implementation. The structure would require that all city
proceeds from sale are booked into the Public Improvement Fund, and that the full 1
million dollars is returned to the General Fund in a lump sum transfer at the culmination
of both ARP infill housing projects.
Discussion of this information took place and this item will be on the regular meeting
agenda on August 9, 2022 for consideration.
Public Comment – Public comment was received
Adjournment: The City Commission Worksession Meeting adjourned at 7:03 p.m.
Respectfully Submitted,
Ann Marie Meisch, MMC – City Clerk
CITY OF MUSKEGON
CITY COMMISSION MEETING
AUGUST 9, 2022 @ 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, Michigan at 5:30 p.m., Tuesday, August 9, 2022,
Reverend Eileen Stoffan, St. Paul’s Episcopal Church, opened the meeting with
prayer, after which the Commission and public recited the Pledge of Allegiance
to the Flag.
Present: Mayor Ken Johnson, Vice Mayor Willie German, Jr., Commissioners,
Teresa Emory, Rachel Gorman, Rebecca St.Clair, and Michael Ramsey, Interim
City Manager LeighAnn Mikesell, City Attorney John Schrier, and City Clerk Ann
Meisch.
Absent: Commissioner Eric Hood
PUBLIC COMMENT ON AGENDA ITEMS: No public comments received.
2022-73 CONSENT AGENDA:
A. Approval of Minutes City Clerk
SUMMARY OF REQUEST: To approve the minutes of the July 11, 2022 Worksession
and July 12, 2022 Regular Meeting.
STAFF RECOMMENDATION: To approve the minutes.
B. Sanford Street Reconstruction DPW
SUMMARY OF REQUEST: Authorize the award of the Sanford Street contract to
the low bidder, Kamminga and Roodvoets, and authorize the clerk to sign the
resolution.
Staff solicited bids for sewer replacement, water main replacement and road
reconstruction on Sanford Street from Laketon Avenue north to Apple Avenue.
Bids received are as follows:
• $4,907,094.50 – Kamminga & Roodvoets
• $5,946,882.00 – Schippers Excavating
Page 1 of 8
This project is financed through the sale of bonds in partnership with the State of
Michigan Clean Water and Drinking Water Revolving Funds. The State of
Michigan programs offer grants and principal forgiveness for portions of the
project.
The project would be constructed during the 2023 construction season.
AMOUNT REQUESTED: AMOUNT BUDGETED:
$4,907,094.50 $6,700,000 (TOTAL)
22/23 - $3,319,500
23/24 - $3,319,500 (Estimated)
FUND OR ACCOUNT: 590/591-92117
STAFF RECOMMENDATION: Approve the award of the Sanford Street project
to the low bidder, Kamminga and Roodvoets, and authorize the Clerk to sign
the resolution.
C. Lead Service Line Replacements DPW
SUMMARY OF REQUEST: Authorize the award of the Lead Service Line
Replacement contract to the low bidder, Gustafson HDD, and authorize the
clerk to sign the resolution.
Staff solicited bids for Lead Service Line Replacements on Jarman, Dyson,
Elwood, Superior, and Ray Streets from Keating Avenue north to Laketon
Avenue for a total of approximately 180 residents.
Bids received are as follows:
• $1,294,270.00 – Gustafson HDD
• $1,564,515.00 – McCormick Sand, Inc.
• $1,623,306.25 – SWT Exc
• $2,071,677.50 – Wadel Stabilization
This project is financed through the sale of bonds in partnership with the State of
Michigan Drinking Water Revolving Funds. The State of Michigan awarded the
City of Muskegon $3M to use towards Lead Service Line Replacements in their
FY22 program which will be 100% forgiven upon loan closure.
The project would be constructed sometime in the next three years and was not
shown on the 22/23 budget until a schedule can be finalized. As noted above
the costs will be offset with revenue having no net impact on the budget when
a schedule is finalized.
The reminder of the $3M grant is intended to be used for in house work to
replace lead service lines by city crews.
AMOUNT REQUESTED: $1,294,270.00 AMOUNT BUDGETED: $3,000,000.00
Page 2 of 8
FUND OR ACCOUNT: 591-TBD
STAFF RECOMMENDATION: Approve the award of the Lead Service Line
project to the low bidder Gustafson HDD, and authorize the clerk to sign the
resolution.
D. Getty Street Traffic Study DPW
SUMMARY OF REQUEST: Staff is requesting authorization to sign a Professional
Services Agreement for $27,352 with Progressive AE to provide traffic
engineering services for a traffic study of Getty Street.
Conversion of four-lane roads, such as Getty Street, to three-lane roads has
been proven to be safer and to provide better access for non-vehicular users
with little or no impact to travel times when properly studied and executed. Staff
feels that Getty Street could be a great candidate for this treatment, and has
worked with Norton Shores and Muskegon Heights to solicit a study to determine
if the project should move forward.
Staff solicited proposals from engineering firms to Firm Score
provide traffic engineering services for data
DLZ, Inc. 780
collection, modeling and recommendations for
Getty Street within the City limits (Hovey Street to Hubbell, Roth & Clark 780
Oak Street), and requested additional pricing for a
Fleis & VandenBrink 880
study of Getty Street from Seaway Drive through
the neighboring communities to the same Oak Fishbeck 880
Street northern limit. Progress AE 900
A draft agreement with Norton Shores and Spalding DeDecker 780
Muskegon Heights is included with this request, and
has been submitted to those communities with the offer to partner on the study,
allowing a conversion of the entire corridor.
This request is for only the portion within the City limits (Hovey Street to Oak
Street). If Norton Shores and Muskegon Heights elect to move forward with their
portions of the study, a future request to enter into the agreement will be
brought to the Commission. Staff expects the cost of studying the entire corridor
will not be more than this request due to economies of scale.
Staff is requesting to award the engineering services agreement to the highest
scoring firm (Progressive AE). Staff scored the proposals using Qualifications
Based Selection criteria to ensure we were selecting the best partner for this
important project. The scoring showed Progressive AE as the leading firm, and
staff recommends contracting with them based on their proposal and their
history of service. Progressive AE has provided engineering services for the City
of Muskegon in the past, and is currently assisting with the Shoreline Drive Pilot
project. A summary score table is shown.
AMOUNT REQUESTED: $27,352 AMOUNT BUDGETED: $50,000
Page 3 of 8
FUND OR ACCOUNT: 202 (Major Streets)
STAFF RECOMMENDATION: Authorize staff to sign a Professional Services
Agreement for $27,352 with Progress AE to provide traffic engineering services
for a traffic study of Getty Street from Hovey to Oak streets.
E. Apple Avenue Traffic Study DPW
SUMMARY OF REQUEST: Staff is requesting authorization to sign a Professional
Services Agreement for $43,338 with Progressive AE to provide traffic
engineering services for a traffic study of Apple Avenue.
MDOT has plans to reconstruct Apple Avenue in approximately 2026. MDOT is
willing to engage with the City and other stakeholders to determine what the
next version of Apple Avenue will look like. The study will provide data and
recommendations related to vehicle, pedestrian and bicycle traffic. Specifically,
the study will look at reducing the number of lanes in certain sections of the
corridor to improve safety for all modes and improve access for non-vehicular
users.
Staff solicited proposals from engineering firms to
Firm Score
provide traffic engineering services for data
collection, modeling, and recommendations for DLZ, Inc. 760
Apple Avenue within the City limits. Hubbell, Roth & Clark 780
Staff is requesting to award the engineering services Fleis & VandenBrink 880
agreement to the highest scoring firm (Progressive
AE). Staff scored the proposals using Qualifications Fishbeck 880
Based Selection criteria to ensure we were selecting Progressive AE 900
the best partner for this important project. The
scoring showed Progressive AE as the leading firm, Rowe PSC 880
and staff recommends contracting with them Spalding DeDecker 800
based on their proposal and their history of service.
Progressive AE has provided engineering services for the City of Muskegon in the
past, and is currently assisting with the Shoreline Drive Pilot project. A summary
score table is shown.
AMOUNT REQUESTED: $43,338 AMOUNT BUDGETED: $50,000
FUND OR ACCOUNT: 202 (Major Streets)
STAFF RECOMMENDATION: Authorize staff to sign a Professional Services
Agreement for $43,338 with Progressive AE to provide traffic engineering services
for a traffic study of Apple Avenue within the City limits.
F. ARP Infill Housing Working Cash Fund Request Economic Development
SUMMARY OF REQUEST: Staff is requesting authorization to issue an inter-fund
loan from the General Fund (101) to the Public Improvement Fund (404) of one
million dollars ($1,000,000) to ensure working Capital on hand for the ARP Infill
Page 4 of 8
Housing Program being implemented by Briggs Builders and West Urban
Properties.
We are working diligently on infilling owner occupied housing in the community
through the five million dollar commitment from the City Commission from
American Rescue Plan Act funds. Mr. Briggs is working with the City to secure
additional financing through the Community Foundation in order to infill 6 total
homes in Jackson Hill, and Mr. Dusendang has a working total of 34-36 units
depending on pricing that will primarily be placed in McLaughlin and Nelson. 18
are currently in the permitted stage at various levels of completion, and therein
lies the issue. The structure of the agreements for both developers indicates that
the city make them whole for their half of the investment in each house 45 days
after Certificate of Occupancy is issued, or at time of sale. With the rate of
building that is necessary to keep various subcontractors engaged during this
very difficult labor market, it is likely that we will run into cash on hand issues in
the ARP program wherein all of our money is “tied up in inventory.”
Staff is requesting that the General Fund, which currently has a fund reserve of
9.6 million dollars, make a temporary interfund loan to the Property
Improvement Fund of 1 million dollars, which is enough to fully implement 4
builds at the contracted prices. This should be enough cushion to keep our
building partners and their contractors working consistently through project
implementation. The structure would require that all city proceeds from sale are
booked into the Public Improvement Fund, and that the full 1 million dollars is
returned to the General Fund in a lump sum transfer at the culmination of both
ARP infill housing projects.
AMOUNT REQUESTED: $1,000,000 (internal loan) AMOUNT BUDGETED: N/A
FUND OR ACCOUNT: (101) to (404)
STAFF RECOMMENDATION: Authorize staff to issue an inter-fund loan from
General Fund (101) to the Public Improvement Fund (404) of one Million dollars
($1,000,000) to ensure working capital on hand for the ARP Infill Housing Program
being implemented by Briggs Builders and West Urban Properties.
G. MERS Amortization Extension Finance
SUMMARY OF REQUEST: The City of Muskegon and the Municipal Employees’
Retirement System of Michigan (MERS) will enter into an agreement for an
amortization extension. The extension is for all existing defined benefits plans with
MERS.
MERS shall extend Employer’s amortization period with respect to its UAL as
follows:
Division #01 (Non-Union General) & 11 (Clerical): Amortization of UAL to
be extended from 9 to 14 years with required contributions revised
effective with the applicable fiscal year of the annual valuation used for
Page 5 of 8
the extension study or the date this signed agreement is received by
MERS, whichever is latest.
Division #02 (Non-Union Police) & 21 (Police Patrol): Amortization of UAL to
be extended from 8 to 13 years with required contributions revised
effective with the applicable fiscal year of the annual valuation used for
the extension study or the date this signed agreement is received by
MERS, whichever is latest.
Division #10 (General – Retirees) & 20 (Police/Fire-Retirees): Amortization of
UAL to be extended from 6 to 11 years with required contributions revised
effective with the applicable fiscal year of the annual valuation used for
the extension study or the date this signed agreement is received by
MERS, whichever is latest.
The amortization extension allows the City to stabilize our annual projected
contribution costs. Without these amortization extensions the City’s annual
contribution costs for Defined Benefits will peak to almost $6 million per year for
the years 2024-2028. With the extension the highest amount we will pay is $4.87
million in 2028 (based on a 7.35% rate of return) from the actuarial report
performed by Gabriel, Roeder, Smith & Company. Effective July 1, 2022 our
current rates will be approximately $5.02 million. With the extension our rate will
be $4.3 million effective July 1, 2022.
STAFF RECOMMENDATION: Authorize the Finance Director to enter into an
agreement with the Municipal Employee’s Retirement System of Michigan for an
Amortization Extension.
H. MI-HOPE Leverage Funds CNS
SUMMARY OF REQUEST: The Community and Neighborhood Services
Department is requesting $150,000 in ARP funds to use as leverage for the
Michigan Housing Opportunities Promoting Energy-Efficiency (MI-HOPE) Program
through MSHDA that the department is applying for.
The MI-HOPE Program is intended to provide energy-efficiency activities that
benefit area residents. It is funded through the US Department of Treasury
American Rescue Plan (ARP) Coronavirus State and Local Fiscal Recovery
Funds. The city will be applying for $1,000,000 in funding through this opportunity
to be used for energy-efficiency repairs for homeowners in Muskegon County, in
an effort to improve our areas housing stock and ensure healthier and safer
homes for our neighbors. The $150,000 match will help support the administration
of the grant and provide for an estimated additional 6 major repairs to the
citizens of Muskegon County. This match aligns with the requirements and
available uses of the ARP funds.
Due to the highly competitive nature of this grant, allocating match funds
tangibly demonstrates the city’s commitment to improving the living conditions
Page 6 of 8
and reducing the energy expense of citizens. Although not required, providing
match funds is viewed favorably, and can be a deciding factor in the approval
of the application and grant award.
This grant will supplement the programming the City of Muskegon already offers
through its CNS Department. In the past year alone, CNS has served over 110
households with health and safety related and energy-efficiency repairs. We are
on track to exceed this number in the coming year. With the addition of our new
Healthy Homes Program this grant, if awarded, will allow us to maximize the
assistance we can provide to our neighbors.
With the 2022-27 City Commission Vision goals of increasing grant assistance to
neighborhoods to reduce blight and improve environmental sustainability for
projects within the city, this allocation closely aligns. Approval of this match will
allow staff to implement programs necessary to accomplish these goals and
support healthier and more energy-efficient housing for our community.
AMOUNT REQUESTED: $150,000 AMOUNT BUDGETED: N/A
STAFF RECOMMENDATION: To approve the resolution supporting the
allocation of $150,000 of ARP fund as leverage for the MI-HOPE Grant, if
awarded.
I. Water Supply System Bonds Series A & B Finance
SUMMARY OF REQUEST: Ordinance authorizing the issuance of Water Supply
System Junior Lien Revenue Bonds Series A & B.
To authorize the issuance of Water Sewer Supply System Bonds, Series A in an
amount not to exceed $5,320,000.
To authorize the issuance of Water Sewer Supply System Bonds, Series B in an
amount not to exceed $3,560,000.
The Bonds are expected to be sold to the Michigan Finance Authority and
payable in 20 annual principal installments at an interest rate of 1.875%.
Scheduled closing is September 20th.
Estimated Principal Forgiveness is $3,000,000.
FUND OR ACCOUNT: Water
STAFF RECOMMENDATION: To approve the Ordinance authorizing the
issuance of Water Supply System Revenue Bonds.
J. Sanitary Sewer Supply System Bonds Finance
SUMMARY OF REQUEST: Ordinance authorizing the issuance of Sanitary Sewer
Supply System Junior Lien Revenue Bonds.
To authorize the issuance of Sanitary Sewer Supply System Bonds in an amount
not to exceed $6,640,000. The Bonds are expected to be sold to the Michigan
Page 7 of 8
Finance Authority and payable in 20 annual principal installments at an interest
rate of 1.875%. Scheduled closing is September 20th.
Estimated Principal Forgiveness is unknown at this time.
FUND: Sewer
STAFF RECOMMENDATION: To approve the Ordinance authorizing the
issuance of Sanitary Sewer Supply System Revenue Bonds.
Motion by Commissioner Ramsey, second by Vice Mayor German, to accept
the consent agenda as presented.
ROLL VOTE: Ayes: German, Gorman, Emory, St.Clair, Johnson, and Ramsey
Nays: None
MOTION PASSES
ANY OTHER BUSINESS: Commissioner Gorman expressed her thanks to the
Women’s Division for their partnership in the installation of “One Drop”, a new art
installation on Shoreline Drive near the VanDyk Mortgage Convention Center.
PUBLIC COMMENT ON NON-AGENDA ITEMS: Public Comments were
received.
ADJOURNMENT: The City Commission meeting adjourned at 5:46 p.m.
Respectfully Submitted,
Ann Marie Meisch, MMC - City Clerk
Page 8 of 8
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 13, 2022 Title: Flag Policy
Submitted By: Ann Meisch Department: City Clerk
Brief Summary: To adopt the updated flag policy.
Detailed Summary & Background:
Based on the Attorney’s recommendation, staff felt it necessary to recommend changes to
our current flag policy. The proposed policy would not allow the flying of any flags with the
exception of United States of America, State of Michigan, the County of Muskegon, the
City of Muskegon flag, a Sister Cities of the City of Muskegon flag, and visiting dignitaries
from the Embassy and/or Consulate that are formally acknowledged by the Mayor and/or
City Commission.
Goal/Focus Area/Action Item Addressed:
Amount Requested: NA Amount Budgeted:
Fund(s) or Account(s): Fund(s) or Account(s):
Recommended Motion: To adopt the amended flag policy as presented.
Approvals: Get approval from division head at a minimum prior Guest(s) Invited / Presenting
to sending to the Clerk.
Immediate Division Head Information Technology Yes
Other Division Heads Communication No
Legal Review
For City Clerk Use Only:
Commission Action:
City of Muskegon
Flag Policy
I. Purpose
To provide a policy to fly flags on City owned or occupied property or
facilities.
II. City Commission Consideration and Decision
The flying of the United States of America, State of Michigan, the County
of Muskegon, the City of Muskegon flag, a Sister Cities of the City of
Muskegon flag, and visiting dignitaries from the Embassy and/or
Consulate that are formally acknowledged by the Mayor and/or City
Commission are permissible and may be flown at City property as
authorized by City staff.
The flying of any other flag is not permissible. This includes flags from
other countries, flags recognizing a cause, flags recognizing a festival,
flags recognizing an ethnicity, etc.
Certification
This policy was adopted at a regular meeting of the City Commission, held on
________________________________. 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
______________________________
Ann Marie Meisch, MMC, City Clerk
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 13, 2022 Title: General Fund Transfers
for FY2021-22
Submitted By: Kenneth D. Grant Department: Finance
Brief Summary: During the close out of fiscal year 2021-22 and based on the financial results for
the fiscal year ended June 30, 2022 we want to transfer $115,000 from the General Fund to the
Trinity Health Arena Fund to eliminate a fund balance deficit. Also, we want to transfer $2,500
from the General Fund to the Tree Fund to eliminate a fund balance deficit. Finally, we want to
transfer $40,750.14 from the General Fund to the State Grants fund to cover bad debt. Staff is
requesting formal approval of these General Fund transfers.
Detailed Summary & Background:
At the close of FY2021-22 three funds that required a transfer from the General Fund. (1) The
FY2021-22 budget called for a General Fund transfer of $115,000 to the Trinity Health Arena Fund
to avoid a fund balance deficit. The original budget requested a $350,000 transfer to the Trinity
Health Arena. The Arena’s revenue was better than project and we thought the Arena did not
need any transfer from the General Fund. However, at the end of the 2021-22 year the
expenditures exceeded revenue by approximately $115,000. (2) The Tree fund has a small deficit
that needs to be covered by the General Fund of $2,500 to avoid a fund balance deficit. (3) The
FY2021-22 budget called for a General Fund transfer of $40,750.14 to the State Grant fund to
write off bad debt from the CMI Site Assessment and Hendrickson Brownfield loan. Commission
previously approved the debt write off at July 26, 2022. Now are officially asking to transfer the
funds from the General Fund to complete the debt write off.
Goal/Focus Area/Action Item Addressed:
Amount Requested: $158,250.14 Amount Budgeted:
Fund(s) or Account(s): 101 Fund(s) or Account(s):
Recommended Motion: To approve the General Fund transfers of $115,000 to the Trinity Health
Fund, $40,750.14 to the State Grants Fund, and $2,500 to the Tree Replacement Fund.
Approvals: Get approval from division head at a minimum prior Guest(s) Invited / Presenting
to sending to the Clerk.
Immediate Division Head Information Technology Yes
Other Division Heads Communication No
Legal Review
For City Clerk Use Only:
Commission Action:
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 13th, 2022 Title: PowerMIFleet Enrollment
Submitted By: Leo Evans Department: Public Works
Brief Summary:
Staff is requesting authorization to enroll in the PowerMIFleet Program
Detailed Summary & Background:
The PowerMIFleet program through Consumers Energy provides assistance to the City in seeking
to begin consideration for electrifying the cities fleet of vehicles. Through the program Consumers
Energy will provide a number of services to assist the city in a number of ways:
• Review of existing fleet to determine the vehicles best suited for electrification
• Review of existing facilities to determine the best location for installation of charging
infrastructure
• Identification and pursuit of grants and rebates to support the initiative
There is no immediate cost for enrollment in the program, however in exchange for enrollment in
the program the city is making a commitment to purchase and deploy at least one (1) electric
vehicle through the program. There is no set timeline for when that needs to be accomplished but
note that the current FY budget did not propose any EV so if there is opportunity to take action yet
this FY there could be unbudgeted costs to account for in a future reforecast. The equipment fund
should be in a position to absorb those costs with minimal modification provided they are not
excessive.
Goal/Focus Area/Action Item Addressed:
Financial Infrastructure / Sustainability in financial practices and infrastructure / Investigate options
to improve environmental sustainability for projects within the city
Amount Requested: $0 Amount Budgeted: $0
Fund(s) or Account(s): N/A Fund(s) or Account(s): N/A
Recommended Motion:
Authorize staff to enroll in the PowerMIFleet Program with Consumers Energy.
Approvals: Guest(s) Invited / Presenting:
Immediate Division Head Information Technology Yes
Other Division Heads Communication No
For City Clerk Use Only:
Commission Action:
PowerMIFleet
TM
Electrifying Michigan’s fleet vehicles
PowerMIFleet is a program designed to help fleet owners
and operators reduce operating costs, eliminate emissions,
and simplify vehicle maintenance by transitioning to electric
vehicles.
We’re here to connect your organization with the planning
resources, expert guidance and financial incentives to easily
and cost-effectively transition to an electric fleet.
It’s part of our commitment to help drive savings for
your wallet and the environment, while keeping the grid
operating efficiently and sustainably through clean energy
transportation.
Charging Station Rebates Make Ready Upgrades
PowerMIFleet offers rebates of up to $5,000 per We will pay for upgrades to electric infrastructure
Level 2 Charge Port, $35,000 per non-public DC from the power lines to the transformer and meter
Fast Charger and $70,000 per public-use to get your site charger ready.
DC Fast Charger.
Electrification Assessment
We’ll partner with your team and a fleet electrification consultant to gather and analyze performance data
on your existing fleet vehicles. You’ll receive a customized electrification assessment, including vehicle and
charging station recommendations, cost savings, and environmental benefits.
To learn more about PowerMIFleet visit
ConsumersEnergy.com/powermifleet
PowerMIFleet
TM
Electrifying Michigan’s fleet vehicles
Benefits for Your Bottom Line & The Environment
Fuel Savings Support Sustainability
EVs are more efficient than diesel and natural gas Transportation is the single largest source of
engines and offer significant fuel cost savings. climate-related pollution. An electric vehicle
Electricity prices are more stable, making it easy to fleet can be part of a larger strategy for reaching
budget fueling costs with confidence. your sustainability goals by decreasing harmful
greenhouse gas emissions.
Maintenance Savings
EVs have fewer and less complex parts, which Fewer Emissions
simplifies maintenance, results in less down EVs produce fewer emissions over their operational
time, and lowers overall lifetime operation and life than gas- or diesel-powered counterparts. EVs
maintenance costs. Plus, EV batteries are covered don’t have a tailpipe and don’t produce direct
by a minimum warranty of 8 years or 100,000 emissions like carbon dioxide, reducing air pollution
miles. locally.
Better Performance Managed Charging
EVs offer instant torque, providing quick, smooth, With a bi-directional Vehicle to Grid (V2G) or
responsive acceleration. Electric vehicle batteries Vehicle to Building (V2B) power flow demonstration
also provide a low center of gravity which improves project, you could add additional reliability. Save
handling, responsiveness and ride comfort. even more when charging off-peak.
Eligibility Requirements
Be a Consumers Energy Electric Customer
Customers who purchase electricity through an Alternate Electric Supplier (“Retail Open Access”) are not
eligible to participate.
Own or Lease the Property
You must have authority to install charging infrastructure at your site.
Own and Use at Least One EV
Your business or organization must acquire and deploy a minimum of one light, medium, or heavy-duty
electric fleet vehicles.
Provide Data Related to Charger Use
Once the chargers are installed and operational, your organization must agree to share charger use data
with Consumers Energy for the duration of the PowerMIFleet pilot program.
To learn more about PowerMIFleet visit
ConsumersEnergy.com/powermifleet
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 13th, 2022 Title: Shoreline Drive Engineering
Amendment
Submitted By: Leo Evans Department: Public Works
Brief Summary:
Staff is requesting authorization to sign the attached amendment to the professional services
agreement with ProgressiveAE in relation to the Shoreline Drive Road Diet.
Detailed Summary & Background:
ProgressiveAE is requesting an amendment to the professional services agreement related to a
change on the Shoreline Drive project outside of the original scope. The amendment requests an
additional $13,700 which represents a 28% increase on the original $49,090 contract and requires
Commission approval based on the percentage increase.
The additional costs are related to a change in the project scope to complete the pilot in two
separate phases rather than a single phase. The split phasing required the engineer to develop
additional sets of plans and also provides an opportunity for additional data collection during both
phases which was not originally anticipated in the scope.
Staff has reviewed the amendment and does not have any objections to the request.
Goal/Focus Area/Action Item Addressed:
Designation Community & Quality of Life / Improved Access to the Waterfront
Financial Infrastructure / Decrease infrastructure burden on residents
Amount Requested: $13,700 (INCREASE) Amount Budgeted: $115,000 (21/22 & 22/23)
$62,790 (TOTAL)
Fund(s) or Account(s): 202 Fund(s) or Account(s): 202
Recommended Motion:
Authorize staff to approve the amendment request with ProgressiveAE for Shoreline Drive Traffic
Engineering.
Approvals: Guest(s) Invited / Presenting:
Immediate Division Head Information Technology Yes
Other Division Heads Communication No
For City Clerk Use Only:
Commission Action:
August 24, 2022
Dan VanderHeide PE, Deputy Director
City of Muskegon
Department of Public Works
1350 Keating Avenue
Muskegon, MI 49442
Re: Shoreline Drive Maintenance of Traffic Additional Services
Dear Mr. VanderHeide,
Progressive AE, Inc. (Progressive AE) is committed to giving the City of Muskegon (City) the best quality
service. We appreciate the opportunity to work closely with the City and strive to develop a long-lasting
relationship. Please see the following additional scope of services for the added Maintenance of Traffic
(MOT) plans and traffic counts.
ADDITIONAL SCOPE OF SERVICES
The additional scope of services includes creating a two-stage MOT plan and bid package for the
roadway maintenance project on Shoreline Drive. Additionally Progressive AE will perform traffic counts
at the 4th Street intersection and at two possible diversion routes on Muskegon Drive and Webster
Avenue during the lane closure. Our team will perform a traffic analysis from the data collected and
review the findings with the City. These findings will help assist in determining areas of Shoreline Drive
where there are issues or concerns due to the reduced footprint and potential traffic diversion routes.
PROFESSIONAL COMPENSATION
Based upon the above-identified scope of services, Progressive AE proposes a stipulated sum of $12,000
(twelve thousand dollars). Reimbursable expenses are in addition to the professional compensation,
estimated at $1,700 (one thousand seven hundred dollars), and will be invoiced according to the attached
Schedule of Invoice Rates.
Progressive AE has prepared this proposal for City of Muskegon and we request that it be treated as
confidential and not copied or distributed for any reason other than evaluation for hire.
The terms of this proposal defining project understanding, scope, schedule, clarifications, and
professional compensation are incorporated into the Standard Agreement Provisions for Professional
Services which are attached. The terms and conditions as identified in the Standard Agreement
Provisions will be valid unless superseded by an AIA Standard Form of Agreement. If this proposal meets
with your approval, please sign below and return a copy of the signed proposal. Your signature will be our
authorization to begin the work and place the project in the firm’s schedule. If you do not sign and return
this proposal, and after receipt of this proposal you request or accept services from Progressive AE in
connection with this or any other engagement, your request or acceptance of such services will be
deemed to be an acquiescence or agreement with the terms provided in this proposal.
Progressive AE, Inc.
Corporate Office: | 1811 4 Mile Road NE | Grand Rapids, MI 49525 | 616.361.2664 | progressiveae.com
Regional Office: | 330 South Tryon Street, Suite 500 | Charlotte, NC 28202 | 704.731.8080 | progressiveae.com
Shoreline Drive Additional Services
Page 2
We look forward to working on this project with you and your team.
Sincerely,
Michael T. Miller PE Christopher E. Zull PE
Senior Transportation Engineer Practice Leader
Accepted By: __________________________________________________________________
Printed Name: ________________________________ Date: ____________________________
Dan VanderHeide
Deputy Director
MTM/ecy
P:\53766013\01 ADMIN\A1 CONTRACTS\a Working Proposals\2022 08 24 Scope for Additional Services.docx
Progressive AE, Inc.
Corporate Office: | 1811 4 Mile Road NE | Grand Rapids, MI 49525 | 616.361.2664 | progressiveae.com
Regional Office: | 330 South Tryon Street, Suite 500 | Charlotte, NC 28202 | 704.731.8080 | progressiveae.com
Schedule of Invoice Rates - 2022
Hourly Staff Charges
Class 10 Personnel: Principals $245/hour
Class 9 Personnel: Practice Leader, Directors $215/hour
Class 8 Personnel: Senior Architect, Senior Engineer, Senior Project Manager $185/hour
Class 7 Personnel: Senior Project Manager, Senior Architect, Senior Interior
Designer, Senior Engineer, Senior Scientist $160/hour
Class 6 Personnel: Construction Superintendent, Engineer II, Project Manager II,
Senior Construction Administrator, Senior Technician $145/hour
Class 5 Personnel: Architect II, Construction Administrator, Design Architect I
Engineer II, Project Manager I, Senior Interior Designer,
Senior Technician $130/hour
Class 4 Personnel: Architect I, Construction Superintendent, Interior Designer II,
Engineer I, GIS Technician, Planner I, Technician II $110/hour
Class 3 Personnel: Executive Assistant, Field Scientist, Graduate Architect,
Graduate Engineer, Interior Designer I, Technician I $ 90/hour
Class 2 Personnel: Graduate Interior Designer, Graduate Architect, Project Assistant $ 75/hour
Class 1 Personnel: Interns $ 60/hour
Reimbursable Expenses
1. Fees for Program, Financial or Procurement Management services when the Owner has engaged a
supplier and Architect is subject to a fee.
2. Building permit fees and plan review fees as required by the authorities having jurisdiction over projects at
cost plus 10%.
3. Outside services, consultants, travel and lodging at cost plus 10%.
4. Copies, telephone, cell phone voice and data charges and office supplies will be charged through a $25
per month Misc. Office Expense charge. This charge will not be applied to invoices under $1,000.
5. CAD black/white plotting at 15¢ per square foot; CAD color plotting at 25¢ per square foot; CAD low
density color images at 30¢ each; CAD high density color images at 50¢ each; large-format color plotting at
$9 per square foot. Postage, shipping, and lab tests at cost. Files written to CD will be minimum $100 per
drawing or $500 maximum. Passenger vehicle mileage on projects at the IRS Standard Rate (currently
62.5¢ per mile). Lodging, meals, and airfare at cost. Machine rental GPS at $250 per day. Traffic Counters
at $60 per count. Surveying supplies at 50¢ per stake.
6. Overtime expenses requiring higher than normal rates if authorized by owner.
Notes:
1. Invoices are due upon receipt. Unpaid invoices shall bear interest at a rate of 1 percent per month if not
paid within 30 days of the date of the invoice.
2. Special media requests may be at higher rate.
3. Hourly staff charges and expenses subject to change annually.
STD RATE July 1, 2022
Progressive AE, Inc.
Corporate Office: | 1811 4 Mile Road NE | Grand Rapids, MI 49525 | 616.361.2664 | progressiveae.com
Regional Office: | 330 South Tryon Street, Suite 500 | Charlotte, NC 28202 | 704.731.8080 | progressiveae.com
Standard Agreement Provisions
Engineering Services
The parties to this agreement, Progressive AE, Inc., Grand Rapids, Michigan, USA, hereinafter
called the ENGINEER and City of Muskegon, Muskegon, Michigan, USA, hereinafter called the
OWNER, hereby agree to the following conditions:
1. Limit of Scope: The services provided by the ENGINEER shall be limited to those described in
the proposal dated August 24, 2022. The parties agree that the terms of the proposal are
incorporated herein by reference, and are part of this agreement as if fully set forth herein. If
any terms set forth in the proposal are expressly in conflict with the terms hereof, the terms of
the proposal shall govern.
2. Changed Conditions: If, during the term of this Agreement, the ENGINEER becomes aware of
any circumstances or conditions that were not originally contemplated by or known to the
ENGINEER, then to the extent that they affect the scope of services, compensations, schedule,
allocation of risks or other material terms of this Agreement, the ENGINEER may call for re-
negotiation of appropriate portions of the Agreement. The ENGINEER shall notify the OWNER
of the changed conditions necessitating re-negotiation, and the ENGINEER and the OWNER
shall promptly and in good faith enter into re-negotiation of this Agreement to address the
changed conditions. If terms cannot be agreed to, the parties agree that either party has the
absolute right to terminate this Agreement.
3. Delays: The OWNER agrees that the ENGINEER is not responsible for any damages arising
directly or indirectly from any delays for causes beyond the ENGINEER’s control. For purposes
of this Agreement, such causes include, but are not limited to, strikes or other labor disputes;
severe weather disruptions, epidemics, pandemics or other natural disasters or acts of God;
fires, riots, war or other emergencies; failure of any government agency to act in a timely
manner; failure of performance by OWNER or the OWNER’s contractors or consultants; or
discovery of any hazardous substance or differing site conditions.
In addition, if the delays resulting from any such causes increase the cost or time required by
the ENGINEER to perform its services in an orderly and efficient manner, the ENGINEER shall
be entitled to a reasonable adjustment in schedule and compensation.
4. Additional Services: Additional services not specifically identified in the Scope of Services shall
be paid for by the OWNER in addition to the fees previously stated, provided the OWNER
authorizes such additional services in writing. Special services will be billed monthly as work
progresses and invoices are due upon receipt. If services covered by this agreement have not
been completed within twelve (12) months of the date of this agreement, through no fault of the
ENGINEER, extension of the ENGINEER’S services beyond that time shall be compensated
as additional services.
5. Standard of Care: Professional Services provided by the ENGINEER will be conducted in a
manner consistent with that level of care ordinarily and normally exercised by licensed
ENGINEERs and engineers practicing in the State where the Project resides. The OWNER
and ENGINEER agree that a contingency in the amount of three percent (3%) of the cost of
the work be established, as required, for changes that may be required because of possible
omissions, ambiguities, or inconsistencies in plans and specifications.
6. Value-Added/Betterment: If, due to the ENGINEER’s error, any required item or component
of the project is omitted from the ENGINEER’s Construction documents, the ENGINEER shall
not be responsible for paying the cost to add such item or components to the extent that such
item or component would have otherwise been necessary to the project tor otherwise adds
value or betterment to the project. In no event will the ENGINEER be responsible for any cost
or expenses that provides value, upgrade, or enhancement of the project.
The information in this document is the intellectual property of Progressive AE. It is intended solely for use by the
individual owner. Reproduction of any portion of this document for any purpose is strictly prohibited.
Standard Agreement Provisions
Engineering Services
7. Hazardous Materials: The ENGINEER shall have no responsibility for the discovery, presence,
handling, removal or disposal of, or exposure of persons to, hazardous materials or toxic
substances in any form at the Project site. The Owner shall furnish tests, inspections and
reports required by law or the Contract Documents, such as structural, mechanical, and
chemical tests, tests for air and water pollution, and tests for hazardous materials.
8. Condominium Conversion: If the ENGINEER’s services and Construction Documents are
intended for the design and construction of residential rental units, they shall be under the
ownership and control of a single, integrated OWNER. In the event the Project is changed to
any other purpose or use, including, but not limited to, subdivision into individual units for sale,
the ENGINEER shall have no responsibility, and shall be released from all obligations and
liabilities for the Project, and each and every right, license and/or ownership interest of the
OWNER of the Construction Documents shall be void. The OWNER shall be expressly
prohibited from making any further use of the Construction Documents for any purpose,
including, but not limited to, the conversion of the Project to another purpose. Further, the
OWNER agrees, to the fullest extent permitted by law, to indemnify, immediately defend, and
hold harmless the ENGINEER, its officers, directors, employees and subconsultants
(collectively, ENGINEER) against all damages, liabilities or costs, including reasonable
attorney’s fees and defense costs, arising out of or in any way connected with the services
performed under this Agreement.
9. Opinions of Probable Construction Cost: In providing opinions of probable construction cost,
the OWNER understands that the ENGINEER has no control over the cost or availability of
labor, equipment or materials, or over market conditions or the Contractor's method of pricing,
and that the ENGINEER’s opinions of probable construction costs are made on the basis of
the ENGINEER’s professional judgment and experience. The ENGINEER makes no warranty,
express or implied that the bids or the negotiated cost of the Work will not vary from the
ENGINEER’s opinion of probable construction cost.
10. Schedule for Rendering Services: The ENGINEER shall prepare and submit for OWNER
approval a schedule for the performance of the ENGINEER's services. This schedule shall
include reasonable allowances for review and approval times required by the OWNER,
performance of services by the OWNER's consultants, and review and approval times required
by public authorities having jurisdiction over the project. This schedule shall be equitably
adjusted as the project progresses, allowing for changes in scope, character or size of the
project requested by the OWNER, or for delays or other causes beyond the ENGINEER's
reasonable control.
11. Ownership of Reports, Drawings and Other Materials: The OWNER agrees that all reports,
drawings, letters, worksheets, plans, preliminary material tables, supportive data, documents
and other materials produced by the ENGINEER in the course of and for the purpose of
meeting this contract are the property of the ENGINEER, shall remain in the possession of the
ENGINEER and the ENGINEER has and retains all copyrights in such material. Upon
execution of this Agreement, the ENGINEER grants to the Owner a nonexclusive license to
reproduce the ENGINEER’s Instrument of Service solely for the purposes of constructing, using
and maintaining the Project provided that the Owner shall comply with all obligations including
the prompt payment of all sums when due, under this Agreement.
12. Alteration and Reuse of CAD Information: Because computer-aided design/drafting (CAD)
information stored in electronic form can be modified by other parties, intentionally or otherwise,
without notice or indication of said modifications, the ENGINEER reserves the right to remove
all indications of its ownership and/or involvement in the material from each electronic medium
not held in its possession. The OWNER may retain copies of the work performed by the
ENGINEER in CAD form. Release of electronic media will be by execution of the ENGINEER’s
Release of Electronic Media Request Form. Copies shall be for information and used by the
OWNER for the specific purpose for which the ENGINEER was engaged. Said material shall
The information in this document is the intellectual property of Progressive AE. It is intended solely for use by the
individual owner. Reproduction of any portion of this document for any purpose is strictly prohibited.
Standard Agreement Provisions
Engineering Services
not be used by the OWNER, or transferred to any other party, for use in other projects, additions
to the current project, or any other purpose for which the material was not strictly intended
without the ENGINEER's express written permission. Any unauthorized modification or reuse
of the materials shall be at the OWNER's sole risk, and the OWNER agrees to defend,
indemnify, and hold the ENGINEER harmless, from all claims, injuries, damages, losses,
expenses, and attorneys’ fees arising out of the unauthorized use or modification of all Project
documentation.
13. Payment Terms: Invoices will be submitted by the ENGINEER monthly, are due upon
presentation and shall be considered past due if not paid within thirty (30) calendar days of the
date of invoice. Invoices past due shall accrue interest at one percent (1%) per month from the
original invoice date. If past due invoices cause the ENGINEER to proceed with legal action or
collection services, the OWNER agrees to pay all of the ENGINEER's collection expenses
including reasonable attorney fees.
14. Disputed Invoices: If the OWNER objects to any portion of an invoice, the OWNER shall so
notify the ENGINEER in writing within ten (10) calendar days of receipt of the invoice. The
OWNER shall identify in writing the specific cause of the disagreement and the amount in
dispute and shall pay that portion of the invoice not in dispute in accordance with other payment
terms of this Agreement. Any dispute over invoiced amounts due which cannot be resolved
within ten (10) calendar days after presentation of invoice by direct negotiation between the
parties shall be resolved within thirty (30) calendar days in accordance with the Dispute
Resolution provision of this Agreement. Interest at one percent (1%) per month shall be paid
by the OWNER on all disputed invoice amounts that are subsequently resolved in the
ENGINEER's favor and shall be calculated on the unpaid balance from the due date of the
invoice.
15. Abandonment of Work: If any work is abandoned or suspended, the ENGINEER shall be paid
for services performed prior to receipt of written notice from the OWNER of abandonment or
suspension.
16. Professional Liability Insurance and Limitation of Liability: The ENGINEER maintains
professional liability insurance as part of its normal business practice. The OWNER agrees to
limit the ENGINEER's liability to the OWNER and to all Construction Contractors and
Subcontractors on the project due to the ENGINEER's negligent acts, errors, or omissions,
such that the total aggregate liability of the ENGINEER to all those named shall not exceed the
amount of the ENGINEER’s compensation for the Project.
17. Indemnification: Subject to the limitation in paragraph 16 above, the ENGINEER agrees to the
fullest extent permitted by law, to indemnify and hold harmless the OWNER against damages,
liabilities and costs arising from the negligent acts of the ENGINEER in the performance of
professional services under this Agreement, to the extent that the ENGINEER is responsible
for such damages, liabilities and costs. The ENGINEER shall not be obligated to indemnify the
OWNER for the OWNER's own negligence.
18. Consequential Damages: Notwithstanding any other provision of this Agreement, and to the
fullest extent permitted by law, neither the OWNER nor the ENGINEER, their respective
officers, directors, partners, employees, contractors or sub-consultants shall be liable to the
other or shall make any claim for any incidental, indirect or consequential damages arising out
of or connected in any way to the project or to this Agreement. This mutual waiver of incidental,
indirect and consequential damages shall include, but is not limited to, loss of use, loss of profit,
loss of business, loss of income, loss of reputation or any other consequential damages that
either party may have incurred from any cause of action including negligence, strict liability,
breach of contract and breach of strict or implied warranty. Both the OWNER and the
ENGINEER shall require similar waivers of consequential damages protecting all the entities
or persons named herein in all contracts and subcontracts with others involved in this project.
The information in this document is the intellectual property of Progressive AE. It is intended solely for use by the
individual owner. Reproduction of any portion of this document for any purpose is strictly prohibited.
Standard Agreement Provisions
Engineering Services
19. Dispute Resolution: In an effort to resolve any conflict, the duly authorized representatives of
each party will meet together in good faith in an attempt to resolve the conflict. If this attempted
resolution fails to resolve the claim or dispute, the parties agree that all claims, disputes, and
other matters in question between the parties arising out of or relating to this Agreement or
breach thereof first shall be submitted for non-binding mediation to any one of the following, as
agreed to by the parties: American Arbitration Association, American Intermediation Service,
Americord, Dispute Resolution, Inc., Endispute, or Judicate. The parties hereto agree to fully
cooperate and participate in good faith to resolve the dispute(s). The cost of mediation shall be
shared equally by the parties hereto. Any time expended in mediation shall not be included in
calculating the time for filing arbitration.
If mediation fails to resolve the claim or dispute, the matter shall be submitted to arbitration with
the American Arbitration Association under the Construction Industry rules, unless the parties
agree otherwise or unless a plaintiff not a party hereto institutes litigation in a court of competent
jurisdiction and said court takes personal jurisdiction over one of the parties hereto regarding
the same subject matter as in dispute between the parties hereto.
No arbitration arising out of or relating to this Agreement shall include, by consolidation, joinder,
or in any other manner, any additional person not a party to this Agreement except by written
consent of the parties and such consent to arbitration involving an additional person(s) shall
not constitute consent to arbitration of any dispute not described therein. This Agreement to
arbitrate and any agreement to arbitrate with an additional person(s) shall be specifically
enforceable under the prevailing arbitration law.
The demand for arbitration shall be made within one (1) year of the date the claimant knew or
should have known of the existence of the claim, dispute, or other matter but in no event later
than 3 years after the date of substantial completion of the project. If the demand for arbitration
is not effectuated within such times, the claim, dispute, or other matter shall be forever barred.
The decision rendered by the arbitrators shall be final, and judgment may be entered upon it in
accordance with applicable law in any court having jurisdiction thereof. In the event either party
makes a claim or brings an arbitration action or lawsuit against the other party for any act
arising out of the performance of the services hereunder, and the claimant fails to prove such
claim or action, then the claimant shall pay all legal and other costs (including attorneys' fees)
incurred by the other party in defense of such claim or action.
20. Hiring of Personnel: OWNER may not directly hire any employee of the ENGINEER. OWNER
agrees that it shall not, directly or indirectly solicit any employee of the ENGINEER from
accepting employment with OWNER, affiliate companies, or competitors of ENGINEER.
21. Site Signage: The ENGINEER shall be permitted to install on the project premises an exterior
sign of not more than 60 square feet for promotional purposes. The location of the sign shall
be mutually agreed upon by OWNER and ENGINEER, not to be unreasonably withheld by
either.
22. Means and Methods: The ENGINEER shall not have control over, charge of, or responsibility
for construction means, methods, techniques, sequences or procedures, or for safety
precautions and programs in connection with the work, nor shall the ENGINEER be responsible
for the constructor’s failure to perform work in accordance with the contract documents.
23. Evaluation of Work: The ENGINEER shall have authority to reject work that does not conform
to the contract documents, however, the ENGINEER does not have authority to stop work at
any time.
24. Buried Utilities: The OWNER will be responsible for furnishing the ENGINEER information
identifying the type of all underground utilities and verifying their specific locations. The
The information in this document is the intellectual property of Progressive AE. It is intended solely for use by the
individual owner. Reproduction of any portion of this document for any purpose is strictly prohibited.
Standard Agreement Provisions
Engineering Services
ENGINEER (or their subconsultant) will rely on this information and prepare a plan that shows
the locations intended for connections with respect to assumed locations of underground
utilities provided by the OWNER. The OWNER will approve of all locations of subsurface
penetrations prior to them being made. The OWNER agrees to waive all claims and causes of
action against the ENGINEER for damages to underground improvements. The OWNER
further agrees to indemnify and hold the ENGINEER harmless from any damage, liability or
cost, including reasonable attorney’s fees and defense costs for any property damage, injury
or economic loss arising or allegedly arising from subsurface penetrations.
25. ADA Requirements: The ENGINEER shall make a reasonable professional effort to interpret
applicable ADA requirements as they apply to this project but cannot warrant or guarantee
compliance due to the fact it is civil rights legislation and open to many different interpretations.
The information in this document is the intellectual property of Progressive AE. It is intended solely for use by the
individual owner. Reproduction of any portion of this document for any purpose is strictly prohibited.
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 13th, 2022 Title: Wastewater Committee
Submitted By: Leo Evans Department: Public Works
Brief Summary:
Staff is requesting approval of the attached resolution to designate the representatives for the
County Wastewater Committee.
Detailed Summary & Background:
Staff is requesting to update this resolution to replace the City Manager with the Deputy DPW
Director as the alternate representative on the County Wastewater Committee.
Goal/Focus Area/Action Item Addressed:
N/A
Amount Requested: $0 Amount Budgeted: $0
Fund(s) or Account(s): N/A Fund(s) or Account(s): N/A
Recommended Motion:
Approve the resolution appointing the DPW Director as the representative to the County
Wastewater Committee and the Deputy DPW Director as the alternate representative and
authorize the Clerk to sign.
Approvals: Guest(s) Invited / Presenting:
Immediate Division Head Information Technology Yes
Other Division Heads Communication No
For City Clerk Use Only:
Commission Action:
City of Muskegon
RESOLUTION
DESIGNATE AUTHORIZED REPRESENTATIVE FOR
MUSKEGON MUNICIPAL WASTEWATER MANAGEMENT COMMITTEE
WHEREAS, Muskegon County operates a wastewater system; and
WHEREAS, the City of Muskegon contracts with Muskegon County for wastewater treatment; and
WHEREAS, the parties served by the Muskegon County Wastewater Management System entered into a
master contract in 2010 which established the Muskegon Municipal Wastewater Management Committee;
NOW, THEREFORE LET IT BE RESOLVED, that Muskegon City Commissioners designate the Public
Works Director as the City’s Authorized Representative to the Muskegon Municipal Wastewater
Management Committee; and
That Muskegon City Commissioners designate the Deputy Public Works Director as the City’s Alternate
Representative to the same committee; and
That the Authorized Representative and Alternate Representative are hereby authorized to vote on the
City’s behalf at committee meetings.
Yeas:
Nays:
I certify that the above Resolution was adopted by the City Commission of the City of Muskegon on
August 30, 2022.
BY: Ann Meisch, City Clerk
______________________________________________________________________________
Signature Date
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 13th, 2022 Title: Shoreline Drive Traffic Control
Submitted By: Leo Evans Department: Public Works
Brief Summary:
Staff is requesting authorization to accept the bid from Give Em A Brake Safety in the amount of
$31,075.00 to provide the Traffic Control services for the Shoreline Drive Road Diet Pilot.
Detailed Summary & Background:
Staff solicited bids for traffic control services for the Shoreline Drive Road Diet project based on a
split phase approach with a portion to be completed during the fall of 2022 and a second portion to
be completed in the Spring/Summer of 2023.
One (1) bid was received as follows:
• $31,075.0 – Give Em A Brake Safety (Grandville, MI)
Staff is recommending the contract be awarded to the low bidder for the project.
This bid will provide the traffic control necessary for both stages of the pilot and likely represents
the largest cost aside from the traffic engineering and study components of the project.
There will be at least one additional item to consider for this project which is still being developed
and refined by staff. The additional item will include features that invite users to imagine future
uses of the reclaimed space. Staff is still working to secure commitments and pricing for those
features and anticipates having that back for discussion at a later date if the price warrants
additional commission action.
Goal/Focus Area/Action Item Addressed:
Designation Community & Quality of Life / Improved Access to the Waterfront
Financial Infrastructure / Decrease infrastructure burden on residents
Amount Requested: $31,075.00 Amount Budgeted: $115,000 (21/22 & 22/23)
Fund(s) or Account(s): 202 Fund(s) or Account(s): 202
Recommended Motion:
Authorize staff to accept the bid from Give Em A Brake Safety in the amount of $31,075 to provide
traffic control services in conjunction with the Shoreline Drive Road Diet Pilot.
Approvals: Guest(s) Invited / Presenting:
Immediate Division Head Information Technology Yes
Other Division Heads Communication No
For City Clerk Use Only:
Commission Action:
1.5 BID TABULATION
City of Muskegon Project Engineer: LE Date: 6/4/2019
Engineering Department Project Number: SP
Project description: Seaway Drive RR Bridge Painting
Engineer's Estimate: $ 80,000.00
Line Item Pay Code Description Units Quantity Unit Price Total
1 1500001 Mobilization, Max $8,000.00 LSUM 1
2 7137051 X02 of 61151 - Partial Cleaning & Coating LSUM 1
3 7137051 X03 of 61151 - Partial Cleaning & Coating LSUM 1
4 8127051 Traffic Control LSUM 1
BID TOTAL:
H 91843 Bid Tabulation 1 of 2
BID TABULATION (as read)
City of Muskegon Project Engineer: LE Date: 8/30/2022
Egineering Department Project Number: TBD
Project description: Shoreline Drive Road Diet
Give Em A Brake Safety
Line Item Pay Code Description Units Quantity Unit Price Total
1 N/A Phase 1 Traffic Control LSUM 1 $ 11,275.00 $ 11,275.00
2 N/A Phase 2 Traffic Control LSUM 1 $ 5,550.00 $ 5,550.00
3 N/A Phase 3 Traffic Control LSUM 1 $ 14,250.00 $ 14,250.00
Total: $ 31,075.00
Page 2 of 2
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 13th, 2022 Title: MDEGLE Grant Agreement
Submitted By: Leo Evans Department: Public Works
Brief Summary:
Staff is requesting authorization to sign the grant agreement with MDEGLE.
Detailed Summary & Background:
The City of Muskegon was awarded a $687,000 grant from the Michigan Department of
Environment, Great Lakes, and Energy (MDEGLE) through their Drinking Water Infrastructure
(DWI) Program. The grant is tied to the 2023 project on Sanford Street; with the remainder of the
project expenses financed through the state revolving fund programs which provide additional
principal forgiveness in addition to the grant dollars awarded through the DWI program.
The grant and revolving fund programs continue to help ensure we can deliver an efficient and
effective capital program within our water / sewer systems. Even though the programs require
additional work to meet compliance along with carrying several provisions that would otherwise be
optional for the city (Buy America for Iron/Steel Components & Prevailing Wage) the grants,
principal forgiveness, and financing terms available to the city through these programs have
provided immense benefit.
Accepting the grant will not run concurrent with our other work on Sanford Street and does not add
any expenses to the City.
Staff is recommending acceptance of the grant and plans to continue pursuing additional
opportunities for future financing within the state programs.
Goal/Focus Area/Action Item Addressed:
Financial Infrastructure / Sustainability in financial practices and infrastructure / Take Advantage of
External Revenue Sources
Amount Requested: $0 Amount Budgeted: $0
Fund(s) or Account(s): N/A Fund(s) or Account(s): N/A
Recommended Motion:
Authorize staff to sign and accept the grant agreement with MDEGLE.
Approvals: Guest(s) Invited / Presenting:
Immediate Division Head Information Technology Yes
Other Division Heads Communication No
For City Clerk Use Only:
Commission Action:
DRINKING WATER INFRASTRUCTURE GRANT AGREEMENT
BETWEEN THE
MICHIGAN DEPARTMENT OF ENVIRONMENT, GREAT LAKES, AND ENERGY
AND CITY OF MUSKEGON
This Grant Agreement (“Agreement”) is made between the Michigan Department of Environment, Great
Lakes, and Energy (EGLE), Finance Division (“State"), and the City of Muskegon ("Grantee").
The purpose of this Agreement is to provide funding in exchange for work to be performed for the
project named below. The State is authorized to provide grant assistance pursuant to Public Act 57 of
2019. Legislative appropriation of Funds for grant assistance is set forth in Public Act 57 of 2019. This
Agreement is subject to the terms and conditions specified herein.
PROJECT INFORMATION:
Project Name: Water System Improvements Project #: D7566-01
Amount of grant: $687,000 State Funding: 100% Grant
Amount of DWSRF loan: $1,603,000 PROJECT TOTAL: $2,290,000
Start Date:10/1/2019 End Date: Admin Completion of DWSRF No. 7566-01
GRANTEE CONTACT INFORMATION:
Name/Title: Mr. Leo Evans, Public Works Director
Organization: City of Muskegon
Address: 933 Terrace Street
City, State, ZIP: Muskegon MI 49440
Phone Number: (231) 724-6920
E-Mail Address: leo.evans@shorelinecity.com
Federal ID Number (Required for Federal Funding): N/A
Grantee DUNs/UEI Number (Required for Federal Funding): N/A
SIGMA Vendor Number: CV0047927
Michigan.gov/EGLE Page 1 of 11 EQP1030 (Rev. 5/2022)
STATE’S CONTACT INFORMATION:
Name/Title: Mr. David J. Worthington, Senior Project Manager
Division/Bureau/Office: Water Infrastructure Funding and Financing Section, Finance Division
Address: 525 West Allegan
City, State, ZIP: Lansing, MI 48933
Phone Number: 517-554-1835
E-Mail Address: worthingtond@michigan.gov
The individuals signing below certify by their signatures that they are authorized to sign this Agreement
on behalf of their agencies and that the parties will fulfill the terms of this Agreement, including any
attached appendices, as set forth herein.
FOR THE GRANTEE:
Leo Evans, Public Works Director
Signature Name/Title Date
FOR THE STATE:
Kelly Green, Administrator
Signature Name/Title Date
Michigan.gov/EGLE Page 2 of 12 EQP1030 (Rev. 5/2022)
I. PROJECT SCOPE
This Agreement and its appendices constitute the entire Agreement between the State and the
Grantee and may be modified only by written agreement between the State and the Grantee.
(A) The scope of this project is limited to the activities specified in Appendix A and such activities as are
authorized by the State under this Agreement. Any change in project scope requires prior written
approval in accordance with Section III, Changes, in this Agreement.
(B) By acceptance of this Agreement, the Grantee commits to complete the project identified in
Appendix A within the time period allowed for in this Agreement and in accordance with the terms and
conditions of this Agreement.
II. AGREEMENT PERIOD
Upon signature by the State, the Agreement shall be effective from the Start Date until the End Date on
page 1. The State shall have no responsibility to provide funding to the Grantee for project work
performed except between the Start Date and the End Date specified on page 1. Expenditures made
by the Grantee prior to the Start Date or after the End Date of this Agreement are not eligible for
payment under this Agreement.
III. CHANGES
Any changes to this Agreement shall be requested by the Grantee or the State in writing and
implemented only upon approval in writing by the State. The State reserves the right to deny
requests for changes to the Agreement or to the appendices. No changes can be implemented
without approval by the State.
IV. GRANTEE DELIVERABLES AND REPORTING REQUIREMENTS
The Grantee shall submit deliverables and follow reporting requirements specified in Appendix A of
this Agreement.
(A) The Grantee must complete and submit financial and progress reports according to a form and
format prescribed by the State and must include supporting documentation of eligible project
expenses. These reports shall be submitted via the Drinking Water State Revolving Fund
(DWSRF) Disbursement Request Form as provided by EGLE, and due according to the following:
Reporting Period Due Date
Jan 1 – Jan 31 Feb 28
Feb 1 – Feb 28 Mar 31
Mar 1 – Mar 31 April 30
April 1 – April 30 May 31
May 1 – May 31 June 30
June 1 – June 30 July 31
Michigan.gov/EGLE Page 3 of 12 EQP1030 (Rev. 5/2022)
July 1 – July 31 Aug 31
Aug 1 – Aug 31 Sept 30
Sept 1 – Sept 30 Before October 15*
Oct 1 – Oct 31 Nov 30
Nov 1 – Nov 30 Dec 31
Dec 1 – Dec 31 Jan 31
*Due to the State’s year-end closing procedures, there will be an accelerated due date for the report
covering September 1 – September 30. Advance notification regarding the due date for the period
ending September 30 will be sent to the Grantee. If the Grantee is unable to submit a report in early
October for the period ending September 30, an estimate of expenditures through September 30
must be submitted to allow the State to complete its accounting for that fiscal year.
The forms provided by the State shall be submitted to the State’s contact at the address on page 1.
All required supporting documentation (invoices, proof of payment, etc.) for expenses must be
included with the report.
(B) The Grantee shall provide a final project report in a format prescribed by the State. The Grantee
shall submit the final status report, including all supporting documentation for expenses, along with
the final project report and any other outstanding products within 30 days of substantial completion of
the project or the End Date of the Agreement.
V. GRANTEE RESPONSIBILITIES
(A) The Grantee agrees to abide by all applicable local, state, and federal laws, rules, ordinances,
and regulations in the performance of this grant.
(B) All local, state, and federal permits, if required, are the responsibility of the Grantee. Award of this
grant is not a guarantee of permit approval by the State.
(C) The Grantee shall be solely responsible to pay all applicable taxes and fees, if any, that arise from
the Grantee’s receipt or execution of this grant.
(D) The Grantee is responsible for the professional quality, technical accuracy, timely completion, and
coordination of all designs, drawings, specifications, reports, and other services submitted to the
State under this Agreement. The Grantee shall, without additional compensation, correct or revise
any errors, omissions, or other deficiencies in drawings, designs, specifications, reports, or other
services.
(E) The State’s approval of drawings, designs, specifications, reports, and incidental work or
materials furnished hereunder shall not in any way relieve the Grantee of responsibility for the
technical adequacy of the work. The State’s review, approval, acceptance, or payment for any of the
services shall not be construed as a waiver of any rights under this Agreement or of any cause of
action arising out of the performance of this Agreement.
Michigan.gov/EGLE Page 4 of 12 EQP1030 (Rev. 5/2022)
(F) The Grantee acknowledges that it is a crime to knowingly and willingly file false information with
the State for the purpose of obtaining this Agreement or any payment under the Agreement, and that
any such filing may subject the Grantee, its agents, and/or employees to criminal and civil
prosecution and/or termination of the grant.
VI. USE OF MATERIAL
Unless otherwise specified in this Agreement, the Grantee may release information or material
developed under this Agreement, provided it is acknowledged that the State funded all or a portion of
its development.
The State, and federal awarding agency, if applicable, retains a royalty-free, nonexclusive and
irrevocable right to reproduce, publish, and use in whole or in part, and authorize others to do so, any
copyrightable material or research data submitted under this grant whether or not the material is
copyrighted by the Grantee or another person. The Grantee will only submit materials that the State
can use in accordance with this paragraph.
VII. ASSIGNABILITY
The Grantee shall not assign this Agreement or assign or delegate any of its duties or obligations
under this Agreement to any other party without the prior written consent of the State. The State
does not assume responsibility regarding the contractual relationships between the Grantee and any
subcontractor.
VIII. SUBCONTRACTS
The State reserves the right to deny the use of any consultant, contractor, associate, or other
personnel to perform any portion of the project. The Grantee is solely responsible for all contractual
activities performed under this Agreement. Further, the State will consider the Grantee to be the sole
point of contact with regard to contractual matters, including payment of any and all charges resulting
from the anticipated Grant. All subcontractors used by the Grantee in performing the project shall be
subject to the provisions of this Agreement and shall be qualified to perform the duties required.
IX. NON-DISCRIMINATION
The Grantee shall comply with the Elliott Larsen Civil Rights Act, 1976 PA 453, as amended,
MCL 37.2101 et seq., the Persons with Disabilities Civil Rights Act, 1976 PA 220, as amended, MCL
37.1101 et seq., and all other federal, state, and local fair employment practices and equal
opportunity laws and covenants that it shall not discriminate against any employee or applicant for
employment, to be employed in the performance of this Agreement, with respect to his or her hire,
tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to
employment, because of his or her race, religion, color, national origin, age, sex, height, weight,
marital status, or physical or mental disability that is unrelated to the individual’s ability to perform the
duties of a particular job or position. The Grantee agrees to include in every subcontract entered into
for the performance of this Agreement this covenant not to discriminate in employment. A breach of
this covenant is a material breach of this Agreement.
Michigan.gov/EGLE Page 5 of 12 EQP1030 (Rev. 5/2022)
X. UNFAIR LABOR PRACTICES
The Grantee shall comply with the Employers Engaging in Unfair Labor Practices Act, 1980 PA 278,
as amended, MCL 423.321 et seq.
XI. LIABILITY
(A) The Grantee, not the State, is responsible for all liabilities as a result of claims, judgments, or
costs arising out of activities to be carried out by the Grantee under this Agreement, if the liability is
caused by the Grantee, or any employee or agent of the Grantee acting within the scope of their
employment or agency.
(B) Nothing in this Agreement should be construed as a waiver of any governmental immunity by the
Grantee, the State, its agencies, or their employees as provided by statute or court decisions.
XII. CONFLICT OF INTEREST
No government employee, or member of the legislative, judicial, or executive branches, or member of
the Grantee’s Board of Directors, its employees, partner agencies, or their families shall benefit
financially from any part of this Agreement.
XIII. ANTI-LOBBYING
If all or a portion of this Agreement is funded with federal funds, then in accordance with 2 CFR 200,
as appropriate, the Grantee shall comply with the Anti-Lobbying Act, which prohibits the use of all
project funds regardless of source, to engage in lobbying the state or federal government or in
litigation against the State. Further, the Grantee shall require that the language of this assurance be
included in the award documents of all subawards at all tiers.
If all or a portion of this Agreement is funded with state funds, then the Grantee shall not use any of
the grant funds awarded in this Agreement for the purpose of lobbying as defined in the State of
Michigan’s lobbying statute, MCL 4.415(2). “‘Lobbying’ means communicating directly with an official
of the executive branch of state government or an official in the legislative branch of state government
for the purpose of influencing legislative or administrative action.” The Grantee shall not use any of
the grant funds awarded in this Agreement for the purpose of litigation against the State. Further, the
Grantee shall require that language of this assurance be included in the award documents of all
subawards at all tiers.
XIV. DEBARMENT AND SUSPENSION
By signing this Agreement, the Grantee certifies that it has checked the federal
debarment/suspension list at www.SAM.gov to verify that its agents, and its subcontractors:
(1) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or
voluntarily excluded from covered transactions by any federal department or the state.
(2) Have not within a three-year period preceding this Agreement been convicted of or had a civil
judgment rendered against them for commission of fraud or a criminal offense in connection
Michigan.gov/EGLE Page 6 of 12 EQP1030 (Rev. 5/2022)
with obtaining, attempting to obtain, or performing a public (federal, state, or local) transaction
or contract under a public transaction, as defined in 45 CFR 1185; violation of federal or state
antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or
destruction of records, making false statements, or receiving stolen property.
(3) Are not presently indicted or otherwise criminally or civilly charged by a government entity
(federal, state, or local) with commission of any of the offenses enumerated in subsection (2).
(4) Have not within a three-year period preceding this Agreement had one or more public
transactions (federal, state, or local) terminated for cause or default.
(5) Will comply with all applicable requirements of all other state or federal laws, executive orders,
regulations, and policies governing this program.
XV. AUDIT AND ACCESS TO RECORDS
The State reserves the right to conduct a programmatic and financial audit of the project, and the State
may withhold payment until the audit is satisfactorily completed. The Grantee will be required to
maintain all pertinent records and evidence pertaining to this Agreement, including grant and any
required matching funds, in accordance with generally accepted accounting principles and other
procedures specified by the State. The State or any of its duly authorized representatives must have
access, upon reasonable notice, to such books, records, documents, and other evidence for the
purpose of inspection, audit, and copying. The Grantee will provide proper facilities for such access
and inspection. All records must be maintained for a minimum of [five] years after the final payment
has been issued to the Grantee by the State.
XVI. INSURANCE
(A) The Grantee must maintain insurance or self-insurance that will protect it from claims that may
arise from the Grantee’s actions under this Agreement.
(B) The Grantee must comply with applicable workers’ compensation laws while engaging in activities
authorized under this Agreement.
XVII. OTHER SOURCES OF FUNDING
The Grantee guarantees that any claims for reimbursement made to the State under this Agreement
must not be financed by any source other than the State under the terms of this Agreement. If
funding is received through any other source, the Grantee agrees to delete from Grantee's billings, or
to immediately refund to the State, the total amount representing such duplication of funding.
XVIII. COMPENSATION
(A) A breakdown of costs allowed under this Agreement is identified in Appendix A. The State will pay
the Grantee a total amount not to exceed the amount on page 1 of this Agreement, in accordance with
Appendix A, and only for expenses incurred [and paid]. All other costs necessary to complete the
project are the sole responsibility of the Grantee.
Michigan.gov/EGLE Page 7 of 12 EQP1030 (Rev. 5/2022)
(B) Expenses incurred by the Grantee prior to the Start Date or after the End Date of this Agreement
are not allowed under the Agreement, [unless otherwise specified in Appendix A].
(C) The State will approve payment requests after approval of reports and related documentation as
required under this Agreement.
(D) The State reserves the right to request additional information necessary to substantiate payment
requests.
(E) Payments under this Agreement may be processed by Electronic Funds Transfer (EFT). The
Grantee may register to receive payments by EFT at the SIGMA Vendor Self Service web site
(https://sigma.michigan.gov/webapp/PRDVSS2X1/AltSelfService).
XIX. CLOSEOUT
(A) A determination of project completion, which may include a site inspection and an audit, shall be
made by the State after the Grantee has met any match obligations, satisfactorily completed the
activities, and provided products and deliverables described in Appendix A.
(B) Upon issuance of final payment from the State, the Grantee releases the State of all claims
against the State arising under this Agreement. Unless otherwise provided in this Agreement or by
State law, final payment under this Agreement shall not constitute a waiver of the State’s claims
against the Grantee.
(C) The Grantee shall immediately refund to the State any payments in excess of the costs allowed
by this Agreement.
XX. CANCELLATION
This Agreement may be canceled by the State, upon 30 days written notice, due to Executive Order,
budgetary reduction, other lack of funding, upon request by the Grantee, or upon mutual agreement
by the State and Grantee. The State may honor requests for just and equitable compensation to the
Grantee for all satisfactory and eligible work completed under this Agreement up until 30 days after
written notice, upon which time all outstanding reports and documents are due to the State and the
State will no longer be liable to pay the grantee for any further charges to the grant.
XXI. TERMINATION
(A) This Agreement may be terminated by the State as follows.
(1) Upon 30 days written notice to the Grantee:
a. If the Grantee fails to comply with the terms and conditions of the Agreement, or with the
requirements of the authorizing legislation cited on page 1, or the rules promulgated
thereunder, or other applicable law or rules.
b. If the Grantee knowingly and willingly presents false information to the State for the purpose
of obtaining this Agreement or any payment under this Agreement.
Michigan.gov/EGLE Page 8 of 12 EQP1030 (Rev. 5/2022)
c. If the State finds that the Grantee, or any of the Grantee’s agents or representatives, offered
or gave gratuities, favors, or gifts of monetary value to any official, employee, or agent of the
State in an attempt to secure a subcontract or favorable treatment in awarding, amending,
or making any determinations related to the performance of this Agreement.
d. If the Grantee or any subcontractor, manufacturer, or supplier of the Grantee appears in the
register of persons engaging in unfair labor practices that is compiled by the Michigan
Department of Licensing and Regulatory Affairs or its successor.
e. During the 30-day written notice period, the State shall withhold payment for any findings
under subparagraphs a through d, above and the Grantee will immediately cease charging
to the grant and stop earning match for the project (if applicable).
(2) Immediately and without further liability to the State if the Grantee, or any agent of the
Grantee, or any agent of any subcontract is:
a. Convicted of a criminal offense incident to the application for or performance of a State,
public, or private contract or subcontract;
b. Convicted of a criminal offense, including but not limited to any of the following:
embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen
property, or attempting to influence a public employee to breach the ethical conduct
standards for State of Michigan employees;
c. Convicted under State or federal antitrust statutes; or
d. Convicted of any other criminal offense that, in the sole discretion of the State, reflects on
the Grantee’s business integrity.
e. Added to the federal or state Suspension and Debarment list.
(B) If a grant is terminated, the State reserves the right to require the Grantee to repay all or a portion
of funds received under this Agreement.
XXII. IRAN SANCTIONS ACT
By signing this Agreement the Grantee is certifying that it is not an Iran linked business, and that its
contractors are not Iran linked businesses, as defined in MCL 129.312.
XXIII. DISCLOSURE OF INFORMATION
All reports and other printed or electronic material prepared by or for the Grantee under the
Agreement will not be distributed without the prior written consent of the State except for items
disclosed in response to a Freedom of Information Act request, Court Order or subpoena.
Michigan.gov/EGLE Page 9 of 12 EQP1030 (Rev. 5/2022)
APPENDIX A
Project Overview: Abandonment of a redundant 6-inch diameter water main (WM) on Sanford Street
(Stanford) from Laketon Avenue to Southern Avenue (Southern). All water services will be replaced
and tapped to the existing 16-inch diameter WM. Replacement of an existing 6-inch diameter WM
with approximately 1,283 linear feet (LF) of 8-inch diameter WM on Sanford from Southern to Morrall
Avenue. Replacement of 124 LF of 16-inch diameter WM at the Southern/Sanford intersection.
Replacement of approximately 116 LF of 6-inch diameter WM at the Apple Avenue and Sanford
intersection. All water services will be replaced up to the meter inside the building, or to 18 inches
inside the building, along Sanford from Laketon to Apple.
EGLE approved estimated project costs include:
Task Budget
Planning Costs $0
Rate Methodology Development Costs $0
Design Engineering Costs $81,581
Legal/Financial Service Fees $34,325
Administrative Costs $551
Bond Counsel Fees $24,500
Bond Advertisement Costs $2,500
Bid Advertisement Costs $0
Capitalized Interest $0
Land Acquisition/Relocation Costs $0
Land Purchase Costs $0
Construction Engineering Costs $133,513
Construction Costs (bid contracts) $1,884,179
Construction Costs (force account) $0
Equipment Costs $0
Other Project Costs (Additional Contingency) 38,000
Contingencies 90,851
DWSRF-Eligible Project Cost Subtotal (1) $2,290,000
DWSRF Loan No. 7566-01 Amount ($1,603,000)
Total Grant Amount* $687,000
Michigan.gov/EGLE Page 10 of 12 EQP1030 (Rev.
5/2022)
*A DWSRF applicant is eligible for the lesser of 30 percent of the DWSRF-Eligible Project Cost
Subtotal(1) or $2,000,000.
The following services have been determined to be ineligible for Grant assistance, for the reasons
listed, and have been excluded from the approved project costs shown above: Additional utility/road
improvements on Sanford Street to be funded by the CWSRF and/or outside the scope of the
DWSRF project.
Program-specific Requirements:
The Drinking Water Infrastructure (DWI) grant provides assistance related to DWSRF Loan No. 7566-
01. Therefore, the requirements for the DWSRF loan apply to the DWI grant; reference the conditions
in the loan documents.
The project scope for the DWI grant and the DWSRF loan are the same; eligible project costs will be
disbursed for the DWI grant until those awarded funds are exhausted, and the remainder of the
eligible project costs will be financed through the DWSRF loan, up to the Order of Approval (OOA)
amount. Applicants will ensure there is no overlap in funding/financing sources when requesting
reimbursement.
By signing this Agreement, the Grantee attests that the project funded through this DWI grant is
included in the Grantee’s community asset management plan.
Grant Administration and Close Out:
As mentioned previously, in Section IV, GRANTEE DELIVERABLES AND REPORTING
REQUIREMENTS, the Grantee must complete and submit financial and progress reports and must
include supporting documentation of eligible project expenses. Reports shall include the DWSRF
Disbursement Request Form with supporting cost documentation (i.e. vendor invoices), a report
including a brief description of work completed during the reporting period, and any delays occurred
or anticipated. Reports shall be due within 30 days of the end of each monthly reporting period. If
applicant chooses not to submit reimbursement requests monthly, the EGLE project manager must
be notified that no submission will be completed for the month.
The Grantee will submit for reimbursement on the DWSRF Disbursement Request Form, and EGLE
will convert it to the standard grant Financial Status Report Form for internal processing purposes.
The Grantee must provide a final project report, which shall include a summary of work completed
utilizing grant funds. The Grantee shall submit the final status report, including the DWSRF
Disbursement Request Form with all supporting documentation for expenses, along with the final
project report and any other outstanding products within 30 days of substantial completion of the
grant-funded portion of the project or the end date of the agreement whichever occurs first.
The DWI grant end date will correspond with the Administrative Completion of DWSRF Loan No.
7566-01. Therefore, the DWI grant is considered Administratively Complete when the DWSRF loan
is. If the final DWSRF loan amount is less than the OOA amount, the grantee may be required to pay
back a portion of the grant, within 90 days of being informed to do so, as the eligible DWI grant
amount is the lesser of 30 percent of the DWSRF-Eligible Project Cost Subtotal or $2,000,000.
Michigan.gov/EGLE Page 11 of 12 EQP1030 (Rev.
5/2022)
Grant information including grantee name, grant award amount, and a project summary will be shared
with the legislature and posted on EGLEs website.
If you need this information in an alternate format, contact EGLE-Accessibility@Michigan.gov or
call 800-662-9278.
EGLE does not discriminate on the basis of race, sex, religion, age, national origin, color,
marital status, disability, political beliefs, height, weight, genetic information, or sexual
orientation in the administration of any of its programs or activities, and prohibits intimidation
and retaliation, as required by applicable laws and regulations. Questions or concerns should
be directed to the Nondiscrimination Compliance Coordinator at EGLE-
NondiscriminationCC@Michigan.gov or 517-249-0906.
This form and its contents are subject to the Freedom of Information Act and may be released
to the public.
Michigan.gov/EGLE Page 12 of 12 EQP1030 (Rev.
5/2022)
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: 9/13/22 Title: Rezoning of 2043,
2051, 2065 and 2075 Dowd
to Form Based Code, Urban
Residential
Submitted By: Mike Franzak Department: Planning
Brief Summary: Staff-initiated request to rezone the properties at 2043, 2051, 2065 and 2075
Dowd St from R-3, High Density Single Family Residential to Form Based Code, Urban
Residential.
Detailed Summary & Background:
Staff is in discussions with a developer that is requesting to build duplexes on the lots. These properties
are located about 600 feet north of the duplexes currently being constructed at the corner of
Hackley/Dowd. Those properties were approved for a rezoning in 2021. There are also large apartment
complexes located just to the southwest of these parcels. The Planning Commission recommended
approval of the rezoning by a 5-0 vote at their August 11 meeting.
Goal/Focus Area/Action Item Addressed:
Goal 2: Economic Development, Housing and Business. Focus Area: Diverse Housing Types.
Action Item 2.5: Increase variety of Housing Types.
Amount Requested: Amount Budgeted:
Fund(s) or Account(s): Fund(s) or Account(s):
Recommended Motion: To approve the request to rezone the properties at 2043, 2051, 2065 and
2075 Dowd St from R-3, High Density Single Family Residential to Form Based Code, Urban
Residential.
Approvals: Guest(s) Invited / Presenting
Immediate Division Head Information Technology
Yes
Other Division Heads Communication
No
Legal Review
For City Clerk Use Only:
Commission Action:
Planning Commission Excerpt:
SUMMARY
1. The City owns the vacant lots at 2043, 2051, 2065 and 2075 Dowd, which are currently zoned R-
3, High Density Single Family Residential.
2. The lots each measure 61.8” x 75” and are located behind Campbell Playground.
3. The FBC-UR designation would allow for single-family houses, rowhouses, duplexes, and small
multiplexes (3-4 units). The city is currently working with a developer that would like to construct
duplexes on site.
4. These properties are located about 600 feet north of the duplexes currently being constructed at
the corner of Hackley/Dowd. Those properties were approved for a rezoning in 2021. There are
also large apartment complexes located just to the southwest of these parcels.
5. Notice was sent to all properties within 300 feet. At the time of this writing, staff had not received
any comments from the public.
Zoning Map
Aerial Map
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 2043, 2051, 2065 and 2075 Dowd
St from R-1 to FBC, UR
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 2043, 2051, 2065 and 2075 Dowd
St from R-3 to FBC, UR.
CITY OF MUSKEGON ORCHARD GROVE ADDITION LOT 485
CITY OF MUSKEGON ORCHARD GROVE ADDITION LOT 486
CITY OF MUSKEGON ORCHARD GROVE ADDITION LOT 487
CITY OF MUSKEGON ORCHARD GROVE ADDITION LOT 488
This ordinance adopted:
Ayes:
Nayes:
Adoption Date:
Effective Date:
First Reading:
Second Reading:
CITY OF MUSKEGON
By: __________________________
Ann Meisch, MMC
City Clerk
CERTIFICATE (Rezoning 2043, 2051, 2065 and 2075 Dowd St from R-3 to FBC-UR)
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 13th day of September 2022, 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: ___________________, 2022 ________________________________
Ann Meisch, MMC
Clerk, City of Muskegon
Publish Notice of Adoption to be published once within ten (10) days of final adoption.
CITY OF MUSKEGON
NOTICE OF ADOPTION
Please take notice that on September 13, 2022, the City Commission of the City of Muskegon adopted an
ordinance amending the zoning map to provide for the change of zoning for 2043, 2051, 2065 and 2075 Dowd
St from R-1 to FBC-UR:
CITY OF MUSKEGON ORCHARD GROVE ADDITION LOT 485
CITY OF MUSKEGON ORCHARD GROVE ADDITION LOT 486
CITY OF MUSKEGON ORCHARD GROVE ADDITION LOT 487
CITY OF MUSKEGON ORCHARD GROVE ADDITION LOT 488
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 ____________________, 2022 CITY OF MUSKEGON
By ___________________________
Ann Meisch, MMC
City Clerk
---------------------------------------------------------------------------------------------------------------------
PUBLISH ONCE WITHIN TEN (10) DAYS OF FINAL PASSAGE.
Account No. 101-80400-5354
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 13, 2022 Title: US Army Corps of
Engineers Lease
Submitted By: LeighAnn Mikesell Department: City Manager
Brief Summary: Staff is requesting approval to renew the lease with the US Army Corps of
Engineers for use of the navigation structures at the Muskegon Harbor Federal Navigation Project.
Detailed Summary & Background:
The lease would authorize the continuation of passive recreational activities on the US South
Breakwater, the US South Revetment and Pier, and allow for the operation and maintenance of
pier safety devices on the US North and South Breakwaters.
Goal/Focus Area/Action Item Addressed: Goal 1 – Destination Community & Quality of Life, Key
Focus Area: Improved access to the waterfront
Amount Requested: N/A Amount Budgeted: N/A
Fund(s) or Account(s): Fund(s) or Account(s):
Recommended Motion: to approve the lease renewal with the US Army Corps of Engineers and
authorize the mayor and clerk to sign.
Approvals: Guest(s) Invited / Presenting
Immediate Division Head Information Technology
Other Division Heads Communication Yes
Legal Review No
For City Clerk Use Only:
Commission Action:
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 13, 2022 Title: Juneteenth Holiday
Submitted By: LeighAnn Mikesell Department: City Manager
Brief Summary: Staff is seeking approval to add the federally recognized Juneteenth holiday as a
recognized holiday for all city staff starting in 2023.
Detailed Summary & Background: The holiday will be observed on the same date as the federal
Juneteenth holiday each year.
Each union’s language relating to holiday pay, time off for holidays, compensatory time, and
overtime on a holiday will apply to the Juneteenth holiday as it would to any other recognized
holiday for that union.
Goal/Focus Area/Action Item Addressed:
Amount Requested: Included in current Amount Budgeted: N/A
salaries
Fund(s) or Account(s): Fund(s) or Account(s):
Recommended Motion: to approve the inclusion of Juneteenth as a recognized holiday for all city
staff beginning in 2023.
Approvals: Get approval from division head at a minimum prior Guest(s) Invited / Presenting
to sending to the Clerk.
Immediate Division Head Information Technology Yes
Other Division Heads Communication No
Legal Review
For City Clerk Use Only:
Commission Action:
LETTER OF UNDERSTANDING
between the
City of Muskegon
And
Service Employees International Union, Local 517M
Service Employees International Union, Local 517M Unit 2
Fraternal Order of Police
Command Officers Association of Michigan
Muskegon Fire Fighters Union
8-15-22
The city will begin recognizing Juneteenth as holiday for all city employees beginning in 2023. The
holiday will be observed on the same date as the federal Juneteenth holiday each year.
Each union’s language relating to holiday pay, time off for holidays, compensatory time, and overtime
on a holiday will apply to the Juneteenth holiday as it would to any other recognized holiday for that
union.
_________________________________________ _______________________________________
LeighAnn Mikesell, Interim City Manager FOP
_________________________________________ _______________________________________
SEIU, Local 517M COAM
_________________________________________ _______________________________________
SEIU, Local 517M, Unit 2 MFFU
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: Sept 13, 2022 Title: Email migration to the
cloud with enhanced security,
backup, and user training.
Submitted By: Jason Boes, Director of Information Technology Department: Information
Technology
Brief Summary: Authorize the migration of our on-prem email systems to a cloud-hosted solution
adding advanced email protection, backup, archival, and user security awareness training.
Detailed Summary & Background:
To improve the security and functionality of the user email experience, The I.T. department would
like to upgrade and move our email systems to Microsoft’s government cloud protected by a
Barracuda Networks advanced email security solution. This migration provides benefits such as
larger mailbox storage (50GB per mailbox), advanced next-gen AI threat protection, cloud-to-cloud
backup and archival, and end-user security awareness training. The initial cost for the first year of
cloud-hosted services and full implementation is $64,000. The yearly cloud subscription fee for
subsequent years will be $49,000. Broken down these subscription amounts are $4 per user per
month for email and $10.89 per user per month for protection, training, archival and backup.
Amounts are budgeted.
Goal/Focus Area/Action Item Addressed:
Long Term Goal 3: Community Connection – Focus Area: Communications
Amount Requested: $64,000 Amount Budgeted: $64,000
Fund(s) or Account(s): 101-228 Fund(s) or Account(s): 101-228
Recommended Motion: To approve the implementation of cloud-hosted email with added
advanced protection, archival, backup, and training.
Approvals: Guest(s) Invited / Presenting
Immediate Division Head Information Technology
Yes
Other Division Heads Communication
Legal Review No
For City Clerk Use Only:
Commission Action:
Thank you for choosing CDW. We have received your quote.
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QUOTE # QUOTE DATE QUOTE REFERENCE CUSTOMER # GRAND TOTAL
MVZM291 7/8/2022 BCDA EP PREM 5515496 $35,937.00
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ITEM QTY CDW# UNIT PRICE EXT. PRICE
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CITY OF MUSKEGON CITY OF MUSKEGON
ACCTS PAYABLE JASON BOES
933 TERRACE ST 933 TERRACE ST
MUSKEGON, MI 49440-1348 MUSKEGON, MI 49440-1348
Phone: (231) 724-4126 Phone: (231) 724-4126
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LEASE OPTIONS
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Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 13, Title: District Library Board Appointment
2022
Submitted By: Ann Marie Meisch Department: Clerk
Brief Summary: To concur with staff recommendations on reappointment to District Library Board.
Detailed Summary:
Staff recommends reappointing Clayton Hardiman to the District Library Board – Mayor/City
Commission Appointment – Term expiring 6/30/2026
Amount Requested: N/A Amount Budgeted: N/A
Fund(s) or Account(s): N/A Fund(s) or Account(s): N/A
Recommended Motion: To concur with the staff recommendation to accept the reappointment to
the District Library Board
For City Clerk Use Only:
Commission Action:
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 13, 2022 Title: Adelaide Pointe
Cooperative Use Agreement
Submitted By: LeighAnn Mikesell Department: City Manager
Brief Summary: Staff is seeking approval of the updated cooperative use agreement and
rescission of the former development agreement for the Adelaide Pointe development.
Detailed Summary & Background: A development agreement for the Adelaide Pointe development
was approved by the commission on October 26, 2021. Staff and legal counsel are negotiating
with the developer on revised terms and seek to rescind the former agreement.
Staff is seeking approval of the revised cooperative use agreement as the first step in a final
development agreement for the property. The cooperative use agreement addresses the various
property exchanges, how property will be accessible to the public, and collaborative pursuit of
funding. Staff and legal counsel have worked through numerous iterations of this agreement with
the developer and have reached agreement that all can support.
Staff will seek approval of a revised development agreement at a future meeting.
Goal/Focus Area/Action Item Addressed:
Focus Area: improved access to the waterfront, blight cleanup, progress toward completion of
ongoing economic development projects
Action Item 2022-2.6: Complete Adelaide Pointe public improvements
Amount Requested: N/A Amount Budgeted: N/A
Fund(s) or Account(s): Fund(s) or Account(s):
Recommended Motion: to approve the updated cooperative use agreement and rescind the
development agreement formerly approved on October 26, 2021 for the Adelaide Pointe
development.
Approvals: Guest(s) Invited / Presenting
Immediate Division Head Information Technology
Yes
Other Division Heads Communication
Legal Review No
For City Clerk Use Only:
Commission Action:
Development Agreement
ADELAIDE POINTE
THIS DEVELOPMENT AGREEMENT (“Agreement”) is made October 26, 2021 (“Effective
Date”) between the City of Muskegon, a Michigan Municipal Corporation (“City”), with an address of 933
Terrace St., Muskegon, MI 49440, and Adelaide Pointe Qozb, LLC (“APQ”), with an address of 1204 W.
Western Avenue, Muskegon, MI 49441. City and APQ are at times referred to as a “Party” or together as
“Parties”.
Background
APQ owns approximately 30 acres of waterfront brownfield property which is located at the west
end of West Western Avenue within the City of Muskegon and legally described and depicted on Exhibit
A (“APQ Property”).
The City owns certain property adjacent to, and to the east of, the APQ Property which the City
has previously used for public small boat slip rentals and related activities and legally described and
depicted on Exhibit B (“City Property”). The APQ Property and the City Property may be collectively
referred to as the “Property”.
APQ intends to develop the Property for mixed uses including boat storage, boat dockage, in-out
boat service, marinas, residential condominiums, commercial uses, and open space and recreational areas
(“Development”). The specific improvements to be included in the Development will be defined in this
Agreement and the Planned Unit Development Agreement (“PUD”) to be submitted to the City
(“Development Agreements”).
The Parties agree as follows:
1. Background. The Parties agree the Background paragraphs are true and correct and are
incorporated into the body of this Agreement.
2. APQ Obligations. APQ will develop both the APQ Property and the City Property as a
mixed-use development including boat storage, boat dockage, in-out boat service, marinas,
residential condominiums, commercial uses, and open space and recreational areas in
accordance with the plans and specifications attached to this Agreement as Exhibit C and
in the PUD (“APQ Improvements”). To the extent the plans and specifications in the PUD
differ from the plans and specifications attached to this Agreement, this Agreement shall
control.
3. Schedule for APQ Obligations. The schedule for construction of the APQ Improvements
is set forth on Exhibit D. (Schedule of milestones, improvements and costs)
A summary of the schedule follows:
a. 2021 Repair existing buildings and improve site (“Milestone A”);
b. 2022 Clear and improve municipal peninsula (east of small boat basin) and both APQ
peninsulas. Expand size of small boat basin as depicted on Exhibit C and install an in/out dock.
Improve small boat basin, including removal of the existing rest room facilities and construct
new rest room facilities, implement dry rack boat storage; (“Milestone B”);
c. 2023 Construct the new marina, including public transient dock (“Milestone C”);
1
d. 2023 Construct the multi-use building (“Milestone D”);
e. 2025 Construct Condominium Building #1 with 50 residential living units (“Milestone E”);
f. 2026 Construct Condominium Building #2 with 50 residential living units (“Milestone F”);
g. 2027 Construct Condominium Building #3 with 50 residential living units (“Milestone G”);
h. 2028 Construct Condominium Building #4 with 50 residential living units (“Milestone H”);
i. 2029 Construct Condominium Building #5 with 50 residential living units (“Milestone I”); and,
j. 2030 Construct Condominium Building #6 with 50 residential living units (“Milestone J”).
To the extent that the construction of any building requires the relocation of the bike trail,
APQ shall cover the cost of the trail relocation and installing additional landscaping. City
and APQ shall cooperate in working with the State of Michigan in the conversion of the
bike trail from its current location to the new location, if moved. City has no objection to
the public crossing the bike path, provided APQ provides a safe crossing area.
4. Peninsulas. APQ shall provide the City a public access easement to the APQ peninsulas
as long as the City provides to APQ exclusive full access and management of the lift well,
boat ramp and in/out dock, subject to approval of the State of Michigan. APQ shall have
naming rights for the APQ peninsulas that are part of the Project. APQ shall have the right
to manage the APQ peninsulas and schedule events to take place there and charge normal
use fees for that service consistent with other venues, subject a reservation policy mutually
agreeable the City and APQ. The City shall allow APQ to construct improvements on the
peninsulas owned by the City and fill submerged land as necessary to complete
improvements. The cost of improvement made by APQ on the APQ peninsula and the City
peninsula shall not be less than $1,200,000.
5. City Obligations. The City will design and construct street improvements, watermain
improvements, and sanitary sewer improvements, lift well in small boat basin, heavy-duty
triple axle trailer ramp, sidewalks, landscaping, and improvements on surrounding areas,
some of which are owned by the City or APQ for the benefit APQ and the City. The public
improvements shall be constructed in accordance with the plans and specifications attached
as Exhibit E (“Public Improvements”). In addition, the City agrees to coordinate the design
and installation of the other utilities, including gas, telephone, cable and internet (“Other
Utilities”). The Other Utilities shall be built within proposed public right-of-way or public
utility easements. APQ agrees to grant such easements as are necessary to construct the
Other Utilities. The City will be responsible for the construction, and installation of the
Public Improvements together with construction engineering costs, in connection
therewith. The City will coordinate the installation of the Other Utilities.
6. Schedule for City Obligations.
a. Phased Development. APQ and City acknowledge the Public Improvements cannot be
constructed simultaneously. The City may need to decide that certain of the planned
Public Improvements may need to be delayed or not made. The construction of the
planned Public Improvements shall be constructed in accordance with the schedule
attached to this Agreement as Exhibit F (Schedule of milestones, improvements and
costs) and phased as follows:
i. The initial phase shall be the City's construction of, either by City personnel
or contractors, watermain improvements, storm sewer improvements and
sanitary sewer improvements at the west end of Western Avenue and on the
Property.
2
ii. The second phase of development shall be construction of roads, curbs and
sidewalks, landscaping, lift well and heavy-duty triple axle trailer ramp located
in the small boat basin.
b. Reservation of City. City shall have no obligation to construct any of the Public
Improvements until the City, in its sole discretion, is satisfied that funds are available
to pay the City, or its contractors, for any of the work to be performed. In the event
City has not made the determination that it is satisfied that such funds are available by
December 31, 2023, this Agreement automatically terminates.
Funding for Public Improvements.
c. Public Grants and Loans. APQ has applied for, or is anticipating applying for, state
and federal grants and loans. The City agrees to cooperate with, and as required by the
relevant programs, to apply for such grants, loans or incentives as reasonably requested
by APQ. More specifically, APQ is anticipating the following grants and government
loans:
i. Boating Infrastructure Grant.
ii. U.S. Department of Fish and Wildlife BIG Grant.
iii. EGLE Loan.
iv. EGLE Grant.
v. State of Michigan MEDC Grant.
vi. State of Michigan Brownfield.
All proceeds from public grants or loans received by APQ for which the City was the
applicant or proceeds are specifically allocated for the cost of construction of Public
Improvements, shall be paid to City upon receipt until such time as the cost of Public
Improvements is paid in full.
d. Brownfield Tax Increment Financing. APQ has submitted to the City of Muskegon
Brownfield Redevelopment Authority, a Michigan public body corporate authority
(the “Authority”), whose address is 933 Terrace Street, Muskegon, Michigan 49440
an amendment to the current brownfield plan. Pursuant to the Brownfield
Redevelopment Financing Act, Act 381 of the Public Acts of Michigan of 1996 as
amended (“Act 381”) the Authority adopted the brownfield plan amendment on
October 12, 2021 (the “Brownfield Plan Amendment”) to add the APQ Property.
i. The Property is included in the Brownfield Plan Amendment as an “eligible
property” because it is a “facility” as defined by Part 201 of the Natural
Resources and Environmental Protection Act (“Part 201”).
ii. Neither the City nor APQ is a liable party, under Part 201, for remediation of
any existing contamination on the Property.
iii. APQ has and will continue to conduct Eligible Activities (as defined in Act
381) on the Property to address environmental and other brownfield
conditions, in a collaborative effort to position the Property for redevelopment.
Actual expenditures by the Parties to undertake eligible environmental
activities on the Property are estimated to be $35 million dollars not including
3
interest. Eligible demolition and site preparation costs incurred by these same
parties is estimated to exceed $13 million dollars. These efforts are aimed at
facilitating the redevelopment of the Property as a transformational mixed-use
project, including residential and various commercial uses (the “Project”).
iv. The Project will include demolition activities, performance of baseline
environmental assessment activities, due care and other environmental
response activities, site preparation activities, demolition activities,
construction of infrastructure improvements, Brownfield Plan Amendment
and work plan preparation, contingency, interest and other Eligible Activities,
all as described in the Brownfield Plan Amendment and eligible for
reimbursement under Act 381.
v. The cost of Eligible Activities may be incurred by the City and APQ, The total
cost of the Eligible Activities in the Brownfield Plan Amendment, including
contingencies, is estimated to be $35 million dollars (the “Total Eligible
Brownfield TIF Costs”). To accommodate the lapse in time from when costs
of Eligible Activities are incurred to when tax increment revenues become
available for reimbursement of those costs, interest at the rate of 5% per annum
is also included in the Brownfield Plan Amendment in the estimated total
amount of $28million dollars (collectively, the interest plus the costs of
Eligible Activities are referred to as the “Total Eligible Brownfield TIF
Costs”).
vi. The Eligible Activities will facilitate redevelopment of the Property which will
improve the environmental and aesthetic condition of the Property, increase
employment within the City, increase tax base within the City, and otherwise
enhance the economic vitality, environmental health and quality of life in the
City.
vii. Act 381 permits the Authority to capture and use the school tax (where
applicable) and local property tax revenues (both real and personal property)
generated from the incremental increase in property value of a redeveloped
brownfield site constituting an “eligible property” under Act 381 to pay or to
reimburse the cost of Eligible Activities conducted on the “eligible property”
(the “Brownfield TIF Revenue”).
viii. In accordance with Act 381, the parties desire to establish a procedure for using
the available Brownfield TIF Revenue generated from the Property to
reimburse the City and APQ for completion of Eligible Activities on the
Property in amounts not to exceed the Total Eligible Brownfield TIF Costs.
ix. During the Term (defined below) of this Agreement, and except as set forth in
Paragraph 3 below, the Authority shall reimburse the City and APQ for the
cost of Eligible Activities conducted on the Property from the Brownfield TIF
Revenue collected from the Property in accordance with the Brownfield Plan
Amendment. The amount reimbursed to the City and APQ for the Eligible
Activities shall not exceed the lesser of (a) the cost of Eligible Activities
incurred by the Property Owner plus interest, or (b) the Total Eligible
Brownfield TIF Costs plus interest. The Authority shall capture Brownfield
TIF Revenue from the Property and reimburse the City and APQ for the cost
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of Eligible Activities incurred by the Parties until the earlier of the Parties
being fully reimbursed or December 31, 2056 (“Term”). If the Term ends
before the full reimbursement of all Total Eligible Brownfield TIF Costs, the
last reimbursement payment by the Authority shall be the summer and winter
tax increment collected during the final year of this Agreement.
x. Reimbursement payments shall be made on a semi-annual basis as incremental
local and school taxes are captured and available.
xi. During the term of this Agreement, the Authority shall capture all approved
and authorized Brownfield TIF Revenue from the Property and use those
revenues as provided in this Agreement.
xii. Reimbursement Process.
1. The City and APQ shall periodically each jointly submit to the
Authority a “Request for Cost Reimbursement” of Eligible Activities
paid for by the City and APQ during the term of this Agreement. All
costs for the Eligible Activities must be consistent with the approved
Brownfield Plan Amendment. The City and APQ must include
documentation sufficient for the Authority to determine whether the
costs incurred were for Eligible Activities, including detailed
construction draws or invoices and proof of payment or lien waivers.
Copies of all invoices for Eligible Activities must note what Eligible
Activities they support.
2. Within forty-five (45) days after receiving a Request for Cost
Reimbursement, the Authority shall pay to the City and APQ the
amounts for which submissions have been made pursuant to this
Agreement from which the submission may be wholly or partially paid
from available Brownfield TIF Revenue from the Property.
Until the City is fully reimbursed for all of the cost of Eligible
Activities incurred by the City as listed in the approved Brownfield
Plan Amendment, including the cost of the lift well and improvements
on and under Western Avenue, all Brownfield TIF Revenue captured
for Eligible Activities shall be paid to the City and no one else. Once
the City is fully reimbursed for the costs it incurred for Eligible
Activities on the Property as listed in the approved Brownfield
Amendment, 100% of all Brownfield TIF Revenue captured shall be
paid to any other party which has incurred Eligible Expenses,
including APQ, until all Eligible Expenses have been fully reimbursed
or until the end of the Term, whichever first occurs.
3. All requests for Cost reimbursement submitted by APQ in connection
with this Agreement and the Brownfield Reimbursement Agreement
between City, APQ, and the City of Muskegon Brownfield
Redevelopment Authority, see attached Exhibit M, and all requests for
cost reimbursement submitted by future owners of all or a portion of
the APQ Property pursuant to a separate Development and
Reimbursement Agreement(s), shall be reimbursed in the order in
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which they are received by the City of Muskegon Brownfield
Redevelopment Authority from the portion of the Brownfield TIF
revenue, excluding the portion to be paid to City, as described above.
4. The Parties shall cooperate with the Authority’s review by providing
information and documentation to supplement the Request for Cost
Reimbursement which may be reasonably requested by the Authority
during its review period.
5. All or any portion of any Request for Cost Reimbursement that is not
paid within 45 days after receipt by the Authority shall accrue simple
interest at the rate of five percent (5%) per annum from the date the
Request for Cost Reimbursement is submitted to the Authority for
payment until the earlier of the date of full reimbursement, including
interest. The payment of interest shall be subject to the following
limitations (i) to the extent there is not sufficient Brownfield TIF
Revenue captured and collected in a fiscal year and permitted to be
used to pay interest accruing in such fiscal year, any unpaid interest
shall not be paid, but shall carry over to the next fiscal year, (ii) interest
carried over to subsequent fiscal years shall not accrue interest (i.e.,
no interest on interest), and (iii) interest on School Taxes captured
shall only be payable to the extent permitted by the Michigan Strategic
Fund (“MSF”) and/or the Michigan Department of Environmental
Quality (“MDEQ”).
6. The Authority shall have no obligation to reimburse the City or any
other entity for Eligible Costs or interest from Brownfield TIF
Revenue captured after 35 years after the date of the adoption of the
Development and Reimbursement Agreement.
xiii. Allocation of Base Value and Priority of Reimbursements.
1. The initial taxable value of the Property as of the date of this
Agreement is $903,810, as set forth in the Brownfield Plan
Amendment (“Base Value”). If the Property is divided into two or
more separate taxable parcels in connection with the development of
the Project, the Base Value shall be allocated to each resulting parcel
based upon the relative number of square feet of each parcel. The Base
Value allocated to a separate undeveloped parcel in this manner shall
be the base value of that parcel for purposes of calculating Brownfield
TIF Revenue, regardless of when any Development and
Reimbursement Agreement is entered into in connection with the
redevelopment of that parcel. Brownfield TIF Revenue generated
from any separate parcel divided from the Property after the date of
this Agreement shall be available for reimbursement of the
Authority’s Administrative Fee and payment of all requests for cost
reimbursement submitted by owners of all or any portion of the
Property.
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2. Notwithstanding any provision in this Agreement to the contrary, the
Authority’s annual TIF Management Administrative Fee, as described
in the Brownfield Plan Amendment, shall be paid to the Authority
each year to the extent that Brownfield TIF Revenue has been captured
and collected during that year, prior to the payment of any Request for
Cost Reimbursement.
xiv. Adjustments.
1. Until the cost of eligible activities is fully reimbursed to the City, APQ
agrees to waive any appeal of any tax assessment or reassessment of
any portion of the Property; provided, however, that this waiver shall
not be binding on any person or entity who acquires title to all or any
portion of the Property after the date of this Agreement.
2. If, due to an appeal of any tax assessment or reassessment of any
portion of the Property, or for any other reason the Authority is
required to reimburse any Brownfield TIF Revenue previously paid to
the City, APQ or any future owner to any tax levying unit of
government, the Authority may deduct the amount of any such
reimbursement, including interest and penalties, from any amounts
due and owing the City and APQ. If all amounts due the City and APQ
under this Agreement have been fully paid or the Authority is no
longer obligated to make any further payments to the City or APQ, the
Authority shall invoice the City and APQ for the amount of such
reimbursement and the City and APQ shall pay the Authority such
invoiced amount within 45 days of receipt of the invoice. Amounts
invoiced and paid to the Authority by the City or APQ pursuant to this
Section shall be reinstated as Eligible Activities for which the City and
APQ shall have the opportunity to be reimbursed in accordance with
the terms, conditions and limitations of this Agreement.
xv. Legislative Authorization.
This Agreement is governed by and subject to the restrictions set forth in Act
381. If there is legislation enacted in the future that alters or affects the amount
of Brownfield TIF Revenue subject to capture, eligible property, or Eligible
Activities, then the Property Owner’s rights and the Authority’s obligations
under this Agreement shall be modified accordingly as required by law, or by
agreement of the parties.
e. Special Assessment.
i. Design and Construction of Interior Roads and Utilities. The City agrees to
design and construct Public Improvements and coordinate the installation of
the Other Utilities.
ii. Excess Cost and Special Assessment. APQ agrees that the Property shall be
subject to a special assessment ("Special Assessment") in the amount of
$1,000,000 to the extent any amount of the cost of design, permitting,
construction and installation of the Public Improvements and Other Utilities is
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unpaid after July 1, 2026. APQ consents to the Special Assessment and agrees
to execute the Consent to Special Assessment attached as Exhibit G. City
agrees to discharge the Special Assessment upon completion by APQ of all of
the following improvements:
1. 275 Slip Marina and all associated infrastructure;
2. Multi-purpose building as depicted on the approved site plan; and,
3. First of the 50 Unit Condominium Buildings depicted on the site plan
7. Cooperation During Development. The Parties shall cooperate during the Project in
accordance with the Cooperative Development and Use Agreement attached as Exhibit I.
8. Easement for Public Access. Within 5 days of the date when the lift well is constructed,
APQ shall grant to the City the easement in accordance with the Easement attached as
Exhibit J.
9. Ground Lease. Contemporaneously with the execution of this Agreement, the Parties shall
execute the ground lease in accordance with the Ground Lease attached as Exhibit K.
10. Management. City agrees that APQ will be the on-site manager for the Travel lift/forklift,
lift well and in/out dock and will maintain all Property at its sole expense for a period of
30 years unless sooner terminated by APQ. APQ may charge use fees in an amount
comparable to fees charged by other marina for similar services.
11. State and Federal Liens. APQ acknowledges that the City Property is subject to the state
and federal liens as set forth on Exhibit L (“Government Liens”). APQ understands that
the Government Liens have restrictions and limitations on development and that some liens
may be perpetual. APQ has reviewed each Government Lien and is entering into this
Agreement with full knowledge of each Government Lien, the restrictions and limitations
imposed on development of the City Property and the duration of each Government Lien.
12. Limitations of Development on City Property subject to Government Liens. It is the
understanding of the Parties after meeting with DNR:
a. The DNR will permit the restroom facility to be moved so long as a replacement
restroom is built on the City Property.
b. The bike trail can be moved to the extent the new location is of comparable size and
quality.
c. The small boat basin may be re-purposed so long as APQ provides the same or better
public access to Muskegon Lake.
13. Third Party Consents. The Parties recognize that the development of the Project will
require the consent of approval of third parties including:
a. Michigan Department of Environment, Great Lakes & Energy;
b. Michigan Department of Natural Resources;
c. Holder of the conservation easement on the APQ Property; and,
d. Muskegon County Drain Commissioner.
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In the event a consent or approval cannot be timely obtained, the Parties shall work together
to find a mutually agreeable solution.
14. Notices. All notices, approvals, consents and other communications required under this
Agreement shall be in writing and shall be deemed given: (i) when delivered in person; (ii)
when sent by fax or email: (iii) when sent by a nationally-recognized receipted overnight
delivery service with delivery fees prepaid; or (iv) when sent by united states first-class,
registered, or certified mail, postage prepaid. The notice shall be effective immediately
upon personal delivery or upon transmission of the fax or email; one day after depositing
with a nationally recognized overnight delivery service; and five days after sending by first
class, registered, or certified mail. Notices shall be sent to the parties as follows:
To: City of Muskegon To: APQ
933 Terrace Street 1204 W. Western Ave.
Muskegon, MI 49440 Muskegon, MI 49440
Attn: City Manager Attn: Ryan Leestma
w/copy to: w/copy to:
Parmenter O’Toole Jaffe, Raitt Heuer & Weiss, P.C.
601 Terrace Street 27777 Franklin Rd. Suite 2500
Muskegon, Michigan 49440 Southfield, Michigan 48034
Attn: City Attorney Attn: Kenneth J. Clarkson
15. Recording. This Agreement shall not be recorded; however, upon the request of either
party hereto, the other party shall join in the execution of a memorandum or "short form"
of this Agreement for the purposes of recordation.
16. Force Majeure. Notwithstanding anything herein to the contrary, if due to a Force
Majeure Event (defined below), APQ and/or City is prevented from timely performing
under this Agreement or any third‐party providing services or required information in
connection with this Agreement (e.g.: lender, appraiser, title company, surveyor,
environmental consultants, governmental jurisdictions, etc.) closes its offices, suspends
operations or otherwise prevents APQ and/or the City from timely performing under the
Agreement as originally contemplated, then the applicable outstanding dates, deadlines or
time periods herein, shall each be extended for the duration of the Force Majeure Event
and shall resume on such date that APQ and the City, as applicable, are once again able to
perform their obligations under this Agreement. To invoke the tolling of time periods as
set forth herein for a Force Majeure Event, the applicable party must send written notice to
the other party specifying the reason for invocation and the date on which the tolling of
time begins and a subsequent notice shall be delivered to confirm the date the Force
Majeure Event ended. The term "Force Majeure Event" as used herein shall mean the
following: Act of God; strike, lockout, or other labor or industrial disturbance; war;
blockade; public riot; fire; storm; flood; explosion; or other delay caused by unforeseeable
circumstances beyond the reasonable control of APQ or the City as applicable, including
widespread sickness (including sickness causing quarantine and other "stay at home" or
"shelter in place" orders, and including, but not limited to, the Coronavirus Disease 2019.
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17. Severability. If any term, provision or condition contained in this Agreement shall, to any
extent, be invalid or unenforceable, the remainder of this Agreement (or the application of
such term, provision or condition to persons or circumstances other than those in respect
of which it is invalid or unenforceable) shall not be affected thereby, and each term,
provision or condition of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
18. Miscellaneous. This Agreement may be amended or modified only by the written
agreement of APQ and City. Each exhibit attached to this Agreement is incorporated and
made a part of this Agreement as though more fully set forth in this Agreement. If the
deadline for performing any act would otherwise fall on a weekend day or a holiday, such
deadline shall automatically be extended to the next succeeding business day. This
Agreement shall be interpreted under and governed by the laws of the State of Michigan.
All representations and warranties made in this Agreement by APQ and City shall survive
the termination of this Agreement for a period of one year.
19. Counterparts; Electronic Signatures. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all of which together
shall be deemed to be one and the same instrument. Electronically imaged signatures may
be used in place of original signatures on this Agreement. APQ and City intend to be bound
by the signatures on the electronically imaged document, are aware that the other party will
rely on such signatures, and hereby waive any defenses to the enforcement of the terms of
this Agreement based on the form of signature.
20. Binding Effect. This Agreement shall be binding upon and enforceable by the parties and
their respective legal representatives, successors, and assigns.
21. Assignment or Delegation. Neither party shall assign or delegate all or any portion of its
rights or obligations contained in this Agreement without the express or prior written
approval of the other party, in which approval may be withheld in the other party's sole
discretion.
22. Estoppel. If requested by APQ, City will provide an estoppel certificate to such party as
requested by APQ which certificate shall provide, if true, that the Development Agreement
and the exhibits represent the entire agreement between APQ and City and that no defaults
exist under the Development Agreement and no events have occurred that would, with
notice or the expiration of a period of time, constitute a default.
[Signatures appear on following two pages.]
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[City Signature Page 1 to Development Agreement]
The foregoing Development Agreement is accepted and agreed to.
CITY:
CITY OF MUSKEGON,
a municipal corporation
BY________________________
Name: Stephen J. Gawron
Title: Mayor
Date: ____________________, 2021
BY: ________________________
Name: Ann Meisch
Title: Clerk
Date: ____________________, 2021
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[APQ Signature Page 2 to Development Agreement]
The foregoing Development Agreement is accepted and agreed to.
APQ:
ADELAIDE POINTE QOZB, LLC,
A Michigan limited liability company
By
Name:
Title:
Date: ____________________, 2021
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Exhibit A
APQ Property Legal Description and Survey
(Available upon Request by City)
13
Exhibit B
City Property Legal Description and Survey
(Available upon Request by APQ)
14
Exhibit C
APQ Plans and Specifications
15
Exhibit D
Intentionally Omitted
16
Exhibit E
City Plans and Specifications
To be attached at a later date.
17
Exhibit F
Intentionally Omitted
18
Exhibit G
APQ Consent to Special Assessment
To be attached at a later date
19
Exhibit H
Intentionally Omitted
20
Exhibit I
Cooperative Development and Use Agreement
21
Exhibit J
Easement for Public Access
22
Exhibit K
Ground Lease
23
Exhibit L
Government Liens
To be attached at a later date
24
Exhibit M
Brownfield Reimbursement Agreement
25
Exhibit N
Intentionally Omitted
26
COOPERATIVE DEVELOPMENT AND USE AGREEMENT
ADELAIDE POINTE
THIS COOPERATIVE DEVELOPMENT AND USE AGREEMENT (“Agreement”) is made
and entered into this day of , 2022 (“Effective Date”), by and between the CITY OF
MUSKEGON, a Michigan Municipal Corporation (“City”), with an address of 933 Terrace St., Muskegon,
MI 49440, and ADELAIDE POINTE QOZB, LLC (“APQ”), with an address of 1204 W. Western
Avenue, Muskegon, MI 49441. City and APQ are at times referred to as “Party(ies).”
RECITALS
APQ owns approximately 30 acres of waterfront brownfield property which is located at the west
end of West Western Avenue within the City of Muskegon (“APQ Property”).
The City owns certain property adjacent to, and to the east of, the APQ Property which the City has
previously used for public small boat slip rentals (“City Property”). The APQ Property and the City Property
are hereinafter collectively referred to as the “Property”.
APQ intends to develop the APQ Property and the City Property together for mixed uses including
boat storage, boat dockage, marinas, residential condominiums, commercial uses, and open space and
recreational areas (“Development”). The specific improvements to be included in the Development are
defined in the Planned Unit Development (“PUD”). The Muskegon City Commission approved the PUD
on September 28, 2021 and, upon approval of this Agreement by the City Commission, this Agreement
satisfies the third condition of the City Commission’s PUD approval.
As part of the Development, APQ intends to develop the City Property for boat dockage, boat
launching, and recreational purposes including fishing, picnicking and other park-type activities.
Additionally, as part of the Development, APQ intends to develop areas within the APQ Property
for recreational purposes including fishing and other park-type activities.
APQ wishes to grant an easement to the City to provide public access to Muskegon Lake
(“Easement Property”).
APQ and the City agree that it is in the public's best interests to work together to pursue funding
from various third-party sources, including but not limited to State of Michigan or Federal appropriations,
grants, loans, charitable contributions etc.
The APQ Property, the City Property, and the Easement Property are generally identified on the
attached Exhibit A.
The Parties mutually agree that it is in their best interests to allow (i) APQ to develop and operate
the City Property, (ii) the members of the public to use the City Property and those portions of the APQ
Property highlighted in Exhibit A and (iii) grant an easement to the City for public access to Muskegon
Lake and (iv) collaboratively pursue funding sources to make improvements to City and APQ Property.
NOW, THEREFORE, in consideration of the promises and the respective and mutual agreements
contained herein, said parties hereby agree as follows:
1. Recitals. The Parties agree the Recitals above are true and correct and are incorporated into
the body of this Agreement as if set forth in full herein.
2. City Property Access. The City agrees that APQ may enter upon the City Property and
conduct whatever activities are necessary to improve the City Property in accordance with the PUD
approval. APQ or the City may construct boat launching and docking facilities in the small boat basin. APQ
will have exclusive use and operation of boat launching and docking facilities newly constructed on the
City Property and the non-exclusive use and operation of the remainder of the small boat basin and other
City Property adjacent to the small boat basin during the term of this Agreement (“City Property
Improvements”). Furthermore, the City agrees that APQ may operate the City Property as required for
APQ’s boat launching and storage businesses or for uses that are specified in the PUD approval. Upon
completion of the improvements, APQ must provide the public at large with rights of ingress, egress,
parking, passage and use (for the intended purposes) to the City Property. APQ shall complete the City
Property Improvements contemporaneously with the completion of the APQ Property Improvements
(defined in Section 3). APQ may restrict access to the boat launching facilities, and the dock facilities to
individuals who have contracted with APQ for their use. The public at large may use the recreational
improvements, including park-like amenities, the shopper dock, subject to reasonable rules and regulations
adopted by APQ to protect the public and the improvements. APQ may close and restrict access to the City
Property as necessary to repair damage or destruction from whatever cause, to construct improvements and
as may be necessary to protect the public from injury, harm and damage. APQ shall design, construct and
operate all improvements all at the sole expense of APQ consistent with all laws, statutes, ordinances,
orders, rules, regulations, permits, licenses, authorizations, directives and requirements of all governments
and governmental authorities, which now or hereafter may be applicable to the City Property and the
operation of the City Property.
3. APQ Property Access. APQ or the City may construct at its sole expense park type
improvements on the two peninsulas on the APQ Property as APQ determines to be reasonable in its sole
discretion (APQ Property Improvements”). APQ shall complete the APQ Property Improvements
contemporaneously with the completion of the City Property Improvements. So long as the APQ Property
is safe for use, APQ must provide the public at large with access of use (for the intended purposes) to
easement property as depicted in Exhibit A which is improved for general recreational purposes including
fishing, picnicking and other parktype activities. APQ may restrict access to other areas of the APQ
Property which are designated in the PUD approval for private and commercial use, such as condominiums,
restaurants, commercial facilities, restaurants docks and marinas. APQ may close and restrict access to the
easement area on the APQ Property as necessary to repair damage or destruction from whatever cause, to
construct improvements and as may be necessary to protect the public from injury, harm and damage. APQ
shall design, construct and operate all improvements consistent with all laws, statutes, ordinances, orders,
rules, regulations, permits, licenses, authorizations, directives and requirements of all governments and
governmental authorities, which now or hereafter may be applicable to the APQ Property and the operation
of the APQ Property. APQ retains naming rights for each park.
4. Easement. Contemporaneously with the entry into this Agreement, the City and APQ shall
enter into the easement agreement on the terms set forth in the Easement attached as Exhibit B to provide
public access to Muskegon Lake and a park-type area for recreational activities, including fishing and quiet
use and enjoyment.
5. Mutual Pursuit of Funds. Synchronous to these activities and efforts the City and APQ
agree to actively assist one another in the capture and use of funds arising from state and federal
appropriations, grants, loans, 3rd party agreements, or charitable contributions so as to assist with the
implementation and development of the PUD in all regards including but not limited to facilities, amenities,
infrastructure, development, construction etc.
6. Ingress, Egress and Crossings. City and APQ agree that the benefit and uses described in
this Agreement necessitates reasonable use and crossing of both public and private property. Neither party
shall interfere with the transitory access and use of the public or private property required to access the
property for the uses and benefits provided by this Agreement.
7. Term. The term of this Agreement shall be fifteen (15) years from the date this Agreement
is finally approved, and fully executed, by City and APQ. The City and APQ shall have the option to
terminate this Agreement at any time following the expiration date of the term by providing thirty (30) days
prior written notice to the other party. Such termination shall automatically terminate all rights of APQ to
use the City Property or the City Property Improvements and shall automatically terminate all rights of City
to use the APQ Property or the APQ Property Improvements. Each party shall execute any documents
reasonably requested by the other party to effectuate such termination of this Agreement and termination
of rights of use. Until terminated by either Party, the term shall be extended on a year-by-year basis.
8. City Liens. APQ shall keep the City Property free from liens arising out of any work
performed, materials furnished, or obligations incurred by or for APQ, and agrees to bond against or
discharge any lien within 30 days after request by the City. APQ shall reimburse the City for all reasonable
out-of-pocket expenses incurred by the City as a result of any such liens and/or the removal of same within
30 days after receipt by APQ of a paid invoice therefor. This shall not prevent APQ from granting security
interests against its personal property located on the City Property.
The City shall keep the City Property and the APQ Property free from liens arising out of any work
performed, materials furnished, or obligations incurred by or for the City aside from those liens and
encumbrances currently existing and agrees to bond against or discharge any lien within 30 days after
request by APQ. The City shall reimburse APQ for all reasonable out-of-pocket expenses incurred by APQ
as a result of any such liens and/or the removal of same within 30 days after receipt by the City of a paid
invoice therefor.
9. Hazardous Materials. APQ shall not cause or permit the use, generation, storage,
treatment or disposal in, on or about the City Property of any pollutant, contaminant, waste, hazardous,
toxic or radioactive substance or material or mold (collectively, “Hazardous Materials”) in violation of any
Federal, state or local laws from time to time in effect. City shall not cause or permit the use, generation,
storage, treatment or disposal in, on or about the APQ Property of any Hazardous Materials in violation of
any Federal, state or local laws from time to time in effect.
10. Operation of the Property. APQ shall apply for and use its good faith efforts to obtain
and maintain, all licenses and permits required in connection with the operation and management of the
Property. The City agrees to execute any and all applications and such other documents as shall be
reasonably required and to otherwise cooperate, in all reasonable respects, with APQ in the application for,
and obtaining and maintaining, such licenses and permits. APQ will comply with the approved PUD and
all applicable statutes, ordinances, licenses and permits. APQ may operate a boat launching concession on
City Property. Any additional concessions on City Property must be pre-approved by the City in accordance
with standard City policies and procedures, including sharing of fees and expenses.
11. City Representations, Warranties and Covenants. The City represents to APQ that:
(a) City is a duly organized, validly existing public body corporate in good standing in the
State of Michigan and has all necessary power and authority to enter into this Agreement and to
perform all of its obligations under this Agreement, subject to state and federal grants or
appropriations.
(b) The execution and delivery by City of this Agreement and the other documents and
instruments required under this Agreement, and the performance by City of all of its obligations
under this Agreement and such other documents and instruments have been duly authorized by all
necessary municipal action and do not and will not result in a breach or violation of or default under
any commitment, order, judgment, or decree by which the Property or City is bound.
(c) No work has taken place on the City Property in the last one hundred twenty (120) days
which would create in any party a right to a lien against any of the Property, except for such work
that has been fully paid for by City.
(d) To the actual knowledge of the City Manager or Interim City Manager, with no obligation
to inquire or investigate, (i) City has not released any pollutants, contaminants, toxic wastes,
hazardous substances, or other environmental hazards at, on, or under the City Property in violation
of applicable statutes, (ii) City has it received any written notice that, City or any other person has
released any pollutants, contaminants, toxic wastes, hazardous substances, or other environmental
hazards at, on, or under the City Property in violation of applicable statutes and (iii) there have
been no investigations, reports, or violations involving the City Property by any governmental
authority pertaining to toxic or hazardous materials. City has not received any notice, order,
claim, demand, or citation from any environmental or health agency or department having
jurisdiction with respect to the City Property pertaining to toxic or hazardous materials.
(e) Intentionally Omitted.
(f) Intentionally Omitted.
(g) No brokerage or leasing commissions or other compensation are or will be due or payable
by City to any person, firm, corporation or other entity with respect to or on account of this
Agreement.
(h) To City’s knowledge, there are no lawsuits, administrative proceedings, or other actions
pending, and, City has not received written notice of any such matters threatened against the City
Property, before any court or arbitrator or any governmental authority or agency which could have
an adverse impact on the use of the City Property, the transaction contemplated hereunder, or the
financial condition of City.
(i) No commitments have been made to any governmental authority, utility company, school
board, church or other religious body, or to any other organization, group or individual relating to
the City Property which would impose an obligation upon APQ or its successors or assigns to make
any contributions or dedications of money or land or to construct, install or maintain any
improvements of a public or private nature on or off the Property.
(j) City has no actual knowledge of, nor has it received written notice of any condemnation
orders or judgment issued or obtained by the City or Muskegon County, or any other governmental
or quasi-governmental authority or agency.
12. APQ Representations, Warranties and Covenants. APQ represents to the City that:
(a) APQ is a duly organized, validly existing limited liability company in good standing in the
State of Michigan and has all necessary power and authority to enter into this Agreement and to
perform all of its other obligations under this Agreement.
(b) The execution and delivery by of this Agreement and the other documents and instruments
required under this Agreement, and the performance by APQ of all of its obligations under this
Agreement and such other documents and instruments have been duly authorized by all necessary
company action and do not and will not (i) result in a breach or violation of or default under any of
APQ’s operating agreement or under any commitment, order, judgment, or decree by which the
Property or APQ is bound, (ii) violate any statute, regulation, order, or other law to which any
Property or APQ is subject, or (iii) require APQ to obtain any consent, approval, and/or permit
from any person, entity, or governmental authority, or to comply with or perform any special
requirements, procedures, approvals, or actions (other than approval of the PUD).
(c) APQ has not released any pollutants, contaminants, toxic wastes, hazardous substances, or
other environmental hazards at, on, or under the Property in violation of applicable statutes. APQ
has no knowledge of, nor has it received any written notice that APQ or any other person has
released any pollutants, contaminants, toxic wastes, hazardous substances, or other environmental
hazards at, on, or under the Property in violation of applicable statutes. To APQ’s knowledge, there
have been no investigations, reports, or violations involving the Property by any governmental
authority pertaining to toxic or hazardous materials. APQ has not received any notice, order, claim,
demand, or citation from any environmental or health agency or department having jurisdiction
with respect to the Property or APQ pertaining to toxic or hazardous materials.
(d) There are no leases, agreements, agreements of sale, options, licenses, management
contracts, employment agreements, equipment agreements, supply agreements, water agreements,
sewer agreements, utility or concession agreements or agreements with municipalities (including
improvements or development escrow or bonds), license agreements, service agreements,
contracts, or arrangements, oral or written, relating to, affecting or binding on the Easement
Property or any part thereof which would interfere with the City’s intended use of the Easement
Property.
(e) APQ is not a party to any, nor has it granted any lease, license or other right of occupancy
to any third-party, there are no tenants, licensees, or other occupants of the Easement or any part
thereof under any such agreements, nor does any party, other than APQ pursuant to this Agreement,
have any right or option to use the Easement or any portion thereof.
(f) No brokerage or leasing commissions or other compensation are or will be due or payable
by APQ to any person, firm, corporation or other entity with respect to or on account of this
Agreement.
(g) To APQ’s knowledge, there are no lawsuits, administrative proceedings, or other actions
pending, and, APQ has not received written notice of any such matters threatened against the
Property, before any court or arbitrator or any governmental authority or agency which could have
an adverse impact on the use of the Property, the transaction contemplated hereunder, or the
financial condition of APQ.
(h) APQ has no actual knowledge of nor has it received written notice of any condemnation
orders or judgment issued or obtained by the APQ or Muskegon County, or any other governmental
or quasi-governmental authority or agency.
13. Insurance.
(a) Each Party agrees to procure and maintain, at such Party’s own expense, a minimum of the
following insurance:
(i) Comprehensive public general liability insurance, including without limitation
bodily injury, personal injury, property damage, products liability, contractual liability
covering the provisions of this Agreement, and liquor liability, in an amount not less than
three million dollars ($3,000,000.00) single limit per occurrence. The policy shall include
or be endorsed to include each Party as named additional insureds.
(ii) Automobile liability insurance in an amount not less than one million dollars
($1,000,000.00) single limit per occurrence. The policy shall include or be endorsed to
include each Party as named additional insureds.
(iii) As to APQ, worker’s compensation insurance covering all of APQ’s employees
and employer’s liability insurance in an amount not less than five hundred thousand dollars
($500,000.00) or as required by law covering all APQ’s employees.
(iv) Each insurance policy required by this clause shall be endorsed to state that
coverage shall not be canceled, except after thirty (30) days’ prior written notice by
certified mail, return receipt requested, has been given to the other Party.
(b) All insurance coverage provided for under Section 13 by APQ shall be secured through
policies issued by insurance companies of good reputation and of sound and adequate financial
responsibility having a general policy holder’s rating of not less than “A” and a financial rating of
not less than Class “X” in the most current edition of Best’s Insurance Reports. All insurance
coverage provided for under Section 13 by the City shall be provided through the Risk Authority
for municipalities. The party procuring such insurance shall deliver to the other party proof of
insurance with respect to all of the policies of insurance so procured, and in the case of insurance
about to expire, shall deliver certificates of insurance with respect to renewal policies not less than
ten (10) days prior to the respective dates of expiration. City shall be entitled to review complete
copies of any policies of insurance APQ is required to maintain under this Agreement, subject to
redaction by APQ of information that APQ reasonably considers to be proprietary and/or
confidential, within twenty days of City’s request.
(c) Intentionally omitted.
(d) Neither APQ nor City shall assert against the other, and APQ and City hereby waive with
respect to each other, any claims and rights of recovery for any losses, damages, liability or
expenses (including attorneys’ fees) incurred or sustained by either of them on account of injury to
persons or damage to property arising out of the ownership, operation and maintenance of the
Property, to the extent that the same are covered by the insurance required under this Article 11.
14. Estoppel. Not later than thirty (30) days after the request of either Party, the other Party
will execute an estoppel certificate in a form requested: (a) confirming the terms of this Agreement, (b)
acknowledging that this Agreement has not been modified (or, if so, identifying all modifications) and is in
full force and effect, and (c) confirming that neither Party has any claims or defenses under this Agreement
or, if any are claimed, a statement in reasonable detail describing the basis for such claims.
15. Subordination. This Agreement is and shall be subject and subordinate, at all times, to the
lien of any security interest in personal property owned by APQ and any mortgage or mortgages which may
now or hereafter affect the APQ Property, and to all advances made or hereafter to be made upon the
security thereof and to the interest thereon, and to any agreements at any time made modifying,
supplementing, extending or replacing any such mortgages. City Property is expressly excluded from any
subordination.
16. Termination Rights.
(a) Termination by City. City shall have the right to terminate this Agreement upon the
occurrence of any one of the following events:
(i) APQ fails to keep, observe or perform any material covenant, agreement, term or
provision of this Agreement or the Easement to be kept, observed or performed by APQ
under this Agreement or any document referred to in this Agreement, and such default
continues for a period of thirty (30) days after written notice of such default by City to
APQ; or
(ii) (A) The appointment (voluntary or involuntary) of a receiver, trustee or liquidator
of APQ or of all or a substantial part of its assets; (B) APQ files a voluntary petition in
bankruptcy or commences a proceeding seeking reorganization, liquidation, or an
arrangement with creditors; (C) APQ files an answer admitting the material allegations of
a bankruptcy petition, reorganization proceeding, or insolvency proceeding filed against
APQ; (D) APQ admits in writing its inability to pay its debts as they come due; (E) APQ
makes a general assignment for the benefit of creditors; or (F) an order, judgment or decree
is entered by a court of competent jurisdiction, on the application of a creditor, adjudicating
APQ a bankrupt or insolvent or approving a petition seeking reorganization of APQ or
appointing a receiver, trustee or liquidator of APQ or of all or a substantial part of its assets,
and such order, judgment or decree continues unstayed and in effect for any period of sixty
(60) consecutive days.
(iii) City’s right to terminate this Agreement pursuant to this Section 16 shall be
exercised upon written notice to APQ given at any time after the applicable grace period
has expired. City’s termination notice shall specify the effective date of such termination,
which date shall not be less than thirty (30) or more than sixty (60) days after the date of
City’s termination notice.
(b) Termination by APQ. APQ shall have the right to terminate this Agreement upon the
occurrence of any one of the following events:
(i) City fails to keep, observe, or perform any other material covenant, agreement,
term or provision of this Agreement, or the Easement, to be kept, observed or performed
by City, and such default continues for a period of thirty (30) days after notice of such
default by APQ to City;
(ii) (A) The appointment (voluntary or involuntary) of a receiver, trustee or liquidator
of City or of all or a substantial part of its assets; (B) City files a voluntary petition in
bankruptcy or commences a proceeding seeking reorganization, liquidation, or an
arrangement with creditors; (C) City files an answer admitting the material allegations of
a bankruptcy petition, reorganization proceeding, or insolvency proceeding filed against
City; (D) City admits in writing its inability to pay its debts as they come due; (E) City
makes a general assignment for the benefit of creditors; or (F) an order, judgment or decree
is entered by a court of competent jurisdiction, on the application of a creditor, adjudicating
City a bankrupt or insolvent or approving a petition seeking reorganization of City or
appointing a receiver, trustee or liquidator of City or of all or a substantial part of the assets
of City, and such order, judgment or decree continues unstayed and in effect for any period
of sixty (60) consecutive days;
(iii) APQ’s right to terminate this Agreement pursuant to this Section 16 shall be
exercised upon written notice to City given at any time after the applicable grace period
has expired. APQ’s termination notice shall specify the effective date of such termination,
which date shall not be less than thirty (30) days or more than sixty (60) days after the date
of APQ’s termination notice.
(c) Intentionally omitted.
(d) Effect of Termination. The termination of this Agreement under the provisions of this
Section 14 shall be the sole remedy of both Parties.
(e) Intentionally Omitted.
(f) Intentionally Omitted.
17. Assignment.
(a) Prohibited Assignments. Except as provided in Section15(b), neither party shall assign this
Agreement without the prior written consent of the other party. Said consent shall not be
unreasonably withheld, conditioned or delayed. It is understood and agreed that any consent granted
by a party to any such assignment shall not be deemed a waiver of any consent required under this
Section 15 (a) as to any future assignment.
(b) Permitted Assignment by APQ. APQ shall have the right, without the consent of City, to
assign this Agreement to any Affiliate of APQ or in connection with the sale of all or a substantial
portion of APQ’s assets provided that the key personnel at the Property remains substantially intact
and the ownership of any assignee Ryan Leestma is the majority owner of any such affiliate.
(c) Permitted Assignment by City. In connection with the sale or transfer of the Property by
City, City shall have the right, without the consent of APQ, to assign this Agreement provided that
the purchaser expressly assumes all of City’s obligations hereunder in writing.
(d) Successors and Assigns. Subject to the foregoing, this Agreement shall inure to the benefit
of and be binding upon the parties and their respective heirs, legal representatives, successors and
assigns.
18. Indemnities.
(a) APQ’s Indemnity. APQ agrees to indemnify, protect, defend and hold harmless City and
its elected officials, officers, employees, agents and volunteers, from and against any and all claims,
demands, actions, lawsuits, proceedings, damages, liabilities, judgments, penalties, fines,
attorneys’ fees, costs, and expenses:
(i) Which result from any act or omission constituting gross negligence or willful
misconduct by APQ or any officer, director, or employee of APQ in connection with
APQ’s performance under this Agreement;
(ii) Which result from any action taken by APQ relating to the Property (A) that is
expressly prohibited by this Agreement, or (B) that is not within APQ’s delegated authority
under this Agreement;
(iii) Which relate to or arise from APQ, through its acts or omissions, depositing,
installing or allowing in, on, under or about the Easement Property or the City Property, or
the escape, seepage, leakage, spillage, discharge, emission or release, of any hazardous
materials, toxic substances or petroleum products (as defined or regulated under any and
all applicable federal, state and local environmental, health or safety laws, ordinances and
regulations) from or through the Property, including without limitation any and all costs of
any required or necessary repair, cleanup, remediation or decontamination of the Property,
provided that;
(iv) APQ’s indemnity obligations under this Section 16 shall not apply to any acts or
omissions taken (or in the case of omissions, not taken) at the written direction of City
Commission.
(b) Intentionally Omitted.
19. Notices. All notices, approvals, consents and other communications required under this
Agreement shall be in writing and shall be deemed given: (i) when delivered in person; (ii) when sent by
fax or email: (iii) when sent by a nationally recognized receipted overnight delivery service with delivery
fees prepaid; or (iv) when sent by United States first-class, registered, or certified mail, postage prepaid.
The notice shall be effective immediately upon personal delivery or upon transmission of the fax or email;
one day after depositing with a nationally recognized overnight delivery service; and five days after sending
by first class, registered, or certified mail. Notices shall be sent to the parties as follows:
To: City of Muskegon
933 Terrace Street
Muskegon, MI 49440
Attn: City Manager
w/copy to
Parmenter Law
601 Terrace Street
Muskegon, Michigan 49440
Attn: City Attorney
To: APQ
1204 W. Western Ave.
Muskegon, Michigan 49440
Attn: Ryan and/or Emily Leestma
Email: rml@leestmamanagement.com esl@leestmamanagement.com
20. Recording. This Agreement shall not be recorded; however, upon the request of either
party hereto, the other party shall join in the execution of a memorandum or “short form” of this Agreement
for the purposes of recordation. Said memorandum or short form of this Agreement shall incorporate this
Agreement by reference. The Parties shall agree upon legal descriptions of the APQ Property and the City
Property as surveys are prepared in connection with the development of the Property. This Agreement and
its terms constitute covenants running with the land, binding on the Property, the Parties and their
successors and assigns, subject to restrictions on assignment.
21. Intentionally omitted.
22. Force Majeure. Notwithstanding anything herein to the contrary, if due to a Force Majeure
Event (defined below), APQ and/or City is prevented from timely performing under this Agreement or any
third-party providing services or required information in connection with this Agreement (e.g.: lender,
appraiser, title company, surveyor, environmental consultants, governmental jurisdictions, etc.) closes its
offices, suspends operations or otherwise prevents APQ and/or the City from timely performing under the
Agreement as originally contemplated, then the applicable outstanding dates, deadlines or time periods
herein, shall each be extended for the duration of the Force Majeure Event and shall resume on such date
that APQ and the City, as applicable, are once again able to perform their obligations under this Agreement.
To invoke the tolling of time periods as set forth herein for a Force Majeure Event, the applicable party
must send written notice to the other party specifying the reason for invocation and the date on which the
tolling of time begins, and a subsequent notice shall be delivered to confirm the date the Force Majeure
Event ended. The term “Force Majeure Event” as used herein shall mean the following: Act of God; strike,
lockout, or other labor or industrial disturbance; war; blockade; public riot; fire; storm; flood; explosion; or
other delay caused by unforeseeable circumstances beyond the reasonable control of APQ or the City as
applicable, including widespread sickness (including sickness causing quarantine and other “stay at home”
or “shelter in place” orders, and including, but not limited to, the Coronavirus Disease 2019 (COVID-19)).
23. Operations of Property. City shall be fully responsible for all operations of the City
Property prior to the Effective Date, including, but not limited to, all suits, actions, damages and claims
which may be asserted or threatened against the APQ from and after the Effective Date, but which shall
have arisen out of any aspect of the City Property prior to the Effective Date. APQ shall be fully responsible
for all operations of the APQ Property prior to the Effective Date, including, but not limited to, all suits,
actions, damages and claims which may be asserted or threatened against the City from and after the
Effective Date, but which shall have arisen out of any aspect of the APQ Property prior to the Effective
Date.
24. Severability. If any term, provision or condition contained in this Agreement shall, to any
extent, be invalid or unenforceable, the remainder of this Agreement (or the application of such term,
provision or condition to persons or circumstances other than those in respect of which it is invalid or
unenforceable) shall not be affected thereby, and each term, provision or condition of this Agreement shall
be valid and enforceable to the fullest extent permitted by law.
25. Public Appropriations, Grants, Loans, Third Party Agreements and Charitable
Contributions. APQ has applied for, or is anticipating applying for, public appropriations, state and federal
grants, loans, charitable agreements and other funding sources to make the improvements referenced in this
Agreement and the PUD. The City agrees to cooperate with and assist APQ, if requested by APQ. Examples
of funding sources include the following:
(a) State of Michigan Appropriations including the Department of Natural Resources,
Department of Transportation and Department of Energy, Great Lakes and Energy
(b) US Department of Fish and Wildlife Boating Infrastructure Grant.
(c) U.S. Department of Fish and Wildlife BIG Grant.
(d) EGLE Loan.
(e) EGLE Grant.
(f) State of Michigan MEDC Grant.
(g) State of Michigan Brownfield.
(h) Private donors
(i) United States Department of Forestry
(j) United States Department of Agriculture
All proceeds from the above received or applied for by or for APQ that are specifically directed to
pay for improvements to APQ or City property;
(1) if paid to APQ, shall be used by APQ to pay for improvements as defined herein;
or
(2) to the extent that the proceeds from public grants or loans are paid directly to the
City, the City shall disburse the proceeds of such public grants or loans to APQ to pay for
improvements using a reimbursement process as defined by the grantor of such funds.
In addition to the foregoing, the City agrees to cooperate with APQ to obtain all available
Brownfield reimbursements or other State of Michigan reimbursements, incentives or other available
funding arising from or relating to the Development or improvements made in connection therewith.
26. Cooperation. The City and APQ agree that they will use their mutual reasonable efforts to
obtain permits from the State of Michigan and the United States of America.
27. Miscellaneous. This Agreement may be amended or modified only by the written
agreement of APQ and City. Each exhibit attached to this Agreement is incorporated and made a part of
this Agreement as though more fully set forth in this Agreement. If the deadline for performing any act
would otherwise fall on a weekend day or a holiday, such deadline shall automatically be extended to the
next succeeding business day. This Agreement shall be interpreted under and governed by the laws of the
State of Michigan. The Development Agreement approved by the City Commission on October
26_______________ __, 2021 is void and of no further force or effect.
28. Counterparts; Electronic Signatures. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all of which together shall be deemed
to be one and the same instrument. Electronically imaged signatures may be used in place of original
signatures on this Agreement. APQ and City intend to be bound by the signatures on the electronically
imaged document, are aware that the other party will rely on such signatures, and hereby waive any defenses
to the enforcement of the terms of this Agreement based on the form of signature.
[Signatures appear on following page]
[Signature Page to Cooperative Development And Use Agreement]
The foregoing Cooperative Development and Use Agreement is accepted and agreed to.
CITY:
CITY OF MUSKEGON,
a Michigan municipal corporation
By:
Name: Ken Johnson
Title: Mayor
Date: , 2022
By:
Name: Ann Meisch
Title: Clerk
Date: , 2022
APQ:
ADELAIDE POINTE QOZB, LLC,
a Michigan limited liability company
By
Name:
Title:
Date: , 2022
Exhibit A
APQ Property, City Property, Easement Property
Exhibit B
EASEMENT AGREEMENT
EXHIBIT ONLY – DO NOT SIGN
EASEMENT AGREEMENT
THIS EASEMENT is entered into _____________________, 2022, by Adelaide Pointe
QOZB, LLC, a Michigan limited liability company (“Grantor”), and the City of Muskegon, a
Michigan municipal corporation (“City”), with reference to the following facts:
BACKGROUND
A. Grantor is the owner of real property in the City of Muskegon, Muskegon County, Michigan (the
“Premises” and the “Easement Property” shown on Exhibit A hereto).
B. The City desires to obtain and Grantor desires to grant an easement over, on, across, and through
a portion of Grantor’s Property for the purpose of providing public access and enjoyment of Muskegon
Lake in accordance with the terms of this Agreement.
THEREFORE, for good and valuable consideration, receipt of which is acknowledged, the parties
agree as follows:
1. GRANT OF EASEMENT. In consideration of payment by City to Grantor in the amount of One
($1.00) Dollar and other valuable consideration, Grantor grants, warrants, and conveys an easement to the
City for the right of public access to the “Easement Property”, which is depicted as Exhibit A:
2. USE OF EASEMENT. The Easement shall be used to provide the public access to, and
enjoyment of, the entire Easement Property. Functions of public access and enjoyment include, but are
not limited to access to Muskegon Lake for recreational activities including fishing, park activities, and
quiet use and enjoyment.
3. MAINTENANCE. Grantor shall be responsible for the maintenance of the Easement Property.
Grantor may not reduce the size of the Easement Property as required for development per the Planned Unit
Development approved by City. The City has the right to enter both the Premises and the Easement Property
to repair and maintain all public right of ways, including roads, water systems, storm sewer systems,
sanitary sewer systems, sidewalks, parks, and landscaping.
4. TERM OF EASEMENT. The term of the Easement shall be perpetual and shall run with the
land unless terminated pursuant to Section 5.
5. TERMINATION. This Easement automatically terminates upon termination of the Cooperative
Development and Use Agreement to which this Easement is attached as Exhibit B (“Development
Agreement”) is terminated.
6. EVIDENCE OF TITLE. Grantor warrants as that it has good title to the Easement Property and
the power to grant this Easement.
Furthermore, City may order a commitment for an Owner’s Policy of Title Insurance (the “Commitment”),
in an amount determined by the City and issued by a title company to be selected in the sole discretion of
City (“Title Escrow Agent”). The Commitment shall show Grantor to hold marketable title in fee simple
to the Easement Property free and clear from all liens and encumbrances whatsoever except for: (a) zoning
ordinances, (b) easements, agreements and restrictions of record which have been approved by City prior
to closing, and (c) real estate taxes due and payable after the closing date.
EXHIBIT ONLY – DO NOT SIGN
Grantor may have liens in place by its bank and/or financial partners at any time for any reason and any
and all easements must be subordinate and subject to approval and/or revocation by these parties provided
all lenders, currently holding a mortgage or obtaining a mortgage in the future shall execute a subordination,
non-disturbance agreement with the City which shall require any such lender to acknowledge the existence
of this Easement and agree not to interfere with the City’s rights under the Easement.
7. ENVIRONMENTAL MATTERS. Grantor agrees to the following:
(a) Grantor shall provide to City copies of all notices that may be received from any
governmental agency involved with any environmental matter, and any responses to such notices.
(b) Grantor shall promptly provide to City copies of testing results and reports that are
generated in connection with environmental matters.
(c) Intentionally omitted.
(d) Except as disclosed in writing to, and accepted by City, there are, and shall be no uncured
violations including, without limitation, environmental violations of any laws, ordinances, orders,
regulations, rules or requirements of any governmental authority, affecting the Easement
Property or any part thereof.
(e) Except as disclosed in writing to the City, no toxic or hazardous substance or waste,
including, without limitation, any Hazardous Substance, as defined hereunder, or any federal,
state or local environmental law, ordinance, rule or regulation have been used, stored, generated,
recycled, treated, released, spilled, discharged, or otherwise disposed of on, in, under, adjacent
to or otherwise affecting the Easement Property. Moreover, except as disclosed in the
information and documents provided by Grantor to the City, Grantor has not received any notice
from any applicable governmental entity of the potential or actual existence of any Hazardous
Substance on, in, under, adjacent to, or otherwise affecting the Easement Property.
(f) There are no underground storage tanks or underground storage tank systems on, in, or
under the Easement Property.
For the purposes of this agreement, “Hazardous Substance” means any substance:
(i) The presence of which requires investigation, remediation, or any other response under
any federal, state or local statute, regulation, ordinance, order, action, policy, or common law; or
(ii) Which is or becomes defined as a “hazardous waste,” “hazardous substance,”
“pollutant”, or “contaminant” under any federal, state, or local statute, regulation, rule, or ordinance
or amendments thereto including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. § 9601 et seq.) and/or the Resource Conservation and
Recovery Act (42 U.S.C. § 6901 et seq.); or
(iii) Which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic, or otherwise hazardous or dangerous and is or becomes regulated by any governmental
authority, agency, department, commission, board, agency, or instrumentality of the United States,
the State of Michigan, or any political subdivision thereof.
(iv)
EXHIBIT ONLY – DO NOT SIGN
8. NO INTERRUPTION. Grantor shall make all reasonable efforts to avoid any interruption of the
use of the Easement Property and any occupants thereof and visitors thereto, and if such interruption is not
avoidable, Grantor shall minimize such interruption and shall repair as soon as possible any damage to the
Easement Property occasioned by the performance of any obligation in this section.
For safety and liability reason, the City shall not object to the temporary lack of use of the easement property
while construction and/or development activities are taking place.
9. INSURANCE. Grantor shall maintain reasonable insurance policies with respect to its activities
and those of its agents and representatives at any time on the Easement Property and shall take all
necessary and appropriate precautions for the safety of the occupants of and visitors to the Easement
Property.
10. INTENTIONAL OMITTED.
11. WARRANTY. The parties warrant that they have the right and authority to enter into this
Easement Agreement. Grantor further warrants that all statements and information relating to the Easement
Property provided to the City are true and accurate.
12. BINDING EFFECT. This Easement Agreement shall bind the parties and their successors and
assigns.
13. ASSIGNMENT OR DELEGATION. Except as otherwise specifically set forth in this
Agreement, neither party shall assign all or any portion of its rights and obligations contained in this
Agreement without the express or prior written approval of the other party, in which approval may be
withheld in the other party’s sole discretion.
14. COUNTERPARTS. This Agreement may be executed in counterparts, and each set of duly
delivered identical counterparts which includes all signatories, shall be deemed to be one original document.
15. FULL EXECUTION. This Agreement requires the signature of all parties. Until fully executed,
on a single copy or in counterparts, this Agreement is of no binding force or effect and if not fully executed,
this Agreement is void.
16. NON-WAIVER. No waiver by any party of any provision of this Agreement shall constitute a
waiver by such party of any other provision of this Agreement.
17. SEVERABILITY. Should any one or more of the provisions of this Agreement be determined to
be invalid, unlawful, or unenforceable in any respect, the validity, legality, and enforceability of the
remaining provisions of this Agreement shall not in any way be impaired or affected.
18. NOTICES. All notices, approvals, consents, and other communications required under this
Agreement shall be deemed given: (i) when delivered in person; (ii) when sent by fax or email; (iii) when
sent by a nationally recognized receipted overnight delivery service with delivery fees prepaid; or (iv) when
sent by United States first-class, registered, or certified mail, postage prepaid. The notice shall be effective
immediately upon personal delivery or upon transmission of the fax or email; one day after depositing
with a nationally recognized overnight delivery service; and five days after sending by first class, registered
or certified mail.
Notices shall be sent to the parties as follows:
EXHIBIT ONLY – DO NOT SIGN
To: City of Muskegon
933 Terrace Street
Muskegon, MI 49440
Attn: City Manager
w/copy to
Parmenter Law
601 Terrace Street
Muskegon, Michigan 49440
Attn: City Attorney
To: Grantor:
1204 W. Western Ave.
Muskegon, Michigan 49440
Attn: Ryan and/or Emily Leestma
Email: rml@leestmamanagement.com esl@leestmamanagement.com
19. AMENDMENT. This Easement Agreement shall not be amended or modified except in a writing
signed by both parties.
20. GOVERNING LAW. This Easement Agreement shall be construed and enforced in accordance
with the laws of the State of Michigan.
21. VENUE AND JURISDICTION. The parties agree that for purposes of any dispute in connection
with this agreement, the Muskegon County Circuit Court shall have exclusive personal and subject matter
jurisdiction and that Muskegon County is the exclusive venue
22. ELECTRONIC SIGNATURES. The parties agree that electronic copies of the signed Agreement
shall constitute a valid, enforceable agreement.
23. PRONOUNS. Nouns and pronouns will be deemed to refer to the masculine, feminine, neutral,
singular and plural, as the identity of the person or persons, firm, or corporation may in the context require.
24. ENTIRE AGREEMENT. This Easement Agreement and Exhibit A and the Development
Agreement constitute the entire agreement as to this matter between the parties and supersedes all prior
agreements and understandings, both written and oral, with respect to the subject matter of this Easement
Agreement.
25. RECORDING OF MEMORANDUM. Upon the execution hereof, Grantor and City shall
execute and cause to be recorded with the Muskegon County Register of Deeds a memorandum hereof in
form reasonably acceptable to Grantor. All recording charges and any stamp or similar tax shall be paid by
City. Upon the expiration or earlier termination of this agreement, Grantor and City shall cooperate to
execute a recordable termination of same. Grantor shall pay the recording charges and any stamp or similar
tax to terminate this agreement.
This Easement Agreement was entered into on the date set forth above.
EXHIBIT ONLY – DO NOT SIGN
Signature Page to Easement Agreement
Grantor:
Adelaide Pointe QOZB,
a Michigan limited liability company
By:
Name: Ryan Leestma
Title:
Date:
City:
City of Muskegon,
a Michigan Municipal corporation
By:
Name: Ken Johnson
Title: Mayor
Date:
By:
Name: Ann M. Meisch
Title: City Clerk
Date:
Drafted By and when Recorded Return to:
John Schrier
Parmenter Law
Muskegon, MI 49440
601 Terrace Street
231-722-5418
Exhibit A
APQ Property, City Property, Easement Property
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 13, 2022 Title: Designation of Voting
Delegates for the Michigan
Municipal League Annual
Meeting
Submitted By: Ann Marie Meisch, City Clerk Department: City
Commission
Brief Summary: 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 one other official to serve as an alternate.
Detailed Summary & Background:
Goal/Focus Area/Action Item Addressed:
Refer to the 2022-2027 Long Term Goals document.
Amount Requested: N/A Amount Budgeted:
Fund(s) or Account(s): Fund(s) or Account(s):
Recommended Motion: To appoint an official representative, ______________, and an alternate
representative, __________________, to be in attendance and to cast the vote of the municipality
at the Annual Business meeting of the Michigan Municipal League Convention.
Approvals: Get approval from division head at a minimum prior Guest(s) Invited / Presenting
to sending to the Clerk.
Immediate Division Head Information Technology Yes
Other Division Heads Communication No
Legal Review
For City Clerk Use Only:
Commission Action:
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