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City of Muskegon
City Commission Meeting
Agenda
March 28, 2023, 5:30 pm
Muskegon City Hall
933 Terrace Street, Muskegon, MI 49440
AMERICAN DISABILITY ACT POLICY FOR ACCESS TO OPEN MEETINGS OF THE CITY OF MUSKEGON AND ANY OF
ITS COMMITTEES OR SUBCOMMITTEES
To give comment on a live-streamed meeting the city will provide a call-in telephone number to the public to
be able to call and give comment. For a public meeting that is not live-streamed, and which a citizen would like
to watch and give comment, they must contact the City Clerk’s Office with at least a two-business day notice.
The participant will then receive a zoom link which will allow them to watch live and give comment. Contact
information is below. For more details, please visit: www.shorelinecity.com
The City of Muskegon will provide necessary reasonable auxiliary aids and services, such as signers for the
hearing impaired and audio tapes of printed materials being considered at the meeting, to individuals with
disabilities who want to attend the meeting with twenty-four (24) hours’ notice to the City of Muskegon.
Individuals with disabilities requiring auxiliary aids or services should contact the City of Muskegon by writing
or by calling the following: Ann Marie Meisch, MMC – City Clerk, 933 Terrace Street, Muskegon, MI 49440;
231-724-6705; clerk@shorelinecity.com
Pages
1. Call To Order
2. Prayer
3. Pledge of Allegiance
4. Roll Call
5. Honors, Awards, and Presentations
6. Public Comment on Agenda Items
7. Consent Agenda
7.a Approval of Minutes 1
7.b Sale of 1379 Pine Street 11
7.c Sale of 263 Catherine Avenue 20
7.d Sale of 1373 Pine Street 28
7.e Arena Solar Power Purchase Agreement 35
7.f Laketon-Lakeshore DNR Trust Fund Grant 81
7.g Portable Restroom Service Extension 82
7.h CCTV Services for Sewer Mains 85
7.i EGLE Brownfield Grant/Loan Application for Shaw-Walker Project 99
8. Public Hearings
9. Unfinished Business
10. New Business
10.a Off-Premises Tasting Room License - The People's Cider Company 103
10.b 1170 W. Southern Avenue (MOCAP Building) Property Sale/Transfer 109
11. Any Other Business
12. Public Comment on Non-Agenda items
13. Closed Session
14. Adjournment
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: March 28, 2023 Title: Approval of Minutes
Submitted By: Ann Marie Meisch, MMC Department: City Clerk
Brief Summary: To approve minutes of the February 28, 2023 Regular Meeting.
Detailed Summary:
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:
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City of Muskegon
City Commission Meeting
Minutes
February 28, 2023, 5:00 pm
Muskegon City Hall
933 Terrace Street, Muskegon, MI 49440
Present: Mayor Ken Johnson
Commissioner Rachel Gorman
Commissioner Rebecca St.Clair
Commissioner Eric Hood
Vice Mayor Willie German, Jr.
Commissioner Michael Ramsey
Commissioner Teresa Emory
Staff Present: City Manager Jonathan Seyferth
City Clerk Ann Meisch
City Attorney John Schrier
Deputy City Clerk Kimberly Young
1. Call To Order
Mayor Johnson called the meeting to order at 5:30 p.m.
2. Prayer
Vice Mayor German opened the meeting with a prayer.
3. Pledge of Allegiance
The Commission and public recited the Pledge of Allegiance to the Flag.
4. Roll Call
As recorded above
5. Honors, Awards, and Presentations
5.a Introduce New Staff - Department of Public Works
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Dan VanderHeide, Director of Public Works, introduced Kyle Karczewski -
our new Parks & Recreation Director.
5.b Ken James from Muskegon Community College
To present to the City Commission on the work that has been done to
advance DEI at MCC and in our community.
Ken James, Chief Diversity Officer with Muskegon Community College
was in attendance to provide an update to the City Commission regarding
Diversity, Equity and Inclusion programs and opportunities that are offered
by his Department.
5.c Fair Housing Settlement Update - Community and Neighborhood
Services
Presenting Update on Fair Housing of West Michigan settlement with
Fannie Mae.
Sharonda Carson, Community and Neighborhood Services Director,
provided an update on the Fair Housing Settlement.
6. Public Comment on Agenda Items
No public comments were received.
7. Consent Agenda
Action No. 2023-36
Motion by: Commissioner Ramsey
Second by: Commissioner Hood
To accept the consent agenda as presented, minus item B.
Ayes: (7): Mayor Johnson, Commissioner Gorman, Commissioner St.Clair,
Commissioner Hood, Vice Mayor German, Commissioner Ramsey, and
Commissioner Emory
MOTION PASSES (7 to 0)
7.a Approval of Minutes - City Clerk
To approve the corrected September 13, 2022 minutes and the January
24, 2023 Regular meeting minutes.
STAFF RECOMMENDATION: To approve the minutes.
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7.c Landscaping Contract - Department of Public Works
Staff requests award of a three-year landscaping services contract to
Barry’s Greenhouses in the amount of $111,185 (first year) for service
areas including downtown, City Hall, the Farmers Market, and others.
Staff has worked with the Downtown BID, DDA, Chamber and other
stakeholders to develop a landscaping contract that covers a wide array of
landscaping services currently provided through the City Parks
Department. There is a desire among the stakeholders to improve the
level of service being provided, and a desire among city staff to free up
staffing resources to improve service in other areas of the city parks. The
RFP was presented to the Commission at the November 7, 2022
combined work session and regular meeting, and the results were
discussed with the Commission at the Work Session Meeting on February
13, 2023.
The contract proposes eight (8) areas identified on the included map, with
each area having a distinct scope of work and a proposed assigned cost
share, as a 3-year contract with optional extensions for a 4th and 5th year.
The original RFP included work in the Lakeside area, but those
businesses have decided not to participate at this time.
The Community Foundation for Muskegon County (CFFMC, via a
generous donor, is participating in this contract by contributing the full
amount for the continuation of services at Hackley Park in the amount of
$36,500 (for the first year).
The DDA and Downtown BID discussed their future in a joint meeting on
February 14, 2023. The Downtown BID is expiring at the end of 2023, so
the organizations have decided to jointly fund their share going forward
(the BID in year one, and the DDA in the following years). The City will
manage the contract on behalf of the BID and DDA and invoice for their
portions ($38,925 in the first year).
AMOUNT REQUESTED: $27,840 Parks/General and $7,920 Farmers
Market
AMOUNT BUDGETED: $0 FY23 and As Needed FY24
FUND OR ACCOUNT: 101-770 (Parks) and 101-808 (Farmers Mkt)
STAFF RECOMMENDATION: To authorize staff to enter into a three-year
contract with Barry's Greenhouses for landscaping services in various
parts of the City for a first-year contract total of $111,185.
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7.d Sale of 769 Catawba - Community and Neighborhood Services
Seeking authorization to sell 769 Catawba to a qualified buyer. The CNS
Department utilized HOME Investment Partnership Program funds to
rehabilitate a home at 769 Catawba to sell through our Homebuyer
Program. Renovations are completed, and a qualified buyer, Jacob
Insinga, has put in an offer of $134,000 with a $14,000 subsidy, which
CNS has accepted. Income from this sale will be reinvested in our
programming.
STAFF RECOMMENDATION: Adopt the resolution for the sale of 769
Catawba to Jacob Idsigna and authorize the City Clerk to sign it.
7.e Relocation Plan - Community & Neighborhood Services
As an entitlement community that receives CDBG and HOME funds from
the US Department of Housing and Urban Development (HUD), we are
required to have a written Residential Antidisplacement and Relocation
Assistance Plan (RARAP). This plan has been reviewed and approved by
the regional relocation expert for HUD, Maureen Thurman on February 13,
2023. The standards set forth in this plan minimizes and prevents
unnecessary displacement of people within our community for CDBG and
HOME funded projects.
STAFF RECOMMENDATION: Adopt the resolution for the approval of the
Residential Antidisplacement and Relocation Assistance Plan (RARAP).
7.f 1194 Pine Lease Agreement
Staff is seeking commission approval to adopt lease agreement for 1194
Pine St. Unit B. Tenant living at 1194 Pine Unit B is subject to protection
from displacement under the Residential Anti-displacement and
Relocation Assistance Plan. The Plan was executed by way of the
Uniform Rental Assistance (URA) Act of 1070 to avoid unnecessary
displacement triggered by acquisition or demolition of properties
purchased utilizing CDBG or HOME funds.
STAFF RECOMMENDATION: To approve the lease agreement for 1194
Pine Street, Unit B.
7.b Financing a Fire Pumper Truck - Finance
At this time, we are seeking authorization to enter into a lease agreement
with Huntington Bank for the purchase of a Fire Pumper Truck. At the
August 10, 2021 City Commission meeting the Commission voted to
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purchase two Fire Trucks. The first truck has already been financed in
2021. By the beginning of March 2023, the second Fire Pumper Truck will
be ready to purchase for $761,602.65. At this time, we are seeking
authorization to enter into a lease agreement with Huntington Bank. The
proposed terms are for a five-year lease at 4.4% interest rate with the City
purchasing the truck at the end of the lease for $1. There is a one-time
$500.00 processing fee.
AMOUNT BUDGETED: $14,163.97 per month for 60 months
FUND OR ACCOUNT: 101-50336-5700
STAFF RECOMMENDATION: To allow staff to enter into a lease
agreement with Huntington Bank for Fire Pumper Truck.
Action No. 2023-37
Motion by: Commissioner St.Clair
Second by: Vice Mayor German
To allow staff to enter into a lease agreement with Huntington Bank for
Fire Pumper Truck.
Ayes: (7): Mayor Johnson, Commissioner Gorman, Commissioner
St.Clair, Commissioner Hood, Vice Mayor German, Commissioner
Ramsey, and Commissioner Emory
MOTION PASSES (7 to 0)
8. Public Hearings
9. Unfinished Business
9.a Housing Board of Appeals, Demolition 835 W. Forest - Public Safety
To concur with the Housing Board of Appeals decision to demolish and
authorize administration to obtain bids for the demolition and that the
Mayor and Clerk be authorized and directed to execute a contract for
demolition with the lowest responsible bidder. The Housing Board of
Appeals has deemed 835 W. Forest Avenue to be in property
maintenance violation. Property has been a long-standing area of blight
and public nuisance/hazard.
STAFF RECOMMENDATION: To concur with the Housing Board of
Appeals decision to demolish and authorize administration to obtain bids
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for the demolition and that the Mayor and Clerk be authorized and directed
to execute a contract for demolition with the lowest responsible bidder.
Action No. 2023-38
Motion by: Commissioner Ramsey
Second by: Commissioner Emory
To concur with the Housing Board of Appeals decision to demolish and
authorize administration to obtain bids for the demolition and that the
Mayor and Clerk be authorized and directed to execute a contract for
demolition with the lowest responsible bidder.
Amendment:
Motion by: Vice Mayor German
Second by: Commissioner St.Clair
To table this item until the April 11, 2023 General Session.
Ayes: (3): Commissioner St.Clair, Commissioner Hood, and Vice Mayor
German
Nays: (4): Mayor Johnson, Commissioner Gorman, Commissioner
Ramsey, and Commissioner Emory
MOTION FAILS (3 to 4)
Amendment:
Motion by: Commissioner St.Clair
Second by: Commissioner Hood
To table this item until the March 14, 2023 General Session.
Ayes: (4): Mayor Johnson, Commissioner St.Clair, Commissioner Hood,
and Vice Mayor German
Nays: (3): Commissioner Gorman, Commissioner Ramsey, and
Commissioner Emory
MOTION PASSES (4 to 3)
10. New Business
10.a Housing Board of Appeals, Demolition - 771 McLaughlin Ave & 1984
Reynolds St. - Public Safety
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To concur with the Housing Board of Appeals decision to demolish and
authorize administration to obtain bids for the demolition and that the
Mayor and Clerk be authorized and directed to execute a contract for
demolition with the lowest responsible bidder. Housing Board of Appeals
has deemed 771 McLaughlin Ave and 1984 Reynolds St. to be in property
maintenance violation. Property has been a long-standing area of blight
and public nuisance/hazard.
STAFF RECOMMENDATION: To concur with the Housing Board of
Appeals decision to demolish and authorize administration to obtain bids
for the demolition and that the Mayor and Clerk be authorized and directed
to execute a contract for demolition with the lowest responsible bidder.
Action No. 2023-39
Motion by: Commissioner Ramsey
Second by: Vice Mayor German
To concur with the Housing Board of Appeals decision to demolish and
authorize administration to obtain bids for the demolition and that the
Mayor and Clerk be authorized and directed to execute a contract for
demolition with the lowest responsible bidder.
Ayes: (7): Mayor Johnson, Commissioner Gorman, Commissioner
St.Clair, Commissioner Hood, Vice Mayor German, Commissioner
Ramsey, and Commissioner Emory
MOTION PASSES (7 to 0)
11. Any Other Business
Vice Mayor German recognizes that it is Black History month and would like to
pay tribute to several historic black leaders including:
U.S. House Representative, Joseph Hayne Rainey - the first African
American to serve in the U.S. House of Representatives. The First to
preside over the House, and the longest-serving Black lawmaker in
Congress during the Reconstruction era.
Lewis Howard Latimer - an African American inventor and patent
draftsman of the late 19th and early 20th centuries
Benjamin O Davis, Sr. - the first Black general in the United States Army.
He led the Tuskegee Airmen during World War II and played an essential
role in integrating the U.S. Air Force.
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Dr. June Jackson Christmas - Graduate from Vassar College, psychiatrist
specializing in community mental health care and was mental health
commissioner for New York City under three mayors. Her fight against
housing discrimination changed New York City law.
President Barack Hussein Obama - 44th President of the United States
and the first African American commander-in-chief. He served two terms,
in 2008 and 2012.
Community Engagement Manager, Deborah Sweet announced three open
houses coming up to discuss road projects happening in the City.
12. 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.)
Public comments were received.
13. Closed Session
14. Adjournment
Motion by: Vice Mayor German
Second by: Commissioner St.Clair
To adjourn the City Commission meeting at 7:43 p.m.
MOTION PASSES
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_________________________
Respectfully Submitted,
Ann Marie Meisch, MMC - City Clerk
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Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: March 28, 2023 Title: Sale of 1379 Pine
Street
Submitted By: LeighAnn Mikesell Department: City Manager’s
Office
Brief Summary: Staff is requesting approval of a purchase agreement for 1379 Pine Street.
Detailed Summary & Background:
1379 Pine Street was constructed through the agreement with Dave Dusendang to construct infill
housing with ARPA funding. The offer is for the full listing price with no seller concessions. The
offer also includes costs to cover appliances and air conditioning.
Goal/Focus Area/Action Item Addressed:
Create an environment that effectively attracts new residents and retains existing residents by
filling existing employment gaps, attracting new and diverse businesses to the city, and expanding
access to a variety of high-quality housing options in Muskegon. Diverse housing types
Amount Requested: N/A Amount Budgeted: N/A
Fund(s) or Account(s): Fund(s) or Account(s):
Recommended Motion: to approve the purchase agreement for 1379 Pine Street.
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:
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dotloop signature verification: dtlp.us/YBws-7db9-aGIK
dtlp.us/vbO5-yNBm-fkUr
Please read and have buyer/s sign. Attach with offer.
Paragraph 8- Seller will provide a quit claim deed vs a warranty deed.
Builder one year warranty starts from day of Certificate of Occupancy.
Each dwelling unit shall have an approved established vegetative ground cover, native to the immediate
area within 600 feet, no less than 12 months after occupancy. Approval shall be given by zoning staff of
the Planning Department as part of the initial residential site plan review. A minimum of one shade tree,
two and one-half inches (2.5") in diameter, four feet (4') from the ground or one six foot (6') evergreen
tree shall be provided. Existing landscaping may be accepted in lieu of this requirement. "
Joseph Harris
dotloop verified
03/07/23 6:55 PM EST
__________________________________________
E8TM-PJY2-7GPE-Q0FE
Buyer
Lauren Harris
dotloop verified
03/07/23 6:53 PM EST
YGKE-FM8H-RKLP-GQRM
__________________________________________
Buyer
Teona Proos
dotloop verified
03/07/23 7:14 PM EST
__________________________________________
GKR5-U0JW-WUHV-SEJJ
Buyer’s Agent
LeighAnn Mikesell
dotloop verified
03/13/23 11:09 AM EDT
E7OC-DNV9-B2VA-BTUX
LeighAnn Mikesell
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Monday, February 6, 2023
Dear Teona,
We are excited to inform you that your clients, Joseph & Lauren Harris, are pre-approved and ready to
make offers.
We pride ourselves on helping our clients make responsible financial decisions, as well as giving
Realtors the confidence that they have strong buyers. The Treadstone pre-approval is based on a close
analysis and confirmation of your client’s income, credit, and assets. Because of our unwavering
commitment to responsible lending, we have the strongest, most respected pre-approval letter in the
industry. Our pre-approvals are as good as cash.
$250,000
FHA
July 7, 2023
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dotloop signature verification: dtlp.us/dpgv-YmLV-U45h
dtlp.us/tfEN-t5Vb-mZiH
WEST MICHIGAN REGIONAL PURCHASE AGREEMENT
#
DATE: 03/07/2023 , 6:33 PM (time) MLS # 23001387
SELLING OFFICE: Bellabay Realty SW BROKER LIC.#: 6505400607 REALTOR® PHONE: 616-427-0814
LISTING OFFICE: West Urban Realty REALTOR® PHONE: 6163662459
1. Effective Date: This Agreement is effective on the date of Seller's acceptance of Buyer's offer or Buyer's acceptance of any
counteroffer, as the case may be, and this date shall hereafter be referred to as the "Effective Date". Further, any reference to "days"
in this Agreement refers to calendar days. The first calendar day begins at 12:01 a.m. on the day after the Effective Date. Any reference
to "time" refers to local time.
2. Agency Disclosure: The Undersigned Buyer and Seller each acknowledge that they have read and signed the Disclosure Regarding
Real Estate Agency Relationships. The selling licensee is acting as (choose one):
Agent/Subagent of Seller Buyer’s Agent Dual Agent (with written, informed consent of both Buyer and Seller)
Transaction Coordinator
Primary Selling Agent Name: Teona Proos Email: soldbyproos@gmail.com Lic.#: 6501423143
Alternate Selling Agent Name: Email: Lic.#:
3. Seller’s Disclosure Statement: (This paragraph applies to sales of one-to-four family residential units.)
Buyer has received the Seller’s Disclosure Statement, dated .
Buyer has not received the Seller’s Disclosure Statement. Buyer may terminate this Agreement, in writing, any time prior to receipt
of the Seller’s Disclosure Statement. Once Buyer has received the Seller’s Disclosure Statement, Buyer may terminate this
Agreement, in writing, within 72 hours of receipt if the disclosure was received in person, or within 120 hours if received by
registered mail. Exceptions:
Seller is exempt from the requirements of the Seller Disclosure Act.
4. Lead-Based Paint Addendum: Transactions involving homes built prior to 1978 require a written disclosure which is hereby attached
and will be an integral part of this Agreement.
5. Property Description: Buyer offers to buy the property located in the City Village Township of Muskegon ,
County of Muskegon County , Michigan, commonly known as (insert mailing address: street/city/state/zip code)
1379 Pine Street, Muskegon, MI 49442
with the following legal description and tax parcel ID numbers:
CITY OF MUSKEGON REVISED PLAT OF 1903 LOT 8 EXC N 6.50 FT TH'OF BLOCK 267
PP# 24-205-267-0008-00 .
The following paragraph applies only if the Premises include unplatted land:
Seller agrees to grant Buyer at closing the right to make (insert number) division(s) under Section 108(2), (3), and
(4) of the Michigan Land Division Act. (If no number is inserted, the right to make divisions under the sections referenced above stays
with any remainder of the parent parcel retained by Seller. If a number is inserted, Seller retains all available divisions in excess of the
number stated; however, Seller and/or REALTOR® do not warrant that the number of divisions stated is actually available.) If this sale
will create a new division, Seller’s obligations under this Agreement are contingent on Seller’s receipt of municipal approval on or
before , of the proposed division to create the Premises.
6. Purchase Price: Buyer offers to buy the Property for the sum of $ 175,962.00
one hundred seventy-five thousand nine hundred sixty-two U.S. Dollars
7. Seller Concessions, if any: 0
zero dollars and zero cents
8. Terms: The Terms of Purchase will be as indicated by “X” below: (Other unmarked terms of purchase do not apply.)
SOURCE OF FUNDS TO CLOSE: Buyer represents that the funds necessary to close this transaction on the terms specified below
are currently available to Buyer in cash or an equally liquid equivalent.
If the Property’s value stated in an appraisal obtained by Buyer or Buyer’s lender is less than the Purchase Price, Buyer shall within
three (3) days after receipt of the appraisal: 1) renegotiate with the Seller, 2) terminate the transaction, in which case Buyer shall
receive a refund of Buyer’s Earnest Money Deposit, or 3) proceed to close the transaction at the agreed Purchase Price.
CASH. The full Purchase Price upon execution and delivery of Warranty Deed. Buyer Agrees to provide Buyer Agent/Dual Agent
verification of funds within five (5) days after the Effective Date, and consents to the disclosure of such information to Seller and/or
Seller’s Agent. If verification of funds is not received within 5 days after the Effective Date, Seller may terminate this Agreement
at any time before verification of funds is received by giving written notice to Buyer. Any appraisal required by Buyer shall be
arranged and paid for by Buyer within ten (10) days after the Effective Date of this Agreement.
NEW MORTGAGE. The full Purchase Price upon execution and delivery of Warranty Deed, contingent upon Buyer’s ability to
obtain a fha type 30 (year) mortgage in the amount of 96.5 % of the Purchase Price
bearing interest at a rate not to exceed 7.5 % per annum (rate at time of loan application), on or before the date the sale is
to be closed. Buyer agrees to apply for a mortgage loan, and pay all fees and costs customarily charged by Buyer’s lender to
process the application, within 3 days after the Effective Date, not to impair Buyers’ credit after the date such loan if
offered. Seller Buyer will agree to pay an amount not to exceed $ 0 representing repairs required as a
condition of financing. Buyer agrees does not agree to authorize Buyer’s Agent/Dual Agent to obtain information from
©Copyright, West Michigan REALTOR® Associations
Page 1 of 6 Rev. Date 1/2023
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LH
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Buyer’s Initials LM Seller’s Initials
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West Michigan Regional Purchase Agreement Page 2 of 6
Buyer’s lender regarding Buyer’s financing, and consents to the disclosure of this information to Seller and/or Seller’s Agent.
Exceptions:
SELLER FINANCING (choose one of the following): CONTRACT or PURCHASE MONEY MORTGAGE
In the case of Seller financing, Buyer agrees to provide Seller with a credit report within 72 hours after the Effective Date. If the
credit report is unacceptable to Seller, Seller shall have the right to terminate this offer within 48 hours of Seller’s receipt, or if
Buyer fails to provide said credit report to Seller within the time frame allotted, Seller shall have the right to terminate this offer
within 48 hours. Seller is advised to seek professional advice regarding the credit report.
$ upon execution and delivery of a
form (name or type of form and revision date), a copy of which is attached, wherein the balance of $
will be payable in monthly installments of $ or more including interest at % per annum,
interest to start on date of closing, and first payment to become due thirty (30) days after date of closing. The entire unpaid balance
will become due and payable months after closing. Any appraisal required by Buyer shall be arranged and
paid for by Buyer within ten (10) days after the Effective Date of this Agreement. Exceptions:
EQUITY (choose one of the following): Formal Assumption or Informal Assumption
Upon execution and delivery of: Warranty Deed subject to existing mortgage OR Assignment of Vendee Interest
in Land Contract, Buyer to pay the difference (approximately $ ) between the Purchase Price above
provided and the unpaid balance (approximately $ ) upon said mortgage or land contract, which Buyer
agrees to assume and pay. Buyer agrees to reimburse Seller for accumulated funds held in escrow, if any, for payment of future
taxes and insurance premiums, etc. Any appraisal required by Buyer shall be arranged and paid for by Buyer within ten
(10) days after the Effective Date of this Agreement. Exceptions:
OTHER:
9. Contingencies: Buyer’s obligation to consummate this transaction (choose one):
IS NOT CONTINGENT - is not contingent upon the sale or exchange of any other property by Buyer.
IS CONTINGENT UPON CLOSING - is contingent upon closing of an existing sale or exchange of Buyer’s property located at:
A copy of Buyer’s agreement to sell or exchange that property is being delivered to Seller along with this offer. If the existing sale
or exchange terminates for any reason, Buyer will immediately notify Seller, and either party may terminate this Agreement in
writing, within 3 days of Buyer’s notice to Seller. If either party terminates, Buyer shall receive a refund of any applicable Earnest
Money Deposit.
IS CONTINGENT UPON THE SALE AND CLOSING - is contingent upon the execution of a binding agreement and the closing
of a sale or exchange of Buyer’s property located at
on or before . Seller will have the right to continue to
market Seller’s Property until Buyer enters into a binding agreement to sell or exchange Buyer’s property and delivers a copy
thereof to Seller. During such marketing period, Seller may enter into a binding contract for sale to another purchaser on such
price and terms as the Seller deems appropriate. In such event, this Agreement will automatically terminate, Buyer will be notified
promptly, and Buyer’s Earnest Money Deposit will be refunded. Exceptions:
10. Fixtures & Improvements: The following is not intended to be an all-inclusive list of items included with the Property. All
improvements and appurtenances are included in the Purchase Price, if now in or on the Property, unless rented, including the
following: all buildings; landscaping; attached smart home devices; attached security systems; lighting fixtures and their shades and
bulbs; ceiling fans; hardware for draperies and curtains; window shades and blinds; built-in kitchen appliances, including garbage
disposal and drop-in ranges; wall to wall carpeting, if attached; all attached mirrors; all attached TV mounting brackets; all attached
shelving; attached work benches; stationary laundry tubs; water softener; water heater; incinerator; sump pump; water pump and
pressure tank; heating and air conditioning equipment (window units excluded); attached humidifiers; heating units, including add-on
heating stoves and heating stoves connected by flue pipe; fireplace screens, inserts, and grates; fireplace doors, if attached; liquid
heating and cooking fuel tanks; TV antenna and complete rotor equipment; satellite dish and necessary accessories and complete
rotor equipment; all support equipment for inground pools; screens and storm windows and doors; awnings; installed basketball
backboard, pole and goal; mailbox; flagpole(s); fencing, invisible inground fencing and all related equipment, including collars;
detached storage buildings; underground sprinkling, including the pump; installed outdoor grills; all plantings and bulbs; garage door
opener and control(s); and any and all items and fixtures permanently affixed to the Property; and also includes:
Range/oven, refrigerator, washer, dryer, microwave, dishwasher, central air conditioning unit
but does not include:
1379 Pine Street, Muskegon, MI 49442 03/07/2023 6:33 PM
Subject Property Address/Description Date Time
©Copyright, West Michigan REALTOR® Associations
Revision Date 1/2023 JH
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LH
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Buyer’s Initials
LM Seller’s Initials
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11:09 AM EDT
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dtlp.us/tfEN-t5Vb-mZiH
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11. Heating and Cooking Fuels: Liquid heating and cooking fuels in tanks are included in the sale and will transfer to Buyer at time of
possession unless usage is metered (in which case it is not included in the sale). Sellers are responsible for maintaining heating and
cooking liquid fuels at an operational level and shall not permit fuels to fall below 10% in the tank(s) at the time of possession, except
that the tank(s) may be empty only if now empty. Further, Seller is precluded from removing fuel from tank(s) other than what is
expended through normal use. Exceptions:
12. Assessments (choose one):
If the Property is subject to any assessments,
Seller shall pay the entire balance of any such assessments that are due and payable on or before the day of closing (regardless
of any installment arrangements), except for any fees that are required to connect to public utilities.
Seller shall pay all installments of such assessments that become due and payable on or before day of closing. Buyer shall assume
and pay all other installments of such assessments.
Seller has an ongoing obligation through the Closing to disclose to the Buyer any known pending assessments, including, but not limited
to, any mandatory utility connection requirements, and/or benefit charges, and condominium special assessments, that have not been
previously disclosed in writing to Buyer.
13. Property Taxes: Seller will be responsible for any taxes billed prior to those addressed below. Buyer will be responsible for all taxes
billed after those addressed below.
Buyer is also advised that the state equalized value of the Property, principal residence exemption information and other real property
tax information is available from the appropriate local assessor’s office. Buyer should not assume that Buyer’s future tax bills on the
Property will be the same as Seller’s present tax bills. Under Michigan law, real property tax obligations can change significantly when
property is transferred.
No proration. (Choose one):
Buyer Seller will pay taxes billed summer (year);
Buyer Seller will pay taxes billed winter (year);
Calendar Year Proration (all taxes billed or to be billed in the year of the closing). Calendar year tax levies will be estimated, if
necessary, using the taxable value and the millage rate(s) in effect on the day of closing, broken down to a per diem tax payment
and prorated to the date of closing with Seller paying for January 1 through the day before closing.
Fiscal Year Proration - Taxes will be prorated as though they are paid in (choose one): advance. arrears.
Fiscal Year will be assumed to cover a 12-month period from date billed, and taxes will be prorated to the date of closing. Fiscal
year tax levies will be estimated, if necessary, using the taxable value and millage rate(s) in effect on the day of closing, broken
down to a per diem tax payment and prorated to the date of closing with Seller paying through the day before closing. Exceptions:
14. Well/Septic: Within ten (10) days after the Effective Date, (choose one) Seller or Buyer will arrange for, at their own expense,
an inspection of the primary well used for human consumption (including a water quality test for coliform bacteria and nitrates) and
septic systems in use on the Property. The inspection will be performed by a qualified inspector in a manner that meets county (or
other local governmental authority, if applicable) protocol.
If any report discloses a condition unsatisfactory to Buyer, or doesn’t meet county standards that are a condition of sale, Buyer may,
within three (3) days after Buyer has received the report, by written notice to Seller, either terminate this Agreement and receive a
refund of Buyer’s Earnest Money Deposit, or make a written proposal to Seller to correct those unsatisfactory conditions. If Buyer fails
to make a written proposal within the above referenced time period, then Buyer will be deemed to have accepted the well/septic as-is.
Seller will respond in writing within three (3) days to Buyer’s request. If Seller fails to respond or to arrive at a mutually agreeable
resolution within three (3) days after Seller’s receipt of Buyer’s proposal, Buyer will have three (3) days to provide written notice of
termination of this Agreement and receive a refund of any applicable Earnest Money Deposit. If Buyer fails to terminate the contract,
Buyer will proceed to closing according to the terms and conditions of this Agreement.
Other:
15. Inspections & Investigations:
Inspections: Buyer, or someone selected by Buyer, has the right to inspect the buildings, premises, components and systems, at
Buyer’s expense. Any damage, misuse, abuse, or neglect of any portion of the Property or premises as a result of inspections will be
Buyer’s responsibility and expense.
Investigations: It is Buyer’s responsibility to investigate (i) whether the Property complies with applicable codes and local ordinances
and whether the Property is zoned for Buyer’s intended use; (ii) whether Buyer can obtain a homeowner’s insurance policy for the
Property at price and terms acceptable to Buyer; (iii) and whether or not the Property is in a flood zone.
All inspections and investigations will be completed within ____5 days after the Effective Date. If the results of Buyer’s inspections and
investigations are not acceptable to Buyer, Buyer may, within the above referenced period, either (a) terminate this Agreement by
written notice to Seller and receive a refund of Buyer’s Earnest Money Deposit, or (b) make a written proposal to Seller to correct those
unsatisfactory conditions, which proposal must be in the form of a proposed addendum and must be signed by Buyer in order for it to
be effective. If Buyer fails to make a written proposal within the above referenced time period, then Buyer will be deemed to have
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accepted the Property as-is. Seller may negotiate with Buyer, or by written notice to Buyer, accept Buyer’s proposal or terminate this
Agreement. If Seller fails to respond, or to arrive at a mutually agreeable resolution within three (3) days after Seller’s receipt of
Buyer’s proposal, Buyer shall have three (3) days to provide written notice of termination of this Agreement and receive a refund of
any applicable Earnest Money Deposit. If Buyer fails to terminate this Agreement within said three (3) day period, Buyer will be deemed
to accept the Inspections & Investigations and will proceed to closing according to the terms and conditions of this Agreement.
Buyer has waived all rights under this Inspections & Investigations paragraph.
Exceptions:
16. Municipal Compliances: Seller will arrange and pay for current certificates of occupancy, sidewalk compliance, and smoke detector
ordinances, if applicable.
17. Title Insurance: Seller agrees to convey marketable title to the Property subject to conditions, limitations, reservation of oil, gas and
other mineral rights, existing zoning ordinances, and building and use restrictions and easements of record. An expanded coverage
ALTA Homeowner’s Policy of Title Insurance in the amount of the Purchase Price shall be ordered by Seller and furnished to Buyer at
Seller’s expense, and a commitment to issue a policy insuring marketable title vested in Buyer, including a real estate tax status
report, will be made available to Buyer within ten (10) days after the Effective Date. If Buyer so chooses, or if an expanded policy is
not applicable, then a standard ALTA Owners’ Policy of Title Insurance shall be provided.
If Buyer objects to any conditions, Buyer may, within three (3) days of receipt of the Title Commitment, by written notice to Seller,
either terminate this Agreement and receive a refund of Buyer’s Earnest Money Deposit, or make a written proposal to Seller to correct
those unsatisfactory conditions. If Buyer fails to make a written proposal within the above referenced time period, then Buyer will be
deemed to have accepted the Title Commitment as-is. Seller may negotiate with Buyer, or by written notice to Buyer, accept Buyer’s
proposal or terminate this Agreement. If Seller fails to respond, or to arrive at a mutually agreeable resolution within three (3) days
after Seller’s receipt of Buyer’s proposal, Buyer shall have three (3) days to provide written notice of termination of this Agreement and
shall receive a refund of any applicable Earnest Money Deposit. If Buyer fails to terminate this Agreement within said three (3) day
period, Buyer will be deemed to accept the Title Commitment as-is and will proceed to closing according to the terms and conditions
of this Agreement. Exceptions:
18. Property Survey: Broker advises that Buyer should have a survey performed to satisfy Buyer as to the boundaries of the Property
and the location of improvements thereon.
Buyer or Seller (choose one) shall within ten (10) days of the Effective Date, order, at their expense, a boundary survey with iron
corner stakes showing the location of the boundaries, improvements and easements in connection with the Property. Upon receipt of
the survey, Buyer will have three (3) days to review the survey. If the survey shows any condition, in Buyer’s sole discretion, which
would interfere with Buyer’s intended use of the Property, the marketability of the title, or zoning non-compliance, then Buyer may,
within said three (3) day period, terminate this Agreement, in writing, and Buyer will receive a full refund of Buyer’s Earnest Money
Deposit.
No survey. Buyer has waived all rights under this paragraph.
When closing occurs, Buyer shall be deemed to have accepted the boundaries of the Property and the location of such improvements
thereon. Exceptions:
19. Home Protection Plan: Buyer and Seller have been informed that home protection plans may be available. Such plans may provide
additional protection and benefit to the parties. Exceptions:
20. Prorations: Rent; association dues/fees, if any; insurance, if assigned; interest on any existing land contract, mortgage or lien
assumed by Buyer; will all be adjusted to the date of closing. For the purposes of calculating prorations, it is presumed that Seller
owns the Property through the day before closing.
21. Closing: If agreeable to Buyer and Seller, the sale will be closed as soon as closing documents are ready, but not later than
04/21/2023 . An additional period of fifteen (15) days will be allowed for closing to accommodate the correction of
title defects or survey problems which can be readily corrected, or for delays in obtaining any lender required inspections/repairs. During
this additional period, the closing will be held within 5 days after all parties have been notified that all necessary documents have been
prepared. Buyer and Seller will each pay their title company closing fee, if applicable, except in the case of VA financing where Seller
will pay the entire closing fee. Exceptions:
22. Pre-Closing Walk-Through: Buyer (choose one) reserves waives the right to conduct a final walk-through of the
Property within three (3) days of the scheduled closing date. The purpose of the walk-through is to determine that the Property is in
a substantially similar condition as of the Effective Date, any contractually agreed upon items have been fulfilled, and that any included
personal property is still located at the Property. Buyer shall immediately report to Seller any objections to these conditions and Buyer’s
requested corrective action.
23. Possession: Seller will maintain the Property in its present condition until the completion of the closing of the sale. Possession to be
delivered to Buyer, subject to rights of present tenants, if any.
At the completion of the closing of the sale.
At a.m. p.m. on the day after completion of the closing of the sale, during which time Seller
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will have the privilege to occupy the Property and hereby agrees to pay Buyer $ as an occupancy
fee for this period payable at closing, WITHOUT PRORATION. Payment shall be made in the form of cash or certified funds.
If Seller fails to deliver possession to Buyer on the agreed date, Seller shall become a tenant at sufferance and shall pay to Buyer as
liquidated damages $ 100.00 per day plus all of the Buyer’s actual reasonable attorney's fees incurred in removing the Seller
from the Property.
If Seller occupies the Property after closing, Seller will pay all utilities during such occupancy. Buyer will maintain the structure and
mechanical systems at the Property. However, any repairs or replacements necessitated by Seller’s misuse, abuse, or neglect of any
portion of the Property will be Seller’s responsibility and expense.
On the agreed delivery date, Seller shall deliver the Property free of trash and debris and in broom-clean condition, shall remove all
personal property (unless otherwise stated in this or an additional written agreement), shall make arrangements for final payment on
all utilities, and shall deliver all keys to Buyer. Exceptions:
24. Earnest Money Deposit: For valuable consideration, Buyer gives Seller until 10:00 PM (time) on
03/10/2023 (date), to deliver the written acceptance of this offer and agrees that this offer, when accepted by
Seller, will constitute a binding Agreement between Buyer and Seller. An Earnest Money Deposit in the amount of $ 1800.00
shall be submitted to Bellabay Realty SW (insert name of broker, title
company, other) within 72 hours of the Effective Date of this Agreement, and shall be applied against the Purchase Price. If the Earnest
Money Deposit is not received within 72 hours of the Effective Date or is returned for insufficient funds, Seller may terminate this
Agreement until such time as the Earnest Money Deposit is received. If Seller terminates this Agreement under this provision, Seller
waives any claim to the Earnest Money Deposit. If the sale is not closed due to a failure to satisfy a contingency for a reason other
than the fault of Buyer, the Earnest Money Deposit shall be refunded to Buyer. If the sale is not closed as provided in this Agreement
and Buyer and Seller do not agree to the disposition of the Earnest Money Deposit, then Buyer and Seller agree that the Broker holding
the Earnest Money Deposit may notify Buyer and Seller, in writing, of Broker’s intended disposition of the Earnest Money Deposit. If
Buyer and Seller do not object to such disposition in writing within fifteen (15) days after the date of Broker’s notice, they will be deemed
to have agreed to Broker’s proposed disposition; if either Buyer or Seller object and no mutually agreeable disposition can be
negotiated, Broker may deposit the funds by interpleader with a court of proper jurisdiction or await further actions by Buyer and Seller.
In the event of litigation involving the deposit, in whole or in part, either the Seller or the Buyer that is not the prevailing party, as
determined by the court, will reimburse the other for reasonable attorneys’ fees and expenses incurred in connection with the litigation,
and will reimburse the Broker for any reasonable attorneys’ fees and expenses incurred in connection with any interpleader action
instituted. If the entity holding the Earnest Money Deposit is not the Broker, then to the extent that the terms of any escrow agreement
conflict with this paragraph, then the terms and conditions of the escrow agreement shall control.
25. Professional Advice: Broker hereby advises Buyer and Seller to seek legal, tax, environmental and other appropriate professional
advice relating to this transaction. Broker does not make any representations or warranties with respect to the advisability of, or the
legal effect of this transaction. Buyer further acknowledges that REALTOR® above named in the Agreement hereby recommends to
Buyer that an attorney be retained by Buyer to pass upon the marketability of the title and to ascertain that the required details of the
sale are adhered to before the transaction is consummated. Buyer agrees that Buyer is not relying on any representation or statement
made by Seller or any real estate salesperson (whether intentionally or negligently) regarding any aspect of the Property or this sale
transaction, except as may be expressly set forth in this Agreement, a written amendment to this Agreement, or a disclosure statement
separately signed by Seller.
26. Disclosure of Information: Buyer and Seller acknowledge and agree that the Purchase Price, terms, and other details with respect
to this transaction (when closed) are not confidential, will be disclosed to REALTORS® who participate in the applicable Multiple Listing
Service, and may otherwise be used and/or published by that Multiple Listing Service in the ordinary course of its business.
27. Other Provisions:
28. Mergers and Integrations: This Agreement is the final expression of the complete agreement of Buyer and Seller, and there are no
oral agreements existing between Buyer and Seller relating to this transaction. This Agreement may be amended only in writing signed
by Buyer and Seller and attached to this Agreement.
29. Fax/Electronic Distribution and Electronic Signatures: Buyer and Seller agree that any signed copy of this Agreement, and any
amendments or addendums related to this transaction, transmitted by facsimile or other electronic means shall be competent evidence
of its contents to the same effect as an original signed copy. Buyer and Seller further agree that an electronic signature is the legal
equivalent of a manual or handwritten signature, and consent to use of electronic signatures. Buyer and Seller agree that any notice(s)
required or permitted under this Agreement may also be transmitted by facsimile or other electronic means.
30. Wire Fraud: Seller and Buyer are advised that wire fraud is an increasingly common problem. If you receive any electronic
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communication directing you to transfer funds or provide nonpublic personal information (such as social security numbers, drivers’
license numbers, wire instructions, bank account numbers, etc.), even if that electronic communication appears to be from the
Broker, Title Company, or Lender, DO NOT reply until you have verified the authenticity of the email by direct communication with
Broker, Title Company, or Lender. DO NOT use telephone numbers provided in the email. Such requests may be part of a scheme
to steal funds or use your identity.
31. Buyer’s Approval and Acknowledgment: Buyer approves the terms of this offer and acknowledges receipt of a copy of this offer.
Buyer 1 Address X Joseph Harris Buyer
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Buyer 1 Phone: (Res.) (Bus.) Joseph Harris
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Lauren Harris
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GF5J-DXK1-IOYT-GHTC Buyer
Buyer 2 Phone: (Res.) (Bus.) Lauren Harris
Print name as you want it to appear on documents.
32. Seller’s Response: The above offer is approved: As written. As written except:
Counteroffer, if any, expires , at (time). Seller has the right to withdraw this
counteroffer and to accept other offers until Seller or Seller’s Agent has received notice of Buyer’s acceptance.
33. Certification of Previous Disclosure Statement: Seller certifies to Buyer that the Property is currently in the same condition as
disclosed in the Seller’s Disclosure Statement dated (choose one): Yes No.
Seller agrees to inform Buyer in writing of any changes in the content of the disclosure statement prior to closing.
34. Notice to Seller: Seller understands that consummation of the sale or transfer of the Property described in this Agreement will not
relieve Seller of any liability that Seller may have under the mortgages to which the Property is subject, unless otherwise agreed to by
the lender or required by law or regulation. Buyer and Seller are advised that a Notice to Seller & Buyer of Underlying Mortgage form
is available from the respective agents via the West Michigan REALTOR® Boards.
35. Listing Office Address: 3265 Walker Ave NW,, Suite D, Grand Rapids, MI 49544 Listing Broker License #
Listing Agent Name: Mariana Murillo VanDam Listing Agent License # 6506015435
36. Seller’s Approval and Acknowledgment: Seller approves the terms of this Agreement and acknowledges receipt of a copy. If Seller’s
response occurs after Buyer’s offer expires, then Seller’s response is considered a counteroffer and Buyer’s acceptance is required
below.
LeighAnn Mikesell
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Is Seller a U.S. Citizen or Resident Alien? Yes No*
Print name as you want it to appear on documents.
X (Seller’s Signature, Date, Time):
Is Seller a U.S. Citizen or Resident Alien? Yes No*
Print name as you want it to appear on documents.
Seller’s Address: Seller’s Phone (Res.) (Bus)
* If Seller(s) is not a U.S. Citizen or Resident Alien, there may be tax implications and Buyer and Seller are advised to seek professional advice.
37. Buyer’s Receipt/Acceptance: Buyer acknowledges receipt of Seller’s response to Buyer’s offer. In the event Seller’s response
constitutes a counteroffer, Buyer accepts said counteroffer. All other terms and conditions in the offer remain unchanged.
X (Buyer’s Signature, Date, Time):
X (Buyer’s Signature, Date, Time):
38. Seller’s Receipt: Seller acknowledges receipt of Buyer’s acceptance of counter offer.
X (Seller’s Signature, Date, Time):
X (Seller’s Signature, Date, Time):
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Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: March 28, 2023 Title: Sale of 263 Catherine
Avenue
Submitted By: LeighAnn Mikesell Department: City Manager’s
Office
Brief Summary: Staff is requesting approval of a purchase agreement for 263 Catherine Avenue.
Detailed Summary & Background:
263 Catherine Avenue was constructed through the agreement with Dave Dusendang to construct
infill housing with ARPA funding. The offer is for $6,000 over the full listing price with $6,000 in
seller concessions.
Goal/Focus Area/Action Item Addressed:
Create an environment that effectively attracts new residents and retains existing residents by
filling existing employment gaps, attracting new and diverse businesses to the city, and expanding
access to a variety of high-quality housing options in Muskegon. Diverse housing types
Amount Requested: N/A Amount Budgeted: N/A
Fund(s) or Account(s): Fund(s) or Account(s):
Recommended Motion: to approve the purchase agreement for 263 Catherine Avenue.
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:
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WEST MICHIGAN REGIONAL PURCHASE AGREEMENT
#
DATE: 03/13/2023 , (time) MLS # TBD
SELLING OFFICE: 616 REALTY BROKER LIC.#: 6505367456 REALTOR® PHONE: 616-421-5327
LISTING OFFICE: West Urban Realty REALTOR® PHONE: 616-366-2459
1. Effective Date: This Agreement is effective on the date of Seller's acceptance of Buyer's offer or Buyer's acceptance of any
counteroffer, as the case may be, and this date shall hereafter be referred to as the "Effective Date". Further, any reference to "days"
in this Agreement refers to calendar days. The first calendar day begins at 12:01 a.m. on the day after the Effective Date. Any reference
to "time" refers to local time.
2. Agency Disclosure: The Undersigned Buyer and Seller each acknowledge that they have read and signed the Disclosure Regarding
Real Estate Agency Relationships. The selling licensee is acting as (choose one):
Agent/Subagent of Seller Buyer’s Agent Dual Agent (with written, informed consent of both Buyer and Seller)
Transaction Coordinator
Primary Selling Agent Name: Catherine Conklin Email: cat@homesgr.com Lic.#: 6506046008
Alternate Selling Agent Name: Email: Lic.#:
3. Seller’s Disclosure Statement: (This paragraph applies to sales of one-to-four family residential units.)
Buyer has received the Seller’s Disclosure Statement, dated .
Buyer has not received the Seller’s Disclosure Statement. Buyer may terminate this Agreement, in writing, any time prior to receipt
of the Seller’s Disclosure Statement. Once Buyer has received the Seller’s Disclosure Statement, Buyer may terminate this
Agreement, in writing, within 72 hours of receipt if the disclosure was received in person, or within 120 hours if received by
registered mail. Exceptions: Home Warranty
Seller is exempt from the requirements of the Seller Disclosure Act.
4. Lead-Based Paint Addendum: Transactions involving homes built prior to 1978 require a written disclosure which is hereby attached
and will be an integral part of this Agreement.
5. Property Description: Buyer offers to buy the property located in the City Village Township of Muskegon ,
County of Muskegon , Michigan, commonly known as (insert mailing address: street/city/state/zip code)
263 Catherine St
with the following legal description and tax parcel ID numbers:
CITY OF MUSKEGON REVISED PLAT OF 1903 LOT 16 BLK 260 EXC THE EAST 48.75 FT OF SD LOT
AND THE E 31.5 FT OF LOTS 1 & 2 EX W 11.5 FT OF S 45 FT BLK 260
PP# 24-205-260-0016-10 .
The following paragraph applies only if the Premises include unplatted land:
Seller agrees to grant Buyer at closing the right to make (insert number) division(s) under Section 108(2), (3), and
(4) of the Michigan Land Division Act. (If no number is inserted, the right to make divisions under the sections referenced above stays
with any remainder of the parent parcel retained by Seller. If a number is inserted, Seller retains all available divisions in excess of the
number stated; however, Seller and/or REALTOR® do not warrant that the number of divisions stated is actually available.) If this sale
will create a new division, Seller’s obligations under this Agreement are contingent on Seller’s receipt of municipal approval on or
before , of the proposed division to create the Premises.
6. Purchase Price: Buyer offers to buy the Property for the sum of $ 175,900
one hundred seventy-five thousand nine hundred U.S. Dollars
7. Seller Concessions, if any: 6,000
8. Terms: The Terms of Purchase will be as indicated by “X” below: (Other unmarked terms of purchase do not apply.)
SOURCE OF FUNDS TO CLOSE: Buyer represents that the funds necessary to close this transaction on the terms specified below
are currently available to Buyer in cash or an equally liquid equivalent.
If the Property’s value stated in an appraisal obtained by Buyer or Buyer’s lender is less than the Purchase Price, Buyer shall within
three (3) days after receipt of the appraisal: 1) renegotiate with the Seller, 2) terminate the transaction, in which case Buyer shall
receive a refund of Buyer’s Earnest Money Deposit, or 3) proceed to close the transaction at the agreed Purchase Price.
CASH. The full Purchase Price upon execution and delivery of Warranty Deed. Buyer Agrees to provide Buyer Agent/Dual Agent
verification of funds within five (5) days after the Effective Date, and consents to the disclosure of such information to Seller and/or
Seller’s Agent. If verification of funds is not received within 5 days after the Effective Date, Seller may terminate this Agreement
at any time before verification of funds is received by giving written notice to Buyer. Any appraisal required by Buyer shall be
arranged and paid for by Buyer within ten (10) days after the Effective Date of this Agreement.
NEW MORTGAGE. The full Purchase Price upon execution and delivery of Warranty Deed, contingent upon Buyer’s ability to
obtain a FHA type 30 (year) mortgage in the amount of 100 % of the Purchase Price
bearing interest at a rate not to exceed 8 % per annum (rate at time of loan application), on or before the date the sale is
to be closed. Buyer agrees to apply for a mortgage loan, and pay all fees and costs customarily charged by Buyer’s lender to
process the application, within 3 days after the Effective Date, not to impair Buyers’ credit after the date such loan if
offered. Seller Buyer will agree to pay an amount not to exceed $ n/a representing repairs required as a
condition of financing. Buyer agrees does not agree to authorize Buyer’s Agent/Dual Agent to obtain information from
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Buyer’s lender regarding Buyer’s financing, and consents to the disclosure of this information to Seller and/or Seller’s Agent.
Exceptions:
SELLER FINANCING (choose one of the following): CONTRACT or PURCHASE MONEY MORTGAGE
In the case of Seller financing, Buyer agrees to provide Seller with a credit report within 72 hours after the Effective Date. If the
credit report is unacceptable to Seller, Seller shall have the right to terminate this offer within 48 hours of Seller’s receipt, or if
Buyer fails to provide said credit report to Seller within the time frame allotted, Seller shall have the right to terminate this offer
within 48 hours. Seller is advised to seek professional advice regarding the credit report.
$ upon execution and delivery of a
form (name or type of form and revision date), a copy of which is attached, wherein the balance of $
will be payable in monthly installments of $ or more including interest at % per annum,
interest to start on date of closing, and first payment to become due thirty (30) days after date of closing. The entire unpaid balance
will become due and payable months after closing. Any appraisal required by Buyer shall be arranged and
paid for by Buyer within ten (10) days after the Effective Date of this Agreement. Exceptions:
EQUITY (choose one of the following): Formal Assumption or Informal Assumption
Upon execution and delivery of: Warranty Deed subject to existing mortgage OR Assignment of Vendee Interest
in Land Contract, Buyer to pay the difference (approximately $ ) between the Purchase Price above
provided and the unpaid balance (approximately $ ) upon said mortgage or land contract, which Buyer
agrees to assume and pay. Buyer agrees to reimburse Seller for accumulated funds held in escrow, if any, for payment of future
taxes and insurance premiums, etc. Any appraisal required by Buyer shall be arranged and paid for by Buyer within ten
(10) days after the Effective Date of this Agreement. Exceptions:
OTHER:
9. Contingencies: Buyer’s obligation to consummate this transaction (choose one):
IS NOT CONTINGENT - is not contingent upon the sale or exchange of any other property by Buyer.
IS CONTINGENT UPON CLOSING - is contingent upon closing of an existing sale or exchange of Buyer’s property located at:
A copy of Buyer’s agreement to sell or exchange that property is being delivered to Seller along with this offer. If the existing sale
or exchange terminates for any reason, Buyer will immediately notify Seller, and either party may terminate this Agreement in
writing, within 3 days of Buyer’s notice to Seller. If either party terminates, Buyer shall receive a refund of any applicable Earnest
Money Deposit.
IS CONTINGENT UPON THE SALE AND CLOSING - is contingent upon the execution of a binding agreement and the closing
of a sale or exchange of Buyer’s property located at
on or before . Seller will have the right to continue to
market Seller’s Property until Buyer enters into a binding agreement to sell or exchange Buyer’s property and delivers a copy
thereof to Seller. During such marketing period, Seller may enter into a binding contract for sale to another purchaser on such
price and terms as the Seller deems appropriate. In such event, this Agreement will automatically terminate, Buyer will be notified
promptly, and Buyer’s Earnest Money Deposit will be refunded. Exceptions:
10. Fixtures & Improvements: The following is not intended to be an all-inclusive list of items included with the Property. All
improvements and appurtenances are included in the Purchase Price, if now in or on the Property, unless rented, including the
following: all buildings; landscaping; attached smart home devices; attached security systems; lighting fixtures and their shades and
bulbs; ceiling fans; hardware for draperies and curtains; window shades and blinds; built-in kitchen appliances, including garbage
disposal and drop-in ranges; wall to wall carpeting, if attached; all attached mirrors; all attached TV mounting brackets; all attached
shelving; attached work benches; stationary laundry tubs; water softener; water heater; incinerator; sump pump; water pump and
pressure tank; heating and air conditioning equipment (window units excluded); attached humidifiers; heating units, including add-on
heating stoves and heating stoves connected by flue pipe; fireplace screens, inserts, and grates; fireplace doors, if attached; liquid
heating and cooking fuel tanks; TV antenna and complete rotor equipment; satellite dish and necessary accessories and complete
rotor equipment; all support equipment for inground pools; screens and storm windows and doors; awnings; installed basketball
backboard, pole and goal; mailbox; flagpole(s); fencing, invisible inground fencing and all related equipment, including collars;
detached storage buildings; underground sprinkling, including the pump; installed outdoor grills; all plantings and bulbs; garage door
opener and control(s); and any and all items and fixtures permanently affixed to the Property; and also includes:
Garage Door Opener; Home Warranty; Laminate Floor
but does not include:
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11. Heating and Cooking Fuels: Liquid heating and cooking fuels in tanks are included in the sale and will transfer to Buyer at time of
possession unless usage is metered (in which case it is not included in the sale). Sellers are responsible for maintaining heating and
cooking liquid fuels at an operational level and shall not permit fuels to fall below 10% in the tank(s) at the time of possession, except
that the tank(s) may be empty only if now empty. Further, Seller is precluded from removing fuel from tank(s) other than what is
expended through normal use. Exceptions:
12. Assessments (choose one):
If the Property is subject to any assessments,
Seller shall pay the entire balance of any such assessments that are due and payable on or before the day of closing (regardless
of any installment arrangements), except for any fees that are required to connect to public utilities.
Seller shall pay all installments of such assessments that become due and payable on or before day of closing. Buyer shall assume
and pay all other installments of such assessments.
Seller has an ongoing obligation through the Closing to disclose to the Buyer any known pending assessments, including, but not limited
to, any mandatory utility connection requirements, and/or benefit charges, and condominium special assessments, that have not been
previously disclosed in writing to Buyer.
13. Property Taxes: Seller will be responsible for any taxes billed prior to those addressed below. Buyer will be responsible for all taxes
billed after those addressed below.
Buyer is also advised that the state equalized value of the Property, principal residence exemption information and other real property
tax information is available from the appropriate local assessor’s office. Buyer should not assume that Buyer’s future tax bills on the
Property will be the same as Seller’s present tax bills. Under Michigan law, real property tax obligations can change significantly when
property is transferred.
No proration. (Choose one):
Buyer Seller will pay taxes billed summer (year);
Buyer Seller will pay taxes billed winter (year);
Calendar Year Proration (all taxes billed or to be billed in the year of the closing). Calendar year tax levies will be estimated, if
necessary, using the taxable value and the millage rate(s) in effect on the day of closing, broken down to a per diem tax payment
and prorated to the date of closing with Seller paying for January 1 through the day before closing.
Fiscal Year Proration - Taxes will be prorated as though they are paid in (choose one): advance. arrears.
Fiscal Year will be assumed to cover a 12-month period from date billed, and taxes will be prorated to the date of closing. Fiscal
year tax levies will be estimated, if necessary, using the taxable value and millage rate(s) in effect on the day of closing, broken
down to a per diem tax payment and prorated to the date of closing with Seller paying through the day before closing. Exceptions:
14. Well/Septic: Within ten (10) days after the Effective Date, (choose one) Seller or Buyer will arrange for, at their own expense,
an inspection of the primary well used for human consumption (including a water quality test for coliform bacteria and nitrates) and
septic systems in use on the Property. The inspection will be performed by a qualified inspector in a manner that meets county (or
other local governmental authority, if applicable) protocol.
If any report discloses a condition unsatisfactory to Buyer, or doesn’t meet county standards that are a condition of sale, Buyer may,
within three (3) days after Buyer has received the report, by written notice to Seller, either terminate this Agreement and receive a
refund of Buyer’s Earnest Money Deposit, or make a written proposal to Seller to correct those unsatisfactory conditions. If Buyer fails
to make a written proposal within the above referenced time period, then Buyer will be deemed to have accepted the well/septic as-is.
Seller will respond in writing within three (3) days to Buyer’s request. If Seller fails to respond or to arrive at a mutually agreeable
resolution within three (3) days after Seller’s receipt of Buyer’s proposal, Buyer will have three (3) days to provide written notice of
termination of this Agreement and receive a refund of any applicable Earnest Money Deposit. If Buyer fails to terminate the contract,
Buyer will proceed to closing according to the terms and conditions of this Agreement.
Other:
15. Inspections & Investigations:
Inspections: Buyer, or someone selected by Buyer, has the right to inspect the buildings, premises, components and systems, at
Buyer’s expense. Any damage, misuse, abuse, or neglect of any portion of the Property or premises as a result of inspections will be
Buyer’s responsibility and expense.
Investigations: It is Buyer’s responsibility to investigate (i) whether the Property complies with applicable codes and local ordinances
and whether the Property is zoned for Buyer’s intended use; (ii) whether Buyer can obtain a homeowner’s insurance policy for the
Property at price and terms acceptable to Buyer; (iii) and whether or not the Property is in a flood zone.
All inspections and investigations will be completed within ____5 days after the Effective Date. If the results of Buyer’s inspections and
investigations are not acceptable to Buyer, Buyer may, within the above referenced period, either (a) terminate this Agreement by
written notice to Seller and receive a refund of Buyer’s Earnest Money Deposit, or (b) make a written proposal to Seller to correct those
unsatisfactory conditions, which proposal must be in the form of a proposed addendum and must be signed by Buyer in order for it to
be effective. If Buyer fails to make a written proposal within the above referenced time period, then Buyer will be deemed to have
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accepted the Property as-is. Seller may negotiate with Buyer, or by written notice to Buyer, accept Buyer’s proposal or terminate this
Agreement. If Seller fails to respond, or to arrive at a mutually agreeable resolution within three (3) days after Seller’s receipt of
Buyer’s proposal, Buyer shall have three (3) days to provide written notice of termination of this Agreement and receive a refund of
any applicable Earnest Money Deposit. If Buyer fails to terminate this Agreement within said three (3) day period, Buyer will be deemed
to accept the Inspections & Investigations and will proceed to closing according to the terms and conditions of this Agreement.
Buyer has waived all rights under this Inspections & Investigations paragraph.
Exceptions:
16. Municipal Compliances: Seller will arrange and pay for current certificates of occupancy, sidewalk compliance, and smoke detector
ordinances, if applicable.
17. Title Insurance: Seller agrees to convey marketable title to the Property subject to conditions, limitations, reservation of oil, gas and
other mineral rights, existing zoning ordinances, and building and use restrictions and easements of record. An expanded coverage
ALTA Homeowner’s Policy of Title Insurance in the amount of the Purchase Price shall be ordered by Seller and furnished to Buyer at
Seller’s expense, and a commitment to issue a policy insuring marketable title vested in Buyer, including a real estate tax status
report, will be made available to Buyer within ten (10) days after the Effective Date. If Buyer so chooses, or if an expanded policy is
not applicable, then a standard ALTA Owners’ Policy of Title Insurance shall be provided.
If Buyer objects to any conditions, Buyer may, within three (3) days of receipt of the Title Commitment, by written notice to Seller,
either terminate this Agreement and receive a refund of Buyer’s Earnest Money Deposit, or make a written proposal to Seller to correct
those unsatisfactory conditions. If Buyer fails to make a written proposal within the above referenced time period, then Buyer will be
deemed to have accepted the Title Commitment as-is. Seller may negotiate with Buyer, or by written notice to Buyer, accept Buyer’s
proposal or terminate this Agreement. If Seller fails to respond, or to arrive at a mutually agreeable resolution within three (3) days
after Seller’s receipt of Buyer’s proposal, Buyer shall have three (3) days to provide written notice of termination of this Agreement and
shall receive a refund of any applicable Earnest Money Deposit. If Buyer fails to terminate this Agreement within said three (3) day
period, Buyer will be deemed to accept the Title Commitment as-is and will proceed to closing according to the terms and conditions
of this Agreement. Exceptions: Buyer agrees to pay an Administrative Processing Fee of 395 to 616 REALTY at closing of sale.
18. Property Survey: Broker advises that Buyer should have a survey performed to satisfy Buyer as to the boundaries of the Property
and the location of improvements thereon.
Buyer or Seller (choose one) shall within ten (10) days of the Effective Date, order, at their expense, a boundary survey with iron
corner stakes showing the location of the boundaries, improvements and easements in connection with the Property. Upon receipt of
the survey, Buyer will have three (3) days to review the survey. If the survey shows any condition, in Buyer’s sole discretion, which
would interfere with Buyer’s intended use of the Property, the marketability of the title, or zoning non-compliance, then Buyer may,
within said three (3) day period, terminate this Agreement, in writing, and Buyer will receive a full refund of Buyer’s Earnest Money
Deposit.
No survey. Buyer has waived all rights under this paragraph.
When closing occurs, Buyer shall be deemed to have accepted the boundaries of the Property and the location of such improvements
thereon. Exceptions:
Seller to provide existing survey, if available
19. Home Protection Plan: Buyer and Seller have been informed that home protection plans may be available. Such plans may provide
additional protection and benefit to the parties. Exceptions:
1 year warranty provided by builder.
20. Prorations: Rent; association dues/fees, if any; insurance, if assigned; interest on any existing land contract, mortgage or lien
assumed by Buyer; will all be adjusted to the date of closing. For the purposes of calculating prorations, it is presumed that Seller
owns the Property through the day before closing.
21. Closing: If agreeable to Buyer and Seller, the sale will be closed as soon as closing documents are ready, but not later than
04/14/2023 . An additional period of fifteen (15) days will be allowed for closing to accommodate the correction of
title defects or survey problems which can be readily corrected, or for delays in obtaining any lender required inspections/repairs. During
this additional period, the closing will be held within 5 days after all parties have been notified that all necessary documents have been
prepared. Buyer and Seller will each pay their title company closing fee, if applicable, except in the case of VA financing where Seller
will pay the entire closing fee. Exceptions:
22. Pre-Closing Walk-Through: Buyer (choose one) reserves waives the right to conduct a final walk-through of the
Property within three (3) days of the scheduled closing date. The purpose of the walk-through is to determine that the Property is in
a substantially similar condition as of the Effective Date, any contractually agreed upon items have been fulfilled, and that any included
personal property is still located at the Property. Buyer shall immediately report to Seller any objections to these conditions and Buyer’s
requested corrective action.
23. Possession: Seller will maintain the Property in its present condition until the completion of the closing of the sale. Possession to be
delivered to Buyer, subject to rights of present tenants, if any.
At the completion of the closing of the sale.
At a.m. p.m. on the day after completion of the closing of the sale, during which time Seller
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will have the privilege to occupy the Property and hereby agrees to pay Buyer $ 0 as an occupancy
fee for this period payable at closing, WITHOUT PRORATION. Payment shall be made in the form of cash or certified funds.
If Seller fails to deliver possession to Buyer on the agreed date, Seller shall become a tenant at sufferance and shall pay to Buyer as
liquidated damages $ 250 per day plus all of the Buyer’s actual reasonable attorney's fees incurred in removing the Seller
from the Property.
If Seller occupies the Property after closing, Seller will pay all utilities during such occupancy. Buyer will maintain the structure and
mechanical systems at the Property. However, any repairs or replacements necessitated by Seller’s misuse, abuse, or neglect of any
portion of the Property will be Seller’s responsibility and expense.
On the agreed delivery date, Seller shall deliver the Property free of trash and debris and in broom-clean condition, shall remove all
personal property (unless otherwise stated in this or an additional written agreement), shall make arrangements for final payment on
all utilities, and shall deliver all keys to Buyer. Exceptions:
24. Earnest Money Deposit: For valuable consideration, Buyer gives Seller until 3 p.m. (time) on
03/15/2023 (date), to deliver the written acceptance of this offer and agrees that this offer, when accepted by
Seller, will constitute a binding Agreement between Buyer and Seller. An Earnest Money Deposit in the amount of $ 1000
shall be submitted to Chicago Title (insert name of broker, title
company, other) within 72 hours of the Effective Date of this Agreement, and shall be applied against the Purchase Price. If the Earnest
Money Deposit is not received within 72 hours of the Effective Date or is returned for insufficient funds, Seller may terminate this
Agreement until such time as the Earnest Money Deposit is received. If Seller terminates this Agreement under this provision, Seller
waives any claim to the Earnest Money Deposit. If the sale is not closed due to a failure to satisfy a contingency for a reason other
than the fault of Buyer, the Earnest Money Deposit shall be refunded to Buyer. If the sale is not closed as provided in this Agreement
and Buyer and Seller do not agree to the disposition of the Earnest Money Deposit, then Buyer and Seller agree that the Broker holding
the Earnest Money Deposit may notify Buyer and Seller, in writing, of Broker’s intended disposition of the Earnest Money Deposit. If
Buyer and Seller do not object to such disposition in writing within fifteen (15) days after the date of Broker’s notice, they will be deemed
to have agreed to Broker’s proposed disposition; if either Buyer or Seller object and no mutually agreeable disposition can be
negotiated, Broker may deposit the funds by interpleader with a court of proper jurisdiction or await further actions by Buyer and Seller.
In the event of litigation involving the deposit, in whole or in part, either the Seller or the Buyer that is not the prevailing party, as
determined by the court, will reimburse the other for reasonable attorneys’ fees and expenses incurred in connection with the litigation,
and will reimburse the Broker for any reasonable attorneys’ fees and expenses incurred in connection with any interpleader action
instituted. If the entity holding the Earnest Money Deposit is not the Broker, then to the extent that the terms of any escrow agreement
conflict with this paragraph, then the terms and conditions of the escrow agreement shall control.
25. Professional Advice: Broker hereby advises Buyer and Seller to seek legal, tax, environmental and other appropriate professional
advice relating to this transaction. Broker does not make any representations or warranties with respect to the advisability of, or the
legal effect of this transaction. Buyer further acknowledges that REALTOR® above named in the Agreement hereby recommends to
Buyer that an attorney be retained by Buyer to pass upon the marketability of the title and to ascertain that the required details of the
sale are adhered to before the transaction is consummated. Buyer agrees that Buyer is not relying on any representation or statement
made by Seller or any real estate salesperson (whether intentionally or negligently) regarding any aspect of the Property or this sale
transaction, except as may be expressly set forth in this Agreement, a written amendment to this Agreement, or a disclosure statement
separately signed by Seller.
26. Disclosure of Information: Buyer and Seller acknowledge and agree that the Purchase Price, terms, and other details with respect
to this transaction (when closed) are not confidential, will be disclosed to REALTORS® who participate in the applicable Multiple Listing
Service, and may otherwise be used and/or published by that Multiple Listing Service in the ordinary course of its business.
27. Other Provisions:
28. Mergers and Integrations: This Agreement is the final expression of the complete agreement of Buyer and Seller, and there are no
oral agreements existing between Buyer and Seller relating to this transaction. This Agreement may be amended only in writing signed
by Buyer and Seller and attached to this Agreement.
29. Fax/Electronic Distribution and Electronic Signatures: Buyer and Seller agree that any signed copy of this Agreement, and any
amendments or addendums related to this transaction, transmitted by facsimile or other electronic means shall be competent evidence
of its contents to the same effect as an original signed copy. Buyer and Seller further agree that an electronic signature is the legal
equivalent of a manual or handwritten signature, and consent to use of electronic signatures. Buyer and Seller agree that any notice(s)
required or permitted under this Agreement may also be transmitted by facsimile or other electronic means.
30. Wire Fraud: Seller and Buyer are advised that wire fraud is an increasingly common problem. If you receive any electronic
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communication directing you to transfer funds or provide nonpublic personal information (such as social security numbers, drivers’
license numbers, wire instructions, bank account numbers, etc.), even if that electronic communication appears to be from the
Broker, Title Company, or Lender, DO NOT reply until you have verified the authenticity of the email by direct communication with
Broker, Title Company, or Lender. DO NOT use telephone numbers provided in the email. Such requests may be part of a scheme
to steal funds or use your identity.
31. Buyer’s Approval and Acknowledgment: Buyer approves the terms of this offer and acknowledges receipt of a copy of this offer.
Buyer 1 Address X Adam Clark Buyer
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Buyer 1 Phone: (Res.) (Bus.)
Print name as you want it to appear on documents.
Buyer 2 Address X Buyer
Buyer 2 Phone: (Res.) (Bus.)
Print name as you want it to appear on documents.
32. Seller’s Response: The above offer is approved: As written. As written except:
Counteroffer, if any, expires , at (time). Seller has the right to withdraw this
counteroffer and to accept other offers until Seller or Seller’s Agent has received notice of Buyer’s acceptance.
33. Certification of Previous Disclosure Statement: Seller certifies to Buyer that the Property is currently in the same condition as
disclosed in the Seller’s Disclosure Statement dated na (choose one): Yes No.
Seller agrees to inform Buyer in writing of any changes in the content of the disclosure statement prior to closing.
34. Notice to Seller: Seller understands that consummation of the sale or transfer of the Property described in this Agreement will not
relieve Seller of any liability that Seller may have under the mortgages to which the Property is subject, unless otherwise agreed to by
the lender or required by law or regulation. Buyer and Seller are advised that a Notice to Seller & Buyer of Underlying Mortgage form
is available from the respective agents via the West Michigan REALTOR® Boards.
35. Listing Office Address: 3265 Walker Ave NW, Suite D, Grand Rapids, MI 49544 Listing Broker License # 6506015435
Listing Agent Name: Mariana Murillo VanDam Listing Agent License # 6506015435
36. Seller’s Approval and Acknowledgment: Seller approves the terms of this Agreement and acknowledges receipt of a copy. If Seller’s
response occurs after Buyer’s offer expires, then Seller’s response is considered a counteroffer and Buyer’s acceptance is required
below.
LeighAnn Mikesell
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X (Seller’s Signature, Date, Time): XZGV-HR3S-90HN-8TRE
LeighAnn Mikesell Is Seller a U.S. Citizen or Resident Alien? Yes No*
Print name as you want it to appear on documents.
X (Seller’s Signature, Date, Time):
Is Seller a U.S. Citizen or Resident Alien? Yes No*
Print name as you want it to appear on documents.
Seller’s Address: Seller’s Phone (Res.) (Bus)
* If Seller(s) is not a U.S. Citizen or Resident Alien, there may be tax implications and Buyer and Seller are advised to seek professional advice.
37. Buyer’s Receipt/Acceptance: Buyer acknowledges receipt of Seller’s response to Buyer’s offer. In the event Seller’s response
constitutes a counteroffer, Buyer accepts said counteroffer. All other terms and conditions in the offer remain unchanged.
X (Buyer’s Signature, Date, Time):
X (Buyer’s Signature, Date, Time):
38. Seller’s Receipt: Seller acknowledges receipt of Buyer’s acceptance of counter offer.
X (Seller’s Signature, Date, Time):
X (Seller’s Signature, Date, Time):
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RE: PRE-APPROVAL LETTER
Dear Adam Clark:
Congratulations!!! Purchasing a home is such an exciting experience. I would like to take this
opportunity to say “Thank You” for calling upon me to assist you in your home buying
needs. I look forward to the opportunity of working with you and strive to provide you with
excellent customer service. My goal is to make your loan process an enjoyable one.
Based upon the preliminary information that you have provided me, I am pleased to inform
you that you are pre-approved for a FHA Loan with Team Mortgage Company LLC.
This approval is contingent upon an acceptable appraisal, title review, and survey of the
subject property. It is also assuming that there is no change in income, debt, credit score, and
employment after the date indicated on this letter.
Please do not hesitate to contact me at 616-318-0385 if you have any questions.
Sincerely,
Thomas C. Girardot
President / Senior Mortgage Consultant
5043 CASCADE ROAD SE• GRAND RAPIDS, MI • 49546
PHONE: 616-318-0385• FAX: 616-829-5912
EMAIL:tgirardot@ruqualified.com
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Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: March 28, 2023 Title: Sale of 1373 Pine
Street
Submitted By: LeighAnn Mikesell Department: City Manager’s
Office
Brief Summary: Staff is requesting approval of a purchase agreement for 1373 Pine Street.
Detailed Summary & Background:
1373 Pine Street was constructed through the agreement with Dave Dusendang to construct infill
housing with ARPA funding. The offer is over the full listing price with 6% seller concessions. The
offer also includes costs to cover appliances. Once the appliances and seller concessions are
accounted for, the offer is for full price.
Goal/Focus Area/Action Item Addressed:
Create an environment that effectively attracts new residents and retains existing residents by
filling existing employment gaps, attracting new and diverse businesses to the city, and expanding
access to a variety of high-quality housing options in Muskegon. Diverse housing types
Amount Requested: N/A Amount Budgeted: N/A
Fund(s) or Account(s): Fund(s) or Account(s):
Recommended Motion: to approve the purchase agreement for 1373 Pine Street.
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:
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WEST MICHIGAN REGIONAL PURCHASE AGREEMENT
#
DATE: 03/10/2023 , (time) MLS # 71023001386
SELLING OFFICE: Pinnacle Realty BROKER LIC.#: 6505392630 REALTOR® PHONE: 6164471255
LISTING OFFICE: West Urban Realty REALTOR® PHONE:
1. Effective Date: This Agreement is effective on the date of Seller's acceptance of Buyer's offer or Buyer's acceptance of any
counteroffer, as the case may be, and this date shall hereafter be referred to as the "Effective Date". Further, any reference to "days"
in this Agreement refers to calendar days. The first calendar day begins at 12:01 a.m. on the day after the Effective Date. Any reference
to "time" refers to local time.
2. Agency Disclosure: The Undersigned Buyer and Seller each acknowledge that they have read and signed the Disclosure Regarding
Real Estate Agency Relationships. The selling licensee is acting as (choose one):
Agent/Subagent of Seller Buyer’s Agent Dual Agent (with written, informed consent of both Buyer and Seller)
Transaction Coordinator
Primary Selling Agent Name: Claire Ritter Email: findmihomewithclaire@outlook.com Lic.#: 6501448802
Alternate Selling Agent Name: Email: Lic.#:
3. Seller’s Disclosure Statement: (This paragraph applies to sales of one-to-four family residential units.)
Buyer has received the Seller’s Disclosure Statement, dated .
Buyer has not received the Seller’s Disclosure Statement. Buyer may terminate this Agreement, in writing, any time prior to receipt
of the Seller’s Disclosure Statement. Once Buyer has received the Seller’s Disclosure Statement, Buyer may terminate this
Agreement, in writing, within 72 hours of receipt if the disclosure was received in person, or within 120 hours if received by
registered mail. Exceptions:
Seller is exempt from the requirements of the Seller Disclosure Act.
4. Lead-Based Paint Addendum: Transactions involving homes built prior to 1978 require a written disclosure which is hereby attached
and will be an integral part of this Agreement.
5. Property Description: Buyer offers to buy the property located in the City Village Township of Muskegon ,
County of Muskegon , Michigan, commonly known as (insert mailing address: street/city/state/zip code)
1373 Pine St, Muskegon, MI 49442
with the following legal description and tax parcel ID numbers:
CITY OF MUSKEGON REVISED PLAT OF 1903 N 6.50 FT OF LOT 8 AND S 33 FT OF LOT 9 BLOCK 267
PP# 24205267000800 .
The following paragraph applies only if the Premises include unplatted land:
Seller agrees to grant Buyer at closing the right to make (insert number) All division(s) under Section 108(2), (3), and
(4) of the Michigan Land Division Act. (If no number is inserted, the right to make divisions under the sections referenced above stays
with any remainder of the parent parcel retained by Seller. If a number is inserted, Seller retains all available divisions in excess of the
number stated; however, Seller and/or REALTOR® do not warrant that the number of divisions stated is actually available.) If this sale
will create a new division, Seller’s obligations under this Agreement are contingent on Seller’s receipt of municipal approval on or
before 04/20/2023 , of the proposed division to create the Premises.
6. Purchase Price: Buyer offers to buy the Property for the sum of $ 184215
one hundred eighty-four thousand two hundred fifteen U.S. Dollars
7. Seller Concessions, if any: 6% of the purchase price towards the buyers closing costs, discount points, and prepaids
8. Terms: The Terms of Purchase will be as indicated by “X” below: (Other unmarked terms of purchase do not apply.)
SOURCE OF FUNDS TO CLOSE: Buyer represents that the funds necessary to close this transaction on the terms specified below
are currently available to Buyer in cash or an equally liquid equivalent.
If the Property’s value stated in an appraisal obtained by Buyer or Buyer’s lender is less than the Purchase Price, Buyer shall within
three (3) days after receipt of the appraisal: 1) renegotiate with the Seller, 2) terminate the transaction, in which case Buyer shall
receive a refund of Buyer’s Earnest Money Deposit, or 3) proceed to close the transaction at the agreed Purchase Price.
CASH. The full Purchase Price upon execution and delivery of Warranty Deed. Buyer Agrees to provide Buyer Agent/Dual Agent
verification of funds within five (5) days after the Effective Date, and consents to the disclosure of such information to Seller and/or
Seller’s Agent. If verification of funds is not received within 5 days after the Effective Date, Seller may terminate this Agreement
at any time before verification of funds is received by giving written notice to Buyer. Any appraisal required by Buyer shall be
arranged and paid for by Buyer within ten (10) days after the Effective Date of this Agreement.
NEW MORTGAGE. The full Purchase Price upon execution and delivery of Warranty Deed, contingent upon Buyer’s ability to
obtain a FHA type 30 (year) mortgage in the amount of 96.5 % of the Purchase Price
bearing interest at a rate not to exceed % per annum (rate at time of loan application), on or before the date the sale is
to be closed. Buyer agrees to apply for a mortgage loan, and pay all fees and costs customarily charged by Buyer’s lender to
process the application, within 3 days after the Effective Date, not to impair Buyers’ credit after the date such loan if
offered. Seller Buyer will agree to pay an amount not to exceed $ 0 representing repairs required as a
condition of financing. Buyer agrees does not agree to authorize Buyer’s Agent/Dual Agent to obtain information from
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Buyer’s lender regarding Buyer’s financing, and consents to the disclosure of this information to Seller and/or Seller’s Agent.
Exceptions:
SELLER FINANCING (choose one of the following): CONTRACT or PURCHASE MONEY MORTGAGE
In the case of Seller financing, Buyer agrees to provide Seller with a credit report within 72 hours after the Effective Date. If the
credit report is unacceptable to Seller, Seller shall have the right to terminate this offer within 48 hours of Seller’s receipt, or if
Buyer fails to provide said credit report to Seller within the time frame allotted, Seller shall have the right to terminate this offer
within 48 hours. Seller is advised to seek professional advice regarding the credit report.
$ upon execution and delivery of a
form (name or type of form and revision date), a copy of which is attached, wherein the balance of $
will be payable in monthly installments of $ or more including interest at % per annum,
interest to start on date of closing, and first payment to become due thirty (30) days after date of closing. The entire unpaid balance
will become due and payable months after closing. Any appraisal required by Buyer shall be arranged and
paid for by Buyer within ten (10) days after the Effective Date of this Agreement. Exceptions:
EQUITY (choose one of the following): Formal Assumption or Informal Assumption
Upon execution and delivery of: Warranty Deed subject to existing mortgage OR Assignment of Vendee Interest
in Land Contract, Buyer to pay the difference (approximately $ ) between the Purchase Price above
provided and the unpaid balance (approximately $ ) upon said mortgage or land contract, which Buyer
agrees to assume and pay. Buyer agrees to reimburse Seller for accumulated funds held in escrow, if any, for payment of future
taxes and insurance premiums, etc. Any appraisal required by Buyer shall be arranged and paid for by Buyer within ten
(10) days after the Effective Date of this Agreement. Exceptions:
OTHER:
9. Contingencies: Buyer’s obligation to consummate this transaction (choose one):
IS NOT CONTINGENT - is not contingent upon the sale or exchange of any other property by Buyer.
IS CONTINGENT UPON CLOSING - is contingent upon closing of an existing sale or exchange of Buyer’s property located at:
A copy of Buyer’s agreement to sell or exchange that property is being delivered to Seller along with this offer. If the existing sale
or exchange terminates for any reason, Buyer will immediately notify Seller, and either party may terminate this Agreement in
writing, within 3 days of Buyer’s notice to Seller. If either party terminates, Buyer shall receive a refund of any applicable Earnest
Money Deposit.
IS CONTINGENT UPON THE SALE AND CLOSING - is contingent upon the execution of a binding agreement and the closing
of a sale or exchange of Buyer’s property located at
on or before . Seller will have the right to continue to
market Seller’s Property until Buyer enters into a binding agreement to sell or exchange Buyer’s property and delivers a copy
thereof to Seller. During such marketing period, Seller may enter into a binding contract for sale to another purchaser on such
price and terms as the Seller deems appropriate. In such event, this Agreement will automatically terminate, Buyer will be notified
promptly, and Buyer’s Earnest Money Deposit will be refunded. Exceptions:
10. Fixtures & Improvements: The following is not intended to be an all-inclusive list of items included with the Property. All
improvements and appurtenances are included in the Purchase Price, if now in or on the Property, unless rented, including the
following: all buildings; landscaping; attached smart home devices; attached security systems; lighting fixtures and their shades and
bulbs; ceiling fans; hardware for draperies and curtains; window shades and blinds; built-in kitchen appliances, including garbage
disposal and drop-in ranges; wall to wall carpeting, if attached; all attached mirrors; all attached TV mounting brackets; all attached
shelving; attached work benches; stationary laundry tubs; water softener; water heater; incinerator; sump pump; water pump and
pressure tank; heating and air conditioning equipment (window units excluded); attached humidifiers; heating units, including add-on
heating stoves and heating stoves connected by flue pipe; fireplace screens, inserts, and grates; fireplace doors, if attached; liquid
heating and cooking fuel tanks; TV antenna and complete rotor equipment; satellite dish and necessary accessories and complete
rotor equipment; all support equipment for inground pools; screens and storm windows and doors; awnings; installed basketball
backboard, pole and goal; mailbox; flagpole(s); fencing, invisible inground fencing and all related equipment, including collars;
detached storage buildings; underground sprinkling, including the pump; installed outdoor grills; all plantings and bulbs; garage door
opener and control(s); and any and all items and fixtures permanently affixed to the Property; and also includes:
Refigerator, Range, dishwasher, microwave, dryer, washer
but does not include:
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11. Heating and Cooking Fuels: Liquid heating and cooking fuels in tanks are included in the sale and will transfer to Buyer at time of
possession unless usage is metered (in which case it is not included in the sale). Sellers are responsible for maintaining heating and
cooking liquid fuels at an operational level and shall not permit fuels to fall below 10% in the tank(s) at the time of possession, except
that the tank(s) may be empty only if now empty. Further, Seller is precluded from removing fuel from tank(s) other than what is
expended through normal use. Exceptions:
n/a
12. Assessments (choose one):
If the Property is subject to any assessments,
Seller shall pay the entire balance of any such assessments that are due and payable on or before the day of closing (regardless
of any installment arrangements), except for any fees that are required to connect to public utilities.
Seller shall pay all installments of such assessments that become due and payable on or before day of closing. Buyer shall assume
and pay all other installments of such assessments.
Seller has an ongoing obligation through the Closing to disclose to the Buyer any known pending assessments, including, but not limited
to, any mandatory utility connection requirements, and/or benefit charges, and condominium special assessments, that have not been
previously disclosed in writing to Buyer.
13. Property Taxes: Seller will be responsible for any taxes billed prior to those addressed below. Buyer will be responsible for all taxes
billed after those addressed below.
Buyer is also advised that the state equalized value of the Property, principal residence exemption information and other real property
tax information is available from the appropriate local assessor’s office. Buyer should not assume that Buyer’s future tax bills on the
Property will be the same as Seller’s present tax bills. Under Michigan law, real property tax obligations can change significantly when
property is transferred.
No proration. (Choose one):
Buyer Seller will pay taxes billed summer (year);
Buyer Seller will pay taxes billed winter (year);
Calendar Year Proration (all taxes billed or to be billed in the year of the closing). Calendar year tax levies will be estimated, if
necessary, using the taxable value and the millage rate(s) in effect on the day of closing, broken down to a per diem tax payment
and prorated to the date of closing with Seller paying for January 1 through the day before closing.
Fiscal Year Proration - Taxes will be prorated as though they are paid in (choose one): advance. arrears.
Fiscal Year will be assumed to cover a 12-month period from date billed, and taxes will be prorated to the date of closing. Fiscal
year tax levies will be estimated, if necessary, using the taxable value and millage rate(s) in effect on the day of closing, broken
down to a per diem tax payment and prorated to the date of closing with Seller paying through the day before closing. Exceptions:
14. Well/Septic: Within ten (10) days after the Effective Date, (choose one) Seller or Buyer will arrange for, at their own expense,
an inspection of the primary well used for human consumption (including a water quality test for coliform bacteria and nitrates) and
septic systems in use on the Property. The inspection will be performed by a qualified inspector in a manner that meets county (or
other local governmental authority, if applicable) protocol.
If any report discloses a condition unsatisfactory to Buyer, or doesn’t meet county standards that are a condition of sale, Buyer may,
within three (3) days after Buyer has received the report, by written notice to Seller, either terminate this Agreement and receive a
refund of Buyer’s Earnest Money Deposit, or make a written proposal to Seller to correct those unsatisfactory conditions. If Buyer fails
to make a written proposal within the above referenced time period, then Buyer will be deemed to have accepted the well/septic as-is.
Seller will respond in writing within three (3) days to Buyer’s request. If Seller fails to respond or to arrive at a mutually agreeable
resolution within three (3) days after Seller’s receipt of Buyer’s proposal, Buyer will have three (3) days to provide written notice of
termination of this Agreement and receive a refund of any applicable Earnest Money Deposit. If Buyer fails to terminate the contract,
Buyer will proceed to closing according to the terms and conditions of this Agreement.
Other:
15. Inspections & Investigations:
Inspections: Buyer, or someone selected by Buyer, has the right to inspect the buildings, premises, components and systems, at
Buyer’s expense. Any damage, misuse, abuse, or neglect of any portion of the Property or premises as a result of inspections will be
Buyer’s responsibility and expense.
Investigations: It is Buyer’s responsibility to investigate (i) whether the Property complies with applicable codes and local ordinances
and whether the Property is zoned for Buyer’s intended use; (ii) whether Buyer can obtain a homeowner’s insurance policy for the
Property at price and terms acceptable to Buyer; (iii) and whether or not the Property is in a flood zone.
All inspections and investigations will be completed within ____5 days after the Effective Date. If the results of Buyer’s inspections and
investigations are not acceptable to Buyer, Buyer may, within the above referenced period, either (a) terminate this Agreement by
written notice to Seller and receive a refund of Buyer’s Earnest Money Deposit, or (b) make a written proposal to Seller to correct those
unsatisfactory conditions, which proposal must be in the form of a proposed addendum and must be signed by Buyer in order for it to
be effective. If Buyer fails to make a written proposal within the above referenced time period, then Buyer will be deemed to have
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accepted the Property as-is. Seller may negotiate with Buyer, or by written notice to Buyer, accept Buyer’s proposal or terminate this
Agreement. If Seller fails to respond, or to arrive at a mutually agreeable resolution within three (3) days after Seller’s receipt of
Buyer’s proposal, Buyer shall have three (3) days to provide written notice of termination of this Agreement and receive a refund of
any applicable Earnest Money Deposit. If Buyer fails to terminate this Agreement within said three (3) day period, Buyer will be deemed
to accept the Inspections & Investigations and will proceed to closing according to the terms and conditions of this Agreement.
Buyer has waived all rights under this Inspections & Investigations paragraph.
Exceptions: none
16. Municipal Compliances: Seller will arrange and pay for current certificates of occupancy, sidewalk compliance, and smoke detector
ordinances, if applicable.
17. Title Insurance: Seller agrees to convey marketable title to the Property subject to conditions, limitations, reservation of oil, gas and
other mineral rights, existing zoning ordinances, and building and use restrictions and easements of record. An expanded coverage
ALTA Homeowner’s Policy of Title Insurance in the amount of the Purchase Price shall be ordered by Seller and furnished to Buyer at
Seller’s expense, and a commitment to issue a policy insuring marketable title vested in Buyer, including a real estate tax status
report, will be made available to Buyer within ten (10) days after the Effective Date. If Buyer so chooses, or if an expanded policy is
not applicable, then a standard ALTA Owners’ Policy of Title Insurance shall be provided.
If Buyer objects to any conditions, Buyer may, within three (3) days of receipt of the Title Commitment, by written notice to Seller,
either terminate this Agreement and receive a refund of Buyer’s Earnest Money Deposit, or make a written proposal to Seller to correct
those unsatisfactory conditions. If Buyer fails to make a written proposal within the above referenced time period, then Buyer will be
deemed to have accepted the Title Commitment as-is. Seller may negotiate with Buyer, or by written notice to Buyer, accept Buyer’s
proposal or terminate this Agreement. If Seller fails to respond, or to arrive at a mutually agreeable resolution within three (3) days
after Seller’s receipt of Buyer’s proposal, Buyer shall have three (3) days to provide written notice of termination of this Agreement and
shall receive a refund of any applicable Earnest Money Deposit. If Buyer fails to terminate this Agreement within said three (3) day
period, Buyer will be deemed to accept the Title Commitment as-is and will proceed to closing according to the terms and conditions
of this Agreement. Exceptions:
none
18. Property Survey: Broker advises that Buyer should have a survey performed to satisfy Buyer as to the boundaries of the Property
and the location of improvements thereon.
Buyer or Seller (choose one) shall within ten (10) days of the Effective Date, order, at their expense, a boundary survey with iron
corner stakes showing the location of the boundaries, improvements and easements in connection with the Property. Upon receipt of
the survey, Buyer will have three (3) days to review the survey. If the survey shows any condition, in Buyer’s sole discretion, which
would interfere with Buyer’s intended use of the Property, the marketability of the title, or zoning non-compliance, then Buyer may,
within said three (3) day period, terminate this Agreement, in writing, and Buyer will receive a full refund of Buyer’s Earnest Money
Deposit.
No survey. Buyer has waived all rights under this paragraph.
When closing occurs, Buyer shall be deemed to have accepted the boundaries of the Property and the location of such improvements
thereon. Exceptions:
19. Home Protection Plan: Buyer and Seller have been informed that home protection plans may be available. Such plans may provide
additional protection and benefit to the parties. Exceptions:
20. Prorations: Rent; association dues/fees, if any; insurance, if assigned; interest on any existing land contract, mortgage or lien
assumed by Buyer; will all be adjusted to the date of closing. For the purposes of calculating prorations, it is presumed that Seller
owns the Property through the day before closing.
21. Closing: If agreeable to Buyer and Seller, the sale will be closed as soon as closing documents are ready, but not later than
4/20/23 . An additional period of fifteen (15) days will be allowed for closing to accommodate the correction of
title defects or survey problems which can be readily corrected, or for delays in obtaining any lender required inspections/repairs. During
this additional period, the closing will be held within 5 days after all parties have been notified that all necessary documents have been
prepared. Buyer and Seller will each pay their title company closing fee, if applicable, except in the case of VA financing where Seller
will pay the entire closing fee. Exceptions:
22. Pre-Closing Walk-Through: Buyer (choose one) reserves waives the right to conduct a final walk-through of the
Property within three (3) days of the scheduled closing date. The purpose of the walk-through is to determine that the Property is in
a substantially similar condition as of the Effective Date, any contractually agreed upon items have been fulfilled, and that any included
personal property is still located at the Property. Buyer shall immediately report to Seller any objections to these conditions and Buyer’s
requested corrective action.
23. Possession: Seller will maintain the Property in its present condition until the completion of the closing of the sale. Possession to be
delivered to Buyer, subject to rights of present tenants, if any.
At the completion of the closing of the sale.
At a.m. p.m. on the day after completion of the closing of the sale, during which time Seller
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will have the privilege to occupy the Property and hereby agrees to pay Buyer $ as an occupancy
fee for this period payable at closing, WITHOUT PRORATION. Payment shall be made in the form of cash or certified funds.
If Seller fails to deliver possession to Buyer on the agreed date, Seller shall become a tenant at sufferance and shall pay to Buyer as
liquidated damages $ 200 per day plus all of the Buyer’s actual reasonable attorney's fees incurred in removing the Seller
from the Property.
If Seller occupies the Property after closing, Seller will pay all utilities during such occupancy. Buyer will maintain the structure and
mechanical systems at the Property. However, any repairs or replacements necessitated by Seller’s misuse, abuse, or neglect of any
portion of the Property will be Seller’s responsibility and expense.
On the agreed delivery date, Seller shall deliver the Property free of trash and debris and in broom-clean condition, shall remove all
personal property (unless otherwise stated in this or an additional written agreement), shall make arrangements for final payment on
all utilities, and shall deliver all keys to Buyer. Exceptions:
24. Earnest Money Deposit: For valuable consideration, Buyer gives Seller until 5pm (time) on
03/13/2023 (date), to deliver the written acceptance of this offer and agrees that this offer, when accepted by
Seller, will constitute a binding Agreement between Buyer and Seller. An Earnest Money Deposit in the amount of $ 500
shall be submitted to ATA National Title Group (insert name of broker, title
company, other) within 72 hours of the Effective Date of this Agreement, and shall be applied against the Purchase Price. If the Earnest
Money Deposit is not received within 72 hours of the Effective Date or is returned for insufficient funds, Seller may terminate this
Agreement until such time as the Earnest Money Deposit is received. If Seller terminates this Agreement under this provision, Seller
waives any claim to the Earnest Money Deposit. If the sale is not closed due to a failure to satisfy a contingency for a reason other
than the fault of Buyer, the Earnest Money Deposit shall be refunded to Buyer. If the sale is not closed as provided in this Agreement
and Buyer and Seller do not agree to the disposition of the Earnest Money Deposit, then Buyer and Seller agree that the Broker holding
the Earnest Money Deposit may notify Buyer and Seller, in writing, of Broker’s intended disposition of the Earnest Money Deposit. If
Buyer and Seller do not object to such disposition in writing within fifteen (15) days after the date of Broker’s notice, they will be deemed
to have agreed to Broker’s proposed disposition; if either Buyer or Seller object and no mutually agreeable disposition can be
negotiated, Broker may deposit the funds by interpleader with a court of proper jurisdiction or await further actions by Buyer and Seller.
In the event of litigation involving the deposit, in whole or in part, either the Seller or the Buyer that is not the prevailing party, as
determined by the court, will reimburse the other for reasonable attorneys’ fees and expenses incurred in connection with the litigation,
and will reimburse the Broker for any reasonable attorneys’ fees and expenses incurred in connection with any interpleader action
instituted. If the entity holding the Earnest Money Deposit is not the Broker, then to the extent that the terms of any escrow agreement
conflict with this paragraph, then the terms and conditions of the escrow agreement shall control.
25. Professional Advice: Broker hereby advises Buyer and Seller to seek legal, tax, environmental and other appropriate professional
advice relating to this transaction. Broker does not make any representations or warranties with respect to the advisability of, or the
legal effect of this transaction. Buyer further acknowledges that REALTOR® above named in the Agreement hereby recommends to
Buyer that an attorney be retained by Buyer to pass upon the marketability of the title and to ascertain that the required details of the
sale are adhered to before the transaction is consummated. Buyer agrees that Buyer is not relying on any representation or statement
made by Seller or any real estate salesperson (whether intentionally or negligently) regarding any aspect of the Property or this sale
transaction, except as may be expressly set forth in this Agreement, a written amendment to this Agreement, or a disclosure statement
separately signed by Seller.
26. Disclosure of Information: Buyer and Seller acknowledge and agree that the Purchase Price, terms, and other details with respect
to this transaction (when closed) are not confidential, will be disclosed to REALTORS® who participate in the applicable Multiple Listing
Service, and may otherwise be used and/or published by that Multiple Listing Service in the ordinary course of its business.
27. Other Provisions:
New build walk through and repairs at least 2 weeks before closing
28. Mergers and Integrations: This Agreement is the final expression of the complete agreement of Buyer and Seller, and there are no
oral agreements existing between Buyer and Seller relating to this transaction. This Agreement may be amended only in writing signed
by Buyer and Seller and attached to this Agreement.
29. Fax/Electronic Distribution and Electronic Signatures: Buyer and Seller agree that any signed copy of this Agreement, and any
amendments or addendums related to this transaction, transmitted by facsimile or other electronic means shall be competent evidence
of its contents to the same effect as an original signed copy. Buyer and Seller further agree that an electronic signature is the legal
equivalent of a manual or handwritten signature, and consent to use of electronic signatures. Buyer and Seller agree that any notice(s)
required or permitted under this Agreement may also be transmitted by facsimile or other electronic means.
30. Wire Fraud: Seller and Buyer are advised that wire fraud is an increasingly common problem. If you receive any electronic
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communication directing you to transfer funds or provide nonpublic personal information (such as social security numbers, drivers’
license numbers, wire instructions, bank account numbers, etc.), even if that electronic communication appears to be from the
Broker, Title Company, or Lender, DO NOT reply until you have verified the authenticity of the email by direct communication with
Broker, Title Company, or Lender. DO NOT use telephone numbers provided in the email. Such requests may be part of a scheme
to steal funds or use your identity.
31. Buyer’s Approval and Acknowledgment: Buyer approves the terms of this offer and acknowledges receipt of a copy of this offer.
Buyer 1 Address X Lindsey Peacock Buyer
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3KLQ-O1CO-XIGA-SO2O
Buyer 1 Phone: (Res.) (Bus.) Lindsey Peacock
Print name as you want it to appear on documents.
Buyer 2 Address X Buyer
Buyer 2 Phone: (Res.) (Bus.)
Print name as you want it to appear on documents.
32. Seller’s Response: The above offer is approved: As written. As written except:
Counteroffer, if any, expires , at (time). Seller has the right to withdraw this
counteroffer and to accept other offers until Seller or Seller’s Agent has received notice of Buyer’s acceptance.
33. Certification of Previous Disclosure Statement: Seller certifies to Buyer that the Property is currently in the same condition as
disclosed in the Seller’s Disclosure Statement dated (choose one): Yes No.
Seller agrees to inform Buyer in writing of any changes in the content of the disclosure statement prior to closing.
34. Notice to Seller: Seller understands that consummation of the sale or transfer of the Property described in this Agreement will not
relieve Seller of any liability that Seller may have under the mortgages to which the Property is subject, unless otherwise agreed to by
the lender or required by law or regulation. Buyer and Seller are advised that a Notice to Seller & Buyer of Underlying Mortgage form
is available from the respective agents via the West Michigan REALTOR® Boards.
35. Listing Office Address:3265 Walker Ave NW, Suite D, Grand Rapids, MI Listing Broker License # 6506015435
Listing Agent Name: Mariana Murillo VanDam Listing Agent License # 6506015435
36. Seller’s Approval and Acknowledgment: Seller approves the terms of this Agreement and acknowledges receipt of a copy. If Seller’s
response occurs after Buyer’s offer expires, then Seller’s response is considered a counteroffer and Buyer’s acceptance is required
below.
LeighAnn Mikesell
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HRFB-K9IR-EJ6X-7PGO
LeighAnn Mikesell Is Seller a U.S. Citizen or Resident Alien? Yes No*
Print name as you want it to appear on documents.
X (Seller’s Signature, Date, Time):
Is Seller a U.S. Citizen or Resident Alien? Yes No*
Print name as you want it to appear on documents.
Seller’s Address: Seller’s Phone (Res.) (Bus)
* If Seller(s) is not a U.S. Citizen or Resident Alien, there may be tax implications and Buyer and Seller are advised to seek professional advice.
37. Buyer’s Receipt/Acceptance: Buyer acknowledges receipt of Seller’s response to Buyer’s offer. In the event Seller’s response
constitutes a counteroffer, Buyer accepts said counteroffer. All other terms and conditions in the offer remain unchanged.
X (Buyer’s Signature, Date, Time):
X (Buyer’s Signature, Date, Time):
38. Seller’s Receipt: Seller acknowledges receipt of Buyer’s acceptance of counter offer.
X (Seller’s Signature, Date, Time):
X (Seller’s Signature, Date, Time):
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Agenda Item Review Form
Muskegon City Commission
Regular Meeting Date: March 28, 2023 Title: Arena Solar Power Purchase Agreement
Submitted By: Dan VanderHeide Department: DPW and Arena
Brief Summary: Charthouse Energy proposes, with financial backing by Sunwealth, LLC, to place
solar panels on the roof the Trinity Health Arena and sell the energy to the City under a Power
Purchase Agreement (PPA) to reduce the City’s energy costs over the 25 year life of the system.
Detailed Summary & Background:
This item was discussed at the July, 2020 work session and the April 27th, 2021 regular meeting
before being approved in a prior format at the June 8th, 2021 meeting. Due to tax issues, it was
then rescinded at the June 14th, 2022 meeting. The tax issues have been resolved due to
additional incentives being available under the IIJA, so a new financier (Sunwealth, LLC) has
agreed to take the project on.
The updated proposal was reviewed with the Commission at the February 13, 2023 Work Session
meeting. After positive feedback and a legal review of the Power Purchase Agreement (PPA) by
Matthew Greenberg of Miller Canfield (at the recommendation of City Attorney John Schrier, as Mr.
Greenberg assisted the City in developing the 2021 rescinded agreement), staff is pleased to
present the proposal and PPA for formal adoption by the City Commission. Both are attached.
Goal/Focus Area/Action Item Addressed: Sustainability in Financial Practices & Infrastructure
Amount Requested: $0 Amount Budgeted: $0
Fund(s) or Account(s): N/A Fund(s) or Account(s): N/A
Recommended Motion: Enter into a 25 Year Power Purchase Agreement contract with Sunwealth,
LLC to purchase power at a reduced cost from a solar generating facility installed on the Trinity
Health Arena roof, and authorize the Manager to sign.
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:
Packet Page 35
Trinity Health Arena 449kW Rooftop Solar Energy Proposal
Chart House Energy (CHE) is excited for the opportunity to partner with The City of Muskegon
Trinity Health Arena in pursuing the installation and implementation of a solar energy production
array. Solar PV projects provide power for the building, offsetting both energy usage and some
peak power usage. The system consists of solar panels, non-penetrating racking, inverters, and
wiring. They can also include roof membrane (solar platform), and electrical infrastructure
related to the installation of the system. The proposed system details are:
• Total 449kW roof mount solar system utilizing approximately 1,152 solar panels.
• LED lighting replacement can be added to the project for additional savings.
• The total investment to be made by an investor or Chart House Energy is
$1,164,142.
• Clean, renewable solar energy will provide nearly 25% of The City of Muskegon
Trinity Health Arena’s electricity at ZERO UPFRONT COST to The City of
Muskegon Trinity Health Arena.
• Partnering with Chart House Energy on this solar proposal means that The
City of Muskegon Trinity Health Arena will create job training for local
individuals to help with project installation.
• Living wage jobs created in the construction field.
• Environmental stewardship and marketing to surrounding communities and state
representatives.
• CHE designs, builds, installs, owns, monetizes the tax benefits (unless The City of
Muskegon Trinity Health Arena has a private investor), operates, and maintains the
roof and solar system. All panels and parts will be American-made and Michigan-
made where possible. All engineering and labor will come from Michigan and be as
local as possible.
• Installation of solar will demonstrate The City of Muskegon Trinity Health Arena’s
dedication to our community and clean, renewable solar energy.
• In this option, The City of Muskegon Trinity Health Arena has no responsibility for
operations and maintenance of the solar system and if there ever is a need to
maintain the roof CHE will remove panels at no cost.
• Over $645,000 of Total Electric Savings over 25 years from Solar
Installation with ZERO OUT OF POCKET COST to The City of Muskegon
Trinity Health Arena.
• Chart House Energy will guarantee and pay any difference in cost if the
PPA rate and costs exceed the utility savings.
• There is no PPA cost escalation in the PPA rate, protecting the City
against fluctuations in utility rates.
1310 Eleventh Street, Muskegon, MI 49441 231.224.6153 www.charthouseenergy.com
Packet Page 36
PV System Production vs. Historical Consumption
350,000
300,000
250,000
200,000
150,000
100,000
50,000
-
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
Historical Consumption Solar Production
Community Impacts for The City of Muskegon Trinity Health Arena:
We believe installing solar in communities offers more than just emission free power production.
It improves communities, one job at a time. We use solar to help create permanent jobs. As part
of our project development, we will work with The City of Muskegon Trinity Health Arena to hire
local unemployed or under-employed people. Chart House Energy will train them to be solar
installers and once the projects are complete, The City of Muskegon Trinity Health Arena can
help them get jobs in the solar industry or other construction jobs. Additionally, solar will add a
marketing potential for The City of Muskegon Trinity Health Arena by showing their commitment
to clean and renewable energy.
Solar installation will bring further environmental benefits to The City of Muskegon
Trinity Health Arena. We partner with SolarEdge, a solar monitoring system which tracks your
reduction in emissions and accumulated total solar energy produced It also tracks The City of
Muskegon Trinity Health Arena’s economic and environmental savings from the system’s
production. As some consider environmental values a large motivator for installing solar PV,
The City of Muskegon Trinity Health Arena’s decision to move forward with solar installation will
add to the overall community impact. We are excited to partner with The City of Muskegon
Trinity Health Arena on this next step. Installing solar PV will provide invaluable benefits to The
City of Muskegon Trinity Health Arena and we believe will be lifechanging for community
members.
Page 2 of 4
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New Electricity Mix
Solar
25%
Utility
75%
Page 3 of 4
Packet Page 38
CUSTOMER SAVINGS SUMMARRY – PPA
Trinity Health Arena
449.3 kW Solar project
Investment
Total Project $ 1,164,142
Customer Contribution$ - Building integrated cost into solar system
Savings
Annual total Electric bill (without solar)
Cost of electricity offset by solar
Power Purchase from solar
Annual saving from solar
2023 $ 58,004 $ 0.1130 $ 0.1150 /kWh
3.2% 0.0% Annual Index
2024 $ 59,860 $ 60,930 $ (1,070)
2025 $ 61,480 $ 60,638 $ 842
2026 $ 63,142 $ 60,347 $ 2,795
2027 $ 64,850 $ 60,057 $ 4,793
2028 $ 66,604 $ 59,769 $ 6,835
2029 $ 68,405 $ 59,482 $ 8,923
2030 $ 70,256 $ 59,197 $ 11,059
2031 $ 72,156 $ 58,912 $ 13,243
2032 $ 74,107 $ 58,630 $ 15,478
2033 $ 76,112 $ 58,348 $ 17,763
2034 $ 78,170 $ 58,068 $ 20,102
2035 $ 80,284 $ 57,789 $ 22,495
2036 $ 82,456 $ 57,512 $ 24,944
2037 $ 84,686 $ 57,236 $ 27,450
2038 $ 86,976 $ 56,961 $ 30,015
2039 $ 89,329 $ 56,688 $ 32,641
2040 $ 91,745 $ 56,416 $ 35,329
2041 $ 94,226 $ 56,145 $ 38,081
2042 $ 96,775 $ 55,875 $ 40,899
2043 $ 99,392 $ 55,607 $ 43,785
2044 $ 102,080 $ 55,340 $ 46,740
2045 $ 104,841 $ 55,075 $ 49,766
2046 $ 107,677 $ 54,810 $ 52,866
2047 $ 110,589 $ 54,547 $ 56,042
2048 $ 113,580 $ 54,285 $ 59,295
$ 661,111 25 year savings
Chart House Energy will guarantee and pay any difference in cost if the PPA rate and costs exceed the utility savings.
Page 4 of 4
Packet Page 39
Power Purchase Agreement
Sunwealth LLC
And
City of Muskegon
2067 Massachusetts Avenue, Suite 540
Cambridge, MA, 02140
Main: 617-752-7322
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POWER PURCHASE AGREEMENT
This POWER PURCHASE AGREEMENT (this “Agreement”) is made and entered into
as of _________[__], 2023 (the “Effective Date”) by and between Sunwealth LLC, a Delaware
limited liability company (“Seller”), and the City of Muskegon, Michigan (“Purchaser”). Each
of Seller and Purchaser are sometimes referred to as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, Seller intends to build, own and operate a photovoltaic solar electrical
generation system on the Premises that is described in detail in Exhibit B (the “System,” as further
defined in Exhibit A of this Agreement); and
WHEREAS, the Premises are owned by the City of Muskegon, Michigan (“Host”); and
WHEREAS, Host and Seller are parties to that certain Rooftop System Site Lease
Agreement dated of even date herewith (the “Site Lease”), pursuant to which Host has leased to
Seller the Premises (as defined in the Site Lease) and granted to Seller certain easements over,
across, through, under, about and on the Premises for the installation, maintenance, and operation
of the System;
WHEREAS, Seller desires to generate, sell and deliver to Purchaser, and Purchaser desires
to purchase and receive from Seller, all electricity that may be generated by the System for the
Term of this Agreement (as defined in Article 2, below) and otherwise on the terms and subject to
the conditions set forth herein; and
NOW, THEREFORE, in consideration of the promises and the mutual covenants and
agreements herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser hereby agree as follows:
AGREEMENT
1. DEFINITIONS
1.1 DEFINITIONS AND RULES OF INTERPRETATION. Unless otherwise
required by the context in which any term appears: (a) capitalized terms used in this Agreement
shall have the meanings specified in this Exhibit A; (b) the singular shall include the plural and
vice versa; (c) references to "articles", "sections", "schedules", "annexes", "appendices' or
"exhibits", if any, shall be to Articles, Sections, Schedules, Annexes, Appendices or Exhibits
hereof; (d) all references to a particular entity shall include a reference to such entity's successors
and permitted assigns; (e) the words "herein," "hereof' and "hereunder" shall refer to this
Agreement as a whole and not to any particular Article or subparagraph hereof; (f) all accounting
terms not specifically defined herein shall be construed in accordance with generally accepted
accounting principles in the United States of America, consistently applied; (g) the words
"include," "includes" and "including" mean include, includes and including "without limitation;"
(h) references to this Agreement shall include a reference to all appendices, annexes, schedules
and exhibits hereto as the same may be amended, modified, supplemented or replaced from time
to time; and (i) the masculine shall include the feminine and neuter and vice versa.
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2. INITIAL TERM; ADDITIONAL TERMS; TERMINATION; END OF TERM
2.1 Contract Term. The Contract Term of this Agreement shall commence on the
Effective Date and, unless sooner terminated in accordance with the terms hereof, shall continue
until a date that is twenty-five (25) years from the first day of the month following the month in
which the Commercial Operation Date of the System occurs (the “Expiration Date”).
2.2 Additional Terms. Not less than sixty (60) days before the Expiration Date of the
then current Contract Term or Additional Term, the Parties may agree to extend the Agreement
for up to two (2) additional terms of five (5) years each (each, an "Additional Term"). If the Parties
agree to extend the Contract Term for an Additional Term, this Agreement shall continue in full
force and effect pursuant to the terms and conditions set forth herein, except that the Energy Rate
to be applicable during such Additional Term will be set at a rate that is no higher than fifteen
percent (15%) lower than the all-inclusive average rate paid by Purchaser for electricity and
delivery of electricity from both (if applicable) the Utility and any retail suppliers supplying
electricity to Purchaser as of the date that the Additional Term commences (the "Utility Rate").
The Energy Rate shall be reset on each annual anniversary of such Additional Term’s Effective
Date thereafter, based on the then-current all-inclusive rate paid by Purchaser for electricity and
delivery of electricity.
2.3 Early Termination. Either Party shall have the right, but not the obligation, to
terminate this Agreement (in whole or in part) prior to the Expiration Date only upon the
occurrence of:
(a) an unstayed order of a court or administrative agency having the effect of
subjecting the sales of Energy Output to federal or state regulation of prices
and/or service;
(b) the termination of a Lease by its terms and conditions for any reason prior
to the Expiration Date; or
(c) In the event that the Notice to Proceed Date has not occurred within one
year of the Effective Date, either Party may terminate this Agreement upon
thirty (30) days’ written notice to the other party delivered at any time prior
to the actual Notice to Proceed Date; provided, however, that the foregoing
date shall be extended on a day-for-day basis for any Force Majeure
occurring after the Effective Date and prior to the Notice to Proceed Date.
2.4 End of Term. In the event Purchaser declines to exercise its Purchase Option
provided in Article 7 of this Agreement, in connection with the final Purchase Option during the
Contract Term, then, at least thirty (30) days before the expiration of the Contract Term, the Parties
shall, if desired, use commercially reasonable efforts to negotiate and document an extension of
the Contract Term.
2.5 Obligations upon Termination, Early Termination or Expiration. If Purchaser does
not exercise its option to purchase the Systems pursuant to Article 7 or terminates the Agreement
pursuant to Article upon the expiration or termination of this Agreement, Seller shall remove the
System from the Site at Seller's expense within one hundred eighty (180) days of that expiration
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or termination. In such event, Seller shall remove the Systems and restore the Sites in accordance
with Good Industry Practices.
2.6 System Removal. At the conclusion of the Contract Term, if the Purchaser does not
exercise its right to purchase the System, or in the event the Parties fail to reach agreement
regarding an extension of the Agreement, then Seller shall, within one hundred eighty (180) days
after the date of expiration of the Contract Term, remove the System from the Premises, provided
that Seller shall not be required to remove electrical wiring or infrastructure, or any portion of the
System below grade level. Other than as specifically provided otherwise herein or in the Site Lease,
the removal of the System shall be at the cost of Seller.
3. PURCHASE AND SALE OF ENERGY.
3.1 Sale of Energy. Beginning on the Commercial Operation Date for the System, and
subject to the terms and conditions of this Agreement, Seller shall sell to Purchaser and Purchaser
shall purchase from Seller all of the Energy, as and when the same is produced, at the Energy Price
in effect at the time of delivery as identified in Exhibit D. Subject to any provision of this
Agreement, Seller shall deliver the Energy to the Delivery Point, and Purchaser shall accept the
Energy so delivered for the full Contract Term.
(a) If, for any reason, Purchaser’s electric requirements are less than the
System’s Energy Output, Purchaser shall accept all Energy produced by
System pursuant to the terms of this Agreement. To the extent permitted by
law, Purchaser may deliver any excess Energy to the Utility in accordance
with the Net Metering Rules or Net Metering Agreement entered with the
Utility. Seller shall provide reasonable assistance to Purchaser in arranging
and coordinating such deliveries or exchanges; provided, that Seller shall
not be responsible for any necessary third-party costs.
(b) To the extent that Purchaser’s electricity requirements exceed the System’s
Energy Output, Purchaser shall purchase such excess electricity from
Utility. Purchaser acknowledges that this Agreement is in no way intended
to replace Purchaser’s Utility electrical service. Such service shall remain
Purchaser’s primary source of electricity and, subject to Reliability
requirements of Section 4.9, no minimum level of Energy production is
guaranteed by Seller hereunder. Purchaser shall be responsible for all tariffs,
applicable taxes, penalties, ratcheted demand or similar charges assessed by
Utility for transmission and distribution service and other services
necessary to meet its full energy requirements.
(c) The estimated production of the System is set forth in Exhibit C (“Estimated
Production”). Purchaser shall be entitled to utilize the entire Energy Output
of the System; provided, however, that subject to the System Reliability
requirements of Section 4.9, Seller shall not be required to deliver a
minimum amount, or any other specific quantity, of Energy from the
System. Anything herein to the contrary notwithstanding, there is no
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guarantee that Purchaser will realize any energy cost savings as result of
this Agreement or the purchase of Energy from the System.
(d) Following the Commercial Operation Date, in the event the System fails to
generate any Energy for ninety (90) consecutive days for reasons other than
Force Majeure, system upgrades pursuant to Section 4.7, Purchaser’s breach
of this Agreement or Host’s breach of the Site Lease (an “Unexcused
Outage”) then, beginning on the 91st day and for each subsequent
consecutive day of an Unexcused Outage, Seller will pay the Purchaser on
a monthly basis in arrears the positive difference, if any, between the Energy
Rate Purchaser would have paid for Energy Output for the System and the
Utility Rate of the quantities of Energy Output that Purchaser obtains to
replace the estimated energy output that would have been achieved. Utility
generated electricity realized over the prior six months until the end of such
Unexcused Outage. Subject to Sections 2.4 and 2.5, this Section shall be
Purchaser’s sole and exclusive remedy for any Unexcused Outage. In the
Event the System fails to generate Energy for three hundred sixty (360)
consecutive days, then either Party may terminate this Agreement upon
thirty (30) days’ written notice to the other Party delivered at any time prior
to the date on which the System resumes generating Energy. Termination
under this Section shall not constitute Early Termination or Breach on
behalf of the Purchaser.
(e) THE PARTIES AGREE THAT IT WOULD BE EXTREMELY
DIFFICULT OR IMPRACTICABLE UNDER THE PRESENTLY
KNOWN AND ANTICIPATED FACTS AND CIRCUMSTANCES TO
ASCERTAIN AND FIX THE AMOUNT OF ACTUAL DAMAGES
THAT WOULD BE SUFFERED DUE TO UNEXCUSED OUTAGES,
INCLUDING THOSE LASTING MORE THAN 180 DAYS.
THEREFORE, THE PARTIES ACKNOWLEDGE THAT THE
AMOUNTS DESCRIBED IN SECTION 3.1(d) ARE A FAIR AND
REASONABLE DETERMINATION OF THE AMOUNT OF DAMAGES
WHICH WOULD BE SUFFERED BY PURCHASER FOR UNEXCUSED
OUTAGES, AND THAT SUCH AMOUNTS DO NOT CONSTITUTE A
PENALTY.
3.2 Environmental Attributes and Incentives.
(a) Environmental Attributes. Seller shall have all right, title, and interest in
and to all Environmental Attributes attributed to the System. At Seller’s
expense, Purchaser agrees to cooperate with Seller in any applications for
Environmental Attributes related to the System.
(b) Environmental Incentives. Seller shall have all right, title, and interest in
and to all Environmental Incentives attributed to the System. Any
Environmental Incentive attributed to the System that is initially credited or
paid to Purchaser shall be assigned by Purchaser to Seller without delay. At
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Seller’s expense, Purchaser agrees to cooperate with Seller in any
applications for Environmental Incentives related to the System.
(c) Purchaser Assistance with Environmental Attributes and Incentives.
Purchaser shall promptly assist and cooperate with Seller in acquiring and
maintaining in effect all necessary permits and approvals for the System
from Governmental Authorities relating to Environmental Attributes and
Incentives. If informed by Seller, Purchaser shall comply with all laws,
regulations and rules relating to acquiring and maintaining Environmental
Attributes and Environmental Incentives. Purchaser shall deliver to Seller
copies of any documentation related thereto that is required by law to be in
the name or physical control of Purchaser. Seller shall reimburse Purchaser
for its reasonable and necessary third-party costs incurred in relation to
Purchaser’s assistance with such matters.
(d) Impairment of Environmental Attributes and Incentives. Purchaser shall
not take any intentional action or suffer any omission that would have the
effect of reducing or impairing the value to Seller of the Environmental
Attributes and Environmental Incentives. Acknowledging that Purchaser is
not an expert in Environmental Attributes and Incentives, Purchaser shall
use commercially reasonable efforts to seek counsel and advice from an
expert when engaging in any matter that could reasonable be perceived as
affecting the Systems, and to promptly notify Seller of any event, action or
omission that could have the effect of reducing or impairing the value of the
Environmental Attributes and Environmental Incentives. Upon the
occurrence of any such event, action or omission, Purchaser shall consult
with Seller as necessary to prevent reduction or impairment of the value of
Environmental Attributes and Environmental Incentives.
3.3 Estimated Purchaser Savings. Purchaser acknowledges that the Calculation of
Estimated Benefits is solely an estimate of the ongoing costs and benefits that Purchaser may
anticipate. Purchaser specifically acknowledges that the Calculation is an estimate based upon
several variables that may change, resulting in a change in the amount and nature of the benefits.
4. THE SYSTEM.
4.1 Installation, Operation, and Maintenance of the System. Seller shall be responsible
for the installation, operation, and maintenance of the System in a manner consistent with the Site
Lease. If the supply of Energy from the System is interrupted as a result of malfunction or other
shutdown, Seller shall use commercially reasonable efforts to remedy such interruption. Both
Parties shall comply with all applicable laws and regulations relating to the operation of the System
and the generation and sale of Energy, including obtaining and maintaining in effect all relevant
approvals and permits.
4.2 Interconnection with Utility.
(a) The System will be interconnected by the Utility with the electrical grid.
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(b) RESERVED
(c) Seller shall have sole responsibility for resolving any disputes with Utility
regarding the amount of energy production from the System, and shall also
have sole discretion over any such resolution.
(d) Purchaser shall be solely responsible for resolving any disputes with Utility
regarding the rate applied to Energy production and the amount paid by
Utility to Purchaser, as defined and governed by the applicable tariff. Any
conflict between the terms of this Agreement and the Tariff shall be
resolved in favor of the tariff.
(e) Seller agrees and acknowledges that this Agreement represents the
agreement between the Parties with respect to the interconnection of the
Systems to the Purchaser's Electrical System, and for Energy to flow from
the System to the applicable Point of Delivery. Seller shall, at no cost to
Purchaser, apply for and pay all application fees associated with the
interconnection of the System to Purchaser's Electrical System at the Site.
Seller shall also be responsible to procure and pay for all equipment
necessary to interconnect the System to Purchaser's Electrical System.
(f) Purchaser agrees and acknowledges that Purchaser shall be responsible to
pay for costs related to the interconnection between Purchaser and the
Utility’s Electrical System, including (a) any upgrades to Purchaser's
Premises or the Utility's distribution system that are necessary for
interconnection and (b) the costs of any studies that may be required by the
Utility with respect to such upgrades.
4.3 Maintenance of Health and Safety. Seller shall take all reasonable safety
precautions with respect to the operation, maintenance, repair, and replacement of the System and
shall comply with all applicable health and safety laws, rules, regulations, and permit requirements.
If Seller becomes aware of any circumstances relating to the Premises or the System that creates
an imminent risk of damage or injury to any Person or any Person’s property (and, should
Purchaser become aware of such circumstances, Purchaser shall promptly notify Seller with
respect thereto), Seller shall take prompt action to prevent such damage or injury and shall
promptly notify Purchaser. Such action may include disconnecting and removing all or a portion
of the System, or suspending the supply of Energy to Purchaser.
4.4 Assistance with Permits and Licenses. Upon Seller’s request, Purchaser shall assist
and cooperate with Seller, to acquire and maintain approvals, permits, and authorizations or to
facilitate Seller’s compliance with all applicable laws and regulations related to the construction,
installation, operation, maintenance, and repair of the System, including providing any building
owner or occupant authorizations, signing and processing any applications for permits, local utility
grid interconnection applications and utility easements, and rebate applications as are required by
law to be signed by Purchaser. Purchaser shall also deliver to Seller copies of any necessary
approvals, permits, rebates, or other financial incentives that are required by law in the name or
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physical control of Purchaser. Seller shall reimburse Purchaser for reasonable and necessary third-
party costs incurred by Purchaser in relation to Purchaser’s assistance with such matters.
4.5 Commercial Operation Date. Seller shall use commercially reasonable efforts to
cause the installation of the System to be completed and to achieve a Commercial Operation Date
on or before December 31, 2023 (the "Target COD"). In the event that the Systems has not
achieved Commercial Operation Dates on or before the Target COD, the Seller will pay the
Purchaser on a monthly basis in arrears the positive difference, if any, between the Energy Rate
Purchaser would have paid for Energy Output for the System and the Utility Rate of the quantities
of Energy Output that Purchaser obtains to replace the estimated energy output that would have
been achieved" measured on a daily basis from the Target COD date until the Commercial
Operation Date for the subject System. The Parties may agree to amend this Agreement to revise
the Target COD (the "Revised Target COD"). In the event that the System has not achieved the
Commercial Operation Date on or before the Revised Target COD, the Parties may, in their
discretion, negotiate to amend this Agreement to further revise the Target COD, along with any
other provisions of this Agreement affected by the failure to achieve the Commercial Operation
Date on or before the Revised Target COD. Seller shall deliver notice to Purchaser (5) days prior
to the occurrence of the Commercial Operation Date.
(a) Conditions to Commercial Operation. Seller will notify Purchaser in writing
when the System has achieved Commercial Operation. This notification
shall provide documented evidence of the satisfaction or occurrence of all
of the conditions set forth in this Section 4.5 (the “Conditions") and shall
include a declaration by Seller to that effect. In the event of a dispute
regarding the Commercial Operation Date, such dispute will be resolved
subject to Section 16.2. The Conditions are:
(i) The System is capable of delivering Energy Output to the Point of
Delivery;
(ii) Seller has provided a list of the System’s major equipment, showing
the make, model and nameplate capacity of such equipment, and has
certified the nameplate capacity of the System;
(iii) The System has, if applicable, demonstrated the reliability of its
communications systems; and
(iv) Seller has certified that all permits, consents, licenses, approvals,
and authorizations required to be obtained by Seller from any
Governmental Authority or Utility to operate the System in
compliance with applicable law and this Agreement have been
obtained and are in full force and effect and that Seller is in
compliance with the terms and conditions of this Agreement in all
material respects.
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4.6 Notice of Damage. Purchaser shall promptly notify Seller of any physical
conditions or other circumstances of which Purchaser becomes aware that indicate there has been
or might be damage to or loss of the use of the System or that could reasonably be expected to
adversely affect the System. Failure to provide notice under this Section 4.6 shall not be a material
breach of this Agreement.
4.7 System Upgrades. At any time, following notice to Purchaser, Seller may upgrade
the System; provided that the upgraded System complies with this Agreement and applicable laws
and, provided further, that if any System upgrade would increase the annual Estimated Production
by more than ten percent (10%) percent, then Seller shall obtain Purchaser’s prior written consent
before performing the System upgrade. In order to perform any System upgrades, Seller may
disconnect the System and interrupt Energy deliveries, provided that Seller shall complete such
upgrades and re-connect the System within 180 days of commencing the upgrades.
4.8 Site and System Maintenance and Repair. Site System Maintenance and Repair
obligations are detailed in the Site Lease.
4.9 System Reliability. Beginning on the Commercial Operation Date, and continuing
through the end of the Term, the System’s Energy Output capacity shall be not less than eighty-
five percent (85%) of the Estimated Production identified in Exhibit B (the "Guaranteed Minimum
Generating Capacity"), as measured over any three (3) consecutive Commercial Operation Years
(the "Energy Measurement Period"), for any reason other than (i) Purchaser's breach of its
obligations under this Agreement or the Lease, (ii) a System upgrade or Downgrade that has been
agreed to in writing, or (iii) a Force Majeure event. In the event the Energy Output delivered to
Purchaser over any Energy Measurement Period is less than the Guaranteed Minimum Generating
Capacity for such period, then Seller shall, within fifteen (15) days following the end of such
Energy Measurement Period, pay to Purchaser an amount equal to the product of (A) the difference
between the Guaranteed Minimum Generating Capacity and the actual Energy Output delivered,
and (B) the difference, if any, between Purchaser's average Utility Rate over such Energy
Measurement Period minus the applicable Contract Price for such period.
5. PAYMENT
5.1 Consideration for Energy Delivered. As consideration for the delivery of Energy
by Seller, Purchaser shall pay for Energy delivered hereunder at the applicable Energy Price.
5.2 Invoicing. Seller shall be responsible for reading the Electric Metering Devices at
the end of each calendar month. Seller shall invoice Purchaser for Energy on a monthly basis.
Seller shall deliver each invoice within thirty (30) Business Days after the end of each monthly
billing period. Each invoice shall set out the amount of Energy delivered in kWh during such
billing period, the then-applicable Energy Price, and the total amount then due to Seller, including
any taxes assessed on the sale of Energy to Purchaser, offsets for amounts due from Seller to
Purchaser pursuant to Section 3.1, and credits due to Purchaser under Section 3.2 . The amount
due shall be prorated for any partial month during the Contract Term. Such invoice shall include
sufficient detail so that Purchaser can reasonably confirm the accuracy of the invoice including,
among other details, beginning and ending meter readings. Purchaser shall pay the amount due to
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Seller on a net forty-five (45) basis after receipt of each invoice. Payments not made within 45
days of receipt of Seller’s invoice shall be subject to interest at the Interest Rate until paid.
5.3 Disputed Amounts. A Party may in good faith dispute the accuracy of any invoice
(or any adjustment to any invoice) under this Agreement at any time within thirty (30) days
following the receipt of the invoice (or invoice adjustment). In the event of such a dispute, such
Party shall nonetheless pay the full amount of the applicable invoice or invoice adjustment on the
applicable payment due date, except as expressly provided otherwise elsewhere in this Agreement,
and to give written notice of the objection to the other Party. Any required refund following
resolution of such dispute shall be made within five (5) Business Days after final resolution thereof,
together with interest accrued at the Interest Rate from the original payment due date to the date
refunded.
5.4 Books and Records. To facilitate payment and verification, each Party shall
maintain all books and records necessary for billing and payments, including copies of all invoices
under this Agreement, for a period of at least two (2) years, and Seller shall grant Purchaser
reasonable access to those books, records, and data at the principal place of business of Seller.
Purchaser may examine such books and records relating to transactions under, and administration
of, this Agreement, at any time during the period the records are required to be maintained, upon
request with reasonable notice and during normal business hours, however not more than once per
year.
5.5 Change in Law. The Parties acknowledge and agree that the Energy Price is based
on assumptions related to the availability to the Seller of the Environmental Incentives. In the
event of the elimination or alteration of one of more Environmental Incentives or any other change
in law that results in a material adverse economic impact on Seller in respect to this Agreement,
the Parties shall work in good faith to amend this Agreement within thirty (30) Business Days after
such elimination or alteration as may be reasonably necessary to restore the allocation of economic
benefits and burdens contemplated hereunder by the Parties. If the Parties fail to enter into such
an amendment by the end of such thirty (30) Business Day period, Seller may terminate this
Agreement without penalty, and Seller shall remove the System from the Premises within one
hundred eighty (180) days of such termination.
6. DELIVERY; CURTAILMENT; INSOLATION; METERING.
6.1 Delivery. The System Point of Delivery shall be at the point of connection, as
depicted on Exhibit B. Seller shall deliver Energy Output hereunder in the form of three-phase
sixty-cycle alternating current at or exceeding the quality standards of the Utility. Seller shall bear
the risk of electric losses up until the Point of Delivery and shall be responsible for costs required
to deliver the Energy Output to the Point of Delivery, but shall not be bear any risk of loss after
the Energy Output has been delivered to the Point of Delivery.
6.2 Purchaser's Failure to Accent Delivery. On and after the Commercial Operation
Date, if, there exists no breach or default by Seller under this Agreement and Purchaser fails to
accept all or any amount of the Energy Output for the applicable System for any reason other than
an event of Force Majeure, such event shall constitute a Purchaser Curtailment and be treated in
accordance with Section 6.3, below.
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6.3 Curtailment.
(a) Each Party shall have the right to request curtailment of Energy Output
upon sufficient prior written notice, and Energy Output shall be curtailed
pursuant to such request. The Parties agree that each Party will be allotted
four (4) four (4) hour curtailments per Commercial Operation Year for any
reason (the "Curtailment Allotment'). The Parties agree that if the number
or duration exceed the Curtailment Allotment during periods when one
Party invokes such curtailment option (i) the requesting Party shall be
liable for Liquidated Damages in the manner set forth below; and (ii) Seller
shall have no right to remarket the Energy Output that is curtailed. Subject
to the provisions set forth in the Lease with respect to a relocation of a
System, the remedy provided in this Section 6.3 shall be the sole and
exclusive remedy of Seller for any such voluntary curtailment requested
by Purchaser. Seller will have no obligation to reimburse Purchaser if the
Curtailment Allotment is not used and the Parties agree there will be no
carry forward from one year to the next.
(b) If Seller exceeds its Curtailment Allotment, it shall pay the Purchaser on a
monthly basis in arrears the positive difference, if any, between the Energy
Rate Purchaser would have paid for Energy Output for the System and the
Utility Rate of the quantities of Energy Output that Purchaser obtains to
replace the estimated energy output that would have been achieved.
(c) If Purchaser exceeds its Curtailment Allotment, it shall pay the Seller on a
monthly basis in arrears an amount equal to the average Energy Output of
the prior three months, prorated for the duration of the exceeded
Curtailment Allotment.
6.4 Electric Metering Devices.
(a) Metering of Delivery. Seller shall measure the amount of Energy supplied
to Purchaser at the Delivery Point using a commercially available, revenue-
grade metering system. Such meter shall be installed and maintained at
Seller’s cost. Purchaser shall cooperate with Seller to enable Seller to have
reasonable access to the meter as needed to inspect, repair, and maintain
such meter. At Seller’s option, the meter may have standard industry
telemetry and/or automated meter reading capabilities to allow Seller to
read the meter remotely. If Seller elects to install telemetry allowing for
remote reading, Purchaser shall allow for the installation of necessary
communication lines and shall reasonably cooperate in providing access for
such installation. The meter shall be kept under seal, such seal to be broken
only when the meter is to be tested, adjusted, modified, or relocated. In the
event that either Party breaks a seal, such Party shall notify the other Party
as soon as practicable.
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(b) Back-Up Metering. Either Purchaser or Seller may elect to install and
maintain, at the installing Party’s own expense, backup metering devices
("Back-Up Metering") in addition to the Electric Metering Devices, which
installation and maintenance shall be performed in a manner acceptable to
Purchaser. The installing Party, at its own expense, shall inspect and test
Back-Up Metering upon installation and at least annually thereafter. The
installing Party shall provide the other Party with reasonable advance notice
of, and permit a representative of such Party to witness and verify, such
inspections and tests, provided, however, that such Party shall not
unreasonably interfere with or disrupt the activities of the installing Party
and shall comply with all applicable safety standards. Upon request, the
installing Party shall perform additional inspections or tests of Back-Up
Metering and shall permit a qualified representative of the other Party to
inspect or witness the testing of Back-Up Metering, provided, however, that
such other Party shall not unreasonably interfere with or disrupt the
activities of the installing Party and shall comply with all applicable safety
standards. The actual expense of any such requested additional inspection
or testing shall be borne by the Party requesting the test, unless, upon such
inspection or testing, Back-Up Metering is found to register inaccurately by
more than the allowable limits established in this Article, in which event the
expense of the requested additional inspection or testing shall be borne by
the installing Party. If requested in writing, the installing Party shall provide
copies of any inspection or testing reports to the requesting Party.
(c) Net Metering. Seller shall deliver all Energy Output generated by the
System to Purchaser at the applicable Delivery Point. Purchaser shall be
responsible for delivery of any Energy Output generated by the System that
is not consumed by Purchaser at the Site pursuant to the then applicable
Utility net metering requirements. Seller shall provide reasonable assistance
to Purchaser in applying for and establishing the Utility net metering
agreements that may be necessary. Purchaser shall reimburse Seller for its
reasonable and necessary third-party costs incurred in relation to Seller’s
assistance with such matters.
(d) Meter Verification. On each of the fifth, tenth, fifteenth and twentieth
anniversaries of the Commercial Operation Date, or earlier at Seller’s
discretion, Seller shall test the meter and provide copies of any related test
results to Purchaser. The tests shall be conducted by a qualified independent
third party. Seller shall notify Purchaser seven (7) days in advance of each
such test, and shall permit Purchaser to be present during such tests. If a
meter is inaccurate, Seller shall promptly cause the meter to be repaired or
replaced. If a meter is accurate or inaccurate by two percent (2%) or less,
then Purchaser shall pay the costs of the meter testing. If a meter is
inaccurate by more than two percent (2%), then Seller shall pay for the costs
of the meter testing. If a meter is inaccurate by more than two percent (2%)
and the duration of such inaccuracy is known, then prior invoices shall be
adjusted accordingly and any amounts owed to Purchaser shall be credited
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against future invoices for Energy deliveries. If a meter is inaccurate by
more than two percent (2%) and it is not known when the meter inaccuracy
commenced, then prior invoices shall be adjusted for the amount of the
inaccuracy on the basis that the inaccuracy persisted during the twelve-
month period preceding the test and any amounts owed to Purchaser shall
be credited against future invoices for Energy deliveries.
7. OPTION TO PURCHASE SYSTEM.
7.1 Grant of Purchase Option. Seller hereby grants to Purchaser the right and option to
purchase all of the Seller’s right, title, and interest in and to the System on the terms set forth herein
(“Purchase Option”). Purchaser may exercise the Purchase Option on either the sixth (6th), tenth
(10th), fifteenth (15th) or twentieth (20th) anniversary of the Commercial Operation Date, or
simultaneously with the termination of this Agreement (collectively, the “Purchase Option
Dates”), provided that no Purchaser Event of Default, or any event which with the passage of time
will become a Purchaser Event of Default, has then occurred and is ongoing.
7.2 Determination of Purchase Price. Purchaser may, on or at any time within thirty
(30) days before each Purchase Option Date, request a determination of the purchase price under
the Purchase Option (the “Purchase Price”). The Purchase Price shall be the fair market value of
the System, as determined by an independent appraiser retained by the Parties (the “Independent
Appraiser”). The Independent Appraiser shall be an individual who is a member of a national
accounting, engineering or energy consulting firm qualified by education, experience, and training
to determine the value of solar generating facilities of the size and age and with the operational
characteristics of the System, and who specifically has prior experience valuing solar energy
generating facilities. The Independent Appraiser shall be reasonably acceptable to both Seller and
Purchaser. Except as may be otherwise agreed by the Parties, the Independent Appraiser shall not
be (or within three (3) years before his or her appointment have been) a director, officer, or an
employee of, or directly or indirectly retained as consultant or adviser to, either of the Parties or
their respective Affiliates. The fair market value assessment of the System shall consider, among
other things, the income and savings associated with the System for the remaining portion of the
Contract Term, the terminal value of the assets and the System’s past and projected performance.
The Independent Appraiser shall make a determination of the Purchase Price within thirty (30)
days of appointment (the “Price Determination”). Upon making the Price Determination, the
Independent Appraiser shall provide a written notice thereof to both Seller and Purchaser, along
with all supporting documentation detailing the method of calculation of the Purchase Price.
Except in the event of fraud or manifest error, the Price Determination shall be a final and binding
determination of the fair market value. If Purchaser wishes to exercise the Purchase Option
following the Price Determination, it shall deliver an exercise notice to Seller within ten (10) days
of receipt of the Price Determination (the “Exercise Period”). Any such exercise notice shall be
irrevocable once delivered. If Purchaser does not exercise the Purchase Option during the Exercise
Period, then the Price Determination shall be null and void, and Purchaser may not request a new
determination of the Purchase Price until the next Purchase Option Date. Each Price
Determination by an Independent Appraiser shall be at Purchaser’s expense.
7.3 Terms and Date of System Purchase. Unless agreed to in writing, the Parties shall
consummate the sale of the System to Purchaser no later than forty-five (45) days following
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Purchaser’s exercise of the Purchase Option. On the effective date of such sale (the “Transfer
Date”) (a) Seller shall surrender and transfer to Purchaser all of Seller’s right, title, and interest in
and to the System and shall retain all liabilities, Environmental Attributes, Environmental
Incentives, and profits arising from or relating to the System that arose prior to the Transfer Date;
(b) Purchaser shall pay the Purchase Price to Seller in readily available funds, and shall assume all
liabilities arising from or relating to the System as of and after the Transfer Date; (c) Purchaser
shall pay all amounts due under this Agreement for Energy delivered hereunder; and (d) both the
Seller and the Purchaser shall (i) execute and deliver a bill of sale and assignment of contract
rights, together with such other conveyance and transaction documents as are reasonably required
to fully transfer and vest title to the System in Purchaser, and (ii) deliver ancillary documents,
including releases, resolutions, certificates, third-party consents and approvals, and such similar
documents as may be reasonably necessary to complete and conclude the sale of the System to
Purchaser. The purchase and sale of the System shall be on an “as-is, where-is” basis, and Seller
shall not be required to make any warranties or representations with regard to the System, but
Seller shall, to the extent reasonably possible, transfer or assign to Purchaser all manufacturer and
third-party warranties with respect to the System or any part thereof. Purchaser shall pay all
transaction and closing costs associated with exercise of the Purchase Option.
8. TITLE AND RISK OF LOSS.
8.1 Title. Seller shall at all times retain title to and be the legal and beneficial owner
of the System, and the System shall remain the personal property of Seller and shall not attach to
or be deemed a part or fixture of the Premises. Seller may file one or more precautionary financing
statements in jurisdictions it deems appropriate with respect to the System in order to protect its
rights in the System.
8.2 Risk of Loss. Seller shall bear the risk of loss for the System, except to the extent
caused by the breach by Purchaser of its obligations under this Agreement, the Site Lease or the
gross negligence or intentional misconduct of Purchaser or its invitees.
8.3 System Casualty.
(a) If the System is materially damaged or destroyed prior to the fifteenth (15th)
anniversary of the Commercial Operation Date (as defined in this
Agreement), the Seller shall be obligated to repair or replace the System to
produce Electric Output in substantially the same amount and quality as
produced by the System immediately before the damage or destruction.
(b) If the System is materially damaged or destroyed on or after the fifteenth
(15th) anniversary of the Commercial Operation Date (as defined in this
Agreement), then Seller may, but shall not be obligated to, repair or replace
the System to produce electricity in substantially the same amount and
quality as produced by the System immediately before the damage or
destruction. If Seller elects not to repair or replace the System, then this
Lease shall terminate in part with respect to such affected System or portion
thereof. If Seller does not repair or replace the System, or portion thereof, it
shall remove what remains of the System and restore the Premises to a
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condition that is reasonable similar to the condition prior to System
installation.
(c) If Seller elects to repair or replace the System, Seller shall undertake such
repair or replacement as quickly as practicable. If Seller elects to terminate
this Agreement, the termination shall be effective immediately upon
delivery of the notice under this Section 8.3.
(d) Seller shall under all circumstances be entitled to all insurance proceeds
with respect to the System and Purchaser shall under all circumstances be
entitled to all insurance proceeds with respect to the Premises.
9. FORCE MAJEURE.
9.1 Force Majeure. To the extent either Party is prevented by an event of Force Majeure
from performing its obligations under this Agreement, such Party shall be excused from the
performance of its obligations under this Agreement, provided that:
(a) The Party claiming Force Majeure shall use commercially reasonable
efforts to eliminate or avoid the Force Majeure and resume performing its
obligations; provided, however, that neither Party is required to settle any
strikes, lockouts or similar disputes except on terms acceptable to such
Party, in its sole discretion;
(b) The non-claiming Party shall not be required to perform or resume
performance of its obligations to the claiming Party corresponding to the
obligations of the claiming Party excused by Force Majeure;
(c) The suspension of performance is of no greater scope and of no longer
duration than is required;
(d) the non-performing Party proceeds with reasonable diligence to remedy its
inability to perform and provides weekly progress reports to the other Party
describing actions taken to end the Force Majeure;
(e) when the non-performing Party is able to resume performance of its
obligations under this Agreement that Party shall give the other Party
written notice to that effect; and
(f) Notwithstanding the foregoing, no Party may claim relief by reason of Force
Majeure from a simple requirement to pay money due hereunder.
9.2 Notice. In the event of any delay or nonperformance resulting from an event of
Force Majeure, the Party suffering the event of Force Majeure shall, as soon as practicable, notify
the other Party in writing of the nature, cause, date of commencement thereof and the anticipated
extent of any delay or interruption in performance; provided, however, that a Party’s failure to give
timely notice shall not affect such Party’s ability to assert Force Majeure unless and to the extent
that the delay in giving notice prejudices the other Party.
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9.3 Limitations on Effect of Force Majeure. In no event will any delay or failure of
performance caused by any conditions or events of Force Majeure extend this Agreement beyond
its stated Term. ln the event that any delay or failure of performance caused by conditions or events
of Force Majeure continues for an uninterrupted period of three hundred sixty-five (365) days from
its occurrence or inception, as noticed pursuant to Section 9.2, the Party not claiming Force
Majeure may, at any time following the end of such three hundred sixty-five (365) day period,
terminate this Agreement to the extent of the Force Majeure upon written notice to the affected
Party, without further obligation by either Party except as to costs and balances incurred prior to
the effective date of such termination. In the event of a Force Majeure event that extends beyond
such three hundred sixty-five (365) day period, the Parties may mutually agree to extend the period
beyond three hundred sixty-five (365) days.
10. RIGHTS AND OBLIGATIONS OF PURCHASER.
10.1 Purchaser Access. To the extent authorized by this Agreement and any applicable
Lease, Seller shall provide Purchaser with reasonable access to the System at all reasonable times
with reasonable prior written notice for purposes of maintaining any equipment which is owned or
otherwise the responsibility of Purchaser under this Agreement; provided, however, that Purchaser
shall comply with Seller's written safety guidelines and risk management procedures, copies of
which shall be provided to Purchaser by Seller upon request.
10.2 Site Lease. As of the Effective Date hereof, Purchaser and Seller have entered into
an Site Lease for access to, on, over, under and across each of the Sites for the purposes of: (a)
installing, constructing, operating, owning, maintaining, accessing, removing and replacing the
System; (b) performing all of Seller's obligations and enforcing all of Seller's rights set forth in
this Agreement; and (c) installing, using and maintaining electric lines and equipment, including
inverters and meters, necessary to interconnect the System to Purchaser's Electrical System at the
Site and/or to the Utility's electric distribution system or that otherwise may from time to time be
useful or necessary in connection with the construction, installation, operation, maintenance or
repair of the System. Seller shall notify Purchaser prior to entering a Site as may be required in
accordance with the terms of the Lease. During the Lease Term, Purchaser shall not interfere with
Seller's rights under the Lease and shall take all commercially reasonable steps to prevent any third
parties from interfering with such rights. Purchaser agrees that Seller, upon request to Purchaser,
may record a memorandum of Lease in the land records respecting the Lease in form and substance
reasonably acceptable to the Parties.
11. ADDITIONAL COVENANTS.
11.1 Liens. Purchaser shall not directly or indirectly cause, create, incur, assume or
suffer to exist any mortgage, pledge, lien (including mechanics’, labor or materialman’s lien),
charge, security interest, encumbrance or claim on or with respect to the System or any portion
thereof. If Purchaser breaches it obligations under this Section 11.1, it shall promptly notify Seller
in writing, shall promptly cause any lien to be discharged and released of record without cost to
Seller, and shall, to the limited extent permissible under State of Michigan Law, indemnify Seller
against all claims, losses, costs, damages, and expenses, including reasonable attorneys’ fees,
incurred in discharging and releasing such lien.
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11.2 Additional Purchaser Financial Information. If requested by Seller, Purchaser shall
deliver within one hundred-eighty (180) days following the end of each fiscal year, a copy of
Purchaser’s annual report containing audited consolidated financial statements with footnotes for
such fiscal year. In all cases such financial statements shall be for the most recent accounting
period and prepared in accordance with generally accepted accounting principles consistently
applied; provided, however, that if any such financial statements are not available on a timely basis
due to a delay in preparation or certification, such delay shall not by itself constitute a Purchaser
Event of Default so long as Purchaser diligently pursues the preparation, certification and delivery
of the statements. [NTD – adjust for unaudited or public entity financial reporting]
11.3 Performance Assurance; Downgrade Event. If at any time Seller, in its sole
judgment, determines that Purchaser’s or Purchaser’s Performance Assurance provider’s
creditworthiness or performance under this Agreement has or will become unsatisfactory, or if
Purchaser or Purchaser’s Performance Assurance provider experiences a Downgrade Event, then
Seller may by written notice require Purchaser to provide Performance Assurance within fifteen
(15) Business Days. Purchaser shall obtain and maintain such Performance Assurance, unless
otherwise agreed upon by Seller in writing.
12. REPRESENTATIONS AND WARRANTIES.
12.1 Representations and Warranties of Purchaser. Purchaser represents and warrants
to Seller that:
(a) Purchaser has the requisite legal capacity to enter into this Agreement and
fulfill its obligations hereunder, that the execution and delivery by it of this
Agreement and the performance by it of its obligations hereunder have been
duly, and that, subject to compliance with and obtaining all required
governmental approvals under any applicable regulatory laws or regulations
governing the sale or delivery of Energy, the entering into of this Agreement
and the fulfillment of its obligations hereunder does not contravene any law,
statute or contractual obligation of Purchaser;
(b) This Agreement constitutes Purchaser’s legal, valid and binding obligation
enforceable against it in accordance with its terms, except as may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium, and
other similar laws now or hereafter in effect relating to creditors’ rights
generally;
(c) No suit, action or arbitration, or legal administrative or other proceeding is
pending or has been threatened against the Purchaser that would have a
material adverse effect on the validity or enforceability of this Agreement
or the ability of Purchaser to fulfill its commitments hereunder, or that could
result in any material adverse change in the business or financial condition
of Purchaser;
(d) No governmental approval (other than any governmental approvals which
have been previously obtained) is required in connection with the due
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authorization, execution and delivery of this Agreement by Purchaser or the
performance by Purchaser of its obligations hereunder which Purchaser will
be unable to obtain in due course; and
(e) The public entity financial reporting statements of Purchaser for the most
recent three calendar years, together with any unaudited interim financial
statements of Purchaser, (i) have each been prepared in accordance with
generally accepted accounting principles consistently applied throughout
the respective periods covered thereby, except as otherwise expressly noted
therein; and (ii) present fairly and accurately the financial condition of
Purchaser as of the dates thereof and results of its operations for the periods
covered thereby. Purchaser further represents and warrants to Seller that
since the date of the most recent of the above-referenced financial
statements, there has been no material adverse change in Purchaser’s
financial condition, business, operations or prospects.
12.2 Representations and Warranties of Seller. Seller represents and warrants to
Purchaser that:
(a) Seller has the requisite corporate, partnership or limited liability company
capacity to enter into this Agreement and fulfill its obligations hereunder,
that the execution and delivery by it of this Agreement and the performance
by it of its obligations hereunder have been duly authorized by all requisite
action of its stockholders, partners or members, and by its board of directors
or other governing body, and that, subject to compliance with and obtaining
all required governmental approvals under any applicable regulatory laws
or regulations governing the sale or delivery of Energy, the entering into of
this Agreement and the fulfillment of its obligations hereunder does not
contravene any law, statute or contractual obligation of Seller;
(b) this Agreement constitutes Seller’s legal, valid and binding obligation
enforceable against it in accordance with its terms, except as may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium, and
other similar laws now or hereafter in effect relating to creditors' rights
generally;
(c) No suit, action or arbitration, or legal administrative or other proceeding is
pending or has been threatened against the Seller that would have a material
adverse effect on the validity or enforceability of this Agreement or the
ability of Seller to fulfill its commitments hereunder, or that could result in
any material adverse change in the business or financial condition of Seller;
and
(d) Neither the System nor any of Seller’s services provided to Purchaser
pursuant to this Agreement infringe on any third party’s intellectual
property or other proprietary rights.
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13. DEFAULTS/REMEDIES.
13.1 Seller Event of Default. Each of the following events shall constitute a “Seller
Event of Default”:
(a) Seller fails to pay to Purchaser any amount when due under this Agreement
and such failure remains uncured for ten (10) Business Days following
notice of such failure to Seller; or
(b) Seller materially breaches any other term of this Agreement (i) if such
breach is capable of being cured within thirty (30) days after Purchaser’s
notice to Seller of such breach and Seller has failed to cure the breach within
such thirty (30) day period, or (ii) if Seller has diligently commenced work
to cure such breach but that breach is not capable of cure within such thirty
(30) day period, Seller may request a further one hundred fifty (150) day
period (such aggregate period not to exceed one hundred eighty (180) days
from the date of Purchaser’s notice) to cure the breach.
(c) Seller making a general assignment of its assets that is not in accordance
with the terms of this Agreement (Excepting any general assignment for the
benefit of creditors that is explicitly permitted by this Agreement);
(d) Seller’s dissolution, liquidation or filing of a voluntary petition in
bankruptcy or insolvency or for reorganization or arrangement under the
bankruptcy laws of the United States or under any insolvency act of any
state, or after the filing of a case in bankruptcy or any proceeding under any
other insolvency law against the Seller, the Seller’s failure to obtain a
dismissal of such filing within sixty (60) calendar days after the date of such
filing;
(e) Any express representation or warranty furnished by Seller in connection
with this Agreement was false or misleading in any material respect when
made, unless the fact, circumstance or condition that is the subject of such
representation or warranty is made true within thirty (30) calendar days after
the Purchaser has given the Seller written notice thereof; provided,
however, that if the fact, circumstance or condition that is the subject of
such representation or warranty cannot be corrected within thirty (30)
calendar days; or if such fact circumstance or condition being otherwise
than as first represented does not materially adversely affect the Purchaser,
then Seller shall have additional time, but in any event not longer than
ninety (90) days, to cure the default if it commences in good faith within
such thirty (30) calendar day cure period to correct the fact, circumstance
or condition that is the subject of such representation or warranty and it
diligently and continuously proceeds with all due diligence to correct the
fact, circumstance or condition that is the subject of such representation or
warranty; or
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(f) A failure to maintain insurance required under this Agreement, which is not
corrected within thirty (30) days;
13.2 Purchaser’s Remedies. If a Seller Event of Default has occurred and is continuing,
Purchaser may terminate this Agreement by written notice to Seller following the expiration of the
applicable cure period, and may exercise any other remedy it may have at law or equity, including,
in the event such Seller Event of Default occurs and is continuing after the sixth (6th) anniversary
of the Commercial Operation Date, exercising the Purchase Option.
13.3 Purchaser Event of Default. Each of the following events shall constitute a
“Purchaser Event of Default”:
(a) Purchaser fails to pay to Seller any amount when due under this Agreement
and such breach remains uncured for ten (10) Business Days following
notice of such breach to Purchaser;
(b) (i) Purchaser commences a voluntary case under any bankruptcy law;
(ii) Purchaser fails to controvert in a timely and appropriate manner, or
acquiesces in writing to, any petition filed against Purchaser in an
involuntary case under any bankruptcy law; (iii) any involuntary
bankruptcy proceeding commenced against Purchaser remains undismissed
or undischarged for a period of sixty (60) days; or Purchaser becomes
structurally insolvent such that it becomes generally unable to meet its
financial obligations as and when they fall due;
(c) Purchaser breaches any of its obligations under the Site Lease;
(d) Purchaser breaches any of its obligations under Section 3.2;
(e) Purchaser fails to secure the release of any lien imposed on the System in
violation of Section 11.1 more than 15 days following notice thereof; or
(f) Purchaser breaches any other material term of this Agreement and such
breach remains uncured for thirty (30) days following notice of such breach
to Purchaser, or such longer cure period as may be agreed to by the Parties.
13.4 Seller’s Remedies. If a Purchaser Event of Default has occurred and is continuing,
Seller may terminate this Agreement by written notice to Purchaser following the expiration of the
applicable cure period. Upon termination of the Agreement by Seller, Purchaser shall pay a
Termination Payment to Seller equal to the amount set forth in the table attached hereto as Exhibit
F for the applicable contract year (the “PPA Damages”). Notwithstanding any provision in this
Agreement to the contrary, if no notice of dispute has been issued within thirty (30 days) in the
case of a billing dispute or thirty-six (36) months in all other cases after the Seller learns of the
Dispute (the "Claims Period"), the Dispute and all claims related thereto shall be deemed waived
and the Seller shall thereafter be barred from proceeding thereon. For purposes of this Section,
"the Seller learns of the Dispute" when, as to any particular Dispute, it has actual knowledge or
should have known of the occurrence giving rise to the Dispute and a reasonable belief that the
Purchaser is at least partially responsible for any damages arising from that occurrence. Any claim
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reasonably arising out of a claim for which notice of a dispute was timely provided shall not be
deemed to be waived if "the Seller learns of the Dispute," or a previously undiscovered but related
liability, at a later date unless the Seller fails to raise the claim within the then reestablished Claims
Period.
13.5 Waiver of Consequential Damages. EXCEPT AS SPECIFICALLY PROVIDED
HEREIN, THE PARTIES AGREE THAT TO THE FULLEST EXTENT ALLOWED BY LAW,
IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE OR LIABLE, WHETHER IN
CONTRACT, TORT, WARRANTY, OR UNDER ANY STATUTE OR ON ANY OTHER
BASIS, FOR SPECIAL, INDIRECT, INCIDENTAL, MULTIPLE, PUNITIVE, EXEMPLARY
OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS OR LOSS OR
INTERRUPTION OF BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THE
SYSTEM OR THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, THE PPA DAMAGES SHALL NOT BE CONSIDERED CONSEQUENTIAL
DAMAGES AND SHALL NOT BE SUBJECT TO THE LIMITATIONS SET FORTH IN THIS
SECTION. (REMAINS SUBJECT TO APPROVAL BY THE CITY OF MUSKEGON)
13.6 Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, SELLER’S
MAXIMUM LIABILITY UNDER THIS AGREEMENT (WHETHER IN CONTRACT,
WARRANTY, INDEMNITY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE)
SHALL IN NO EVENT EXCEED THE AMOUNT OF THE AGGREGATE PAYMENTS
MADE AND OR TO BE MADE BY PURCHASER TO SELLER PURSUANT TO SECTION 4
OF THIS AGREEMENT CALCULATED. (REMAINS SUBJECT TO APPROVAL BY THE
CITY OF MUSKEGON – THIS INCLUDES NO LIMITATION TO PURCHSER LIABILITY.
SUGGESTION OF LIMITING PURCHASE LIABILITY TO THE TERMINATION
PAYMENTS INCLUDED AS APPENDIX F.)
14. FINANCING ACCOMMODATIONS.
14.1 Purchaser Acknowledgment. Purchaser acknowledges that Seller may finance the
System and that Seller’s obligations may be secured by, among other collateral, a pledge or
collateral assignment of this Agreement and a security interest in the System. In order to facilitate
any such financing, with respect to which Seller has notified Purchaser in writing of the identity
of such person’s offering to provide such financing (each, a “Financing Party”), Purchaser agrees
as follows:
14.2 Consent to Collateral Assignment. Seller shall have the right to assign this
Agreement as collateral for financing or refinancing of the System, and Purchaser hereby consents
to the collateral assignment by Seller to any Financing Party of Seller’s right, title, and interest in
and to this Agreement.
14.3 Financing Party’s Rights Following Default. Notwithstanding any contrary term
of this Agreement:
(a) Financing Party, as collateral assignee, shall be entitled to exercise, in the
place and stead of Seller, any and all rights and remedies of Seller under
this Agreement in accordance with the terms of this Agreement. Financing
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Party shall also be entitled to exercise all rights and remedies of secured
parties generally with respect to this Agreement and the System.
(b) Financing Party shall have the right, but not the obligation, to pay all sums
due under this Agreement and to perform any other act, duty, or obligation
required of Seller hereunder or cause to be cured any default or event of
default of Seller in the time and manner provided by the terms of this
Agreement. Nothing herein requires Financing Party to cure any default of
Seller (unless Financing Party has succeeded to Seller’s interests) to
perform any act, duty, or obligation of Seller, but Purchaser hereby gives
Financing Party the option to do so.
(c) Upon the exercise of remedies under its security interest in the System,
including any sale thereof by Financing Party, whether by judicial
proceeding or under any power of sale, or any conveyance from Seller to
Financing Party, Financing Party shall give notice to Purchaser of the
transferee or assignee of this Agreement. Any such exercise of remedies
shall not constitute a Seller Event of Default.
(d) Upon any rejection or other termination of this Agreement pursuant to any
process undertaken with respect to Seller under the United States
Bankruptcy Code, at the request of Financing Party made within ninety
(90) days of such termination or rejection, Purchaser shall enter into a new
power purchase agreement with Financing Party or its assignee on
substantially the same terms as this Agreement.
14.4 Financing Party Cure Rights. Purchaser shall not exercise any right to terminate or
suspend this Agreement unless Purchaser has given prior written notice to each Financing Party
of which Purchaser has notice. Purchaser’s notice of an intent to terminate or suspend must specify
the condition giving rise to such right. Financing Party shall have the longer of thirty (30) days
and the cure period allowed for a default of that type under this Agreement to cure the condition;
provided that if the condition cannot be cured within such time but can be cured within the
extended period, Financing Party may have up to an additional ninety (90) days to cure if Financing
Party commences to cure the condition within the thirty (30) day period and diligently pursues the
cure thereafter. Purchaser’s and Seller’s obligations under this Agreement shall otherwise remain
in effect, and Purchaser and Seller shall be required to fully perform all of their respective
obligations under this Agreement during any cure period.
14.5 Continuation Following Cure. If Financing Party or its assignee acquires title to or
control of Seller’s assets and cures all defaults existing as of the date of such change in title or
control within the time allowed by Section 14.4, then this Agreement shall continue in full force
and effect.
14.6 Notice of Defaults and Events of Default. Purchaser agrees to deliver to each
Financing Party a copy of all notices that Purchaser delivers to Seller pursuant to this Agreement.
Seller agrees to deliver to each financing party a copy of all notices the Seller delivers to Purchaser
pursuant to this Agreement.
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15. NOTICES. Any notice required, permitted, or contemplated hereunder shall be in writing
and addressed to the Party to be notified at the address set forth below or at such other address or
addresses as a Party may designate for itself from time to time by notice hereunder. Such notices
may be sent by personal delivery or recognized overnight courier and shall be deemed effective
upon receipt.
To Seller: To Purchaser:
Sunwealth LLC City of Muskegon
2067 Massachusetts Avenue, Suite 540 933 Terrace Street
Cambridge, Massachusetts, 02140 Muskegon, MI 49440
Attention: Jonathan Abe, CEO Attention: Frank Peterson, City Manager
Phone: 617-752-7322 Phone: 231-724-6724
Email: projects@sunwealth.com Email: Frank.Peterson@shorelinecity.com
16. GOVERNING LAW; DISPUTES.
16.1 Choice of Law. This Agreement shall be construed in accordance with the laws of
the State of Michigan, without regard to the conflicts of law principles thereof.
16.2 Disputes.
(a) Management Negotiations. In the event of any dispute arising under this
Agreement (a "Dispute"), within seven (7) days following the delivered date
of a written request by either Party (a "Dispute Notice"), (i) each Party shall
appoint a representative (individually, a "Party Representative", together,
the "Parties' Representatives"), and (ii) the Parties' Representatives shall
confer and then meet in person at the primary administrative offices of the
Purchaser within fourteen (14) days of delivery of the Dispute Notice if the
dispute is not settled prior to that time. The Parties' Representatives shall
meet to negotiate and attempt in good faith to resolve the Dispute quickly,
informally and inexpensively with the specific goal of reconciling
differences and allowing the Parties to continue in this Agreement for the
mutual benefit of both Parties. In the event the Parties' Representatives
cannot resolve the Dispute within fourteen (14) days after delivery of the
Dispute Notice, within fourteen (14) days following any request by either
Party at any time thereafter, each Party Representative (I) shall
independently prepare a written summary of the Dispute describing the
issues and claims, (II) shall exchange its summary with the summary of the
Dispute prepared by the other Party Representative, and (III) shall submit a
copy of both summaries to a senior officer of the Party Representative with
authority to irrevocably bind the Party to a resolution of the Dispute, subject
to approval by Purchaser's Board of Education. The senior officers for both
Parties shall negotiate in good faith to resolve the Dispute, subject to any
required internal approval of any such resolution by the Parties' respective
senior management or Board of Education. If the Parties have acted in good
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faith and not resolved the Dispute within ninety (90) days after delivery of
the Dispute Notice, either Parry may seek legal and equitable remedies.
During the pendency of the Parties' attempt to resolve the dispute described
in a Dispute Notice, any applicable limitations period, whether by contract
or statute, shall be tolled. Seller will not be liable for any damages, including
liquidated damages that accrue from the time the Parties reach an agreement
to the date of Board of Education action. Nothing in this Agreement shall
prevent either Party from pursuing judicial proceedings if (a) good faith
efforts to resolve a dispute under these procedures have been unsuccessful,
or (b) interim resort to a court of competent jurisdiction is necessary to
prevent serious and irreparable injury to a Party or to others.
(b) Jurisdiction and Venue. Should management negotiations fail to resolve any
dispute, any Party may initiate dispute resolution proceedings in any state
or federal court in the State of Michigan. Each Party agrees to submit to the
personal and subject matter jurisdiction of any such court and to waive any
challenge it may have to the laying of venue in such location by reason of
inconvenient forum or otherwise.
17. INDEMNIFICATION.
17.1 Seller’s Indemnity to Purchaser. Seller shall indemnify, defend, and hold harmless
Purchaser (including Purchaser’s permitted successors and assigns) and Purchaser’s directors,
officers, employees, agents and representatives (collectively, “Purchaser Indemnified Parties”)
from and against any and all third-party claims, losses, costs, damages, and expenses, including
reasonable attorneys’ fees, incurred by Purchaser Indemnified Parties arising from or relating to
(i) Seller’s breach of this Agreement, or (ii) Seller’s negligence or willful misconduct. Seller’s
indemnification obligations under this Section 17.1 shall be subject to the limitations of Section
17.5, below.
17.2 Purchaser’s Indemnity to Seller. To the limited extent permissible under Michigan
law, Purchaser shall indemnify, defend, and hold harmless Seller (including Seller’s permitted
successors and assigns) and directors, officers, members, shareholders, employees and agents
(collectively, “Seller Indemnified Parties”) from and against any and all third-party claims, losses,
costs, damages, and expenses, including reasonable attorneys’ fees, incurred by Seller Indemnified
Parties arising from or relating to (i) Purchaser’s breach of this Agreement, or (ii) Purchaser’s
willful misconduct. Purchaser’s indemnification obligations under this Section 17.2 shall be
subject to the limitations of Section 17.5, below. Nothing herein shall be construed as a waiver of
the defense of Governmental Immunity or a waiver of statutory or constitutional limitations on
governmental indemnity.
17.3 Notice of Claims. Any Party seeking indemnification hereunder (the "Indemnified
Party") shall deliver to the other Party (the "Indemnifying Party") a written notice describing the
facts underlying its indemnification claim and the amount of such claim (each such notice a "Claim
Notice"). Such Claim Notice shall be delivered promptly to the indemnifying Party that an action
at law or a suit in equity has commenced; provided, however, that failure to deliver the Claim
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Notice shall not relieve the Indemnifying Party of its obligations under this Article 18, except to
the extent that such Indemnifying Party has been prejudiced by such failure.
17.4 Defense of Action. If requested by the Indemnified Party, the Indemnifying Party
shall assume on behalf of the Indemnified Party, and conduct with due diligence and in good faith,
the defense of such Indemnified Party with counsel reasonably satisfactory to the Indemnified
Party; provided, however, that if the Indemnifying Party is a defendant in any such action and the
Indemnified Party reasonably believes that there may be legal defenses available to it that are
inconsistent with those available to the Indemnifying Party, the Indemnified Party shall have the
right to select separate counsel to participate in its defense of such action at the Indemnifying
Party's expense. If any claim, action, proceeding or investigation arises as to which the indemnity
provided for in this Article 17 applies, and the Indemnifying Party fails to assume the defense of
such claim, action, proceeding or investigation after having been requested to do so by the
Indemnified Party, then the Indemnified Party may, at the Indemnifying Party's expense, contest
or, with the prior written consent of the Indemnifying Party, which consent shall not be
unreasonably withheld, settle such claim, action, proceeding or investigation. All costs and
expenses incurred by the Indemnified Party in connection with any such contest or settlement shall
be paid upon demand by the Indemnifying Party.
17.5 Percentage Share of Negligence. It is the intent of the Parties hereto that where
fault, acts or omissions are determined to be contributory, principles of comparative negligence
will be followed and each Party shall bear the proportionate cost of any loss, damage, expense and
liability attributable to that Party's negligence, acts or omissions.
18. INSURANCE.
18.1 Insurance Required. Each Party shall maintain in full force and effect throughout
the Contract Term, with insurers of recognized responsibility authorized to do business in the State
in which the System will be located, assigned an A.M. Best rating of no less than A IX, insurance
coverage in the amounts and types set forth on Exhibit E. Each Party shall, within ten (10) days
of written request therefor, furnish current certificates of insurance to the other Party evidencing
the insurance required hereunder.
18.2 Waiver of Subrogation. Each policy of insurance required hereunder shall provide
for a waiver of subrogation rights against the other Party, and of any right of the insurers to any
set-off or counterclaim or any other deduction, whether by attachment or otherwise, in respect of
that policy.
18.3 No Waiver of Obligations. The provisions of this Agreement shall not be construed
in a manner so as to relieve any insurer of its obligations to pay any insurance proceeds in
accordance with the terms and conditions of valid and collectable insurance policies. The
liabilities of the Parties to one another shall not be limited by insurance.
18.4 Certificates of Insurance. Each Party shall provide the other Party with certificates
of insurance evidencing coverage within ten (10) days of the effective date of this Agreement and
at any time thereafter with thirty (30) days’ notice.
19. MISCELLANEOUS.
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19.1 Confidential Information. To the extent permitted by law, if either Party provides
confidential information, including business plans, strategies, financial information, proprietary,
patented, licensed, copyrighted or trademarked information, and/or technical information
regarding the design, operation and maintenance of the System or of Purchaser's business
("Confidential Information") to the other or, if in the course of performing under this Agreement
or negotiating this Agreement a Party learns Confidential Information regarding the facilities or
plans of the other, the receiving Party shall (a) protect the Confidential Information from disclosure
to third parties with the same degree of care accorded its own confidential and proprietary
information, and (b) refrain from using such Confidential information, except in the negotiation
and performance of this Agreement. Notwithstanding the above, a Party may provide such
Confidential Information to its, officers, directors, members, managers, employees, agents,
contactors and consultants (collectively, "Representatives"), and Affiliates, lenders, and potential
assignees of this Agreement (provided and on condition that such potential assignees be bound by
a written agreement or legal obligation restricting use and disclosure of Confidential Information),
in each case whose access is reasonably necessary to the negotiation and/or performance of this
Agreement. Each such recipient of Confidential Information shall be informed by the Party
disclosing Confidential information of its confidential nature and shall be directed to treat such
information confidentially and shall agree to abide by these provisions. ln any event each Party
shall be liable (with respect to the other Party) for any breach of this provision by any entity to
whom that Party improperly discloses Confidential Information. The terms of this Agreement (but
not its execution or existence) shall be considered Confidential Information for purposes of this
Section 20.1 except as set forth in Section 20.2. All Confidential information shall remain the
properly of the disclosing Party and shall be returned to the disclosing Party or destroyed after the
receiving Party's need for it has expired or upon the request of the disclosing Party.
19.2 Permitted Disclosure. Notwithstanding any other provision in this Agreement,
neither Party shall not be required to hold confidential any information that (a) becomes publicly
available other than through the receiving Party, (b) is required to be disclosed to a Governmental
Authority under applicable law or pursuant to a validly issued subpoena (but a receiving Party
subject to any such requirement shall promptly notify the disclosing Party of such requirement to
the extent permitted by applicable law), (c) is independently developed by the receiving Party, (d)
becomes available to the receiving Party without restriction from a third party under no obligation
of confidentiality, or (e) is required to be disclosed to comply with applicable law, subpoena or
court order. If disclosure of information is required by a Governmental Authority, the disclosing
Parry shall, to the extent permitted by applicable law, notify the other Party of such required
disclosure promptly upon becoming aware of such required disclosure. Seller acknowledges that
Purchaser, as a public entity is subject to the Freedom of Information Act. As such, Purchaser's
compliance with the Freedom of Information Act shall not be construed as a breach of any kind of
this Agreement. If Seller does, or believes it is obligated to, disclose information to comply with
the Freedom of information Act, Seller shall have the right to challenge or dispute the disclosure
in a court of competent jurisdiction at no cost to Purchaser. Further, nothing contained herein shall
be construed as the Purchaser intent or willingness to violate the Freedom of Information Act.
19.3 Taxes
(a) Tax Structure or Treatment. Notwithstanding anything to the contrary set
forth herein or in any other agreement to which the Parties are parties or by
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which they are bound, the obligations of confidentiality contained herein
and therein, as they relate to the transaction, shall not apply to the U.S.
federal tax structure or U.S. federal tax treatment of the transaction, and
each Party (and any employee, representative, or agent of any Party hereto)
may disclose to any and all persons, without limitation of any kind, the U.S.
federal tax structure and U.S. federal tax treatment of the transaction. The
preceding sentence is intended to cause the transaction not to be treated as
having been offered under conditions of confidentiality of this Agreement
(or any successor provision) of the Treasury Regulations promulgated under
Section 601I of the Code and shall be construed in a manner consistent with
such purpose. In addition, each Party acknowledges that it has no
proprietary or exclusive rights to the tax structure of the transaction or any
tax matter or tax idea related to the transaction.
(b) Seller Responsibility. Seller shall be exclusively responsible for federal,
state and local ad valorem properly, sales, use, excise, transaction tax or any
income taxes imposed on Seller's revenues due to the sale of Energy or
construction or ownership of the System(s) under this Agreement.
Purchaser shall not be responsible for any taxes if imposed by operation of
MCL 380.1141. If, for any reason not addressed in this Agreement, Seller
does not receive Tax Credits for any period, Purchaser's payments under
this Agreement shall not be affected, and the risk of not obtaining the Tax
Credits shall be borne solely by Seller.
(c) Purchaser Responsibility. To the extent required by law, any tax applicable
to Purchaser for the sale of electricity, attributes, or capacity charges shall
be the responsibility of the Purchaser.
19.4 Assignment and Subcontracting.
(a) Assignment. Neither Party shall have the right to assign any of its rights,
duties, or obligations under this Agreement without the prior written consent of the other Party,
which consent may not be unreasonably withheld or delayed. The foregoing notwithstanding,
Seller may assign any of its rights, duties, or obligations under this Agreement, without the
consent of Purchaser, (i) to any of its Affiliates, (ii) to any Financing Party on a collateral basis
or (iii) to any qualified purchaser of the System. A person shall be deemed a “qualified purchaser”
for such purposes if it can be shown to have credit at least as strong as Seller and experience with
solar energy projects at least as deep as Seller. Any assignment of this Agreement, excepting
assignment to any Financing Party on a collateral basis, shall include:
(i) An explicit assumption of all existing and future obligations of the
Transferor to be performed under this Agreement;
(ii) An explicit assumption of all existing and future obligations of the
Transferor to be performed under the Site Lease, and
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(b) Subcontracting. Seller may subcontract its duties or obligations under this
Agreement without the prior written consent of Purchaser, provided, that no such subcontract
shall relieve Seller of any of its duties or obligations hereunder and Seller ensures that the
subcontractors has adequate relevant experience and maintains the same insurances Seller is
required to carry herein or is covered by the Seller's insurance policies. Purchaser may reject or
remove any subcontractor based on such subcontractors conduct at the facility.
19.5 Entire Agreement. This Agreement and the Site Lease represent the full and
complete agreement between the Parties hereto with respect to the subject matter contained herein
and supersedes all prior written or oral agreements between the Parties with respect to the subject
matter hereof.
19.6 Amendments. This Agreement may only be amended, modified, or supplemented
by an instrument in writing executed by duly authorized representatives of Seller and Purchaser.
19.7 Binding Effect. This Agreement, as it may be amended from time to time, shall be
binding upon and inure to the benefit of the Parties hereto and their respective successors-in-
interest, legal representatives, and assigns permitted hereunder.
19.8 No Partnership or Joint Venture. Seller and Seller’s agents, in the performance of
this Agreement, shall act in an independent capacity and not as officers or employees or agents of
Purchaser. This Agreement shall not impart any rights enforceable by any third party (other than
a permitted successor or assignee bound to this Agreement).
19.9 Disclaimer of Third-Party Beneficiary Rights. In executing this Agreement,
Purchaser does not, nor should it be construed to, extend its credit or financial support for the
benefit of any third parties lending money to or having other transactions with Seller. Nothing in
this Agreement shall be construed to create any duty to, or standard of care with reference to, or
any liability to, any person not a party to this Agreement. Except with respect to Financing Party
rights per this Agreement, no provision of this Agreement is intended to, nor shall it in any way,
inure to the benefit of any other Person not a Party hereto, so as to constitute such Person as a third
party beneficiary under this Agreement.
19.10 Equal Employment Opportunity Compliance Certification. Seller acknowledges
that as a government contractor Purchaser may be subject to various federal laws, executive orders,
and regulations regarding equal employment opportunity and affirmative action. These laws may
also be applicable to Seller as to a subcontractor to Purchaser. All applicable equal opportunity
and affirmative action clauses shall be deemed to be incorporated herein as required by federal
laws, executive orders, and regulations, including but not limited to 41 C.F.R. §60-l.a(a)(l-7),60-
250.4 and 60-74L.4, if applicable.
19.11 Nondiscrimination. Seller shall not discriminate against an employee or applicant
for employment for employment with respect to hire, tenure, terms, conditions, or privileges of
employment, or a matter directly or indirectly related to employment, because of race, color, creed,
religion, national origin, sex, disability, age, height weight, veteran status, marital status, or any
other reason prohibited by law. A breach of this covenant shall be considered a material breach of
contract. This provision is required in accordance with MCL 37.2209.
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19.12 Iran Economic Sanctions Act. Pursuant to Michigan Public Act No. 517 of 2012
(the "Iran Economic Sanctions Act") Seller certifies and warrants that it is not an "Iran linked
business" within the meaning of the Iran Economic Sanctions Act and will not become an "Iran
linked business" at any time during the course of performing the work or services under the
contract. Seller further acknowledges and understands that it is required as a matter of law to
execute and notarize a separate certification to the same. Submitting a false certification will
submit Seller to a civil penalty of not more than $250,000.00 or two (2) times the amount of the
contract for which the false certification was made, whichever is greater, the cost of the Purchaser's
investigation, and reasonable attorney fees, in addition to the fine. Moreover, any person
submitting a false certification shall be ineligible to perform work or services for Purchaser for
three (3) years from the date it is determined that the person submitted the false certification.
19.13 Headings; Exhibits. The headings in this Agreement are solely for convenience
and ease of reference and shall have no effect in interpreting the meaning of any provision of this
Agreement. Any Exhibits referenced within and attached to this Agreement, including any
attachments to the Exhibits, shall be a part of this Agreement and are incorporate by reference
herein.
19.14 Remedies Cumulative; Attorneys’ Fees. No remedy herein conferred upon or
reserved to any Party shall exclude any other remedy herein or by law provided, but each shall be
cumulative and in addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute. If any action, arbitration, judicial reference, or other proceeding is
instituted between the Parties in connection with this Agreement, the losing Party shall pay to the
prevailing Party a reasonable sum for reasonable attorneys’ and experts’ fees and costs incurred in
bringing or defending such action or proceeding (at trial and on appeal) and/or enforcing any
judgment granted therein.
19.15 Waiver. The waiver by either Party of any breach of any term, condition, or
provision herein contained shall not be deemed to be a waiver of such term, condition, or provision,
or any subsequent breach of the same, or any other term, condition, or provision contained herein.
Any such waiver must be in a writing executed by the Party making such waiver.
19.16 Severability. If any part, term, or provisions of this Agreement is determined by an
arbitrator or court of competent jurisdiction to be invalid, illegal, or unenforceable, such
determination shall not affect or impair the validity, legality, or enforceability of any other part,
term, or provision of this Agreement and shall not render this Agreement unenforceable as a whole.
Instead, the part of the Agreement found to be invalid, unenforceable, or illegal shall be amended,
modified, or interpreted to the extent possible to most closely achieve the intent of the Parties and
in the manner closest to the stricken provision.
19.17 Survival of Obligations. Cancellation, expiration, or earlier termination of this
Agreement shall not relieve the Parties of obligations that by their nature should survive such
cancellation, expiration, or termination, prior to the term of the applicable Statute of Limitations,
including without limitation warranties, remedies, or indemnities which obligation shall survive
for the period of the applicable statute(s) of limitation.
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19.18 No Public Utility. Nothing contained in this Agreement shall be construed as an
intent by Seller to dedicate the System to public use or subject itself to regulation as a “public
utility” (as such term may be defined under any applicable law).
19.19 Service Contract. The Parties acknowledge and agree that, for accounting and tax
purposes, this Agreement is not and shall not be construed as a capital lease and, pursuant to
Section 7701(e)(3) of the Internal Revenue Code, this Agreement is and shall be deemed to be a
service contract for the sale to Purchaser of energy produced at an alternative energy facility.
19.20 Forward Contract. The Parties acknowledge and agree that the transaction
contemplated under this Agreement constitutes a “forward contract” within the meaning of the
United States Bankruptcy Code, and the Parties further acknowledge and agree that each Party is
a “forward contract merchant” within the meaning of the United States Bankruptcy Code.
19.21 Publicity. The Parties agree that each may, from time to time, issue press releases
regarding the System, provided, however that neither Party shall issue a press release regarding
the System without the prior consent of the other Party, which consent shall not be unreasonably
withheld or delayed. The Parties shall cooperate with each other in connection with the issuance
of such press releases. Purchaser shall not make claims of using solar energy at the Premises.
Purchaser may publicize that it is serving as a host for the System and display photographs of the
System in its advertising and promotional materials, provided that such materials shall identify
Seller as the owner and developer of the System and shall be consistent with Section 3.2.
19.22 Counterparts and Facsimile Signatures. This Agreement may be executed in
counterparts, which shall together constitute one and the same agreement. Facsimile or portable
document format (“.PDF”) signatures shall have the same effect as original signatures, and each
Party consents to the admission in evidence of a facsimile or photocopy of this Agreement in any
court or arbitration proceedings between the Parties.
19.23 Further Assurances.
(a) Additional Documents. Upon the receipt of a written request from the other
Party, each Party shall execute such additional documents, instruments, and
assurances and take such additional actions as are reasonably necessary and
desirable to carry out the terms and intent hereof. Neither Party shall
unreasonably withhold, condition, or delay its compliance with any
reasonable request made pursuant to this section.
(b) Certificates. From time to time, Purchaser shall provide within five
(5) Business Days after receipt of a written request from Seller an estoppel
certificate attesting, to the knowledge of Purchaser, to Seller’s compliance
with the terms of this Agreement or detailing any known issues of
noncompliance, and making such other representations, warranties, and
accommodations reasonably requested by the recipient of the estoppel
certificate.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the Parties have caused this Power Purchase Agreement to
be duly executed and delivered as of the Effective Date.
SELLER PURCHASER
Sunwealth LLC City of Muskegon
By: ___________________________ By: ___________________________
Name: Jonathan Abe Name: Jonathan Seyferth
Title: CEO Title: City Manager
40253870.1/063684.00052
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EXHIBIT A
DEFINITIONS
“Affiliate” means, with respect to any person or entity, any other person or entity
controlling, controlled by or under common control with such first person or entity. For purposes
of this definition and this Agreement, the term “control” (and correlative terms) means the right
and power, directly or indirectly through one or more intermediaries, to direct or cause the
direction of substantially all of the management and policies of a person or entity through
ownership of voting securities or by contract, including, but not limited to, the right to fifty percent
(50%) or more of the capital or profits of a partnership or, alternatively, ownership of fifty percent
(50%) or more of the voting stock of a corporation.
“Agreement” has the meaning set forth in the Preamble.
“Business Day” means any day except a Saturday, Sunday, or a Federal Reserve Bank
holiday.
“Commercial Operation Date” means the date when the System is “placed in service” for
purposes of Section 48 of the Internal Revenue Code.
“Confidential Information” has the meaning set forth in Section 19.1.
“Contract Term” has the meaning set forth in Section Error! Reference source not found..
“Contract Year” means the twelve (12) month period commencing on the Commercial
Operation Date, and each consecutive twelve (12) month period thereafter during the Contract
Term.
“Delivery Point” means the point of interconnection between the System and the Premises’
internal electrical system.
“Downgrade Event” means Purchaser at any time (a) if rated by one of the following rating
agencies, is rated less than (i) Baa3 by Moody’s Investors Service, Inc. (or its successor), or (ii)
BBB- by Standard and Poor’s Rating Services, a division of McGraw-Hill (or its successor), or
(iii) “investment grade” by any other nationally recognized rating agency, or (b) fails to maintain
Performance Assurance.
“Effective Date” has the meaning set forth in the Preamble.
“Energy” means electrical energy that is generated by the System, expressed in kWh.
"Energy Output" means the Energy generated by, or attributable to, a System and
measured at the applicable Point of Delivery, as alternating current in whole kilowatt-hours
(kWr). For the avoidance of doubt the Energy Output does not include RECs, Other Credits or
Tax Credits.
Exhibit A - 1
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“Energy Price” means, for any Contract Year, the applicable amount set forth on Exhibit D.
“Environmental Attributes” means any and all environmental benefits, air quality credits,
emissions reductions, offsets, and allowances, howsoever entitled, attributable to energy
generation by a renewable fuel source and its displacement of energy generation by conventional,
nonrenewable, and/or carbon-based fuel sources. Environmental Attributes include, but are not
limited to, (1) any benefit accruing from the renewable nature of the generation’s motive source;
(2) any avoided emissions of pollutants to the air, soil, or water (such as sulfur oxides (SOx),
nitrogen oxides (NOx), carbon monoxide (CO), and other pollutants other than those that are
regulated pursuant to state or federal law); (3) any avoided emissions of carbon dioxide (CO2),
methane (CH4), and other greenhouse gases that have been determined by the United Nations
Intergovernmental Panel on Climate Change to contribute to the actual or potential threat of
altering the Earth’s climate by trapping heat in the atmosphere; (4) any property rights that may
exist with respect to the foregoing attributes howsoever entitled; (5) any green tags, renewable
energy credits or similar credits, including RECs created pursuant to applicable law (“RECs”); and
(6) any reporting rights to these avoided emissions, including, but not limited to, green tag or REC
reporting rights. Environmental Attributes do not include (i) any energy, capacity, reliability, or
other power attributes, (ii) Environmental Incentives, or (iii) emission reduction credits
encumbered or used for compliance with local, state, or federal operating and/or air quality permits.
“Environmental Incentives” means any and all financial incentives, from whatever source,
related to the construction, ownership, or operation of the System. Environmental Incentives
include, but are not limited to, (i) federal, state, or local tax credits; (ii) any other financial
incentives in the form of credits, reductions, or allowances that are applicable to a local, state, or
federal income taxation obligation; and (iii) other grants, rebates, or subsidies, including utility
incentive programs. Environmental Incentives do not include Environmental Attributes.
“Estimated Production” has the meaning set forth in Section 3.1(c).
“Exercise Period” has the meaning set forth in Section 7.2.
“Financing Party” has the meaning set forth in Section 14.1.
“Force Majeure” means any act or event that delays or prevents a Party from timely
performing obligations under this Agreement or from complying with conditions required under
this Agreement if such act or event, despite the exercise of reasonable efforts, cannot be avoided
by, and is beyond the reasonable control of and without the fault or negligence of, the Party relying
thereon as justification for such delay, nonperformance, or noncompliance, which includes,
without limitation, an act of God or the elements, site conditions, extreme or severe weather
conditions, explosion, fire, epidemic, landslide, mudslide, sabotage, terrorism, lightning,
earthquake, flood, volcanic eruption or similar cataclysmic event, an act of public enemy, war,
blockade, civil insurrection, riot, civil disturbance, or strike or other labor difficulty caused or
suffered by a Party or any third party beyond the reasonable control of such Party. However,
financial cost alone or as the principal factor shall not constitute grounds for a claim of Force
Majeure, nor does the regular exercise of regulatory discretion by a Governmental Authority or
the Utility.
Exhibit A - 2
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“Governmental Authorities” means any national, state, regional, municipal or local
government, any political subdivision thereof, or any governmental, quasi-governmental,
regulatory, judicial or administrative agency, authority, commission, board or similar entity having
jurisdiction over the System or its operations, the Premises or otherwise over any Party.
“Host” has the meaning set forth in the Preamble.
“Independent Appraiser” has the meaning set forth in Section 7.2.
“Interest Rate” means an annual rate equal to the lesser of (a) twelve (12) percent and (b)
the highest interest rate permitted by applicable law.
“kWh” means kilowatt-hours.
“Letter of Credit” means one or more irrevocable, transferable standby letters of credit
issued by either a U.S. commercial bank or a foreign bank with a U.S. branch, with such bank
having a credit rating of at least “A-” from S&P or “A3” from Moody’s, in a form acceptable to
Seller.
“Net Metering Credits” means the credits applied to Purchaser’s bill by the Utility in
respect of Energy produced by the System and allocated to Purchaser under this Agreement.
“Net Metering Rules” means the rules established pursuant to Ohio law and regulation as
well as applicable utility rules.
“Notice to Proceed Date” means the date on which physical work of a significant nature
relating to the installation of the System on the Premises commences.
“Party” and “Parties” have the meanings set forth in the Preamble.
“Performance Assurance” means collateral in an amount as reasonably determined by
Seller and in a form (e.g., cash, Letter(s) of Credit, guaranty, or other security or credit assurance)
reasonably acceptable to Seller.
“Person” means any individual, corporation (including, without limitation, any non-stock
or non-profit corporation), limited liability company, partnership, joint venture, association, joint-
stock company, trust, unincorporated organization, or governmental body.
"Point of Delivery” means, at any given Site, the physical points at which electrical
interconnection are made between the System and the Purchaser's Electrical Systems.
“PPA Damages” has the meaning set forth in Section 13.4.
“Premises” means the leased real property under the Site Lease, located at:
Mercy Health Arena – 470 W. Western, Muskegon, MI 49440
“Price Determination” has the meaning set forth in Section 7.2.
Exhibit A - 3
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“Prudent Operating Practice” means the practices, methods, and standards of professional
care, skill, and diligence engaged in or approved by a significant portion of the electric power
industry for solar energy facilities of similar size, type, and design as the System that, in the
exercise of reasonable judgment, in light of the facts known at the time, would have been expected
to accomplish results consistent with applicable law, reliability, safety, environmental protection,
applicable codes, and standards of economy and expedition.
“Purchase Option” has the meaning set forth in Section 7.1.
“Purchase Price” has the meaning set forth in Section 7.2.
“Purchase Option Dates” has the meaning set forth in Section 7.1.
“Purchaser” has the meaning set forth in the Preamble.
“Purchaser Event of Default” has the meaning set forth in Section 13.3.
“Purchaser Indemnified Parties” has the meaning set forth in Section 17.1.
“Seller” has the meaning set forth in the Preamble.
“Seller Event of Default” has the meaning set forth in Section 13.1.
“Seller Indemnified Parties” has the meaning set forth in Section 17.2.
“Site Lease” has the meaning set forth in the Recitals.
“System” means the solar energy generating system described in Exhibit B.
“Transfer Date” has the meaning set forth in Section 7.3.
“Utility” means Consumers Energy.
Exhibit A - 4
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EXHIBIT B
DESCRIPTION OF THE SYSTEM
Description of Site:
The real property located at City of Muskegon.
Description of System:
Equipment Name
Manufacturer/ Model # Specifications Description
And Location
Modules:1,152/Hanwha
Q Cells 390W
Trinity Health Arena
• Ballasted Roof mount system
470 W. Western 449.28kW DC
Inverters: 4/ SE 100kW
Muskegon, MI 49440
Racking: Aerocompact
Exhibit B - 1
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EXHIBIT C
ESTIMATE SYSTEM PRODUCTION
*Note: these values are estimates only and actual production may vary. Seller does not guarantee any
level of actual production.
SYSTEM PERFORMANCE
Year Solar (kWh)
1 529,830
2 527,287
3 524,756
4 522,237
5 519,730
6 517,236
7 514,753
8 512,282
9 509,823
10 507,376
11 504,941
12 502,517
13 500,105
14 497,704
15 495,315
16 492,938
17 490,572
18 488,217
19 485,874
20 483,541
21 481,220
22 478,910
23 476,612
24 474,324
25 472,047
Exhibit C - 1
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EXHIBIT D
ENERGY PRICE
Commencing on the Commercial Operation Date of the System, the price for the Energy
Output produced and delivered by the System in the first year following the applicable
Commercial Operation Date shall not exceed $0.1220/kWh and such amount shall increase
each subsequent year as follows:
Contract Year Energy Price ($/kWh)
1 0.1220
2 0.1244
3 0.1269
4 0.1295
5 0.1321
6 0.1347
7 0.1374
8 0.1401
9 0.1429
10 0.1458
11 0.1487
12 0.1517
13 0.1547
14 0.1578
15 0.1610
16 0.1642
17 0.1675
18 0.1708
19 0.1742
20 0.1777
21 0.1813
22 0.1849
23 0.1886
24 0.1924
25 0.1962
Exhibit D - 1
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EXHIBIT E
INSURANCE REQUIREMENTS
(a) Seller shall, at its sole cost and expense obtain and maintain for the duration of this
Agreement, the following insurance policies:
(i) Workers’ compensation insurance, with limits of liability at least equal to the
statutory requirements therefor;
(ii) Employer’s liability insurance of not less than one million dollars ($1,000,000);
(iii) Commercial general liability insurance against liability for injury to or death of any
Person, contractual liability, or damage to property in connection with the construction, use,
operation or condition of the System of not less than $2,000,000 combined single limit per
occurrence. Purchaser shall be named as an additional insured under this liability insurance;,
provided however that Seller shall in no event be obligated to repair or replace Purchaser’s
buildings or Premises;
(iv) Automobile liability insurance that complies with the requirements of the
Michigan No fault law with residual liability limit of at least $2,000,000 combined single limit for
bodily injury and properly damage. There shall be coverage for owned, hired, and non-owned
vehicles.
(v) "Completed value" Builder's risk insurance with a limit of at least 100% of the
total aggregate value for the System's construction.
(vi) Excess or umbrella liability insurance with a limit of at least $2,000,000.
(vii) Customary property insurance in the amount of the full replacement value of the
equipment constituting the System and any other improvements installed on the Site by Seller.
(viii) Seller may satisfy the insurance requirements contained in this Agreement though
any combination of primary and/or excess coverage; and
(ix) Seller may elect to self-insure any or all of the insurance requirements contained in
this Agreement, with the approval of Purchaser. In such event, Seller shall submit to Purchaser a
Certificate of Self-Insurance, including evidence of financial responsibility.
Seller shall name "the City of Muskegon", its employees, Board Members, and officers as
additional insureds on all liability coverage other than workers compensation. The coverage
granted to the Purchaser as an additional insured shall apply on a primary basis. The Purchaser's
coverage shall be excess. Deductibles and retentions shall be clearly stated on any certificate of
insurance and shall be the responsibility of the respective party. Unless otherwise provided herein,
all insurance coverage is to be on an occurrence basis rather than claims made basis.
Exhibit E - 1
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Upon request of Purchaser, Seller shall furnish a current certificate or certificates of insurance for
the insurance then in place evidencing the existence of the required coverage and stating that
Purchaser will be notified in writing thirty (30) days prior to cancellation, material change or non-
renewal of such insurance.
Seller shall cause the insurance policies obtained by it to provide that the insurance company
waives all right of recovery by way of subrogation against Purchaser in connection with any
damage covered by any policy. To the extent permitted by law, neither Party shall be liable to the
other for any damage exceeding applicable policy limits that are caused by fire or any of the risks
insured against under the property insurance policy required by this Agreement or that would have
been covered by the property insurance policy required to be carried under this Agreement.
Seller hereby releases Purchaser, its trustees, officers, agents, representatives, officers, employees
and contractors, from any claims for damage to any person or to the Premises and other
improvements located on the Premises, to the fixtures, personal property, Seller's improvements,
and alterations of Seller in or on the Premises and the improvements located on the Premises that
are caused by or result from risks insured against under any insurance policies carried by Seller
under this Agreement, or that would have been covered by any insurance policy required to be
carried under this Agreement.
(b) Purchaser shall obtain and maintain the following insurance policies:
(i) Workers’ compensation insurance, with limits of liability at least equal to the
statutory requirements therefor;
(ii) Employer’s liability insurance of not less than one million dollars ($1,000,000);
(iii) Commercial general liability insurance or its equivalent against liability for injury
to or death of any Person or damage to property in connection with the use, operation or condition
of the Premises of not less than two million dollars ($2,000,000) combined single limit per
occurrence and annual aggregate. Seller shall be named as an additional insured under this liability
insurance; provided, however, that Purchaser shall in no event by obligated to repair or replace
Seller’s equipment, buildings, or Premises;
(iv) Purchaser may satisfy the insurance requirements contained in this Agreement
though any combination of primary and/or excess coverage; and
(v) Purchaser may elect to self-insure any or all of the insurance requirements
contained in this Agreement.
Exhibit E - 1
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EXHIBIT F
PURCHASER TERMINATION PAYMENT
Termination
Year
Payment
Year 1 $1,596,805
Year 2 $1,448,476
Year 3 $1,287,769
Year 4 $1,126,514
Year 5 $964,761
Year 6 $480,361
Year 7 $464,631
Year 8 $445,029
Year 9 $424,846
Year 10 $404,057
Year 11 $382,655
Year 12 $360,569
Year 13 $341,945
Year 14 $329,216
Year 15 $311,473
Year 16 $293,178
Year 17 $269,608
Year 18 $244,487
Year 19 $218,677
Year 20 $192,071
Year 21 $164,593
Year 22 $136,204
Year 23 $106,872
Year 24 $80,627
Year 25 $54,934
Exhibit F - 1
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Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: March 28, 2023 Title: Laketon-Lakeshore DNR Trust Fund Grant
Submitted By: Dan VanderHeide Department: Public Works
Brief Summary: The City intends to apply for MDNR Trust Fund grants for the Laketon-Lakeshore
Trail Connector and would like public feedback on the project and application.
Detailed Summary & Background:
Two grants will be submitted for the project, one for the portion from Laketon to Apple and one for
the portion from Apple to Shoreline, in order to maximize the potential for funding. This is based
on recommendations from the West Michigan Trails & Greenways Coalition and Prein & Newhof,
who have helped the City with an application for MDOT Transportation Alternatives Program (TAP)
funding for the trail. The DNR Trust Fund grants and the MDOT TAP grant funds are able to
match each other, potentially reducing the City’s contribution.
Goal/Focus Area/Action Item Addressed:
Goal 1 Key Focus Area: Public transportation options (tram, scooters, trolley, biking network)
Amount Requested: N/A Amount Budgeted: N/A
Fund(s) or Account(s): N/A Fund(s) or Account(s): N/A
Recommended Motion: Authorize staff to apply for MDNR Trust Fund grants for the Laketon-
Lakeshore Trail Connector.
Approvals: Guest(s) Invited / Presenting
Immediate Division Head Information Technology Yes
Other Division Heads Communication No
For City Clerk Use Only:
Commission Action:
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Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: March 28, 2023 Title: Portable Restroom Service Extension
Submitted By: Dan VanderHeide Department: DPW
Brief Summary: Staff requests approval for a one-year extension to a three-year contract from
2020 with Kerkstra Portable Restroom Service for the 2023 season.
Detailed Summary & Background:
Staff reached out to other area companies seeking to determine the market, and found that
Kerkstra Portable Restroom Service is the only company able and willing to service Muskegon for
the 2023 season. Kerkstra has offered updated pricing, which staff has confirmed is still well
below the market rates offered by the competitors, again none of which are even able or willing to
provide the number of units required by the City.
Staff plans to re-bid a three-year contract in fall of 2023 with hopes the market will be more open to
and supportive of providing portable restroom service to the Muskegon market.
The majority of cost is from the Parks budget, however the boat launch ramps, special events such
as Taste of Muskegon and the fireworks, the farmers market and the Western Market all use these
services as well.
Goal/Focus Area/Action Item Addressed: Enhanced Parks & Recreation Department and Services
Amount Requested: $30,000 Amount Budgeted: $15,000 (Parks)
$15,000 (Other)
Fund(s) or Account(s): 101-770 and Various Fund(s) or Account(s): 101-770 and Various
Recommended Motion: Authorize staff to enter into a one-year extension of the City’s contract
with Kerkstra Portable Restroom Service for the 2023 season.
Approvals: Legal Review Guest(s) Invited / Presenting
Immediate Division Head Information Technology Yes
Other Division Heads Communication No
For City Clerk Use Only:
Commission Action:
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Affirmative Action
(231)724-6703
FAX (231)722-1214
Assessor/
Equalization Co.
(231)724-6386
FAX (231)724-1129
Cemetery/Forestry
(231)724-6783
FAX (231)724-4188
March 13th, 2023
City Manager
(231)724-6724
FAX (231)722-1214 Mr. Brian Van Rhee
Clerk
Kerkstra Portable Restroom Services Inc.
(231)724-6705 P.O. Box 284
FAX (231)724-4178
Hudsonville, MI 49426
Comm. & Neigh.
Services
(231)724-6717 Re: Temporary Portable Toilet Services Agreement Extension
FAX (231)726-2501
Computer Info. Dear Mr. Van Rhee:
Technology
(231)724-4126
FAX (231)722-4301 The City of Muskegon hereby requests that our contract be extended to Friday, February
Engineering 23rd, 2024. The proposed budget for the extension period will be as listed in the previous
(231)724-6707 contract at the discretion of the city, however, within this extension we understand an
FAX (231)727-6904
increase in pricing is required. We have agreed this be taken into consideration with this
Finance extension.
(231)724-6713
FAX (231)726-2325 • The extension is proposed based on the terms in the attached document. Services
Fire Department include unit delivery, setting, cleaning, and removal.
(231)724-6795 • Trash found on the inside of the units will be the responsibility of the portable
FAX (231)724-6985
toilet service to throw in nearby trash receptacles.
Human Resources
Co. (Civil Service)
• The City intends to solicit bids for a new contract in the fall of 2023.
(231)724-6442
FAX (231)724-6840
Thank you for your consideration of this request.
Income Tax
(231)724-6770
FAX (231)724-6768 By
Mayor’s Office
(231)724-6701 The City of Muskegon
FAX (231)722-1214
Planning/Zoning
(231)724-6702
FAX (231)724-6790
Dan VanderHeide, DPW Director Date
Police Department
(231)724-6750
FAX (231)722-5140 And
Public Works
(231)724-4100
FAX (231)722-4188 Kerkstra Portable Restroom Service, Inc.
SafeBuilt
(Inspections)
(231)724-6715
FAX (231)728-4371
Brian Van Rhee Date
Treasurer
(231)724-6720
FAX (231)724-6768 cc: Kyle Karczewski, Parks & Recreation Director
Water Billing Matt Schwemin, Parks Supervisor
(231)724-6718
FAX (231)724-6768
Water Filtration
(231)724-4106
Department of Public Works & Utilities, 1350 E. Keating Avenue, Muskegon, MI 49442
FAX (231)755-5290 http://www.shorelinecity.com
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Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: March 28, 2023 Title: CCTV Services for Sewer Mains
Submitted By: Dan VanderHeide Department: Public Works
Brief Summary: Staff requests award of a three-year contract to Rogue Industrial Services for
cleaning and televising services in the City’s sanitary and storm sewer systems.
Detailed Summary & Background:
Staff issued a public bid for sewer cleaning and televising services to supplement staff capacity on
complex and/or large televising projects. In 2023, this contract will be used to televise the sewers
in Apple Avenue in advance of MDOT’s fiscal year 2026 reconstruction project to assist staff when
deciding which sewers may need repairs or replacement in advance of or as a part of the MDOT
project. In future years, staff will use this contract for televising of sewers when needed in large
sections of the City or on a tight deadline, such as for Clean Water State Revolving Fund projects.
Rogue Industrial Services has performed work for many West Michigan communities as shown in
their attached proposal, and is recommended based on their work history and their low bid.
Goal/Focus Area/Action Item Addressed: Decrease infrastructure burden on residents
Amount Requested: $79,109 (Three Years) Amount Budgeted: $25,000 (FY23)
Fund(s) or Account(s): 590 (Sewer) Fund(s) or Account(s): 590 (Sewer)
202 (Highway) 202 (Highway)
Recommended Motion: Authorize staff to enter into a three-year contract with Rogue Industrial
Services for cleaning and televising service in the City’s sanitary and storm sewer systems.
Approvals: Legal Review Guest(s) Invited / Presenting
Immediate Division Head Information Technology Yes
Other Division Heads Communication No
For City Clerk Use Only:
Commission Action:
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COST PROPOSAL Bid Opening 2/28/23 2:00pm
Plummers PipeTEK
Apple Ave Project Area – SANITARY Rogue Industrial Environmental Infrastructure
National Power Rodding Services Services Services
Diameter (in) Length (ft)
Unit Price Cost Unit Price Cost Unit Price Cost Unit Price Cost
8 1,690 $ 12.65 $21,378.50 $ 6.00 $10,140.00 $ 5.40 $9,126.00 $ 5.00 $8,450.00
10 6,444 $ 12.65 $81,516.60 $ 6.00 $38,664.00 $ 5.40 $34,797.60 $ 5.00 $32,220.00
12 2,909 $ 12.65 $36,798.85 $ 6.00 $17,454.00 $ 5.40 $15,708.60 $ 5.00 $14,545.00
21 993 $ 15.80 $15,689.40 $ 6.00 $5,958.00 $ 10.60 $10,525.80 $ 8.00 $7,944.00
24 391 $ 18.95 $7,409.45 $ 7.00 $2,737.00 $ 10.60 $4,144.60 $ 8.00 $3,128.00
27 6 $ 25.00 $150.00 $ 8.00 $48.00 $ 10.60 $63.60 $ 50.00 $300.00
30 10 $ 25.00 $250.00 $ 1.00 $10.00 $ 10.60 $106.00 $ 50.00 $500.00
36 733 $ 25.00 $18,325.00 $ 1.00 $733.00 $ 10.60 $7,769.80 $ 10.00 $7,330.00
Total 13,177 Total $181,517.80 Total $75,744.00 Total $82,242.00 Total $74,417.00
Apple Avenue - Muskegon Owned Storm Sewer
Diameter Length (ft)
8 inch 129 $ 12.65 $1,631.85 $ 6.00 $774.00 $ 6.40 $825.60 $ 5.00 $645.00
10 inch 31 $ 12.65 $392.15 $ 6.00 $186.00 $ 6.40 $198.40 $ 10.00 $310.00
12 inch 153 $ 12.65 $1,935.45 $ 6.00 $918.00 $ 6.40 $979.20 $ 5.00 $765.00
18 inch 110 $ 14.10 $1,551.00 $ 6.00 $660.00 $ 7.50 $825.00 $ 5.00 $550.00
48 inch 125 $ 38.60 $4,825.00 $ 1.00 $125.00 $ 20.00 $2,500.00 $ 15.00 $1,875.00
54 inch 413 $ 39.75 $16,416.75 $ 1.00 $413.00 $ 20.00 $8,260.00 $ 15.00 $6,195.00
60 inch 289 $ 40.00 $11,560.00 $ 1.00 $289.00 $ 20.00 $5,780.00 $ 15.00 $4,335.00
Total 1,250 Total $38,312.20 Total $3,365.00 Total $19,368.20 Total $14,675.00
TOTAL BID AMOUNT: $219,830.00 $79,109.00 $101,610.20 $89,092.00
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Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: 3/28/23 Title: EGLE Brownfield Grant/Loan
Application for Shaw-Walker Project
Submitted By: Jake Eckholm Department: Economic Development
Brief Summary:
Typically, these applications are run through the Brownfield Redevelopment Authority, but they are
already applicants for funding on behalf of Adelaide Pointe and cannot submit two requests in the
same program year. EGLE has indicated that the city may directly apply on behalf of the Shaw-
Walker project.
Detailed Summary & Background:
We have worked closely with Environmental Resource Group for several months on the
environmental needs that are anticipated at Shaw-Walker, and with vapor mitigation needed for all
buildings the costs will be substantial. EGLE administers an annual program that allows public
entities to apply for up to $1,000,000 in grant funds and up to $1,000,000 in loan funds.
Regardless of whether the local Brownfield Board or the city serves as the applicant, all loan/grant
applications are considered backed by the full faith and credit of the city.
Parkland has asked for the city commission to allow the city to serve as the applicant for these
funds, and has agreed to make sure the city is made whole either through TIF capture (the typical
repayment method) or direct payment if TIF revenues are insufficient. ERG will do the leg work on
the actual application and submittal, and work with our staff during implementation if funding is
achieved for all necessary reporting. Staff recommends approval of this request.
Goal/Focus Area/Action Item Addressed:
Goal 1 (Image) Housing Focus Area, Goal 2 (Quality of Life) Housing Focus Area, Action Item 21-8
Expand Housing Options, and Goal 3 (Revitalize Revenues) Housing Focus Area, Action Item 21-
13 Increase Property Values in Urban Core and Eastside Neighborhoods, Blight Elimination
Amount Requested: N/A Amount Budgeted: N/A
Fund(s) or Account(s): N/A Fund(s) or Account(s): N/A
Recommended Motion: Motion to apply for EGLE Brownfield Grant/Loan Funding for use at the
Shaw Walker Project in an amount of $2,000,000.
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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:
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March 22, 2023
City of Muskegon
933 Terrace Street
Muskegon, MI 49440
RE: EGLE Brownfield Funding for Former Shaw Walker Facility
To Whom it May Concern:
Environmental Resources Group, LLC (ERG) is pleased to discuss the opportunity for the City of Muskegon
to support and submit a proposal for Brownfield Funding through Environment, Great Lakes, and Energy
(EGLE). ERG is appealing to the City of Muskegon for this request rather than the Brownfield
Redevelopment Authority (BRA) directly because a proposal for EGLE Brownfield funding for a different
property in Muskegon has already submitted by the BRA for this fiscal year.
ERG has been retained by Parkland Properties of Michigan to provide environmental consulting services
for their property, the Former Shaw Walker complex, located at 965 West Western Avenue, 920 & 930
Washington Avenue, and 1330 Division Street. Through its rich, long history of manufacturing at the
property, former operations at the Site have left the land impacted with contaminants including volatile
organic compounds (VOCs), heavy metals, per- and polyfluoroalkyl substances (PFAS), and polynuclear
aromatic hydrocarbons (PNAs). To safely redevelop the Site, due care activities are necessary.
The projected costs for due care activities, such as vapor intrusion mitigation, are currently estimated at
over $1 million dollars for the existing structures. Asbestos abatement costs have been estimated well
over $1 million dollars. To assist in the redevelopment of the site, ERG is proposing that the City of
Muskegon support and submit a proposal for $1 million dollars in EGLE Brownfield grant funding and $1
million dollars in EGLE Brownfield loan funding. ERG will assist the City of Muskegon in preparing the
proposal.
Should you have questions or need additional information feel free to contact us.
Sincerely,
ENVIRONMENTAL RESOURCES GROUP
Jacqueline L. Freiberg, Project Manager
Cc: Alfred J. Jordan II, CPG – ERG, Executive Vice President
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March 22, 2023
Parkland Properties of Michigan
75 W Walton Avenue, Suite A
Muskegon, MI 49440
City of Muskegon
933 Terrace Street
Muskegon, MI 49440
RE: Request for Support fort Shaw Walker Furniture Company Redevelopment
City of Muskegon Commissioners and staff:
Parkland Properties desires to commence cleanup activities this year at the former Shaw Walker
Furniture Company site in downtown Muskegon to prepare the site for adaptive redevelopment
into condominiums, apartments, and retail. The Shaw Walker site is heavily contaminated due to
its former industrial uses, and the environmental cleanup and mitigation efforts are projected to
cost well more than $2 million.
We are writing to request that the City of Muskegon request $2 million from the State of Michigan
Department of Environment, Great Lakes, and Energy (EGLE) to provide funding to assist with
ca.. g c ea ac e a he e h gh EGLE B fed g a . The ed $2
million request to EGLE would include $1 million in grant funding and a loan for $1 million.
Parkland agrees to repay the loan from future tax capture at the site and if for any reason the tax
capture is not sufficient, Parkland will repay the difference on the loan.
Please do not hesitate to reach out to us if you have any questions.
Sincerely,
Jon Rooks
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Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: March 28, 2023 Title: Off-Premises Tasting
Room License – The
People’s Cider Company
Submitted By: Ann Meisch Department: City Clerk
Brief Summary: The People’s Cider Company has been chosen for a chalet at Western Market and
needs an Off-Premises Tasting Room License
Detailed Summary & Background:
Goal/Focus Area/Action Item Addressed: Action item 2022 Goal 2 Economic Development,
Housing, and Business
Amount Requested: N/A Amount Budgeted: N/A
Fund(s) or Account(s): $1,000 Revenue to Fund(s) or Account(s):
Liquor License
Recommended Motion: To approve the resolution requesting an Off-Premises Tasting Room
License for The People’s Cider Company, 307 W. Western, Suite Q and authorize the Clerk to
sign.
Approvals: Guest(s) Invited / Presenting
Immediate Division Head Information Technology
Other Division Heads Communication Yes
No
Legal Review
For City Clerk Use Only:
Commission Action:
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Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: March 28, 2023 Title: 1170 W. Southern Ave.
(MOCAP Building) property
sale/transfer
Submitted By: Jonathan Seyferth/John Schrier Department: City Manager
Brief Summary:
MOCAP operates out of 1170 W. Southern Ave. This is currently a City owned property and MOCAP has
expressed a desire to own the building/property the organization has been operating out of for many years.
This action will, through a multi-step process, transfer that property to MOCAP via the Hume Home of
Muskegon. The City will receive $3,000 for the sale.
Detailed Summary & Background:
The Muskegon-Oceana Community Action Partnership (MOCAP) operates out of a building (a former City fire
station) at 1170 W. Southern Ave. MOCAP has been in the building for many years. MOCAP wishes to purchase
the property from the City for a variety of different reasons.
The City originally obtained the property from the Hume Home of Muskegon in 1950 paying $3,000. The
purchase agreement has a deed restriction which states that when the City stops using the property for
municipal purposes the Hume Home may exercise its right to repurchase the property for the same amount the
City purchased it.
The Hume Home of Muskegon is comfortable with the property being purchased by MOCAP, however, because
of the deed restrictions from the 1950s the Hume Home of Muskegon is going to exercise its right to purchase
the property back for $3,000 (paid to the City) and then sell it to MOCAP for $3,000.
This two-step process will cure any questions regarding the property transfer/deed restriction and will allow
MOCAP to take ownership of a building it has operated in and maintained for many years.
Goal/Focus Area/Action Item Addressed:
Amount Requested: None Amount Budgeted: None
Fund(s) or Account(s): Fund(s) or Account(s):
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Recommended Motion: I recommend for approval the sale of 1170 W. Southern Ave. back to the Hume
Home of Muskegon for the sum of $3,000 as provided for in the original 1950 purchase agreement and
authorize the City Manager to sign all closing documents.
Approvals: Get approval from division head at a minimum prior to Guest(s) Invited / Presenting
sending to the Clerk.
Immediate Division Head I Information Technology Yes
Other Division Heads Communication No
Legal Review
For City Clerk Use Only:
Commission Action:
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