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CITY OF MUSKEGON
CITY COMMISSION MEETING
August 27, 2024 @ 5:30 PM
MUSKEGON CITY COMMISSION CHAMBERS
933 TERRACE STREET, MUSKEGON, MI 49440
AGENDA
☐ CALL TO ORDER:
☐ PRAYER:
☐ PLEDGE OF ALLEGIANCE:
☐ ROLL CALL:
☐ HONORS, AWARDS, AND PRESENTATIONS:
☐ PUBLIC COMMENT ON AGENDA ITEMS:
☐ CONSENT AGENDA:
A. Approval of Minutes City Clerk
B. 30-Day Extension of the STR Registration Pause Manager's Office
C. Write Off of Loan to BoomTown Market, LLC Balance Economic
Development
D. 7th Amendment to Lumber Jacks Agreement-Scoreboard Arena
E. Rooftop Solar Lease Public Works
F. Fluoride Contract Renewal - DPW Filtraton Public Works
G. Modify MERS Defined Contribution (DC) Plan Adoption Agreement
Finance
H. Modify MERS Defined Benefit (DB) Plan Adoption Agreement Finance
I. South PM Restroom & Kite Shack Improvements Award DPW- Parks
J. Rezoning of 349 W Webster Ave from Form Based Code, Urban
Residential (FBC, UR) to Form Based Code, Neighborhood Core (FBC,
NC). Planning
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K. Rezoning of 1700 Oak Ave from Medical Care (MC) to Low-Density
Multiple Family Residential (RM-1). Planning
L. Acquisition of vacant buildable lots at 60 E Walton, 1192 Ambrosia, 456
McGlaughlin, 379 McLaughlin, and 1047 Wood Street Economic
Development
☐ PUBLIC HEARINGS:
☐ UNFINISHED BUSINESS:
☐ NEW BUSINESS:
☐ ANY OTHER BUSINESS:
☐ PUBLIC COMMENT ON NON-AGENDA ITEMS:
► Reminder: Individuals who would like to address the City Commission shall do the following:
► Fill out a request to speak form attached to the agenda or located in the back of the room.
► Submit the form to the City Clerk.
► Be recognized by the Chair.
► Step forward to the microphone.
► State name and address.
► Limit of 3 minutes to address the Commission.
☐ CLOSED SESSION:
☐ ADJOURNMENT:
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 St. Muskegon, MI 49440. (231)724-6705.
clerk@shorelinecity.com
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Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: August 27, 2024 Title: Approval of Minutes
Submitted by: Ann Meisch, City Clerk Department: City Clerk
Brief Summary:
Approve minutes of the August 12, 2024, City Commission Worksession Meeting and the August 13,
2024, City Commission Meeting.
Detailed Summary & Background:
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Goal/Action Item:
Amount Requested: Budgeted Item:
Yes No N/A X
Fund(s) or Account(s): Budget Amendment Needed:
Yes No N/A X
Recommended Motion:
Approval of the minutes.
Approvals: Guest(s) Invited / Presenting:
Immediate Division
Head No
Information
Technology
Other Division Heads
Communication
Legal Review
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CITY OF MUSKEGON
CITY COMMISSION WORKSESSION
August 12, 2024 @ 5:30 PM
MUSKEGON CITY COMMISSION CHAMBERS
933 TERRACE STREET, MUSKEGON, MI 49440
MINUTES
2024-72 CALL TO ORDER
The City Commission Worksession Meeting of the City of Muskegon was held at
City Hall, 933 Terrace Street, Muskegon, Michigan at 5:30 p.m., Monday, August
12, 2024.
Present: Mayor Ken Johnson, Vice Mayor Rebecca St. Clair, Commissioners Jay
Kilgo, Destinee Keener, Willie German, Jr., Rachel Gorman, and Katrina Kochin
Absent: None
NEW BUSINESS
A. Short Term Rentals Planning
On March 12, the Commission adopted a six-month moratorium on new
registrations for short-term rentals. The Commission also adopted the updated
short-term rental handbook. This handbook included increased enforcement for
ordinance violations and since it's inception there have been zero violations.
Staff has now prepared a draft Short-Term Rental ordinance. The ordinance
proposes setting short-term rental caps within each census tract.
City Manager Jonathan Seyferth gave an overview of the item.
PUBLIC COMMENT
Public comments received.
ADJOURNMENT
Motion by Commissioner German, second by Commissioner Kochin to adjourn
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at 7:15 p.m.
MOTION PASSES
Respectfully Submitted,
Ann Marie Meisch, MMC City Clerk
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CITY OF MUSKEGON
CITY COMMISSION MEETING
August 13, 2024 @ 5:30 PM
MUSKEGON CITY COMMISSION CHAMBERS
933 TERRACE STREET, MUSKEGON, MI 49440
MINUTES
CALL TO ORDER
The Regular Commission Meeting of the City of Muskegon was held at City Hall, 933
Terrace Street, Muskegon, Michigan at 5:30 p.m., Tuesday, August 13, 2024. Pastor
Russell Damm from Oak Crest Church of God opened the meeting with prayer, after
which the Commission and public recited the Pledge of Allegiance to the Flag.
ROLL CALL
Present: Mayor Ken Johnson, Vice Mayor Rebecca St.Clair, Commissioners Destinee
Keener, Willie German, Jr., Rachel Gorman, Katrina Kochin (arrived at 5:50 p.m.), and
Jay Kilgo. City Manager Jonathan Seyferth, City Attorney John Schrier, and City Clerk
Ann Marie Meisch.
PUBLIC COMMENT ON AGENDA ITEMS
Public comments received.
2024-73 CONSENT AGENDA
A. Approval of Minutes City Clerk
Approve minutes of the July 23, 2024, City Commission Meeting.
STAFF RECOMMENDATION: Approval of the minutes.
B. Reimbursement - Purchase Price of 692 W Grand Planning
Reimburse the purchase price of the vacant lot at 692 W Grand. 692 W Grand was
purchased by Ike Dendy in 2022. He is requesting a refund of his purchase price due to
the lot being un-buildable for a residential home. By definition (lot width/square
footage), it is considered build-able, however the topography and proximity to the
Seaway Drive (MDOT) Right of Way made it un-buildable in practical terms.
STAFF RECOMMENDATION: To authorize the refund of $4,575.00 to Ike Dendy for the
purchase price of 692 W Grand and to amend the budget to account for the amount
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refunded.
C. Sale of 1183 Terrace Planning
Staff is requesting approval of a purchase agreement for 1183 Terrace for $290,000. 1183
Terrace was acquired for $20,000. Formerly a land bank property, previous owners were
unable to make the necessary improvements needed. Originally listed on MLS for
$349,900. An offer for $290,000 was accepted after being listed for more than 6 months.
Staff is seeking permission to approve the purchase agreement and complete the sale.
Total cost for the rehab was $423,018.40.
STAFF RECOMMENDATION: To approve the sale of 1183 Terrace and authorize staff to
sign closing documents.
D. Sale of 1081 Sophia Planning
Staff is requesting approval of a purchase agreement for 1081 Sophia for $133,920. 1081
Sophia was constructed through the agreement with Dave Dusendang to construct infill
housing with ARPA funding. The offer ($133,920) is over asking price ($129,900) with 3%
seller concessions.
STAFF RECOMMENDATION: To approve the Purchase Agreement for 1081 Sophia for
$133,920.
E. Sale of 1077 Sophia Planning
Staff is requesting approval of a purchase agreement for 1077 Sophia for $149,900. 1077
Sophia was constructed through an agreement with Dave Dusendang to construct infill
housing with ARPA funding. The offer is listing price ($149,900) with no seller concessions.
STAFF RECOMMENDATION: To approve the Purchase Agreement for 1077 Sophia for
$149,900.
F. Sale of 1510 Jiroch Planning
Staff is requesting approval of a purchase agreement for 1510 Jiroch for $141,800 with
seller concessions of $6900. 1510 Jiroch was constructed through an agreement with
Dave Dusendang to construct infill housing with ARPA funding. The offer is over the full
listing price ($129,900) with the seller contributing $6900 towards buyers' closing costs,
pre-paid and discount points.
STAFF RECOMMENDATION: To approve the Purchase Agreement for 1510 Jiroch.
G. Sale of 1732 Terrace. Planning
Staff is requesting approval of a purchase agreement for 1732 Terrace for $243,440. 1732
Terrace was a house that was formerly located at 1761 Clinton, and owned by
Muskegon Public School District. It was previously located on the campus for the new
middle school. MPS approached City staff to move, renovate, and save the house. The
house was listed for $239,900 and an offer for $243,440 with 3% seller concessions was
accepted. Staff is seeking permission to approve the purchase agreement and
complete the sale. Total cost for the rehab was $234,108.05. Note that this property is
part of the scattered site brownfield project. Any difference in sales price and
renovation cost will be recovered via tax capture.
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STAFF RECOMMENDATION: To approve the sale of 1732 Terrace and authorize staff to
sign closing documents.
H. Sale of 1192 and 1194 Pine St. Planning
Staff is requesting approval of a purchase agreement for 1192 and 1194 Pine Street for
$350,000. Both 1192 and 1194 Pine were acquired through tax sale. The properties
contain two separate parcels and houses. However, the two share a yard and off-street
parking. They were sold together for $350,000 and are included in the same purchase
agreement. Total projects cost are $477,317.87 Note that this property is part of the
scattered site brownfield project. Any difference in sales price and renovation cost will
be recovered via tax capture.
STAFF RECOMMENDATION: To approve the sale of 1192 and 1194 Pine Street, and
authorize staff to sign closing documents.
I. Amendment to the planned unit development (PUD) at Harbor 31 to include the
addition of a fence at 140-146 Viridian Dr. SECOND READING Planning
The Lakefront Condo Association (LFCA) at 140-146 Viridian Drive has requested to
amend the Harbor 31 PUD to allow for a fence to be placed on their property. The
request is for a four-foot, black, aluminum fence (see details in attachment/memo from
applicant). There would not be any gates on the fence and it would be open near the
driveway approach and along the boardwalk. The applicant is requesting the fence to
keep people from trespassing on the property to access the boardwalk. The Planning
Commission unanimously recommended approval of the fence.
STAFF RECOMMENDATION: To approve the amendment to the PUD as presented.
L. DWRF ARP Grant Agreement Public Works
Staff requests authorization to enter into an agreement with the State of Michigan for
$539,000 of ARP dollars as a part of the 2024 DWRF project funding package. As a part
of the 2024 Drinking Water Revolving Fund (DWRF) project package which the
Commission has discussed several times and approved portions of already, $539,000 in
American Rescue Plan dollars have been offered by the State of Michigan. This grant is
a component of how the state is paying for the approximately 50% in "principle
forgiveness" being offered to the project; it does not represent an additional grant
compared to what has been discussed previously. Staff requests authorization to sign
the agreement due to electronic signatures.
STAFF RECOMMENDATION: Authorize staff to enter into an agreement with the State of
Michigan for $539,000 of ARP dollars as a part of the 2024 DWRF project funding
package.
N. MDOT Contract Signatory Authorization Resolution Public Works
Staff requests adoption of the resolution designating the Contract Administrator,
Maintenance Superintendent and authorized contract signatories for the renewal of our
maintenance contract with MDOT. MDOT is in the process of updating the
maintenance contract that authorizes the City to perform maintenance on state
trunklines (such as Shoreline Drive) and to bill the state for reimbursement of that work.
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At this early stage, MDOT has requested adoption of the resolution which names Dan
VanderHeide, Director of Public Works, as the Contract Administrator and Maintenance
Supervisor. Furthermore, they have requested the City name authorized staff who will
sign the contract when ready, and due to electronic signature requirements, staff has
recommended Dan VanderHeide, Director of Public Works, and Ann Meisch, City Clerk
as signatories. This resolution does not approve the contract; the final version of the
contract will be brought before the Commission for approval once available. This
resolution simply names certain staff in roles that will be referred to in the final contract
document.
STAFF RECOMMENDATION: Adopt the resolution naming Director of Public Works Dan
VanderHeide as the Contract Administrator and Maintenance Superintendent with
regard to maintenance contracts with MDOT, and names Dan VanderHeide and City
Clerk Ann Meisch as authorized signers of the contract, when available.
O. Equipment Purchase - Beach Tractor Public Works
Staff is requesting authorization to purchase a new beach tractor from J & J Farm Sales
and Services. Every day during beach season, a tractor-towed beach cleaner is used to
maintain the Pere Marquette beach. A new beach tractor was purchased in 2017 that
ultimately proved to be underpowered. This made the tractor difficult to operate and
resulted in frequent equipment failures. Staff has worked diligently for the last 7 years to
keep this tractor operational, but overall, it has been unreliable with higher than
expected maintenance costs.
For the beach cleaning this year, a more powerful Kioti HX1151 tractor is being rented
from J & J Farm Sales and Services to see if improved power can improve performance.
Feedback from staff has been positive. Being more powerful than the previous tractor
makes the Kioti tractor better suited for the job. The City’s Equipment Operators have
noted its easier operation, and staff expects this tractor to have increased reliability and
reduced maintenance costs.
The biweekly rental rate for the Kioti HX1151 tractor is $2,000, with J & J offering that half
of each rental fee be credited towards the purchase of the tractor. The cost for this
tractor and accessories totals $89,730.00 under the Sourcewell contract. Upgrading the
original tires to beach tires cost an additional $6,500. The City is receiving $10,000 as the
trade-in value of the old tractor and $9,000 in credits from the rental payments. The
purchase price is $77,230.00. This expenditure is a budgeted equipment purchase for FY
24-25.
STAFF RECOMMENDATION: Authorize staff to purchase a new beach tractor from J & J
Farm Sales and Services for $77,230.00.
P. Approval of a Neighborhood Enterprise Zone Certificate – Building 6, 920
Washington Ave Economic Development
Shaw Walker Opportunity Business 2, LLC is requesting the approval of a Neighborhood
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Enterprise Zone (NEZ) for 15 years for the redevelopment of building 6, floors 1-5 located
at 920 Washington Ave. An application for a Neighborhood Enterprise Zone Certificate
has been received from Shaw Walker Opportunity Business 2, LLC for 69 residential units
in their proposed Shaw Walker redevelopment plan. The estimated project cost is
$520,546 per unit. The property was approved as a Neighborhood Enterprise Zone
District on September 13, 2016.
The project is part of the overall Shaw Walker redevelopment.
STAFF RECOMMENDATION: I move to approve the Neighborhood Enterprise Zone
certificate for a duration of 15 years at 920 Washington Ave (building 6, floors 1-5).
Q. Approval of a Neighborhood Enterprise Zone Certificate – Building 4, 920
Washington Ave Economic Development
Shaw Walker Opportunity Business 2, LLC is requesting the approval of a Neighborhood
Enterprise Zone (NEZ) for 15 years for the redevelopment of building 4, floors 2-4 located
at 920 Washington Ave. An application for a Neighborhood Enterprise Zone Certificate
has been received from Shaw Walker Opportunity Business 2, LLC for 16 apartment units
in their proposed Shaw Walker redevelopment plan. The estimated project cost is
$615,917 per unit. The property was approved as a Neighborhood Enterprise Zone
District on September 13, 2016.
The project in Building 4 will consist of redeveloping floors 2-4 into 16 residential rental
units. The project is part of the overall Shaw Walker redevelopment.
STAFF RECOMMENDATION: I move to approve the Neighborhood Enterprise Zone
certificate for a duration of 15 years at 920 Washington Ave (building 4, floors 2-4).
R. Approval of a Neighborhood Enterprise Zone Certificate – Building 3, 920
Washington Ave. Economic Development
Shaw Walker Opportunity Business 2, LLC is requesting the approval of a Neighborhood
Enterprise Zone (NEZ) for 15 years for the redevelopment of building 3, floors 1-5 located
at 920 Washington Ave. An application for a Neighborhood Enterprise Zone Certificate
has been received from Shaw Walker Opportunity Business 2, LLC for 327 residential units
in their proposed Shaw Walker redevelopment plan. The estimated project cost is
$249,772,000. The property was approved as a Neighborhood Enterprise Zone District on
September 13, 2016.
The project at Building 3 will consist of a complete renovation of approximately 270,785
square feet of existing space into 327 residential rental units. These units will be offered
to income-qualified households with an annual household income of not more than
100% of the area median income. The total estimated project cost is $249,772 per unit.
The project is part of the overall Shaw Walker redevelopment.
STAFF RECOMMENDATION: I move to approve the Neighborhood Enterprise Zone
certificate for a duration of 15 years at 920 Washington Ave (building 3, floors 1-5).
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S. Approval of a Neighborhood Enterprise Zone Certificate – Building 5, 920
Washington Ave. & 965 W. Western Ave. Economic Development
Shaw Walker Opportunity Business 1, LLC and Shaw Walker Opportunity Business 2, LLC is
requesting the approval of a Neighborhood Enterprise Zone (NEZ) for 15 years for the
redevelopment of building 5 located at 920 Washington Ave. and 965 W. Western
Ave. An application for a Neighborhood Enterprise Zone Certificate has been received
from Shaw Walker Opportunity Business 1 LLC, Shaw Walker Opportunity Business 2, LLC
for 89 apartment units in their proposed Shaw Walker redevelopment plan. The
developers are proposing to redevelop all five floors of building 5. The estimated project
cost is $243,289 per unit. The property was approved as a Neighborhood Enterprise Zone
District on September 13, 2016.
The project is part of the overall Shaw Walker redevelopment.
STAFF RECOMMENDATION: I move to approve the Neighborhood Enterprise Zone
certificate for a duration of 15 years at 920 Washington Ave. and 965 W. Western Ave.
(building 5, floors 1-5).
T. Request to revoke the Obsolete Property Rehabilitation Exemption Certificate at
920 Washington Ave. Economic Development
Shaw Walker QOZB 2, LLC is requesting the revocation of the existing OPRA Certificate
(#3-16-0027) at 920 Washington Ave. The existing certificate was approved on June 27,
2023, by P&G Holdings NYC LLC (prior owner). The project never commenced. The
current owner is proposing a new project that includes a complete redevelopment of
the existing Shaw Walker facility and intends to submit a new application for specific
components of the facility.
OPRA: “125.2792 Revocation of certificate; findings; request for revocation or
reinstatement of certificate.
Sec. 12. (2) Upon receipt of a request by certified mail to the legislative body of the
qualified local governmental unit by the holder of an obsolete property rehabilitation
exemption certificate requesting revocation of the certificate, the legislative body of
the qualified local governmental unit may, by resolution, revoke the certificate.
STAFF RECOMMENDATION: I move to approve the revocation of the Obsolete Property
Rehabilitation Exemption Certificate at 920 Washington Ave. and have the Mayor and
City Clerk sign the resolution and submit it to the State Tax Commission.
U. Concur with CRC Recommendation to Accept Resignation and Make
Appointments City Clerk
To concur with CRC recommendation to accept the resignation of Kimi George from
the Historic District Commission and to appoint Corbin Davis as a member with
occupational or financial interest in one or more of the historic districts. To appoint
Jackie Knowlton to the Lakeside Business Improvement District as a member with
assessed property or their representative.
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STAFF RECOMMENDATION: To accept the resignation of Kimi George from the Historic
District Commission, appoint Corbin Davis to the Historic District Commission, and
appoint Jackie Knowlton to the Lakeside Business Improvement District.
Motion by Commissioner Gorman, second by Vice Mayor St.Clair to adopt the Consent
Agenda minus items J, K, and M.
ROLL VOTE: Ayes: Gorman, St.Clair, Johnson, Kilgo, Keener, and German
Nays: None
MOTION PASSES
2024-74 ITEMS REMOVED FROM THE CONSENT AGENDA
J. Request for a planned unit development (PUD) at 920 Washington Avenue, 965
W. Western Avenue, and 1330 Division Street SECOND READING Planning
The redevelopment plans include 450 apartments, 70 condominiums, 37 townhouses
and over 20,000 sf of commercial space. The Planning Commission unanimously
recommended approval of the request with the following conditions:
1. The applicant receives a stormwater permit from the Engineering Department.
2. Bicycle racks are added.
3. Warning signage will be required for the two mid-block crossings on Division St.
4. All utility plans must be approved by the Engineering Department.
STAFF RECOMMENDATION: To approve the request for the PUD at 920 Washington, 965
W Western, and 1330 Division St with the following conditions:
1. The applicant receives a stormwater permit from the Engineering Department.
2. Bicycle racks are added.
3. Warning signage will be required for the two mid-block crossings on Division St.
4. All utility plans must be approved by the Engineering Department.
Motion by Commissioner German, second by Commissioner Kilgo, to approve the
request for the PUD at 920 Washington, 965 W. Western, and 1330 Division St. with the
following conditions:
1. The applicant receives a stormwater permit from the Engineering Department.
2. Bicycle racks are added.
3. Warning signage will be required for the two mid-block crossings on Division St.
4. All utility plans must be approved by the Engineering Department.
ROLL VOTE: Ayes: St.Clair, Johnson, Kilgo, Keener, German, Gorman, and Kochin
Nays: None
MOTION PASSES
K. Request to amend the planned unit development (PUD) at 3400, 3460, 3474
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Wilcox Avenue, 1875 Waterworks Road, and 1490 Edgewater Street (the
Docks). SECOND READING Planning
The plans have been amended to develop around areas that have been declared as
established wetlands. There will be a total of 240 residential units and a community
building with retail/restaurant space. The Planning Commission unanimously
recommended approval of the amended PUD with the following conditions:
1. The applicant receives a stormwater permit from the Engineering Department.
2. All utility plans are reviewed and approved by the Engineering Department
3. Lane widths of streets are reduced to 9 or 10 feet subject to the Engineering
Department.
4. Bulb outs are eliminated on road A.
5. Road C will be connected back to road B.
6. The parking lot to the southern marina parking lot will be revised as discussed.
7. Landscaping areas inside of parking areas and streets will be privately
maintained.
8. A public/private street map will be provided and describe the ownership as
discussed with all privately-owned roadways being publicly accessible.
9. A landscaping plan is approved by the Planning Department.
Conditions 4, 5, and 6 have been addressed and reflected on the revised plans in the
packet.
STAFF RECOMMENDATION: To approve the request to amend the PUD with the following
conditions:
1. The applicant receives a stormwater permit from the Engineering Department.
2. All utility plans are reviewed and approved by the Engineering Department
3. Lane widths of streets are reduced to 9 or 10 feet subject to the Engineering
Department.
4. Landscaping areas inside of parking areas and streets will be privately
maintained.
5. A public/private street map will be provided and describe the ownership as
discussed with all privately-owned roadways being publicly accessible.
6. A landscaping plan is approved by the Planning Department.
Motion by Commissioner German, second by Commissioner Kilgo, to approve the
request to amend the PUD with the following conditions:
1. The applicant receives a stormwater permit from the Engineering Department.
2. All utility plans are reviewed and approved by the Engineering Department
3. Lane widths of streets are reduced to 9 or 10 feet subject to the Engineering
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Department.
4. Landscaping areas inside of parking areas and streets will be privately
maintained.
5. A public/private street map will be provided and describe the ownership as
discussed with all privately-owned roadways being publicly accessible.
6. A landscaping plan is approved by the Planning Department.
MOTION AMENDED
Motion amended by Commissioner German, second by Commissioner Kilgo, to amend
the PUD to add an additional condition that off-street parking, inclusive of handicap
parking, be placed to the north of the structural retaining wall at Public Road E‘s final
northerly bend.
ROLL VOTE ON AMENDMENT
ROLL VOTE: Ayes: Johnson, Kilgo, Keener, and German
Nays: St.Clair, Gorman, and Kochin
AMENDED MOTION PASSES
ROLL VOTE ON ORIGINAL MOTION WITH AMENDMENT:
ROLL VOTE: Ayes: German, Gorman, Kochin, St.Clair, Johnson, Kilgo, and Keener
Nays: None
MOTION PASSES
M. Contract Award: H92218 Southern Ave, Lakeshore to Seaway DPW- Engineering
Staff requests authorization to enter into a contract with Kamminga & Roodvoets, Inc.
(K&R) in the amount of $3,050,306.60 for road reconstruction work on Southern Avenue
from Lakeshore Drive to Seaway Drive.
Bids were solicited for a construction project to reconstruct Southern Ave, from
Lakeshore to Seaway. K&R provided the low bid. The bids did come in over budget.
However, the consistency in the bid prices from firm to firm suggests the pricing is
accurate. This project is part of a MDOT Fed Aid Buyout program in which $748,530.00 in
federal gas tax dollars was received for the project. The remainder will be funded by
the City's share of state gas tax distributions, the water fund (for lead service line
replacements and other connection work) and the sewer fund (for spot repair work).
STAFF RECOMMENDATION: Authorize staff to enter into a contract with Kamminga &
Roodvoets, Inc in the amount of $3,050,306.60 for the reconstruction of Southern
Avenue from Lakeshore Drive to Seaway Drive.
Motion by Commissioner Kilgo, second by Commissioner German, to authorize staff to
enter into a contract with Kamminga & Roodvoets, Inc in the amount of $3,050,306.60 for
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the reconstruction of Southern Avenue from Lakeshore Drive to Seaway Drive.
ROLL VOTE: Ayes: None
Nays: Keener, German, Gorman, Kochin, St.Clair, Johnson, and Kilgo
MOTION FAILS
Motion by Commissioner Kilgo, second by Commissioner German, to authorize staff to
enter into a contract with Terra Contractors, LLC in the amount of $3,135,758.50, for the
reconstruction of Southern Avenue from Lakeshore Drive to Seaway Drive.
ROLL VOTE: Ayes: Kochin, St.Clair, Jonson, Kilgo, Keener, German, and Gorman
Nays:
MOTION PASSES
2024-75 PUBLIC HEARINGS
A. Request, Issuance of a Commercial Rehabilitation Certificate, Muskegon
Midtown Center, LLC 1095 Third St. Economic Development
Pursuant to Public Act 210 of 2005, as amended, Midtown Center, LLC is requesting the
issuance of a Commercial Rehabilitation Certificate (PA 210) to support further
development at 1095 Third St. On May 14, 2024, the City Commission approved the
establishment of a Commercial Rehabilitation District. Since then, City staff has worked
closely with the developer to finalize a purchase agreement with the city, which was
approved on June 25, 2024. The developer is now seeking the issuance of a
Commercial Rehabilitation Certificate to further facilitate this development. Issuance of
this incentive will freeze the taxable value of the building and exempt the new real
property investment from local taxes.
The structure will be renovated to accommodate mixed uses, including residential,
retail, and office spaces. The project will also support low- to moderate-income housing
by accepting housing choice vouchers. The total capital investment exceeds $10
million, with 30 new permanent jobs and 100 construction jobs expected to be created
during the rehabilitation.
STAFF RECOMMENDATION: I move to close the public hearing and approve/deny the
resolution for the issuance of a Commercial Rehabilitation Certificate at 1095 Third St.
and authorize the City Clerk and Mayor to sign.
The Public Hearing opened to hear and consider any comments from the public. No
public comments were made.
Motion by Vice Mayor St.Clair, second by Commissioner Kilgo, to close the public
hearing and approve the resolution for the issuance of a Commercial Rehabilitation
Certificate at 1095 Third St. and authorize the City Clerk and Mayor to sign.
ROLL VOTE: Ayes: Gorman, Kochin, St.Clair, Johnson, Kilgo, Kener, and German
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Nays: None
MOTION PASSES
B. Request for the Establishment of a Commercial Rehabilitation District, 349 W.
Webster, LLC, 349 W. Webster Ave. Economic Development
Pursuant to Public Act 210 of 2005, as amended, 349 W. Webster, LLC is requesting the
establishment of a Commercial Rehabilitation District (PA 210) at 349 W. Webster Ave. to
support further development at 349 W. Webster Ave. The developer is requesting the
establishment of a Commercial Rehabilitation District (PA 210) at 349 W. Webster Ave.
The creation of the district will allow the building owner to apply for a Commercial
Rehabilitation Certificate, which will freeze the taxable value of the building and
exempt the new real property investment from local taxes.
The project involves renovating the former Muskegon Public Schools administrative
offices to accommodate mixed uses, short term rentals, lodging, retail, and office
spaces. The renovation will preserve key historic components while repairing the exterior
façade. The total capital investment is over $11 million, and the project is expected to
create 5 new jobs and 100 construction jobs during rehabilitation.
STAFF RECOMMENDATION: I move to close the public hearing and approve the
resolution establishing a Commercial Rehabilitation District at 349 W. Webster Ave. and
authorize the City Clerk and Mayor to sign.
The Public Hearing opened to hear and consider any comments from the public on the
establishment of the district and the issuance of a certificate. Frank Peterson, developer
for the project, explained the project.
Motion by Commissioner German, second by Commissioner Kilgo, to close the public
hearing.
ROLL VOTE: Ayes: German, Gorman, Kochin, St.Clair, Johnson, Kilgo, and Keener
Nays:
MOTION PASSES
Motion by Vice Mayor St.Clair, second by Commissioner Gorman, to approve the
resolution establishing a Commercial Rehabilitation District at 349 W. Webster Ave. and
authorize the City Clerk and Mayor to sign.
ROLL VOTE: Ayes: Keener, German, Gorman, Kochin, St.Clair, Johnson, and Kilgo
Nays: None
MOTION PASSES
C. Public Hearing, Issuance of a Commercial Rehabilitation Certificate, 349 W.
Webster, LLC, 349 W. Webster Ave. Economic Development
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Pursuant to Public Act 210 of 2005, as amended, 349 W. Webster, LLC is requesting the
issuance of a Commercial Rehabilitation Certificate (PA 210) at 349 W. Webster Ave. to
support further development at 349 W. Webster Ave. The developer is requesting the
issuance of a Commercial Rehabilitation Certificate (PA 210) at 349 W. Webster Ave.
The approval of this certificate is contingent to the approval of the Commercial
Rehabilitation District. Issuance of this incentive will freeze the taxable value of the
building and exempt the new real property investment from local taxes.
The project involves renovating the former Muskegon Public Schools administrative
offices to accommodate mixed uses, short term rentals, lodging, retail, and office
spaces. The renovation will preserve key historic components while repairing the exterior
façade. The total capital investment is over $11 million, and the project is expected to
create 5 new jobs and 100 construction jobs during rehabilitation.
STAFF RECOMMENDATION: I move to close the public hearing and approve the
resolution establishing a Commercial Rehabilitation Certificate at 349 W. Webster Ave.
and authorize the City Clerk and Mayor to sign.
Motion by Commissioner Kochin, second by Vice Mayor St.Clair, to approve the
resolution establishing a Commercial Rehabilitation Certificate for 349 W. Webster, LLC,
at 349 W. Webster Ave. and authorize the City Clerk and Mayor to sign.
ROLL VOTE: Ayes: Kilgo, Keener, German, Gorman, Kochin, St.Clair, and Johnson
Nays: None
MOTION PASSES
F. Public Hearing - Request to Establish an Obsolete Property District - 965 W.
Western Economic Development
Pursuant to Public Act 146 of the Michigan Public Acts of 2000, Shaw Walker Opportunity
Zone Business 2, LLC, has requested the establishment of an Obsolete Property District at
965 Washington Ave. to support further development. The developer is requesting the
establishment of an Obsolete Property District at 965 Washington Ave. The establishment
of the Obsolete Property District would allow them to apply for an Obsolete Property
Rehabilitation Exemption Certificate.
This project is part of the larger Shaw Walker redevelopment initiative. At this site,
building 7 will be converted into an approximately 52,000-square-foot enclosed parking
garage. The building is currently being used as warehouse storage. The total capital
investment is over $1.5 million, and the project is expected to create 200 jobs as a result
of the rehabilitation.
STAFF RECOMMENDATION: I move to close the public hearing and approve/deny the
resolution establishing an Obsolete Property District at 965 W. Western Ave. and
authorize the City Clerk and Mayor to sign.
The Public Hearing opened to hear and consider any comments from the public. No
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public comments were made.
Motion by Vice Mayor St.Clair, second by Commissioner Kilgo, to close the public
hearing and approve the resolution establishing an Obsolete Property District at 965 W.
Western Ave. and authorize the City Clerk and Mayor to sign.
ROLL VOTE: Ayes: Johnson, Kilgo, Keener, German, Gorman, Kochin, and St.Clair
Nays: None
MOTION PASSES
D. Public Hearing - Request to issue an Obsolete Property Certificate, Shaw Walker
Opportunity Zone Business 2, LLC- Building 4, 920 Washington Ave. Economic
Development
Pursuant to Public Act 146 of the Michigan Public Acts of 2000, Shaw Walker Opportunity
Zone Business 2, LLC, has requesting the issuance of an Obsolete Property Certificate at
920 Washington Ave. to support further development. The developer is requesting the
issuance of an Obsolete Property Certificate for Building 4 at 920 Washington Ave. If
granted, the property taxes would be frozen at the pre-rehabilitation rate for the
duration of the certificate. The Obsolete Property Rehabilitation District for this property
was established on July 12, 2016.
The project involves converting the first floor of Building 4 into commercial retail space
available for lease. The developer aims to attract businesses such as restaurants,
markets, fitness centers, daycare, hair salons, massage therapists, and others that will
complement the residential components of the building. The total capital investment is
over $4 million, and the project is expected to create 200 jobs as a result of the
rehabilitation.
This project is part of the larger Shaw Walker redevelopment initiative.
STAFF RECOMMENDATION: I move to close the public hearing and approve/deny the
resolution for the issuance of an Obsolete Property Certificate for Building 4 at 920
Washington Ave. and authorize the City Clerk and Mayor to sign.
Motion by Commissioner Kilgo, second by Vice Mayor St.Clair, to approve the
resolution for the issuance of an Obsolete Property Certificate for 12 years for Building 4
at 920 Washington Ave. and authorize the City Clerk and Mayor to sign.
ROLL VOTE: Ayes: Kochin, St.Clair, Johnson, Kilgo, Keener, German, and Gorman
Nays: None
MOTION PASSES
E. Public Hearing - Request to issue an Obsolete Property Certificate, Shaw Walker
Opportunity Zone Business 2, LLC- Building 2, 920 Washington Ave. Economic
Development
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Pursuant to Public Act 146 of the Michigan Public Acts of 2000, Shaw Walker Opportunity
Zone Business 2, LLC, has requesting the issuance of an Obsolete Property Certificate at
920 Washington Ave. to support further development. The developer is requesting the
issuance of an Obsolete Property Certificate for Building 2 at 920 Washington Ave. If
granted, the property taxes would be frozen at the pre-rehabilitation rate for the
duration of the certificate. The Obsolete Property Rehabilitation District for this property
was established on July 12, 2016.
The project involves converting the first floor of Building 2 into approximately 11,500
square feet of commercial retail space available for lease. The developer aims to
attract businesses such as restaurants, markets, fitness centers, daycare, hair salons,
massage therapists, and others that will complement the residential components of the
building. The total capital investment is over $1.1 million, and the project is expected to
create 200 jobs as a result of the rehabilitation.
This project is part of the larger Shaw Walker redevelopment.
STAFF RECOMMENDATION: I move to close the public hearing and approve/deny the
resolution for the issuance of an Obsolete Property Certificate for Building 2 at 920
Washington Ave. and authorize the City Clerk and Mayor to sign.
Motion by Commissioner Kilgo, second by Vice Mayor St.Clair, to approve the
resolution for the issuance of an Obsolete Property Certificate for 12 years for Building 2
at 920 Washington Ave. and authorize the City Clerk and Mayor to sign. .
ROLL VOTE: Ayes: Gorman, Kochin, St.Clair, Johnson, Kilgo, Keener, and German
Nays:
MOTION PASSES
G. Public Hearing - Request to issue an Obsolete Property Certificate, Shaw Walker
Opportunity Zone Business 2, LLC- Building 7, 965 W. Western Economic
Development
Pursuant to Public Act 146 of the Michigan Public Acts of 2000, Shaw Walker Opportunity
Zone Business 2, LLC, has requested the issuance of an Obsolete Property Certificate at
920 Washington Ave. to support further development. The developer is requesting the
issuance of an Obsolete Property Certificate for Building 7 at 965 W. Western. If granted,
the property taxes would be frozen at the pre-rehabilitation rate for the duration of the
certificate. The approval of the certificate is contingent upon the approval of the
Obsolete Property Rehabilitation District.
The project involves converting Building 7 into an approximately 52,000-square-foot
enclosed parking garage. The building is currently being used as warehouse storage.
The total capital investment is over $1.5 million, and the project is expected to create
Page 14 of 17
Page 19 of 177
200 jobs as a result of the rehabilitation.
This project is part of the larger Shaw Walker redevelopment initiative.
STAFF RECOMMENDATION: I move to close the public hearing and approve/deny the
resolution for the issuance of an Obsolete Property Certificate for Building 7 at 965 W.
Western Ave. and authorize the City Clerk and Mayor to sign.
Motion by Commissioner Kochin, second by Commissioner Kilgo, to approve the
resolution for the issuance of an Obsolete Property Certificate for 12 years for Building 7
at 965 W. Western Ave. and authorize the City Clerk and Mayor to sign.
ROLL VOTE: Ayes: German, Gorman, Kochin, St.Clair, Johnson, Kilgo, and Keener
Nays: None
MOTION PASSES
H. Public Hearing- Request to Create a new Neighborhood Enterprise Zone District
at 930 Washington Ave. Economic Development
Shaw Walker Opportunity Business 3, LLC is requesting to create a Neighborhood
Enterprise Zone District at 930 Washington Ave. Pursuant to Public Act 147 of the
Michigan Public Acts of 1992, the developer of the Shaw Walker project has requested
to create a new Neighborhood Enterprise Zone (NEZ) district for the parcel at 930
Washington Ave. Properties located in this NEZ district will be eligible to apply for NEZ
certificates, which will lower the residential property taxes on new construction.
STAFF RECOMMENDATION: I move to close the public hearing and approve the
Neighborhood Enterprise Zone District at 930 Washington Ave. and authorize the City
Clerk and Mayor to sign the district resolution.
The Public Hearing opened to hear and consider any comments from the public. No
public comments were made.
Motion by Commissioner Kochin, second by Vice Mayor St.Clair, to close the public
hearing and approve the Neighborhood Enterprise Zone District at 930 Washington Ave.
and authorize the City Clerk and Mayor to sign the district resolution.
ROLL VOTE: Ayes: Keener, German, Gorman, Kochin, St.Clair, and Johnson
Nays: None
MOTION PASSES
2024-76 NEW BUSINESS
A. Special Event - Ballin' on the Beach DPW- Parks and Recreation
Ballin on the Beach is a new event to Pere Marquette. Originally held in 2023 near the
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kite shack, this year the event applied to move to the parking lot near the bathhouse
and add a beer tent. Ballin on the Beach is organized by Peter Carroll with Circle C
Trucking. In 2023, there were 26 bobtail trucks (semi trucks without a trailer), one truck
with trailer, a food truck, and a DJ setup in the parking lot near the roundabout. This
year the event is looking to expand, and with these significant changes staff is following
the special event policy for this event - to be approved by the City Commission.
For the 2024 event, the request is to utilize the larger parking lot near Indiana Ave from
September 27-29, 2024 (6-10 pm Friday, 9 am-10 pm Saturday, and leave Sunday
around noon). The organizers are applying to have 42 bobtail trucks, 4 trucks with
trailers, 3 food trucks, 2 live bands, a bubble house, and a beer tent. Staff met with Mr.
Carroll to review requirements and concerns with several requests. The event is aware of
the requirements for the proposed fire pit needing to be at least 25 ft from any structure
and a fencing requirement for a liquor license. There are additional safety concerns
with the amount of infrastructure and attendees in a small space. The addition of a
beer tent changes the dynamics of the event from the previous year. Staff is also
concerned allowing trailers could cause damage to the roundabout or a trailer getting
stuck in the sand and creating a traffic hazard. Staff also acknowledges how long the
event season has become and knows many residents would not wish to extend it any
longer.
Mr. Carroll has been very appreciative of the opportunity to apply for this event and is
receptive to changing the event as needed.
STAFF RECOMMENDATION: Approve the Ballin on the Beach event from 8 a.m.
September 28 until 2 p.m. September 29 with no alcohol or trucks with trailers and
amplified sound must end by 9 p.m.
Motion by Commissioner Goreman, second by Commissioner Keener, to approve the
Ballin on the Beach event from 8 a.m., September 28, until 2 p.m., September 29, with no
alcohol or trucks with trailers and amplified sound must end by 9 p.m.
ROLL VOTE: Ayes: Kilgo, Keener, German, and St.Clair
Nays: Gorman, Kochin, and Johnson
MOTION PASSES
ANY OTHER BUSINESS
Commissioner German stated he will be in Chicago August 19-27 representing the
National Democratic Party, 3rd Congressional District. Commissioner Keener thanked
the Commission, Planning, Police and Constituents for their support while she was
absent and dealing with personal matters. Commissioner Kochin thanked the City
Manager and Police for their assistance with a public safety matter. Mayor Johnson
stated that Saturday, August 17, at 1:00 p.m., at the Farmers Market there will be a
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celebration of 100 years for Golden Heart Fruit Farm as well as 10 year celebration of our
Farmers Market at their current location.
PUBLIC COMMENT ON NON-AGENDA ITEMS
Public comments received.
ADJOURNMENT
The City Commission meeting adjourned at 8:17 p.m.
Respectfully Submitted,
Ann Marie Meisch, MMC City Clerk
Page 17 of 17
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Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: August 27, 2024 Title: 30-Day Extension of the STR Registration
Pause
Submitted by: Jonathan Seyferth, City Manager Department: Manager's Office
Brief Summary:
This will extend the end date of the STR Pause from September 8, 2024, to October 8, 2024.
Detailed Summary & Background:
In March 2024, the City Commission put into place a pause on Short Term Rental (STR) registrations.
The pause is set to expire on September 8, 2024. Because the staff is still finalizing updated STR rules
following Commission feedback, extending the registration pause by 30 days is prudent to ensure the
new rules/ordinances are in place before the pause expires. The new expiration date would be
Tuesday, October 8, 2024. The objective would be to have the Commission vote on an ordinance in
early September 2024.
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Goal/Action Item:
2027 Goal 1: Destination Community & Quality of Life
Amount Requested: Budgeted Item:
n/a Yes No N/A X
Fund(s) or Account(s): Budget Amendment Needed:
n/a Yes No N/A X
Recommended Motion:
To extend the Short Term Rental Registration Pause by 30 days, expiring on Tuesday, October 8, 2024.
Approvals: Guest(s) Invited / Presenting:
Immediate Division X
Head No
Information
Technology
Other Division Heads
Communication
Page 23 of 177
Legal Review
Page 24 of 177
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: August 27, 2024 Title: Write Off of Loan to BoomTown Market, LLC
Balance
Submitted by: Jake Eckholm, Development Department: Economic Development
Services Director
Brief Summary:
We have an unpaid balance on our original Economic Development Revolving Loan to BoomTown
Market that must be written off per our auditor's guidance.
Detailed Summary & Background:
In April of 2019 the City received an application for a $55,000 loan from Boomtown Market for
furnishings for their grocery store concept. This loan application was approved by the City
Commission at their June 25, 2019 regular meeting. By February of 2020, ownership of BoomTown
requested to be temporarily placed on interest only payments due to winter slowdowns, which were
later exacerbated by the Covid-19 pandemic. Sometime later the owner ran into significant medical
issues and decided to close, owing several lenders and the landlord large sums ahead of our loan in
position. This has resulted in our inability to collect the remainder of the original loan. The total paid to
the City through the life of the loan is $13,933.12. The write off amount, inclusive of unpaid interest, is
$60,164.71
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Goal/Action Item:
Amount Requested: Budgeted Item:
$60,164.71 in written off debt Yes No N/A
Fund(s) or Account(s): Budget Amendment Needed:
Economic Development Fund Yes No N/A
Recommended Motion:
Motion to write off $60,164.71 in unpaid debt owed by BoomTown Market, LLC as presented.
Approvals: Guest(s) Invited / Presenting:
Immediate Division
Head No
Information
Technology
Page 25 of 177
Other Division Heads
Communication
Legal Review
Page 26 of 177
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: August 27, 2024 Title: 7th Amendment to Lumber Jacks
Agreement-Scoreboard
Submitted by: Kenneth Grant, Finance Director, Department: Arena
Jake Laime, Arena Manager, Peter Wills, Director
of Governmental Relations
Brief Summary:
Staff is requesting the commission's approval for a new center hanging scoreboard in Trinity Health
Arena.
Detailed Summary & Background:
The Arena Staff and Muskegon Lumberjacks are seeking approval to purchase a new scoreboard
and add it to the list of items being addressed to re-negotiate in the 7th amendment. The 6th
amendment which approved the new construction called for some additional things to be
addressed in the Lumberjacks shared use agreement. Arena staff is requesting to contribute $200,000
from the state MEDC RAP grant award to help the Lumberjacks offset the total cost of the
scoreboard. The Lumberjacks will fund the balance of the project with a 7 year payback on rent
credit starting in 2027 at an interest rate of 5.25%. The current scoreboard is beyond its life
expectancy and we are no longer able to service the outdated technology.
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Goal/Action Item:
2027 Goal 3: Community Connection
Amount Requested: Budgeted Item:
Not to exceed $200,000 Yes No N/A
Fund(s) or Account(s): Budget Amendment Needed:
254 Arena Yes No N/A
Recommended Motion:
Recommend the Commission allows the City to enter into an agreement with the LumberJacks to
purchase a new center hung scoreboard at the Arena.
Approvals: Guest(s) Invited / Presenting:
Immediate Division
Head No
Page 27 of 177
Information
Technology
Other Division Heads
Communication
Legal Review
Page 28 of 177
Trinity Health Arena
LED Center Hung Scoreboard Proposal
Page 29 of 177
Trinity Health Arena Representative:
Clyde Adkin. cadkin@oes-inc.com
SCOREBOARD VIDEO DISPLAY ACCENTS COLOR NOTES CONCEPT APPROVAL:
Model: Main Screens: Lower Skrim Enclosure: Version: 1
Centerhung LED 9.84’ W x 6.56’ H Black
Overall Dimensions: Pixel Pitch: Date: July 2024
185’-¾”W x 122’-¼”H 5.95 mm
Bottom Ad Ring: Signature:
37.07’ W x 2.36’ H
Pixel Pitch:
5.95 mm
Quote#: 42038-P
DISCLAIMER: Concept images presented are for visualization purposes
w w w. o e s - s c o r e b o a r d s . c o m only and may not be an exact representation of the actual product. We do,
Page 30 of 177
however, strive to make it as accurate as possible.
Trinity Health Arena Representative:
Clyde Adkin. cadkin@oes-inc.com
UPGRADE TO 3.91 ON MAIN SCREEN ONLY
SCOREBOARD VIDEO DISPLAY ACCENTS COLOR NOTES CONCEPT APPROVAL:
Model: Main Screens: Lower Skrim Enclosure: Version: 2
Centerhung LED 9.84’ W x 6.56’ H Black
Overall Dimensions: Pixel Pitch: Date: July 2024
185’-¾”W x 122’-¼”H 3.91 mm
Bottom Ad Ring: Signature:
37.07’ W x 2.36’ H
Pixel Pitch:
5.95 mm
Quote#: 42038-P
DISCLAIMER: Concept images presented are for visualization purposes
w w w. o e s - s c o r e b o a r d s . c o m only and may not be an exact representation of the actual product. We do,
Page 31 of 177
however, strive to make it as accurate as possible.
Trinity Health Arena Representative:
Clyde Adkin. cadkin@oes-inc.com
SCOREBOARD VIDEO DISPLAY ACCENTS COLOR NOTES CONCEPT APPROVAL:
Model: Main Displays: Corner Ad Panels: Enclosure: Version: 3
M6981IML Centerhung 11.48’W x 8.20’H 8’2-7/16”H Black
Dimensions: Pixel Pitch: Date: July 2024
Lower Skrim
15’5”W x 10’10”H 3.91mm
Lower Ring: Signature:
35.43’W x 2.36’H
Pixel Pitch:
6mm
Quote#: 42038-P
DISCLAIMER: Concept images presented are for visualization purposes
w w w. o e s - s c o r e b o a r d s . c o m only and may not be an exact representation of the actual product. We do,
Page 32 of 177
however, strive to make it as accurate as possible.
Trinity Health Arena Representative:
Clyde Adkin. cadkin@oes-inc.com
DISCLAIMER: Concept images presented are for visualization purposes
w w w. o e s - s c o r e b o a r d s . c o m only and may not be an exact representationPage
of the actual
33product.
of 177 We do,
however, strive to make it as accurate as possible.
Trinity Health Arena Representative:
Clyde Adkin. cadkin@oes-inc.com
SCOREBOARD VIDEO DISPLAY ACCENTS COLOR NOTES CONCEPT APPROVAL:
Model: Face Displays: Lower Skrim Enclosure: Version: 4
M6983IML Centerhung 13.02’W x 8.40’H Black
Overall Dimensions: Pixel Pitch: Date: July 2024
16’7”W x 9’H 4mm
Corner Displays: Signature:
2.52’W x 8.40’H
Pixel Pitch:
4mm
Quote#: 42038-P
DISCLAIMER: Concept images presented are for visualization purposes
w w w. o e s - s c o r e b o a r d s . c o m only and may not be an exact representation of the actual product. We do,
Page 34 of 177
however, strive to make it as accurate as possible.
Proposal Summary
OES Scoreboards is pleased to present Trinity Health Arena with an LED video center hung scoreboard
solution. We have a long history of partnering with schools across North America to bring pro sports
facility experience to their venues and are renowned for our exceptional customer service, talented
inhouse engineers, and expertise in providing high-quality, scalable, custom video displays, scoreboards
and timing solutions for Pro sports venues, colleges, K-12 schools, and community centers. We are also a
member of an elite group as one of only two scoreboard companies approved to provide scoring and
timing to the NBA, NHL, CFL, NFL, MLS, and MLB.
Our experienced team has a passion for combining sports with the latest technologies to create dynamic
entertainment platforms for all levels of stadiums and venues. We have combined our trusted scoring
and timing system with high quality video production equipment to create a solution for Trinity Arena.
OES Scoreboards proposes the following four options:
Option 1: Center Hung Scoreboard Solution ____________________ $298,871
OES Scoreboards Center Hung Scoreboard
• Main Screen: 9.84’W x 6.56’H per side
• LED Type: SMD 3-in-1
• Pitch: 5.95 mm
• Brightness: 1800 nits
• Resolution: 504 x 336
• Total Pixels: 169,344
• Lower Ring: 31.5’W x 2.36’H
• LED Type: SMD 3-in-1
• Pitch: 6 mm
• Brightness: 1800 nits
• Resolution: 1600 x 120
• Total Pixels: 192,000
• Corner Static Ad Panels with Customer Provided Artwork
• Bottom Vinyl Skrim with Customer Provided Artwork
• Bottom Center Mounted Remote Controlled PTZ Camera
o +/- 170° Horizontal Pan and +90° / -30° Vertical Pan
• Trumpet Horns for End of Period
• Third party engineering review of center hung structure
• Third party engineering review of suspension system from customer approved suspension
points.
Option 2: 3.91mm Main Screen Upgrade from Option 1 ______ $318,871
www.oes-scoreboards.com | 1.877.652.5833
OES Inc. | 4056 Blakie Rd., London ON Canada N6L 1P7
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Option 3: Center Hung Scoreboard Solution ____________________ $353,099
OES Scoreboards Center Hung Scoreboard – M6981IML:
• Main Screen: 11.48’W x 8.20’H per side
• LED Type: SMD 3-in-1
• Pitch: 3.91mm
• Brightness: 1200 nits
• Resolution: 896 x 640
• Total Pixels: 573,440
• Lower Ring: 35.43’W x 2.36’H
• LED Type: SMD 3-in-1
• Pitch: 6 mm
• Brightness: 1800 nits
• Resolution: 1800 x 120
• Total Pixels: 216,000
• Corner Static Ad Panels with Customer Provided Artwork
• Bottom Vinyl Skrim with Customer Provided Artwork
• Bottom Center Mounted Remote Controlled PTZ Camera
o +/- 170° Horizontal Pan and +90° / -30° Vertical Pan
• Trumpet Horns for End of Period
• Third party engineering review of center hung structure
• Third party engineering review of suspension system from customer approved suspension
points.
Option 4: Center Hung Scoreboard Solution _________________ $387,327
OES Scoreboards Center Hung Scoreboard – M6983IML:
• Main Screen: 13.02’W x 8.40’H per side
• LED Type: SMD 3-in-1
• Pitch: 4 mm
• Brightness: 1200 nits
• Resolution: 992 x 640
• Total Pixels: 634,880
• LED Corners: 2.52’W x 8.40’H
• LED Type: SMD 3-in-1
• Pitch: 4 mm
• Brightness: 1200 nits
• Resolution: 192 x 640
• Total Pixels: 122,880
• Bottom Vinyl Skrim with Customer Provided Artwork
• Bottom Center Mounted Remote Controlled PTZ Camera
o +/- 170° Horizontal Pan and +90° / -30° Vertical Pan
• Trumpet Horns for End of Period
• Third party engineering review of center hung structure
www.oes-scoreboards.com | 1.877.652.5833
OES Inc. | 4056 Blakie Rd., London ON Canada N6L 1P7
Page 36 of 177
• Third party engineering review of suspension system from customer approved suspension
points.
Included with all Options:
Display Control System
• 18U Rack to house all equipment in control room
• (2) NovaStar MCTRL700 rack mount LED controller
• NovaStar CV-Rack320-4 rack mount fiber convertor
• OES BOLTLive Content Management System
• HDMI video input
• (6) customizable content display zones
• Built in content editor with fully customizable scoreboard creator
• Content Playlists and multi-zone triggers
• Customizable Function Hot Keys
• Windows based 4U rack mount PC
Intel® Core™ i7-9700F processor with 16GB DDR4-2133 SDRAM, 1TB GB
solid state hard drive, Wi-Fi, graphics card with 4GB memory, DVD Drive
Keyboard, mouse and 22” monitor
Custom Graphics and Animation
• Professional custom graphics and animation package.
o Three different video, stats, or in-game progress screens for LED video scoreboard
o Up to (30) team, conference, or sponsor logos with up to (20) animated
o Up to six minutes of moving crowd prompts, situational animations, and sponsor
animation sequences
o Up to ten minutes of sports and event animations relative to Mercy Health Arena
Scoring and Timing
• (2) ISC-EDGE-X9 Wireless scoring controllers
• (2) ISCRMT-GT handheld game time remotes
• (2) Hard sided carrying cases
• (1) M6018CICE Hockey Scoreboard
o Dimensions: W: 18', H: 3'10", D: 4"
o Choice of enclosure color from a wide range of options
o Digits & Indicators: 14” Time and Score, 10” Period, Player, and Penalty
o 5” Electronic Team Names (8 character)
• Double-Sided LED Goal Light Strips
o LEDs illuminate both Red (Goal) and Green (EOP)
• (3) M1200IWV 4” Locker Room Clocks
o Clocks synchronized with scoring and timing data
• DIST-1I3O small distribution panel
www.oes-scoreboards.com | 1.877.652.5833
OES Inc. | 4056 Blakie Rd., London ON Canada N6L 1P7
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4096 Blakie Road,
London, Ontario
Canada, N6L 1P7
U.S & Canada
1-877-652-5833
sales@oes-inc.com
oes-scoreboards.com
Page 38 of 177
Seventh Amendment to Shared Use Agreement
This Seventh Amendment to Shared Use Agreement (“Seventh Amendment”) dated
effective ___________ ___, 2024 (“Effective Date”), is entered into between the City of
Muskegon, a municipal corporation, of 933 Terrace Street, Muskegon, Michigan 49440 (“City”)
and Muskegon Lumberjacks Organization, LLC, a Michigan limited liability company, of 470
W. Western Avenue, Muskegon, Michigan 49440 (“Lumberjacks”) (collectively, the “Parties”)
with reference to the following facts:
Background
A. The City and WC Hockey, LLC entered onto a Shared Use Agreement dated July
1, 2019, which WC Hockey, LLC has assigned to Muskegon Lumberjacks Organization, LLC.
B. The Shared Use Agreement has been amended by the First Amendment dated July
1, 2019 which revised paragraphs 3 (Term: Early Termination), 12(a) (Shared Sponsorships) and
14(c) (Additional Lease Space, Future Restaurants, Pubs or Retail Space); Second Amendment
dated July 1, 2019 which revised paragraphs 4(c) (Minimum Gross Revenue) and 12(a) (Shared
Sponsorship); Third Amendment dated July 1, 2019 which revised Paragraphs 12 (Sponsorship
and Advertising), 14(a) (Capital Construction), 18 (City Participation), and WZZM Studio
Space; Fourth Amendment dated July 1, 2019 which revised paragraph 14(a) (Capital
Construction); Fifth Amendment dated July 1, 2021 which revised Paragraph 3 (Term); and
Sixth Amendment dated May 23, 2023, which revised Paragraph 3 (Term), Initial Term and
Options, Additional Work, Lumberjacks Breach, City Breach and Consolidation of Agreement
and Amendments.
C. The Sixth Amendment contemplated the City and Lumberjacks would work
together in good faith to enter into written agreements to make future improvements to the Arena
(i.e. Additional Work”). To that end, the Parties desire to enter this Seventh Amendment to set
forth the terms and conditions according to which the City will share in the costs of purchase and
installation of a new overhead Scoreboard in the Arena.
Therefore, the Agreement is amended and modified as follows:
1. Paragraph 14 (a). Capital Construction. This paragraph is modified as
follows:
The City intends to purchase a new Scoreboard, the cost for which will be $400,000.00.
The City will pay one-half of the cost of the Scoreboard upfront. The Lumberjacks will
advance to the City the balance of the purchase price in the amount of $200,000.00
(“Scoreboard Advance”), which shall be reimbursed to the Lumberjacks through seven
annual offsets against future Base Rent owed by the Lumberjacks to the City. Interest
shall accrue on the Scoreboard Advance at the annual rate of 5.25% beginning in the
2027-2028 Season.
Page 39 of 177
The Lumberjacks are currently entitled to Base Rent offsets for Capital Construction
advances made to the City by the Lumberjacks in 2019, which shall expire after the 2026-
2027 Season. Therefore, the Base Rent offsets for the Scoreboard Advance shall
commence in the 2027-2028 Season.
The Lumberjacks shall be repaid through annual offsets against Base Rent owed by the
Lumberjacks to the City during the last three years of the Second Option Period (i.e.
years 10 through 12) and the first four years of the Third Option Period (i.e. years 13 and
16) under this Agreement (together, the “Repayment Period”). The annual rent offsets
shall be applied to first rents coming due to the City during each year of the Repayment
Period as follows: 2027-2028 Season: $33,250.89; 2028-2029 Season: $33,250.89;
2029-2030 Season: $33,250.89; 2030-2031 Season: $33,250.89; 2031-2032
Season: $33,250.89; 2032-2033 Season: $33,250.89; and 2033-2034 Season:
$33,250.89.
2. Full Force and Effect. Except as set forth in this Seventh Amendment, the terms
and conditions of the Agreement shall remain in full force and effect.
3. Counterparts/Electronic Signature. This Seventh Amendment may be executed
in any number of counterparts and by different parties to this Amendment on separate
counterparts, each of which, when so executed, will be deemed an original, but all such
counterparts will constitute one and the same amendment. Any signature delivered by a party by
fax or email will be deemed to be an original signature.
4. Full Execution. This Seventh Amendment requires the signature of both parties.
Until fully executed, on a sign copy or in counterparts, this Seventh Amendment is of no binding
or effect and if not fully executed, this Seventh Amendment is void.
The Parties hereto have executed this Seventh Amendment as of the Effective Date.
Lumberjacks – City –
Muskegon Lumberjacks Organization, LLC City of Muskegon
By: __________________________ By: __________________________
Name: Andrea Rose Name: Ken Johnson
Title: President of Business Operations Title: City Mayor
By: __________________________
Name: Ann Marie Meisch
Title: City Clerk
Page 40 of 177
08/08/2024 3:44 PM
Compounding Period: Monthly
Nominal Annual Rate: 5.250%
Cash Flow Data - Loans and Payments
Event Date Amount Number Period End Date
1 Loan 07/01/2027 200,000.00 1
2 Payment 07/01/2027 33,250.89 7 Annual 07/01/2033
TValue Amortization Schedule - Normal, 365 Day Year
Date Payment Interest Principal Balance
Loan 07/01/2027 200,000.00
1 07/01/2027 33,250.89 0.00 33,250.89 166,749.11
2027 Totals 33,250.89 0.00 33,250.89
2 07/01/2028 33,250.89 8,968.08 24,282.81 142,466.30
2028 Totals 33,250.89 8,968.08 24,282.81
3 07/01/2029 33,250.89 7,662.11 25,588.78 116,877.52
2029 Totals 33,250.89 7,662.11 25,588.78
4 07/01/2030 33,250.89 6,285.89 26,965.00 89,912.52
2030 Totals 33,250.89 6,285.89 26,965.00
5 07/01/2031 33,250.89 4,835.66 28,415.23 61,497.29
2031 Totals 33,250.89 4,835.66 28,415.23
6 07/01/2032 33,250.89 3,307.44 29,943.45 31,553.84
2032 Totals 33,250.89 3,307.44 29,943.45
7 07/01/2033 33,250.89 1,697.05 31,553.84 0.00
2033 Totals 33,250.89 1,697.05 31,553.84
Grand Totals 232,756.23 32,756.23 200,000.00
Last interest amount increased by 0.02 due to rounding.
Page 1 of 2
Page 41 of 177
08/08/2024 3:44 PM
ANNUAL FINANCE Amount Financed Total of Payments
PERCENTAGE CHARGE
RATE The amount of credit The amount you will
The dollar amount the provided to you or on have paid after you
credit will cost you. your behalf. have made all
The cost of your credit
payments as
as a yearly rate.
scheduled.
5.378% $32,756.23 $200,000.00 $232,756.23
Page 2 of 2
Page 42 of 177
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: August 27, 2024 Title: Rooftop Solar Lease
Submitted by: Dan VanderHeide, Public Works Department: Public Works
Director
Brief Summary:
Staff requests approval to enter into a lease with Sunwealth LLC for space on the Trinity Health Arena
rooftop for the installation of photovoltaic solar energy generation equipment.
Detailed Summary & Background:
The solar system installed on the arena roof has been in operation for nearly six months, however in
reviewing their files the system owner (Sunwealth LLC) realized that a lease, granting them the right to
install the system on the arena roof, had not been executed. Attorney's at Sunwealth and Miller
Canfield (on behalf of the City) worked to develop this lease and it is presented to the Commission
for approval. The term of the lease is concurrent with the power purchase agreement (PPA) that
governs the two parties' use and maintenance of the system, which is for 25 years unless extended or
unless the City purchases the equipment earlier. This does not change any of the particulars of the
solar project, it simply allows the system to sit on the arena roof as intended.
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Sustainability in financial practices and infrastructure
Goal/Action Item:
2027 GOAL 4: FINANCIAL INFRASTRUCTURE - Increase revenue
Amount Requested: Budgeted Item:
N/A Yes No N/A X
Fund(s) or Account(s): Budget Amendment Needed:
N/A Yes No N/A X
Recommended Motion:
To authorize staff to enter into a lease with Sunwealth LLC for space on the Trinity Health Arena
rooftop for the installation of photovoltaic solar energy generation equipment.
Approvals: Guest(s) Invited / Presenting:
Immediate Division X
Head No
Information
Technology
Page 43 of 177
Other Division Heads X
Communication
Legal Review
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Trinity Health Arena
ROOFTOP SYSTEM SITE LEASE AGREEMENT
This ROOFTOP SYSTEM SITE LEASE AGREEMENT (this “Lease”) is made and
entered into effective as of March 30, 2023 (the “Effective Date”) by and between Sunwealth
LLC, a Delaware limited liability company, having an office located at 2067 Massachusetts Ave
Suite 540, Cambridge, MA 02140 (“Lessee”), and the City of Muskegon, Michigan, a Michigan
Municipal Corporation, and located at 933 Terrace St, Muskegon, Michigan (“Lessor”). Each
of Lessor and Lessee are sometimes referred to as a “Party” and collectively as the “Parties.”
“Lessee” shall include any permitted assignees pursuant to an assignment under Section 10.1.1.
WHEREAS, Lessor is the owner of certain improved real property located in City of
Muskegon known as the Trinity Health Arena (the “Premises”), and desires to grant a non-
exclusive lease of the rooftop areas on said improvements, all as more particularly described on
Exhibit A attached hereto (the “Project Site”), and which includes the area on which the System
will be installed as depicted on Exhibit A (the “Project Area”);
WHEREAS, pursuant to the terms of this Lease and that certain Power Purchase
Agreement (“PPA”) between Lessee as Seller and Lessor as Purchaser, dated as of the date hereof,
Lessee will be the developer, own, and operate of photovoltaic solar energy generation equipment
(the “System”) as described in Exhibit C, and associated facilities and desires to obtain a non-
exclusive lease of the Project Site, in order to install and operate the System in the Project Area;
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, Lessor and Lessee hereby agree as follows:
AGREEMENT
1. DEFINITIONS. Capitalized terms shall have the meanings assigned to them herein or in
the body of the Lease.
2. LEASE.
2.1 Lease. For and in consideration of the Lease on the part of Lessee contained herein,
and under and subject to the terms and conditions hereof, Lessor hereby leases to Lessee and
Lessor leases from Lessee, as hereinafter set forth, a non-exclusive right to the Project Site and
exclusive right to the Project Area, including all air space thereof, located in the City of Muskegon,
Muskegon County, State of Michigan, further described on Exhibit A, Upon completion of
construction of the System, Lessee shall provide a revised Exhibit A to reflect the as-built
configuration of the System and Project Area. Therefore, this Agreement is an interest in and
encumbrance upon the Premises which shall run with the land and shall be binding upon the
Premises, and Lessor and its successors and assigns for the benefit of Lessee and its successors
and assigns.
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2.2 Term. The Parties acknowledge that, subject to the express provisions in this Lease
regarding earlier termination, this Lease shall be coterminous with the term of the PPA. (the
“Term”).
The initial term of this Lease (the "Initial Term") shall comrmence on the Effective Date and shall
continue through the last day of the twenty-fifth (25th) Commercial Operation Year (as defined in
the PPA) following the Commercial Operation Date (as defined in the PPA), unless othemrise
terminated earlier as provided hereunder.
This Lease may be renewed for an additional term (an "Extension Term") if the term of the PPA
is extended as provided in the PPA or othenvise. In the event of an Extension Term, such extension
period shall be upon the same terms and conditions as are provided for in this Lease. As used in
this Lease, the "Term" of this Lease shall refer to the Initial Term and any Extension Term, as
applicable.
In the event Lessor exercises an option to purchase pusuant to the PPA or Lessee otherwise
transfers the equipment constituting tbe System to Lessor under the PPA, this Lease shall terminate
as of the date of the closing of the transfer.
ln the event that the PPA is terminated or expires for any other reason, Lessee shall (i) surrender
the Premises in accordance with Section 5.2 of this Lease and (ii) remove the System in accordance
with Section 2.5 of the PPA. For the avoidance of doubt, if Lessor does not exercise its purchase
option under the PPA, Lessor hereby grants Lessee a license to enter and remove the System upon
the expiration or termination of this Lease in accordance with Section 2.5 of the PPA.
2.3 Payment to Lessor. Lessee shall pay to Lessor as rent the one-time sum of $1.00
(the “One-Time Payment”) within fifteen (15) days after execution of this Agreement by both
Parties. Lessor acknowledges and agrees that the One-Time Payment constitutes payment in full
of rent for the Term, and no additional amount shall be due or owing to Lessor under this
Agreement.
2.4 Permitted Uses. Lessee shall have the exclusive right to occupy and use the Project
Area for solar energy conversion, for the collection and transmission of electric power, and for
related and incidental purposes and activities (collectively, “Operations”) including, but not
limited to, the construction, installation, improvement, relocation, operation, maintenance and
repair of the System and removal of the System. Lessee agrees that said right shall be non-
exclusive to other uses of the rooftop areas to be leased.
2.5 Lessee’s Exercise of Rights. Lessee may construct and install the System on the
Premises in the manner Lessee deems reasonable and appropriate; provided, however, that Lessee
shall not unreasonably interfere with Lessor’s use, operation, or maintenance of the Premises. The
System shall be installed within the areas of the Project Site.
2.6 Premises Utilities. Lessor shall provide existing and available utilities to the Project
Site in connection with Lessee's construction, start-up, maintenance, repair, replacement, operation
and removal of the System. Lessor acknowledges and agrees that Lessee’s use of the Premises
includes the nonexclusive appurtenant right to the use of water lines, sewer lines, storm water lines,
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power lines, and telephone and communication lines provided those uses are directly related to its
Operations at the Premises.
2.7 Construction Laydown Area. Lessor shall provide Lessee sufficient space on the
Premises for the temporary storage and staging of tools, materials and equipment reasonably
necessary during installation and any maintenance, repair, replacement or removal of the System,
provided that Lessee shall use commercially reasonable efforts to minimize disruption to Lessor’s
operations, and provided further that Lessee understands and acknowledges that space is limited
at the Premises. Lessor and Lessee shall coordinate and cooperate in determining the amount of
space and specific portion of the Premises necessary for such purposes.
2.8 Notice. Except as may be required by an emergency, Lessee shall give Lessor
reasonable written or telephonic notice before any entry onto the Premises outside of normal
business hours by Lessee’s employees, agents, or contractors. Notwithstanding anything to the
contrary in this Agreement, Lessee shall be permitted to access the Premises (i) during normal
business hours and (ii) twenty-four (24) hours a day, seven (7) days a week for emergency purposes
as reasonably determined by Lessee. In the event Lessee enters the Premises due to an emergency,
Lessee shall promptly notify Lessor of its entry and the nature of the emergency. Unless otherwise
agreed in advance, normal business hours shall mean Monday through Saturday, 7AM through
7PM.
3. EASEMENTS.
3.1 Access Easement and Use Rights. Lessor grants Lessee a nonexclusive easement
for access and use of the Premises, on, under, over, and across the Premises as mutually agreed
upon and detailed in Exhibit A (collectively, the “Easement Area”), for the purposes of locating,
installing, operating, maintaining, improving, repairing, relocating, and removing the System on
the Premises (the “Use Rights”). The Use Rights include the right of parking, access, and ingress
to and egress from the System on, over, and across the Easement Area during the Term, and shall
survive for a period of one hundred eighty (180) days following the termination of this Lease for
the purpose of removing the System. Without limiting the foregoing grant, Lessor covenants that
the Use Rights may be used to achieve all the purposes set forth in this Agreement. Throughout
the Term of the Lease, as described below, Lessor hereby grants Lessee an easement through the
Building, including all elevators, stairways or other access points of egress and ingress for
purposes of accessing the Rooftop for the purpose described herein and pursuant to the terms and
conditions set forth below.
3.2 Solar Easement. Lessor hereby grants Lessee a solar easement on, over, and above
the Easement Area for the free passage of solar radiation to the System. Lessor shall not obstruct,
or allow any tenant, contractor, employee or assignee of Lessor to obstruct, the passage of direct
solar radiation across the Easement Area to the System. Trees, structures, and improvements
located on the Easement Area as of the Effective Date shall be allowed to remain, and Lessee may
not require their removal; provided that Lessee may require that any trees or other vegetation be
pruned or trimmed to the point that they do not obstruct the passage of direct solar radiation across
the Easement Area to the System to a degree greater than on the Effective Date. Neither Lessor
nor any of Lessor’s tenants, contractors, employees or assignees shall place or plant any trees,
structures, or improvements on the Easement Area after the Effective Date that may, in Lessee’s
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sole judgment, impede or interfere with the passage of direct solar radiation to the System, unless
Lessor has received prior written approval from Lessee. Lessee and Lessor further agree to execute
and record such instruments or addenda to this Agreement as may be required under applicable
State or local law to evidence the solar easement granted in this Section.
4. RIGHTS OF LESSEE.
4.1 Solar Resources. Lessee shall have the sole and exclusive right to convert all of the
solar resources of, and to conduct Operations on, the Project Area. Lessor shall not grant any
rights in the Premises purporting to permit others to conduct Operations on the Premises in
derogation of Lessee’s sole and exclusive rights and privileges hereunder for a period of ten (10)
years from the Effective Date of this Lease. Without the prior written consent of Lessee, Lessor
shall not (i) waive any right available to Lessor or grant any right or privilege subject to the consent
of Lessor by law or contract, including without limitation any environmental regulation, land use
ordinance, or zoning regulation, with respect to setback requirements, or other restrictions and
conditions respecting the placement of the System on the Premises or (ii) grant, confirm,
acknowledge, recognize, or acquiesce in any right claimed by any other Person to conduct
Operations on the Premises, and Lessor agrees to give Lessee notice of any such claims and to
cooperate with Lessee in resisting and disputing such claims.
4.2 Signage. All permanent signs located on the Premises shall be subject to the
reasonable requirements of the Lessor. Temporary signage during construction shall be permitted,
subject to Lessor's prior approval as to the type, size, number, location and duration of such
proposed signs, which approval shall not be unreasonably withheld or delayed. All other signage
shall be prohibited.
4.3 Enforcement of Legal Rights. Lessee shall have the right to enforce Lessor’s rights
under applicable laws protecting solar energy systems from obstruction. Lessor shall cooperate
with any efforts by Lessee to enforce such rights.
4.4 Non-Interference. In no event during the Term will Lessor construct, build or
locate, or allow others to construct, build, or locate any equipment or facilities (solar or
otherwise) that would interfere with the Solar Equipment or otherwise engage in, or allow others
to engage in activity, that might impede the Solar Equipment's access to the sun or decrease the
output or efficiency of the Solar Equipment.
5. CONSTRUCTION, COMMERCIAL OPERATIONS AND SYSTEM REMOVAL.
5.1 Construction. Lessee is responsible for designing, constructing, operating and
maintaining the System in compliance with any and all applicable permits or authorizations needed
from any Governmental Authority or Utility for construction, operations, maintenance, and
decommissioning of the System. In accordance with the terms of this Lease and the PPA, Lessor
shall install or cause to be installed the Systems in a good and workmanlike manner free from
defects, which, upon the Commercial Operation Date, such Systems will have an aggregate
approximate nameplate generating capacity rating as shown in Exhibit B of the PPA.
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5.1.1 Consent. Lessor hereby consents to the construction of the System, at
Lessee’s sole cost and expense, in accordance with the plans and specifications set forth on the
attached Exhibit C.
5.1.2 Safety and Compliance. Lessee shall, or cause its contractors and
subcontractors to, comply with Lessor’s reasonable and customary safety requirements and to
coordinate construction of the System with Lessor so as to reasonably minimize disruption to the
Premises and to Lessor’s normal operations and activities thereon. Lessee shall further cause its
contractors, subcontractors, employees and representatives to comply at all times comply with all
applicable federal, state and local laws, ordinances, rules, and regulations applicable to the
construction, owenrship, operation and or maintenances of the System.
5.1.3 Hazardous Materials. Lessee shall not use, store or release Hazardous
Materials on the Premises. As used in this Agreement, “Hazardous Materials” means any
substance, material, waste, pollutant, or contaminant listed or defined as hazardous or toxic under
any applicable law, and asbestos and petroleum, including crude oil or any fraction thereof, natural
gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and
such synthetic gas).
5.1.4 Additional Requirements. Lessee shall submit to Lessor for Lessor’s
approval, at least fifteen (15) days prior to the proposed construction start date, a proposed
construction schedule identifying the times at which Lessee desires to conduct construction
activities on the Premises. If Lessor objects to the proposed construction schedule, Lessor and
Lessee shall cooperate to come to an agreement upon such schedule. If at any time during the Tern
of this Agreement either Party requests a change to the construction schedule, the Parties shall
cooperate with each other to revise the construction schedule in writing.
5.1.5 Changes, Alteration and Additions. Lessee shall provide Lessor with
Lessee’s drawings of the System (the “Drawings”) and Lessor shall, within fifteen (15) business
days of receipt thereof, either (i) approve such Drawings or (ii) provide Lessor with comments to
such Drawings. If Lessor does not provide approval or comments to Lessee within such fifteen
(15) business day period, the Drawings shall be deemed approved by Lessor. If Lessor provides
comments to such Drawings during such fifteen (15) business day period, Lessee and Lessor shall,
in good faith, work together to finalize the Drawings. Except as otherwise set forth in the
Drawings, Lessee shall not make any alterations, additions, or improvements to the Premises
("Alterations") without the prior written consent of Lessor, which shall not be unreasonably
withheld or delayed. All Alterations shall be done in a good and workmanlike manner and so as
not to damage or alter the primary structure or structural qualities of any building, and shall be lien
free upon completion, and shall be undertaken and completed in accordance with Applicable Laws.
5.1.6 Acknowledgment of Lessor for Roof Mounted Systems. Lessor
acknowledges that the installation of all or a portion of the System will require physically mounting
and adhering the System to the roof of the Premises, including penetrations into the roof surface.
Lessor agrees to review and approve any System load studies provided by Lessee, including those
relating to the weight of the System and the integrity of the roof. Installation of the System shall
be completed in a manner so as not to damage the building upon which such System is installed.
If damage to a building occurs as a result of Lessee’s acts or omissions, Lessee shall promptly
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repair such damage at its sole cost and expense. Lessee shall, at Lessee’s sole cost and expense,
shall operate and maintain the System in good repair and condition, in accordance with all
applicable laws, in such a manner so as not to unreasonably interfere with any other equipment or
systems (including HVAC systems, satellite, antennae, or other transmission facility) existing as
of the Commencement Date on the building or their equivalent replacements after the
Commencement Date.
5.1.7 Notification During Construction. Lessee shall promptly notify Lessor in
writing of any actions, claims, suits, notices of violation, fines, penalties, orders, revocations, and
other proceedings related to violations or alleged violations of environmental laws, including, but
not limited, to permits issued thereunder, which are asserted against Lessee or any of Lessee's
personnel in connection with the Systes or their activities on, along, adjacent to or near the
Premesis by any Governmental Authority. Lessee will keep Lessor informed on a regular basis of
the progress made and resolution of such events.
5.1.8 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 5.1.8 (the
“Conditions") and shall include a declaration by Lessor to that effect. The Conditions are:
(a) The System is capable of delivering Energy Output to the Point of
Delivery as provided in Section 4.9 of the PPA;
(b) 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;
(c) The System has, if applicable, demonstrated the reliability of its
communications systems; and
(d) 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.
5.2 Removal Upon Termination. Upon the termination or expiration of this Agreement
for any reason, Lessee shall, within one hundred eighty (180) days after the date of expiration,
remove the System from the Premises, and restore the rooftop to its condition as of the Effective
Date, normal wear and tear excepted. Removal of the System shall be at the cost of Lessee.
6. THE PREMISES.
6.1 Confirmation of Ownership. At the request of Lessee, Lessor shall obtain executed
and acknowledged instruments and such other documents as Lessee or Lessee’s title company may
require to confirm Lessor’s ownership of the Premises or to complete or evidence the full granting
of the leasehold interest in the Premises as intended by this Agreement. Lessee shall be responsible
for obtaining any Premises or Project Area surveys, if necessary, that are not already in the Lessor’s
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possession. Lessor shall not be responsible for any third-party costs associated with this Section
6.1.
6.2 Liens.
6.2.1 Subordination. If any recorded or unrecorded lien, encumbrance, covenant,
condition, reservation, restriction, easement, lease, sublease, occupancy, tenancy, mineral right,
option; right of first refusal or other matter (each, an "Encumbrance") is found or claimed to exist
against the Premises or any portion thereof (regardless whether such Encumbrance existed as of
the date hereof or was created thereafter), and Lessee determines that such Encumbrance might
delay, interfere with or impair the operation of the System in accordance with the terms of the
PPA' the exercise of any of Lessor's other rights under this Lease or the financing of any project,
then Lessor shall be entitled to obtain a subordination, non-disturbance agreement, consent or other
agreement (in a form and containing provisions reasonably requested by Lessor) from the holder
of such Encumbrance. Lessor shall fully and promptly cooperate with Lessee's efforts to obtain
the same, and Lessor shall be reimbursed for such cooperation.
6.2.2 Notice to Premises Lienholders and Release. Lessor shall give effective
notice of Lessee’s ownership of the System and the System’s status as personal property to all
parties having an interest in or any mortgage, pledge, lien (including mechanics’, labor or
materialmen’s liens), charge, security interest, or encumbrance of any nature (collectively,
“Liens”) upon the real property and fixtures that are part of the Premises. If there is any Lien
against the Premises that could reasonably be construed as prospectively attaching to the System
as a fixture of the Premises, Lessor shall obtain a disclaimer or release of such Lien. Lessor
consents to the filing of a disclaimer of the System as a fixture of the Premises in the office where
real estate records are customarily filed in the jurisdiction of the Premises, and any other filing by
Lessee in a public office regarding its ownership of the System deemed necessary or appropriate
by Lessee, and Lessor hereby appoints Lessee as its agent with regarding to any such filing and
authorizes Lessee to take required actions on Lessor’s behalf required for such filing.
6.2.3 System Liens. Lessor shall not directly or indirectly allow any Lien on or
with respect to the System by, through or under Lessor. If Lessor becomes aware of a Lien on the
System by, through or under Lessor, Lessor shall promptly give Lessee written notice of such Lien
and shall take such action as is necessary or appropriate to have such Lien discharged and removed.
Lessor shall indemnify Lessee against all reasonable costs and expenses (including reasonable
attorneys’ fees) incurred in discharging and releasing any such Lien.
6.2.4 Premises Liens. Lessee shall not directly or indirectly allow any Lien by,
through or under Lessee, on or with respect to the Premises or any interest therein, excluding
Lessee’s leasehold interest created pursuant to this Agreement, or any other asset of Lessor,
including, without limitation, any Lien arising from or relating to the construction, ownership,
maintenance or operation of the System by Lessee. Lessee shall defend and indemnify Lessor
against all costs and expenses (including reasonable attorneys’ fees and court costs at trial and on
appeal) incurred in discharging and releasing any such Lien.
6.3 Quiet Enjoyment. Lessee shall enjoy quiet and peaceful use, enjoyment and
possession of the Premises, free from any claim of any entity or person of superior title thereto
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without hindrance to or interference with or molestation of Lessee’s quiet enjoyment thereof, and
neither Lessor nor any person claiming by, through or under Lessor shall disturb Lessee’s quiet
and peaceful use, enjoyment and possession of the Premises.
6.4 No Interference. Lessor hereby agrees, for itself, its agents, employees,
representatives, successors, and assigns, that it will not initiate or conduct activities that it knows
or reasonably should know may damage, impair, or otherwise adversely affect the System or its
functions, including without limitation activities that may adversely affect the System’s exposure
to sunlight. Lessor further covenants for itself and its agents, employees, representatives,
successors, and assigns that it will not (i) interfere with or prohibit the free and complete use and
enjoyment by Lessee of its rights granted under this Agreement; (ii) take any action that will
interfere with the availability and accessibility of solar radiation over and above the Premises; (iii)
take any action that will or may interfere with the transmission of electrical energy to or from the
Premises; (iv) take any action that may impair Lessee’s access to the Premises for the purposes
specified in this Agreement; (v) plant or maintain any vegetation or erect or maintain any structure
that will, during daylight, cast a shadow on the System; or (vi) take any action that may impair
Lessee’s access to any portion of the System.
6.5 System Property of Lessee; Transfer of the Premises. Lessor acknowledges and
agrees that Lessee is the exclusive owner and operator of the System and all equipment (including,
but not limited to, photovoltaic modules or panels, inverters, meters, wire, data monitoring
equipment, and cabling), components and moveable property of Lessee attached to or used in the
operation of the System, that no portion or component of the System is a fixture, and that in the
event that the Premises are sold, leased, assigned, mortgaged, pledged, or otherwise alienated or
encumbered (a “Transfer”), such Transfer shall not attach to or affect the System, or Lessee’s
ownership rights to the System.
6.6 Transfer of Premises. Lessor shall not Transfer all or any portion of the Premises
unless the transferee agrees in writing that its interest in the Premises is subject and subordinate in
all respects to the terms of this Lease. Lessor shall give Lessee at least sixty (60) days’ prior notice
of any Transfer of all or any portion of the Premises. Any such notice shall identify the transferee,
the portion of the Premises to be transferred, and the proposed date of the Transfer.
6.7 Premises Security, Health and Safety. Lessor shall provide reasonable measures
for the security of the Premises, including restricting access to the area on which the System is
located and providing monitoring of the Premises’ security alarms, if applicable. Lessor shall
maintain the Premises in a structurally sound and safe condition consistent with all applicable
Laws. If Lessor becomes aware of any circumstances relating to the System that creates an
imminent risk of damage or injury to the System or any employee of Lessee, Lessor shall promptly
notify Lessee.
6.8 System Security. Lessee may install all security measures that Lessee, in its sole
discretion, determines are or may be reasonably necessary for the System. Such measures may,
but will not necessarily, include warning signs, fences, barbed wire closed and locked gates, and
other measures appropriate and reasonable to protect against damage or destruction of the System
or injury or damage to persons or property resulting from the System and Operations.
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6.9 Maintenance of Premises. Lessor shall, without interfering with the operation of
the System, maintain the Premises in good condition and repair, including the integrity of the roof,
so that Lessee is able to comply with its obligations under this Agreement. Lessor shall use
commercially reasonable efforts to maintain Lessor’s electrical energy equipment located on the
Premises in good condition and repair so as to be able to receive and use the Energy generated by
the System. Lessor shall maintain its connection and service contract(s) with its local utility, or
any successors thereto, so that Lessor can, upon any suspension or interruption of delivery of
energy from the System, provide the Premises with its full requirements for electricity.
6.10 System Maintenance. During the Term, Lessee shall, at Lessee’s sole cost,
maintain the System, the Project Site and all areas of the Premises used by Lessee in the
Operations, in accordance with applicable laws and Prudent Operating Practices. Seller shall
promptly notify Purchaser of any matters of which it is aware pertaining to any damage to or loss
of use of a System or that could reasonably be expected to adversely affect a System or the
Premesis. Seller shall repair any damage to the System arising out of any circumstance, other than
obligations of the Purchaser identified in this Agreement or the Lease and the acts or omissions or
malfeasance of the Purchaser's agents or employees.
6.11 Roof Maintenance. Lessor shall be solely responsible for, and bear all costs and
expense relating to, maintaining the roof of the buildings on which the System is located, including
all required repair (including leak repair), remediation and maintenance of such roof, unless such
repair, remediation and maintenance is required as a direct result of the negligent installation,
maintenance, or repair of the System. Lessor shall consult with Lessee before performing any
required roof repair, remediation and maintenance that may affect the System, and Lessee shall be
permitted to witness any such repair, remediation and maintenance. In the event the System must
be temporarily disconnected or removed in order for Lessor to perform roof repair, remediation or
maintenance, Lessor shall consult with Lessee in advance of any such activity, Lessee shall
disconnect and remove the System at Lessor’s expense, and Lessor shall pay to Lessee lost income
and environmental attribute Damages for the period during which the System is disconnected.
Lessor shall be responsible for maintaining and enforcing all warranties relating to the roof.
6.12 System Relocation. In the event of an emergency, Lessor may request that Lessee
relocate the System, at Lessor’s expense, to another suitable location on the Premises, provided
that (a) the Parties shall use reasonable efforts to perform the relocation during the months of
October through March and outside of normal business hours and (b) Lessor shall pay to Lessee
lost income and environmental attribute Damages for the period during which the System is
disconnected in connection with such relocation.
6.13 Clean Condition. Lessee shall not unreasonably clutter the Project Site or the
Premises and shall collect and dispose of any and all of Lessee’s refuse and trash.
6.14 Taxes. Lessor shall be responsible for any personal property and real estate taxes
levied against any property installed by Lessor on the Premises and for any real estate taxes, if
any, caused by Lessor's use of the Premises. If Lessor fails to pay the taxes or any other monetary
obligations for which it is responsible hereunder, or otherwise defaults under this Agreement, then,
in addition to its other rights and remedies, Lessor shall have the right to pay such taxes and other
obligations, and/or cure any such default by any appropriate means; and the cost thereof shall be
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reimbursed to Lessor by Lessee within thirty (30) days of Lessor's demand. If Lessee fails to pay
Lessor within said thirty (30) days, Lessor may offset such cost against any amounts owed by it to
Lessee.
6.15 Environmental Attributes. The Parties further agree that all Environmental
Attributes (defined below) and Solar Incentives (defined below) belong solely to Lessee (and/or
to any persons/entities listed as Lessee’s permitted assigns or sub-lessee(s)in Section 15) and shall
remain the personal property of Lessee (and/or of any persons/entities listed as Lessee’s permitted
assigns or sub-lessee(s) in Section 15) and shall not attach to or be deemed a part of, or fixture to,
the Premises. The Solar Facility and other improvements shall at all times retain the legal status
of personal property as defined under Article 9 of the Michigan Uniform Commercial Code.
“Environmental Attributes” shall mean, without limitation, carbon trading credits, renewable
energy credits or certificates, emissions reduction credits, emissions allowances, green tags,
tradable renewable credits, or Green-e® products with respect to the Solar Facility. “Solar
Incentives” include, without limitation, any accelerated depreciation, installation or production-
based incentives, investment and production tax credits and subsidies arising from the Solar
Facility.
7. REPRESENTATIONS AND WARRANTIES
7.1 Representations of Lessor. Lessor represents and warrants to Lessee that:
7.1.1 Lessor has the requisite legal capacity to enter into this Agreement and
fulfill its obligations hereunder, that the execution and delivery by it of this Lease 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 the entering into of this Agreement and the fulfillment of its obligations hereunder does not
contravene any law, statute or contractual obligation of Lessor;
7.1.2 this Agreement constitutes Lessor'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;
7.1.3 no suit, action or arbitration, or legal administrative or other proceeding is
pending or has been threatened against the Lessor that would have a material adverse effect on the
validity or enforceability of this Agreement or the ability of Lessor to fulfill its commitments
hereunder, or that could result in any material adverse change in the business or financial condition
of Lessor;
7.1.4 Lessor owns the Premises in fee simple, subject to no liens or encumbrances
except as set forth in Exhibit B. All persons or entities having any ownership or possessory interest
in the Premises are signing this Agreement;
7.1.5 no governmental approval (other than any governmental approvals which have
been previously obtained) is required in connection with the due authorization, execution and delivery
of this Agreement by Lessor or the performance by Lessor of its obligations hereunder which Lessor
will be unable to obtain in due course; and
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7.1.7 Lessor acknowledges that it has inspected the Rooftop, that Lessor warrants
the condition thereof and its suitability for Lessee’s use, and that, except as may be expressly
provided to the contrary in this Lease, Lessor shall make any alterations, improvements, or repairs
in and to the Rooftop to make same ready for Lessee's use and occupancy.
7.2 Representations of Lessee. Lessee represents and warrants to Lessor that:
7.2.1 Lessee 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 the entering into of this Agreement and the
fulfillment of its obligations hereunder does not contravene any law, statute or contractual
obligation of Lessee;
7.2.2 this Agreement constitutes Lessee’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;
7.2.3 no suit, action or arbitration, or legal administrative or other proceeding is
pending or has been threatened against the Lessee that would have a material adverse effect on the
validity or enforceability of this Agreement or the ability of Lessee to fulfill its commitments
hereunder, or that could result in any material adverse change in the business or financial condition
of Lessee; and
7.2.4 no governmental approval (other than any governmental approvals which
have been previously obtained) is required in connection with the due authorization, execution and
delivery of this Agreement by Lessee or the performance by Lessor of its obligations hereunder
which Lessee will be unable to obtain in due course.
8. DEFAULT; REMEDIES.
8.1 Lessee Default. Each of the following events shall constitute a “Lessee Default”:
8.1.1 Lessee materially breaches any term of this Agreement and (i) if such
breach is capable of being cured within thirty (30) days after Lessor’s notice of such breach, Lessee
has failed to cure the breach within such thirty (30) day period, or (ii) if Lessee has diligently
commenced work to cure such breach during such thirty (30) day period but such breach is not
capable of cure within such period, Lessee has failed to cure the breach within a further one
hundred fifty (150) day period (such aggregate period not to exceed one hundred eighty (180) days
from the date of Lessor’s notice); and
8.1.2 (i) Lessee commences a voluntary case under any bankruptcy law; (ii)
Lessee fails to controvert in a timely and appropriate manner, or acquiesces in writing to, any
petition filed against Lessee in an involuntary case under any bankruptcy law; or (iii) any
involuntary bankruptcy proceeding commenced against Lessee remains undismissed or
undischarged for a period of sixty (60) days.
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8.2 Lessor’s Remedies. If a Lessee Default has occurred and is continuing, Lessor may
terminate this Agreement by written notice to Lessee following the expiration of the applicable
cure period, and may exercise any other remedy it may have at law or equity.
8.3 Lessor Defaults. The following events shall be defaults with respect to Lessor
(each, a “Lessor Default”):
8.3.1 Lessor materially breaches any term of this Agreement and such breach
remains uncured for thirty (30) days following notice of such breach to Lessor, or such longer cure
period as may be agreed to by the Parties; and
8.3.2 (i) Lessor commences a voluntary case under any bankruptcy law; (ii)
Lessor fails to controvert in a timely and appropriate manner, or acquiesces in writing to, any
petition filed against Lessor in an involuntary case under any bankruptcy law; or (iii) any
involuntary bankruptcy proceeding commenced against Lessor remains undismissed or
undischarged for a period of sixty (60) days.
8.4 Lessee’s Remedies. If a Lessor Default has occurred and is continuing, Lessee may
terminate this Agreement by written notice to Lessor following the expiration of the applicable
cure period. Lessee may also exercise any other remedy it may have at law or equity, including
recovering from Lessor all resulting damages, which damages shall include, but not be limited to,
the lost income and environmental attribute Damages and all other amounts of any nature relating
to this Agreement.
9. LIMITATIONS.
9.1 Limitation of Liability. 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. THE FOREGOING NOTWITHSTANDING, THE LOST
INCOME AND ENVIRONMENTAL ATTRIBUTE DAMAGES SHALL NOT BE
CONSIDERED CONSEQUENTIAL DAMAGES AND SHALL NOT BE SUBJECT TO THE
LIMITATIONS SET FORTH IN THIS SECTION.
9.2 Equitable Relief. The Parties acknowledge that money damages would not be a
sufficient remedy for any breach of this Agreement, and that, accordingly, in the event of any
such breach or threatened breach, either Party shall be entitled to immediately seek any and all
remedies available to it at law or in equity, including but not limited to an injunction or specific
performance, from a court of competent jurisdiction.
10. FINANCING ACCOMMODATIONS.
10.1 Lessor Acknowledgment. Lessor acknowledges that Lessee may finance the
System and that Lessee’s obligations may be secured by, among other collateral, a pledge or
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collateral assignment of this Agreement and a security interest in the System. In order to facilitate
such financing, and with respect to each Financing Party Lessor agrees as follows:
10.1.1 Consent to Collateral Assignment. Lessee shall have the right to assign this
Lease as collateral for financing or refinancing of the System, and Lessor hereby consents to the
collateral assignment by Lessee to any Financing Party of Lessee’s right, title, and interest in and
to this Agreement.
10.1.2 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 Lessee, any and all rights and remedies of Lessee under this
Agreement in accordance with the terms of this Agreement. Financing 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 Lessee hereunder or cause to be cured any default or event of default of Lessee
in the time and manner provided by the terms of this Agreement. Nothing herein requires
Financing Party to cure any default of Lessee (unless Financing Party has succeeded to
Lessee’s interests) to perform any act, duty, or obligation of Lessee, but Lessor 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 Lessee to Financing Party, Financing
Party shall give notice to Lessor of the transferee or assignee of this Agreement. Any such
exercise of remedies shall not constitute a Lessee Default.
(d) Upon any rejection or other termination of this Agreement pursuant
to any process undertaken with respect to Lessee under the United States Bankruptcy Code,
at the request of Financing Party made within ninety (90) days of such termination or
rejection, Lessor shall enter into a new site lease agreement with Financing Party or its
assignee on substantially the same terms as this Agreement.
10.1.3 Financing Party Cure Rights. Lessor shall not exercise any right to
terminate or suspend this Agreement unless Lessor has given prior written notice to each Financing
Party of which Lessor has notice. Lessor’s notice of an intent to terminate or suspend must specify
the condition giving rise to such right. Financing Party has 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. Lessor’s and Lessee’s obligations under this Agreement shall otherwise remain in
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effect, and Lessor and Lessee shall be required to fully perform all of their respective obligations
under this Agreement during any cure period.
10.1.4 Continuation Following Cure. If Financing Party or its assignee acquires
title to or control of Lessee’s assets and cures all defaults existing as of the date of such change in
title or control within the time allowed by Section 10.1.3, then this Agreement shall continue in
full force and effect.
10.2 Notice of Defaults and Events of Default. Lessor agrees to deliver to each
Financing Party a copy of all notices that Lessor delivers to Lessee pursuant to this Agreement.
11. NOTICES.
11.1 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 Lessee: Sunwealth, LLC
2067 Massachusetts Ave, Suite 540
Cambridge, MA 02140
Attention: Jonathan Abe
Phone: 617-752-7322
With a copy to:
To Lessor: City of Muskegon
933 Terrace Steet
Muskegon, MI 49440
Attention: Jonathan Seyferth, City Manager
Phone: 231-724-6724
With a copy to: Chart House Energy LLC
1310 11th St.
Muskegon, MI 49441
Attention: Rob Rafson
Phone: 231-246-7816
12. GOVERNING LAW; DISPUTES.
12.1 Choice of Law. This Agreement shall be construed in accordance with the laws of
the State of Michigan, without regard to its conflict of laws principles.
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12.2 Disputes.
12.2.1 Management Negotiations. The Parties shall use all reasonable efforts to
settle disputes through negotiation between authorized members of each Party’s senior
management. Either Party may, by written notice to the other Party, request a meeting to initiate
negotiations to be held within fifteen (15) Business Days of the other Party’s receipt of such
request, at a mutually agreed time and place. If the matter is not resolved within thirty (30)
Business Days of their first meeting, either Party may pursue arbitration in accordance with Section
11.2.2.
12.2.2 Arbitration. Any controversy or dispute not amicably resolved by the
Parties or through management negotiations shall be settled by binding arbitration. Either Party
may initiate arbitration by giving written notice to the other Party. The notice shall state the nature
of the claim or dispute, the amount involved, if any, and the remedy sought. The dispute shall be
submitted to an independent arbitrator mutually selected by the Parties. If the dispute has a value
in excess of $100,000.00, then at the election of either Party, there shall be a panel of three (3)
arbitrators. If the Parties do not mutually agree on the arbitrator(s), the Parties shall then utilize
the American Arbitration Association (or another entity mutually acceptable to the Parties) to
provide the required independent arbitrator(s). The decision of the appointed independent
arbitrator(s) shall be final and binding on the Parties. In rendering a decision, the arbitrator(s) shall
comply with the Construction Industry Arbitration Rules of the American Arbitration Association
then in effect. Notwithstanding that the Construction Industry Arbitration Rules may provide
otherwise, the prevailing Party in any such arbitration shall be entitled to recover its arbitration
cots, inclusive of counsel, expert, arbitrators’ and administrative fees, from the losing Party, as
determined by the arbitrator(s). Any such arbitration shall be conducted in New York, NY.
13. INDEMNIFICATION.
13.1 Lessee’s General Indemnity. Lessee shall indemnify, defend, and hold harmless
Lessor (including Lessor’s permitted successors and assigns) and Lessor’s subsidiaries, directors,
officers, members, shareholders, employees and agents (collectively, “Lessor Indemnified
Parties”) from and against any and all third-party claims, losses, costs, damages, and expenses,
including reasonable attorneys’ fees, incurred by Lessor Indemnified Parties arising from or
relating to (i) Lessee’s breach of this Agreement, or (ii) the negligence or willful misconduct of
Lessee’s invitees. Lessee’s indemnification obligations under this Section 13.1 shall not extend to
any claim to the extent such claim is due to the gross negligence or willful misconduct of any
Lessor Indemnified Party.
13.2 Lessee’s Environmental Indemnity. Lessee shall indemnify, defend and hold
harmless the Lessor Indemnified Parties against, any claims, costs, damages, fees, or penalties
arising from a violation by Lessee or Lessee’s agents or contractors of any federal, State, or local
law, ordinance, order, or regulation relating to the generation, manufacture, production, use,
storage, release or threatened release, discharge, disposal, transportation, or presence of any
Hazardous Material on or under the Premises.
13.3 Lessor’s General Indemnity. To the limited extent permissible under State of
Michigan Law, Lessor shall indemnify, defend, and hold harmless Lessee (including Lessee’s
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permitted successors and assigns) and Lessee’s subsidiaries, directors, officers, members,
shareholders, employees and agents (collectively, “Lessee Indemnified Parties”) from and against
any and all third-party claims, losses, costs, damages, and expenses, including lost income and
environmental attribute Damages and reasonable attorneys’ fees, incurred by Lessee Indemnified
Parties arising from or relating to (i) Lessor’s breach of this Agreement, (ii) the negligence or
willful misconduct of Lessor or Lessor’s invitees, or (iii) the failure of building or roof to support,
in whole or in part, the System as installed, including changes in roof surface incline. Lessor’s
indemnification obligations under this Section 13.3 shall not extend to any claim to the extent such
claim is due to the gross negligence or willful misconduct of any Lessee Indemnified Party.
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.
13.4 Lessor’s Environmental Indemnity. To the limited extent permissible under State
of Michigan Law, Lessor shall indemnify, defend and hold harmless the Lessee Indemnified
Parties for, from, and against, any claims, costs, damages, fees, or penalties, including lost income
and environmental attribute Damages, arising from the presence of any Hazardous Materials on or
under the Premises, except to the extent that such presence is attributable to a violation by Lessee
or Lessee’s agents or contractors of any federal, State, or local law, ordinance, order, or regulation
relating to the generation, manufacture, production, use, storage, release or threatened release,
discharge, disposal, transportation, or presence of any Hazardous Material on or under the
Premises. 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.
14. INSURANCE.
14.1 Insurance Required. Each Party shall maintain in full force and effect throughout
the 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 D. Each policy of insurance maintained by Lessor
shall (a) name Lessee as loss payee (to the extent covering risk of loss or damage to the Premises
or the System) and as an additional named insured as its interests may appear (to the extent
covering any other risk); and (b) contain endorsements providing that such policy shall not be
cancelled or amended with respect to the named insured and its designees without thirty (30) days’
prior written notice to Lessee. 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.
14.2 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.
14.3 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.
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15. MISCELLANEOUS.
15.1 Assignments. 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, Lessee
may assign any of its rights, duties, or obligations under this Agreement, without the consent of
Lessor, (i) to any of its affiliates, (ii) to any third party in connection with a financing transaction,
or (iii) to any purchaser of the System.
15.2 Entire Agreement. This Agreement 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.
15.3 Amendments. This Agreement may only be amended, modified, or supplemented
by an instrument in writing executed by duly authorized representatives of Lessee and Lessor.
15.4 No Partnership or Joint Venture. Lessee and Lessee’s agents, in the performance
of this Agreement, shall act in an independent capacity and not as officers or employees or agents
of Lessor. This Agreement shall not impart any rights enforceable by any third party (other than
a permitted successor or assignee bound to this Agreement).
15.5 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.
15.6 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 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.
15.7 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.
15.8 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.
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15.9 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.
15.10 No Partnership or Sale. Nothing contained in this Agreement shall be deemed or
construed by the Parties or by any third person to create the relationship of principal and agent,
partnership, joint venture, buyer and seller real property, or any other association between Lessor
and Lessee, other than the relationship of lessor and lessee.
15.11 Memorandum of Lease. Lessor and Lessee agree to execute and record a
memorandum of this Lease. Lessor shall execute, with notarization, and deliver to Lessee together
with the its initial delivery of the signed Agreement a recordable Memorandum of Lease in a form
reasonably acceptable to the Parties (“Memorandum of Lease”), which shall include the Exhibit A
description of the Premises and which Lessee shall then record in the Official Records of the
County in which the Premises are located. Lessee shall be responsible for the cost of recordation.
15.12 Estoppel Certificate. From time to time, upon written request by Lessee, Lessor
shall provide within seven (7) days thereafter an estoppel certificate attesting, to the knowledge
of Lessor, of Lessee’s compliance with the terms of this Agreement, or detailing any known
issues of noncompliance.
[SIGNATURE PAGE FOLLOWS]
18
42538557.1/063684.00052
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IN WITNESS WHEREOF, the Parties have caused this System Site Lease Agreement
to be duly executed and delivered as of the Effective Date.
LESSEE LESSOR
Sunwealth, LLC City of Muskegon, Michigan
By: ___________________________ By: ___________________________
Name: Jon Abe Name:
Title: CEO Title:
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EXHIBIT A
PREMISES; PROJECT SITE
Site Address: 470 W. Western, Muskegon, MI 49440
Exhibit A
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EXHIBIT B
ENCUMBRANCES ON LESSOR’S TITLE
Per the City of Muskegon, there are no encumbrances on this property.
Exhibit B
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EXHIBIT C
SYSTEM DESCRIPTION
TRINITY HEALTH ARENA
General Information
Project Address 470 W. Western, Muskegon, MI 49440
Utility Territory Consumers Energy
System Size DC 449.78 kW
System Size AC 400 kW
DC System Voltage 480 V
AC System Voltage 480 V Three Phase V
Project Equipment
Data Acquisition System SolarEdge
Module
Manufacturer Mission
Module Size 430W
# Modules 1,046
Inverter
Manufacturer SolarEdge
Inverter Size 100kW
# Inverters 4
Racking
Description Ballasted roof mount
Manufacturer Unirac Ecofoot 2+
Inter Row Spacing 2ft
Tilt 10
Azimuth 180
Exhibit C
42538557.1/063684.00052
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EXHIBIT D
INSURANCE REQUIREMENTS
(a) Lessee shall obtain and maintain the following insurance policies:
(i) Comprehensive general liability insurance against liability for injury to or death of
any Person or damage to property in connection with the use, operation or condition of the System
of not less than one million dollars ($1,000,000) combined single limit per occurrence and annual
aggregate. Lessor shall be named as an additional insured under this liability insurance, provided
however that Lessee shall in no event be obligated to repair or replace Lessor’s buildings or
Premises;
(ii) Lessee may satisfy the insurance requirements contained in this Agreement though
any combination of primary and/or excess coverage; and
(iii) Lessee may elect to self-insure any or all of the insurance requirements contained
in this Agreement.
(b) Lessor shall obtain and maintain the following insurance policies:
(i) Comprehensive general liability insurance 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 one million dollars ($1,000,000) combined single limit per occurrence
and annual aggregate. Lessee shall be named as an additional insured under this liability insurance;
(ii) All-risk property insurance with coverage equal to the replacement value of the
Premises. Lessee shall be named as an additional insured under this policy;
(iii) Lessor may satisfy the insurance requirements contained in this Agreement though
any combination of primary and/or excess coverage; and
(iv) Lessor may elect to self-insure any or all of the insurance requirements contained
in this Agreement.
Exhibit D
Page 67 of 177
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: August 27, 2024 Title: Fluoride Contract Renewal - DPW Filtraton
Submitted by: Joshua Parmer, Water Filtration Department: Public Works
Brief Summary:
Staff is requesting approval to renew our current contract with Univar to supply fluoride to the Water
Filtration Plant.
Detailed Summary & Background:
The Water Filtration Plant purchases water treatment chemicals as part of a cooperative that
includes six area municipalities. The contracts and bidding processes are managed by the City of
Grand Rapids.
In 2023, the City of Grand Rapids issued public bid invitations to supply and deliver fluoride
(hydrofluorosilicic acid) on behalf of the consortium. Staff had requested and was granted approval
for Univar as the lowest bidder for the delivery of fluoride for a one-year term with two, one-year
renewal options. We are currently at the end of our one-year contract and are requesting to renew it
for a second year (the first of the two renewal periods).
The Water Filtration Plant uses an average of 60 tons of fluoride annually. Under the renewal contract
with Univar, the estimated annual cost based on average use will be $31,500 ($525/ton). An increase
of $1,500 (+$25/ton) from the previous contract. Fluoride purchases are included in the Water
Filtration Plant budget. Based on average use it is anticipated that no budget adjustments will be
required this fiscal year, however the actual amount spent will ultimately depend on water usage.
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Sustainability in financial practices and infrastructure
Goal/Action Item:
2027 GOAL 4: FINANCIAL INFRASTRUCTURE - Reliable and efficient short and long term financial
practices
Amount Requested: Budgeted Item:
$31,500 Yes X No N/A
Fund(s) or Account(s): Budget Amendment Needed:
591-558 Yes No X N/A
Recommended Motion:
To approve a one year renewal of the contract with Univar for the supply and delivery of fluoride at a
cost of $550 per ton.
Page 68 of 177
Approvals: Guest(s) Invited / Presenting:
Immediate Division X
Head No
Information
Technology
Other Division Heads
Communication
Legal Review
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Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: August 27, 2024 Title: Modify MERS Defined Contribution (DC)
Plan Adoption Agreement
Submitted by: Kenneth Grant, Finance Director Department: Finance
Brief Summary:
Modify MERS Defined Contribution Plan Adoption Agreement to lump sum payments of Comp Time.
Detailed Summary & Background:
Modify MERS Defined Contribution Plan Adoption Agreement to lump sum payments of Comp Time.
MERS has requested the city to modify its plan to include comp time payouts. In the past, it was
coded as deferred overtime, which MERS deems as comp time payout.
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Goal/Action Item:
2027 GOAL 4: FINANCIAL INFRASTRUCTURE - Reliable and efficient short and long term financial
practices
Amount Requested: Budgeted Item:
Yes No N/A
Fund(s) or Account(s): Budget Amendment Needed:
Yes No N/A
Recommended Motion:
To adopt the modification to all MERS Defined Contribution plans allowing lump sum payments of
comp time.
Approvals: Guest(s) Invited / Presenting:
Immediate Division
Head No
Information
Technology
Other Division Heads
Communication
Legal Review
Page 111 of 177
Page 112 of 177
MERS Defined Contribution Plan Adoption Agreement
1134 Municipal Way Lansing, MI 48917 | 800.767.MERS (6377) | Fax 517.703.9711 www.mersofmich.com
The Employer, a participating municipality or court within the state of Michigan that has adopted MERS
coverage, hereby establishes the following Defined Contribution Plan provided by MERS of Michigan, as
authorized by 1996 PA 220 in accordance with the MERS Plan Document.
City of Muskegon
I. Employer Name ____________________________________________________ Municipality #: ___________
6116
Division name _____________________________________________________________
Note: This division should reflect how you currently define employees who are eligible to participate, for
example, All full-time Employees, New hires after 1/1/2019, etc.
II. Effective Date
Check one:
A. If this is the initial Adoption Agreement for this group, the effective date shall be the first day
of ______________, 20___.
This municipality or division is new to MERS, so vesting credit prior to the initial MERS
effective date by each eligible employee shall be credited as follows (choose one):
Vesting credit from date of hire No vesting credit
This division is for new hires, rehires, and transfers of current Defined Benefit* division
#___________ and/or current Hybrid division #___________
For divisions that are closing or freezing with or without conversion, the Employer must complete
the Addendum for Plan Freeze, Closure and Conversions
B. If this is an amendment of an existing Adoption Agreement (existing division number
All
_____________), January 1
the effective date shall be the first day of __________________, 21
20_____.
Note: You only need to mark changes to your plan throughout the remainder of this Agreement.
C. If this is to separate employees from an existing Defined Contribution division (existing division
number(s) ________________________________________________________) into a new division,
the effective date shall be the first day of ___________________, 20____.
D. If this is to merge division(s)___________________ into division(s) ____________________, the
effective date shall be the first of ___________________, 20____.
E. If this is an amendment to close Defined Benefit division(s) #_______________ or Hybrid
division(s) _______________ with new hires, rehires, and transfers going into existing Defined
Contribution division # ____________, the effective date shall be _____________ (month/year).
Note: Closing this Defined Benefit or Hybrid division(s) will change future invoices to a flat
dollar amount instead of a percentage of payroll, as provided in your most recent annual
actuarial valuation.
(The amount may be adjusted for any benefit modifications that may have taken place since then).
Form MD-070 (version 2023-02-09) Page 1 of 5
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MERS Defined Contribution Plan Adoption Agreement
III. Plan Eligibility
Only those employees eligible for MERS membership may participate in the MERS Defined Contribution
Plan. If an employee classification is included in the plan, then employees that meet this definition are
required to participate in the plan and earn time toward vesting. All eligible employees must be reported
to MERS reported to MERS and earn time toward vesting. Some excluded classifications require
additional information below. Please describe the specific classifications that are eligible for MERS within
this division:
___________________________________________________________________________________________
(For example: e.g., Full-time employees, Clerical staff, Union Employees participating in XXXX union)
This Division includes public safety employees: Yes No
To further define eligibility (select all that apply):
Not
Employee Classification Included Excluded
Employed
Temporary Employees: Those who will work for the municipality fewer than _____
months in total
Part-Time Employees: Those who regularly work fewer than _______ per _______
Seasonal Employees: Those who are employed for tasks that occur at specific times of
the year
Voter-Elected Officials
Appointed Officials: An official appointed to a voter-elected office
Contract Employees
Other: ___________________________________________________
Other 2: ___________________________________________________
Probationary Periods (select one):
Contributions will begin after the probationary period has been satisfied. Probationary periods
are allowed in one-month increments, no longer than 12 months. During this probationary period,
contributions will not be reported and service toward vesting will begin when probationary period has
ended.
The probationary period will be ______ month(s).
Comments:
Contributions will begin with the employee’s date of hire (no Probationary Period). Effective with the
date of hire, wages and any associated contributions must be submitted to MERS.
Form MD-070 (version 2023-02-09) Page 2 of 5
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MERS Defined Contribution Plan Adoption Agreement
IV. Provisions
1. Leaves of Absence
Regardless of whether an employee is earning a wage while on the following types of leave:
• Third-party wages are not used in determining contributions for periods of leave.
• Vesting under elapsed time continues to accrue even if wages are not earned and contributions
are zero.
Note: Employers who determine vesting based on an “hours-reported” method, should report
actual worked hours for the month where there was a leave.
Types of leave include:
• Short Term and Long Term Disability
• Workers Compensation
• Unpaid Family Medical Leave Act (FMLA)
Leaves of absence due to military service are governed by the federal Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA), IRC 414(u), effective January 1, 2007,
IRC 401(a)(37). Military reporting requires historical wage and contribution reporting for Defined
Contribution as applicable.
2. Definition of Compensation
The Definition of Compensation selected must be used when determining both employer and
employee contributions. Employers may include wage information along with employee and employer
contributions when submitting wage/contribution reports to MERS.
Select your Definition of Compensation:
Click here to view details
Base Wages Box 1 Wages of W-2 Gross Wages of Base, Box 1, and
Gross Wages
Custom Definition
(To customize your definition, please complete the Custom Definition of Compensation Addendum.)
3. Forfeiture
A forfeiture occurs when a participant separates from employment prior to meeting the associated
elapsed time (or hours reported) to receive vesting. The percentage of his/her employer contribution
account balance that has not vested as of the date of termination will forfeit after 12 consecutive
months following the termination date reported by the employer, or earlier, if the System distributes the
participant’s vested portion. MERS will utilize any available forfeiture balance as an automatic funding
source applied to reported employer contributions at the time of reporting.
4. Vesting
Vesting will be credited using (check one):
Elapsed time method – Employees will be credited with one vesting year for each 12 months of
continuous employment from the date of hire.
Hours reported method – Employees will be credited with one vesting year for each calendar
year in which _____ hours are worked
Form MD-070 (version 2023-02-09) Page 3 of 5
Page 115 of 177
MERS Defined Contribution Plan Adoption Agreement
Vesting schedule will be (check one):
Immediate
Cliff vesting (fully vested after a specified number of years, not to exceed 15 years)
will be ___ years.
Graded Vesting (the % of vesting acquired after employment for the designated number of
years, not to exceed 10 years; or, where full vesting is attained between 10 and 20 years,
graded vesting must commence no later than 3 years of service)
% Vested Years of Service
In the event of disability or death, an employee’s (or his/her beneficiary’s) entire employer contribution
account shall be 100% vested, to the extent that the balance of such account has not previously
been forfeited.
Normal Retirement Age (presumed to be age 60 unless otherwise specified) __________
If an employee is still employed with the municipality at the age specified here, their entire employer
contribution balance will become 100% vested regardless of years of service.
5. Contributions
a. Contributions will be submitted (check one):
Contributions will be remitted according to Employer’s “Payroll Period” which represents the
actual period amounts are withheld from participant paychecks, or within the month during which
amounts are withheld.
Weekly Semi-Monthly (twice each month)
Bi-Weekly (every other week) Monthly
b. Employer Contributions
Required Employee Contributions and Employer Contributions are outlined using associated
Contribution Addendum for MERS Defined Contribution (MD-073).
c. Post-tax voluntary employee contributions are allowable into a Defined Contribution account
subject to Section 415(c) limitations of the Internal Revenue Code.
6. Loans: shall be permitted shall not be permitted
If Loans are elected, please refer to the Defined Contribution & 457 Loan Addendum.
7. Rollovers from qualified plans are permitted and the plan will account separately for pre-tax and
post-tax contributions and earnings thereon.
V. Appointing MERS as the Plan Administrator
The Employer hereby agrees to the provisions of this MERS Defined Contribution Plan Adoption Agreement
and appoints MERS as the Plan Administrator pursuant to the terms and conditions of the Plan. The
Employer also agrees that in the event of any conflict between the MERS Plan Document and the MERS
Defined Contribution Plan Adoption Agreement, the provisions of the Plan Document control.
Form MD-070 (version 2023-02-09) Page 4 of 5
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MERS Defined Contribution Plan Adoption Agreement
VI. Modification of the terms of the Adoption Agreement
If the Employer desires to amend any of its elections contained in this Adoption Agreement, including
attachments, the Governing Body or Chief Judge, by resolution or official action accepted by MERS,
must adopt a new Adoption Agreement. The amendment of this Agreement is not effective until
approved by MERS.
VII. Enforcement
1. The Employer acknowledges that the Michigan Constitution of 1963, Article 9, Section 24, provides
that accrued financial benefits arising under a public Employer’s retirement plan are a contractual
obligation of the Employer that may not be diminished or impaired.
2. The Employer agrees that, pursuant to the Michigan Constitution, its obligations to pay required
contributions are contractual obligations to its employees and to MERS and may be enforced in a
court of competent jurisdiction;
3. The Employer acknowledges that employee contributions (if any) and employer contributions must be
submitted in accordance with the MERS Reporting and Contribution Enforcement Policy, the terms of
which are incorporated herein by reference;
4. The Employer acknowledges that late or missed contributions will be required to be made up,
including any applicable gains, pursuant to the Internal Revenue Code;
5. Should the Employer fail to make its required contribution(s) when due, MERS may implement
any applicable interest charges and penalties pursuant to the MERS Reporting and Contribution
Enforcement Policy and Plan Document Section 79, and take any appropriate legal action, including
but not limited to filing a lawsuit and reporting the entity to the Treasurer of the State of Michigan in
accordance with MCL 141.1544(d), Section 44 of PA 436 of 2012, as may be amended.
6. It is expressly agreed and understood as an integral and non-severable part of this Agreement
that Section 43 of the Plan Document shall not apply to this Agreement and its administration or
interpretation. In the event any alteration of the terms or conditions of this Agreement is made
or occurs, under Section 43 or other plan provision or law, MERS and the Retirement Board, as
sole trustee and fiduciary of the MERS plan and its trust reserves, and whose authority is non-
delegable, shall have no obligation or duty to administer (or to have administered) the MERS Defined
Contribution Plan, to authorize the transfer of any defined benefit assets to the MERS Defined
Contribution Plan, or to continue administration by MERS or any third-party administrator of the
MERS Defined Contribution Plan.
VIII. Execution
Authorized Designee of Governing Body of Municipality or Chief Judge of Court
City of Muskegon
The foregoing Adoption Agreement is hereby approved by ____________________________________ on
(Name of Approving Employer)
the _____ day of _______________________, 20_____.
Authorized signature: _____________________________________________________________________
Title: ____________________________________________________________________________________
Received and Approved by the Municipal Employees’ Retirement System of Michigan
Dated: ___________________________ , 20______ Signature:____________________________________
(Authorized MERS Signatory)
Form MD-070 (version 2023-02-09) Page 5 of 5
Page 117 of 177
Revising previously adopted definition of compensation to add Lump Sum Comp time (all other items of
compensation remain unchanged for each division)
Customized Definition of Compensation Addendum
(MERS Defined Benefit, Defined Contribution, Hybrid, or 457)
1134 Municipal Way Lansing, MI 48917 | 800.767.MERS (6377) | Fax 517.703.9711 www.mersofmich.com
If you choose to customize your Definition of Compensation as part of your MERS plan provisions, you must select boxes in each section
you would like to include. You will be responsible for additional reporting details to track custom definitions.
Types of Compensation
Regular Wages (paid time, or time as though working, within the pay period)
Salary or hourly wage X hours On-call pay
PTO used (sick, vacation, personal, bereavement, holiday leave, or unclassified) Other: ______________________________________________________
Other Wages apply: YES NO
Shift differentials Severance issued over time (weekly/bi-weekly)
Overtime Other: ______________________________________________________
Lump Sum Payments apply: YES NO (check all that apply)
PTO (Paid Time Off) Comp time
Vacation Annual holiday pay
Personal Hazard pay
Longevity Job certifications
Bonuses Educational degrees
Merit pay Moving expenses
Sick payouts Severance
Other: ______________________________________________________
Taxable Payments apply: YES NO
Travel through a non-accountable plan (i.e. mileage not tracked for reimbursement)
Prizes, gift cards Car allowance
Personal use of a company car Other: ______________________________________________________
Reimbursement of Nontaxable Expenses (as defined by the IRS) apply: YES NO
Gun, tools, equipment, uniform Mileage reimbursement
Phone Travel through an accountable plan (i.e. tracking mileage for reimbursement)
Fitness Other: ______________________________________________________
Types of Deferrals
Elective Deferrals of Employee Premiums/Contributions apply: YES NO
457 employee and employer contributions IRA contributions
125 cafeteria plan, FSAs and HSAs Other: ______________________________________________________
Types of Benefits
Nontaxable Fringe Benefits of Employees apply: YES NO
Health plan, dental, vision benefits
Workers compensation premiums Group term or whole life insurance < $50,000
Short- or Long-term disability premiums Other: ______________________________________________________
Mandatory Contributions apply: YES NO
Defined Benefit employee contributions
MERS Health Care Savings Program employee contributions Other: ______________________________________________________
Taxable Fringe Benefits apply: YES NO
Clothing reimbursement Group term life insurance > $50,000
Stipends for health insurance opt out payments Other: ______________________________________________________
Other Benefits / Lump Sum Payments apply: YES NO
Workers compensation settlement payments Other: ______________________________________________________
Form ME-008 (version 2022-04-22) Page 1 of 1
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Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: August 27, 2024 Title: Modify MERS Defined Benefit (DB) Plan
Adoption Agreement
Submitted by: Kenneth Grant, Finance Director Department: Finance
Brief Summary:
Modify MERS Defined Benefits Plan Adoption Agreement to lump sum payments of Comp Time.
Detailed Summary & Background:
Modify MERS Defined Benefits Plan Adoption Agreement to lump sum payments of Comp Time. MERS
has requested the city to modify its plan to include comp time payouts. In the past, it was coded as
deferred overtime, which MERS deems as comp time payout.
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Goal/Action Item:
2027 GOAL 4: FINANCIAL INFRASTRUCTURE - Reliable and efficient short and long term financial
practices
Amount Requested: Budgeted Item:
Yes No N/A
Fund(s) or Account(s): Budget Amendment Needed:
Yes No N/A
Recommended Motion:
We recommend that the Commission adopts the modification to all MERS Defined Benefits plans to
allow lump sum payments of comp time.
Approvals: Guest(s) Invited / Presenting:
Immediate Division
Head No
Information
Technology
Other Division Heads
Communication
Legal Review
Page 119 of 177
Page 120 of 177
Defined Benefit Plan Adoption Agreement
1134 Municipal Way Lansing, MI 48917 | 800.767.MERS (6377) | Fax 517.703.9711 www.mersofmich.com
The Employer, a participating municipality or participating court within the state of Michigan, hereby
agrees to adopt and administer the MERS Defined Benefit Plan provided by the Municipal Employees’
Retirement System of Michigan, as authorized by 1996 PA 220, in accordance with the MERS Plan
Document, as both may be amended, subject to the terms and conditions herein.
City of Muskegon
I. Employer Name _________________________________________________ 6116
Municipality #: _____________
If new to MERS, please provide your municipality’s fiscal year: _____________ through _____________.
Month Month
II. Effective Date
Check one:
A. If this is the initial Adoption Agreement for this group, the effective date shall be the first day
of ______________, 20___.
This municipality or division is new to MERS, so vesting credit prior to the initial MERS
effective date by each eligible employee shall be credited as follows (choose one):
All prior service from date of hire
Prior service proportional to assets transferred; all service used for vesting
Prior service and vesting service proportional to assets transferred
No prior service but grant vesting credit
No prior service or vesting credit
Link this new division to division number _______ for purposes of determining
contributions (Unless otherwise specified, the standard transfer/rehire rules apply)
B. If this is an amendment of an existing Adoption Agreement (Defined Benefit division number
All 01 21 (mm/yy). Please note: You only
_______), the effective date shall be the first day of ___/20___
need to mark changes to your plan throughout the remainder of this Agreement.
C. If this is a temporary benefit (Defined Benefit division number(s) ________________________),
select one of the following:
This is a temporary Benefit Window with a duration of 2-6 months. Effective dates
are from ___/01/___ through the last day of ___/20___ (mm/yy). Complete provisions as
applicable under Section IV of this form.
This is a temporary Lump Sum Buyout Program for terminated vested participants with
a duration of 6-24 months. Effective dates are from ___/01/___ through the last day of
___/20___ (mm/yy). Payout will reflect ____% (1-100%) of the participant’s present value of
accrued benefit. For example, if 40% is used, the payout will be 40% of the present value
of the benefit. This percentage cannot be changed once adopted.
Form DB-002 (version 2024-04-30) Page 1 of 8
Page 121 of 177
Defined Benefit Plan Adoption Agreement
D. If this is to separate employees from an existing Defined Benefit division (existing division
number(s) ________________________________________________________) into a new division,
the effective date shall be the first day of ___________________, 20____.
E. If this is to merge division(s) _____________________ into division(s) ____________________,
the effective date shall be the first of ___________________, 20____.
F. If this is an amendment to close Defined Benefit division(s) #_______________, with new
hires, rehires, and transfers going into an existing Defined Benefit division # _______________,
the effective date shall be _____________ (month/year).
Note: Closing this Defined Benefit division(s) will change future invoices to a flat dollar
amount instead of a percentage of payroll, as provided in your most recent annual
actuarial valuation.
(The amount may be adjusted for any benefit modifications that may have taken place since then).
G. If this is to close Defined Contribution or Hybrid division #_______________ with its current
and/or future active participants enrolling in existing DB division #_______________ (previously
closed, now re-opened), the effective date shall be the first of ___________________, 20____.
Please complete all subsequent sections of this Defined Benefit Adoption Agreement
(including all provisions in effect) and the Addendum for Plan Freeze, Closure and
Conversions.
H. If this is to close Defined Contribution or Hybrid division #_______________ with its current
and/or future active participants enrolling in a new Defined Benefit division, the effective date
shall be the first of ___________________, 20____.
Please complete all subsequent sections of this Defined Benefit Adoption Agreement
(including all provisions in effect) and the Addendum for Plan Freeze, Closure and
Conversions.
Form DB-002 (version 2024-04-30) Page 2 of 8
Page 122 of 177
Defined Benefit Plan Adoption Agreement
III. Plan Eligibility
Division Title: ___________________________________________________
Only those employees eligible for MERS membership may participate in the MERS Defined Benefit
Plan. If an employee classification is included in the plan, then employees that meet this definition will
receive service credit if they work the required number of hours to meet the service credit qualification
defined below. All eligible employees must be reported to MERS. Please describe the specific
classifications that are eligible for MERS within this division:
___________________________________________________________________________________________
(For example: e.g., Full-time employees, Clerical staff, Union Employees participating in XXXX union)
This Division includes public safety employees (this information is used for actuarial purposes only. It
does not relate to the additional tax for early distribution): Yes No
To further define eligibility (select all that apply):
Not
Employee Classification Included Excluded
Employed
Temporary Employees: Those who will work for the municipality fewer than _____
months in total
Part-Time Employees: Those who regularly work fewer than _______ per _______
Seasonal Employees: Those who are employed for tasks that occur at specific times of
the year
Voter-Elected Officials
Appointed Officials: An official appointed to a voter-elected office
Contract Employees
Other: ___________________________________________________
Other 2: ___________________________________________________
Probationary Periods (select one):
Service will begin after the probationary period has been satisfied. Probationary periods are allowed in
one-month increments, no longer than 12 months. During this probationary period, the employer will
not report or provide service. Service will begin to accrue and contributions must be reported when
the Probationary Period ends.
The probationary period will be ______ month(s).
Comments:
Service will begin with the employee’s date of hire (no Probationary Period). Effective with the date of
hire, wages paid and any associated contributions must be submitted to MERS.
Form DB-002 (version 2024-04-30) Page 3 of 8
Page 123 of 177
Defined Benefit Plan Adoption Agreement
IV. Provisions
1. Service Credit Qualification
To clarify how eligible employees earn service credit, please indicate how many hours per month an
eligible employee needs to work. For example, if you require 10 eight-hour days, this would be 80
hours per month. If an hours and days has been previously defined (like 10 seven-hour days), stating
“70 hours” will be required. Employees must meet the definition of Plan Eligibility in order to earn
service credit under the plan.
To receive one month of service credit, an employee shall work (or be paid for as if working)
_________ hours in a month.
2. Leaves of Absence
Indicate by checking the boxes below, whether the potential for service credit will be allowed if an
eligible employee is on one of the following types of leave, regardless of meeting the service credit
qualification criteria.
Regardless whether an eligible employee is awarded service credit while on the selected type(s) of
leave:
• MERS will skip over these months when determining the FAC amount for benefit calculations.
• Third-party wages are not reported for leaves of absence.
• Employers are not required to remit employer contributions based on leaves of absence when
no wages are paid by the employer.
• For contributory divisions, employee contributions are required where service credit is granted
and due at the time of monthly wage and contribution reporting. Employers may use the
following formula to calculate employee contributions: the employee’s current hourly rate (prior to
leave), multiplied by service credit qualification (hours) multiplied by employee contribution. For
example, if employees’ hourly rate is $20, the division requires 120 hours to obtain service credit,
and employee contributions are 5%, the calculation will look like: $20/hour X 120 X .05 = $120 in
employee contribution for that leave month. Employers may use another internal formula, if they
choose and MERS will make note of it.
If an alternative formula is going to be used, please describe that here:
Type of Leave Service Credit Service Credit
Granted Excluded
Short-Term Disability
Long-Term Disability
Workers’ Compensation
Unpaid Family Medical Leave Act (FMLA)
Other: _________________________________________________________
For example, sick and accident, administrative, educational, sabbatical, etc.
Other 2: _______________________________________________________
Additional leave types as above
Leaves of absence due to military service are governed by the Federal Uniformed Services Employment
and Reemployment Rights Act of 1994 (USERRA), IRC 414(u), effective January 1, 2007, IRC 401(a)(37).
Military reporting requires historical wage and contribution reporting for Defined Benefit as applicable.
Form DB-002 (version 2024-04-30) Page 4 of 8
Page 124 of 177
Defined Benefit Plan Adoption Agreement
3. Definition of Compensation
The Definition of Compensation is used to calculate a participant’s final average compensation and is
used in determining both employer and employee contributions. Wages paid to employees, calculated
using the elected definition, must be reported to MERS.
Select your Definition of Compensation:
Click here to view details of Base,
Base Wages Box 1 Wages of W-2 Gross Wages
Box 1, and Gross Wages
Custom Definition
(To customize your definition, please complete the Custom Definition of Compensation Addendum.)
V. Valuation-Required Provisions
Valuation Date: _________________________ , 20_____
1. Review the valuation results
It is recommended that your MERS representative presents and explains the valuation results to
your municipality before adopting. Please choose one:
Our MERS representative presented and explained the valuation results to the
_______________________ on _________________.
(Board, Finance Cmte, etc.) (mm/dd/yyyy)
As an authorized representative of this municipality, I _______________________________
(Name)
________________________________ waive the right for a presentation of the results.
(Title)
This Adoption Agreement will be implemented in conjunction with a current actuarial valuation certified
by a MERS actuary that sets contribution rates.
Annually, the MERS actuary will conduct an actuarial valuation to determine the employers’
contribution rates. Employers are responsible for payment of said contributions at the rate, in the form
and at the time that MERS determines.
Form DB-002 (version 2024-04-30) Page 5 of 8
Page 125 of 177
Defined Benefit Plan Adoption Agreement
2. Benefit Multiplier (1%-2.5%, increments of 0.05%) _________ % (max 80% for multipliers
over 2.25%)
Check here if multiplier will be effective for existing active members’ future service only (Bridged
Benefit as of effective date on page 1)
If checked, select one below:
Termination Final Average Compensation (calculated over the members entire
wage history)
Frozen Final Average Compensation (FAC is calculated twice, once for the
timeframe that matches the original multiplier, and once for the new multiplier)
3. Final Average Compensation (Min 3 yr, increments of 1 yr) ________ years
4. Vesting (5 -10 yrs, increments of 1 yr) ________ years
5. Normal Retirement Age will be the later of: _______ (any age from 60-70), or the vesting provision
selected above (#4).
6. Required employee contribution (Increments of 0.01%) __________ %
7. Unreduced Early Retirement/Service Requirements:
Age 50 – 54________ Service between 25 and 30 years _______
Age 55 – 65________ Service between 15 and 30 years _______
Service only (must be any number from 20 – 30 years accrued service): _______
Age + Service Points (total must be from 70 – 90): ______ points
8. Other
Surviving Spouse will receive 50% of Straight Life benefit without a reduction to the
employees’ benefit (also known as an RS50)
Duty death or disability enhancement (add up to additional 10 years of service credit not to
exceed 30 years of service)
Deferred Retirement Option Program (DROP) – If selected, complete the following:
• Credited interest rate: ______% (please select either 0 or 3%)
• The employer, if selected, will delay a Cost of Living Adjustment (COLA) during the
DROP period (skip if not applicable): Yes No
• Credited payment percentage will be: ______% (enter a number from 1-100% in
increments of 1%) throughout the duration of the DROP period.
Form DB-002 (version 2024-04-30) Page 6 of 8
Page 126 of 177
Defined Benefit Plan Adoption Agreement
Annuity Withdrawal Program (AWP)
Calculation of the actuarial equivalent of the lump sum distribution made under AWP will be
done using:
Interest rate for employee contributions as determined by the Retirement Board, or
MERS’ assumed rate of return as of the date of the distribution.
9. Cost-of-Living Adjustment
All current retirees as of effective date Future retirees who retire after
Retirees who retire between effective date
____/01/____ and ____/01/____
Increase of _____% or $_____ per month Increase of _____% or $_____ per month
Select one: Annual automatic increase
Annual automatic increase
One-time increase
Select one: Select one:
Compounding Compounding
Non-compounding Non-compounding
Employees must be retired _____ months Employees must be retired _____ months
(6-12 months, increments of 1 month) (6-12 months, increments of 1 month)
Check here if the existing COLA will be bridged for active participants as of the effective date
selected on this form. Benefits accrued for service after the effective date will have no COLA
increase applied.
10. Service Credit Purchase Estimates are:
Not permitted
Permitted
VI. Appointing MERS as the Plan Administrator
The Employer hereby agrees to the provisions of this MERS Defined Benefit Plan Adoption Agreement and
appoints MERS as the Plan Administrator pursuant to the terms and conditions of the Plan. The Employer
also agrees that in the event of any conflict between the MERS Plan Document and the MERS Defined Benefit
Plan Adoption Agreement, the provisions of the Plan Document control.
VII. Modification Of The Terms Of The Adoption Agreement
If the Employer desires to amend any of its elections contained in this Adoption Agreement, including
attachments, the Governing Body or Chief Judge, by resolution or official action accepted by MERS, must adopt
a new Adoption Agreement. The amendment of the new Agreement is not effective until approved by MERS.
Form DB-002 (version 2024-04-30) Page 7 of 8
Page 127 of 177
Defined Benefit Plan Adoption Agreement
VIII. Enforcement
1. The Employer acknowledges that the Michigan Constitution of 1963, Article 9, Section 24, provides
that accrued financial benefits arising under a public Employer’s retirement plan are a contractual
obligation of the Employer that may not be diminished or impaired, and prohibits the use of the
Employer’s required current service funding to finance unfunded accrued liabilities.
2. The Employer agrees that, pursuant to the Michigan Constitution, its obligations to pay required
contributions are contractual obligations to its employees and to MERS and may be enforced in a
court of competent jurisdiction;
3. In accordance with the Constitution and this Agreement, if at any time the balance standing to the
Employer’s credit in the reserve for employer contributions and benefit payments is insufficient
to pay all service benefits due and payable to the entity’s retirees and beneficiaries, the Employer
agrees and covenants to promptly remit to MERS the amount of such deficiency as determined by
the Retirement Board within thirty (30) days notice of such deficiency.
4. The Employer acknowledges that wage and service reports are due monthly, and the employee
contributions (if any) and Employer contributions are due and payable monthly, and must be
submitted in accordance with the MERS Enforcement Procedure for Prompt Reporting and
Payment, the terms of which are incorporated herein by reference.
5. Should the Employer fail to make its required contribution(s) when due, the retirement benefits due
and payable by MERS on behalf of the entity to its retirees and beneficiaries may be suspended
until the delinquent payment is received by MERS. MERS may implement any applicable interest
charges and penalties pursuant to the MERS Enforcement Procedure for Prompt Reporting and
Payment and Plan Document Section 79, and take any appropriate legal action, including but
not limited to filing a lawsuit and reporting the entity to the Treasurer of the State of Michigan in
accordance with MCL 141.1544(d), Section 44 of PA 436 of 2012, as may be amended.
6. The Employer acknowledges that changes to the Employer’s MERS Defined Benefit Plan must be
made in accordance with the MERS Plan Document and applicable law, and agrees that MERS
will not administer any such changes unless the MERS Plan Document and applicable law permit
same, and MERS is capable of administering same.
IX. Execution
Authorized Designee of Governing Body of Municipality or Chief Judge of Court
City of Muskegon
The foregoing Adoption Agreement is hereby approved by ____________________________________ on
(Name of Approving Employer)
the _____ day of _______________________, 20_____.
Authorized signature: ________________________________________________________________________
Title: _______________________________________________________________________________________
Received and Approved by the Municipal Employees’ Retirement System of Michigan
Dated: ___________________________ , 20______ Signature: _______________________________________
(Authorized MERS Signatory)
Form DB-002 (version 2024-04-30) Page 8 of 8
Page 128 of 177
Revising previously adopted definition of compensation to add Lump Sum Comp time (all other items of
compensation remain unchanged for each division)
Customized Definition of Compensation Addendum
(MERS Defined Benefit, Defined Contribution, Hybrid, or 457)
1134 Municipal Way Lansing, MI 48917 | 800.767.MERS (6377) | Fax 517.703.9711 www.mersofmich.com
If you choose to customize your Definition of Compensation as part of your MERS plan provisions, you must select boxes in each section
you would like to include. You will be responsible for additional reporting details to track custom definitions.
Types of Compensation
Regular Wages (paid time, or time as though working, within the pay period)
Salary or hourly wage X hours On-call pay
PTO used (sick, vacation, personal, bereavement, holiday leave, or unclassified) Other: ______________________________________________________
Other Wages apply: YES NO
Shift differentials Severance issued over time (weekly/bi-weekly)
Overtime Other: ______________________________________________________
Lump Sum Payments apply: YES NO (check all that apply)
PTO (Paid Time Off) Comp time
Vacation Annual holiday pay
Personal Hazard pay
Longevity Job certifications
Bonuses Educational degrees
Merit pay Moving expenses
Sick payouts Severance
Other: ______________________________________________________
Taxable Payments apply: YES NO
Travel through a non-accountable plan (i.e. mileage not tracked for reimbursement)
Prizes, gift cards Car allowance
Personal use of a company car Other: ______________________________________________________
Reimbursement of Nontaxable Expenses (as defined by the IRS) apply: YES NO
Gun, tools, equipment, uniform Mileage reimbursement
Phone Travel through an accountable plan (i.e. tracking mileage for reimbursement)
Fitness Other: ______________________________________________________
Types of Deferrals
Elective Deferrals of Employee Premiums/Contributions apply: YES NO
457 employee and employer contributions IRA contributions
125 cafeteria plan, FSAs and HSAs Other: ______________________________________________________
Types of Benefits
Nontaxable Fringe Benefits of Employees apply: YES NO
Health plan, dental, vision benefits
Workers compensation premiums Group term or whole life insurance < $50,000
Short- or Long-term disability premiums Other: ______________________________________________________
Mandatory Contributions apply: YES NO
Defined Benefit employee contributions
MERS Health Care Savings Program employee contributions Other: ______________________________________________________
Taxable Fringe Benefits apply: YES NO
Clothing reimbursement Group term life insurance > $50,000
Stipends for health insurance opt out payments Other: ______________________________________________________
Other Benefits / Lump Sum Payments apply: YES NO
Workers compensation settlement payments Other: ______________________________________________________
Form ME-008 (version 2022-04-22) Page 1 of 1
Page 129 of 177
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: August 27, 2024 Title: South PM Restroom & Kite Shack
Improvements Award
Submitted by: Kyle Karczewski, Parks and Department: DPW- Parks
Recreation Director
Brief Summary:
A public bid was posted on July 25th for the construction of a new restroom at South Pere Marquette
and improvements to the Kite Shack. The target cost was $700,000, with a grant from the DNR
covering $300,000 of that. CooperRock Construction of Grand Rapids is the low bidder and
recommended contract awardee for $602,049.
Detailed Summary & Background:
A public bid was posted on July 25th for the construction of a new restroom at South Pere Marquette
and improvements to the Kite Shack. The target cost was $700,000, with a grant from the DNR
covering $300,000 of that.
CooperRock Construction, out of Grand Rapids, submitted the low bid for the project, $602,049.
Clifford Buck Construction, a local City of Muskegon bidder (located at 500 Irwin), came in second
with a bid of $630,771. When the 2% local bidding adjustment was applied, Clifford Buck was still
about $16,000 higher.
It should be noted that we are receiving a state grant from the DNR. The DNR does not recognize
local bidding adjustments and requires the City (and any grant recipients) to go with the low bidder.
If we were to choose not to go with the low bidder, the City would forfeit its DNR grant.
There are some additional project costs related to Consumers Energy moving a utility pole that are
not included in this final bid.
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Improved access to the waterfront
Blight cleanup
Enhanced Parks and Recreation Department and Services
Public restrooms that remain open
Goal/Action Item:
2027 Goal 1: Destination Community & Quality of Life - Parks and Recreation Department and
Services
Amount Requested: Budgeted Item:
$602,049 Yes X No N/A
Page 130 of 177
Fund(s) or Account(s): Budget Amendment Needed:
445-901-801 (Public Improvement) Yes No X N/A
Recommended Motion:
To award the Pere Marquette South Restroom & Kite Shack Improvement project to CooperRock
Construction for $602,049.
Approvals: Guest(s) Invited / Presenting:
Immediate Division X
Head No
Information
Technology
Other Division Heads
Communication
Legal Review
Page 131 of 177
BID TABULATION
PROJECT: Pere Marquette South Restroom Building, Muskegon MI
PROJECT NO.: 2215
BID DATE: Tuesday, August 20, 2024 @ 2:00pm
CONTRACTOR BASE BID BOND ADDENDUM #1 ADDENDUM #2
CopperRock Construction $602,049.00 X X X
Horizon Building Group, LLC $649,987.00 X X X
Gordon Construction Services $952,667.76 X X X
Midwest Construction Group $776,300.00 X X X
Clifford Buck Construction Co, Inc. $630,771.00 X X X
Page 132 of 177
BE
MU
SK
AC
EG
ON
HS
LA
KE
SH
TR
OR
ET
E
RA
ET
EXISTING IL
PARKING LOT
EXISTING BEACH
EX
EX
LA
IS T
EX
IS T
KE
ING
IS T
SH
ING
OR
ING
30
E
2”
DR
”W
IV
SA
W
16’ WIDE MULTI USER TRAIL E
AT
AT
NIT
(To Be installed in Fall of 2022)
ER
ER
AR
LIN
LIN
YS
E
E
EW
ER
LIN
E
IMPROVED
UNIVERSALLY
ACCESSIBLE
PARKING
(6 Spaces)
BIKE RACKS
LITTER AND RECYCLING SITE LIGHT
CONTAINER (LED Light)
LAKE MICHIGAN
RESTROOM BUILDING
UNLOADING ZONE
(Approximately 633 S.F.
Includes 4 Universally
Accessible Family Rooms)
CONCRETE PLAZA
(With Sheet Pile
Edge Protection)
BENCHES
PICNIC TABLES
(With 1 Accessible Table)
EXISTING BUILDING
T
REE
(Renovate Existing Kite
Shop, approx. 760 S.F.)
T
CH S
BEA
NOTE: GRANT ITEMS AREA BOXED
PERE MARQUETTE BEACH RESTROOM SITE PLAN
GRANT IMPROVEMENT PLAN 0’ 30’ 60’ 120’ DATE
02.28.2022
PROJECT NO.
MUSKEGON, MICHIGAN
2146
NORTH SCALE IN FEET: 1’=30’
Page 133 of 177
DOUBLE PITCHED ROOF
Similar To Historic Beach
Concessions Building
FROSTED WINDOWS
Or Similar Architecture
Detail To Compliment
Historic Beach
Concessions Building
FACE BRICK
To Match Or Compliment
Existing Buildings
STEEL GATE
FRONT / BACK ELEVATION
DOUBLE PITCHED ROOF
Similar To Historic Beach
Concessions Building
FROSTED WINDOWS
Or Similar Architecture
Detail To Compliment
Historic Beach
Concessions Building
FACE BRICK
To Match Or Compliment
Existing Buildings
PLAN SIDE ELEVATION
PERE MARQUETTE BEACH RESTROOM SITE PLAN
GRANT IMPROVEMENT PLAN DATE
02.28.2022
PROJECT NO.
MUSKEGON, MICHIGAN
2146
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Page 156 of 177
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: August 27, 2024 Title: Rezoning of 349 W Webster Ave from Form
Based Code, Urban Residential (FBC, UR) to Form
Based Code, Neighborhood Core (FBC, NC).
Submitted by: Mike Franzak, Planning Director Department: Planning
Brief Summary:
The Planning Commission unanimously recommended in favor of the request at their August
meeting.
Detailed Summary & Background:
This property is the former location of the Muskegon Public Schools Administration building. It has
been privately owned since 2021. The applicant is requesting a rezoning to allow the building to be
converted into a hotel, with retail and other mixed-uses. There were no public comments given at the
public hearing.
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Goal/Action Item:
2027 Goal 2: Economic Development Housing and Business
Amount Requested: Budgeted Item:
N/A Yes No N/A X
Fund(s) or Account(s): Budget Amendment Needed:
N/A Yes No N/A X
Recommended Motion:
I move to approve the request to rezone the property at 349 W. Webster Ave. from Form Based
Code, Urban Residential to Form Based Code, Neighborhood Core.
Approvals: Guest(s) Invited / Presenting:
Immediate Division X
Head No
Information
Technology
Other Division Heads
Communication
Page 157 of 177
Legal Review
Page 158 of 177
PLANNING COMMISSION PACKET EXCERPT
August 15, 2024
Hearing, Case 2024-18: Request to rezone 349 W. Webster Avenue from Form-Based Code – Urban
Residential (FBC-UR) to Form-Based Code – Neighborhood Core (FBC-NC), by Reset Ventures.
SUMMARY
1. The property is currently zoned Form Based Code, Urban Residential.
2. This property is the former location of the Muskegon Public Schools Administration building. It has
been privately owned since 2021.
3. The applicant is requesting a rezoning to allow the building to be converted into a hotel, with retail
and other mixed-uses.
4. Please see the enclosed zoning ordinance excerpt for Form Based Core, Neighborhood Core.
5. Notice was sent to all properties within 300 feet, at the time of this writing staff has not received any
comments.
349 W Webster Ave
Page 159 of 177
Zoning Map
Aerial Map
Page 160 of 177
An ordinance to amend the zoning map of the City to provide for a zone change for 349 W Webster Avenue
from Form Based Code, Urban Residential (FBC, UR) to Form Based Code, Neighborhood Commercial
(FBC, NC).
THE CITY COMMISSION OF THE CITY OF MUSKEGON HEREBY ORDAINS:
The zoning map of the City of Muskegon is hereby amended to change the zoning from FBC, UR to FBC, NC.
This ordinance adopted:
Ayes:
Nayes:
Adoption Date:
Effective Date:
First Reading:
Second Reading:
CITY OF MUSKEGON
By: __________________________
Ann Meisch, MMC
City Clerk
Page 161 of 177
CERTIFICATE
(Rezoning 349 W Webster Ave from FBC, UR to FBC, NC)
The undersigned, being the duly qualified clerk of the City of Muskegon, Muskegon County, Michigan, does
hereby certify that the foregoing is a true and complete copy of an ordinance adopted by the City Commission
of the City of Muskegon, at a regular meeting of the City Commission on the 27th day of August, at which
meeting a quorum was present and remained throughout, and that the original of said ordinance is on file in the
records of the City of Muskegon. I further certify that the meeting was conducted and public notice was given
pursuant to and in full compliance with the Michigan Zoning Enabling Act, Public Acts of Michigan No. 33 of
2006, and that minutes were kept and will be or have been made available as required thereby.
DATED: ___________________, 2024 ________________________________
Ann Meisch, MMC
Clerk, City of Muskegon
Publish Notice of Adoption to be published once within ten (10) days of final adoption.
Page 162 of 177
CITY OF MUSKEGON
NOTICE OF ADOPTION
Please take notice that on August 27, 2024, the City Commission of the City of Muskegon adopted an ordinance
amending the zoning map to provide for the change of zoning for 349 W Webster Ave from FBC, UR to FBC,
NC.
Copies of the ordinance may be viewed and purchased at reasonable cost at the Office of the City Clerk in the
City Hall, 933 Terrace Street, Muskegon, Michigan, during regular business hours.
This ordinance amendment is effective ten days from the date of this publication.
Published ____________________, 2024
By ___________________________
Ann Meisch, MMC
City Clerk
---------------------------------------------------------------------------------------------------------------------
PUBLISH ONCE WITHIN TEN (10) DAYS OF FINAL PASSAGE.
Account No. 101-80400-5354
Page 163 of 177
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: August 27, 2024 Title: Rezoning of 1700 Oak Ave from Medical
Care (MC) to Low-Density Multiple Family
Residential (RM-1).
Submitted by: Mike Franzak, Planning Director Department: Planning
Brief Summary:
The Planning Commission unanimously recommended approval of the request at their August
meeting.
Detailed Summary & Background:
The property is the site of the former Muskegon General Hospital and is still zoned MC, Medical Care.
The site measures just under 26 acres. The applicant is seeking a rezoning to RM-1, Low-Density Multi-
Family Residential to allow for a 144-unit “work force” apartment development. The plans include the
demolition of the existing hospital buildings. The applicant would utilize about 14 acres of the 26 acre
site. The Planning Commission recommended in favor of the rezoning and also approved the site
plan, contingent upon the City Commission approving the rezoning.
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Goal/Action Item:
2027 Goal 2: Economic Development Housing and Business
Amount Requested: Budgeted Item:
N/A Yes No N/A X
Fund(s) or Account(s): Budget Amendment Needed:
N/A Yes No N/A X
Recommended Motion:
I move to approve the rezoning of 1700 Oak Ave from Medical Care (MC) to Low-Density Multiple
Family Residential (RM-1).
Approvals: Guest(s) Invited / Presenting:
Immediate Division X
Head No
Information
Technology
Page 164 of 177
Other Division Heads
Communication
Legal Review
Page 165 of 177
PLANNING COMMISSION PACKET EXCERPT
August 15, 2024
Hearing, Case 2024-20: Request to rezone 1700 Oak Avenue from Medical Care (MC), to Low-Density
Multiple Family Residential (RM-1), by Krimson Development, LLC.
SUMMARY
1. The property is the site of the former Muskegon General Hospital and is still zoned MC, Medical
Care. The site measures just under 26 acres.
2. The applicant is seeking a rezoning to RM-1, Low-Density Multi-Family Residential to allow for
a 144-unit “work force” apartment development. The plans include the demolition of the existing
hospital buildings. The applicant would utilize about 14 acres of the 26 acre site.
3. Notice was sent to all properties within 300 feet of the subject property. At the time of this writing,
staff had not received any comments from the public.
Former General Hospital Building on Site
Page 166 of 177
Zoning Map
Aerial Map
Page 167 of 177
An ordinance to amend the zoning map of the City to provide for a zone change for 1700 Oak Ave from
Medical Care (MC) to Low Density Multifamily Residential (RM-1).
THE CITY COMMISSION OF THE CITY OF MUSKEGON HEREBY ORDAINS:
The zoning map of the City of Muskegon is hereby amended to change the zoning from MC to RM-1.
This ordinance adopted:
Ayes:
Nayes:
Adoption Date:
Effective Date:
First Reading:
Second Reading:
CITY OF MUSKEGON
By: __________________________
Ann Meisch, MMC
City Clerk
Page 168 of 177
CERTIFICATE
(Rezoning 1700 Oak Ave from MC to RM-1)
The undersigned, being the duly qualified clerk of the City of Muskegon, Muskegon County, Michigan, does
hereby certify that the foregoing is a true and complete copy of an ordinance adopted by the City Commission
of the City of Muskegon, at a regular meeting of the City Commission on the 27th day of August, at which
meeting a quorum was present and remained throughout, and that the original of said ordinance is on file in the
records of the City of Muskegon. I further certify that the meeting was conducted and public notice was given
pursuant to and in full compliance with the Michigan Zoning Enabling Act, Public Acts of Michigan No. 33 of
2006, and that minutes were kept and will be or have been made available as required thereby.
DATED: ___________________, 2024 ________________________________
Ann Meisch, MMC
Clerk, City of Muskegon
Publish Notice of Adoption to be published once within ten (10) days of final adoption.
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CITY OF MUSKEGON
NOTICE OF ADOPTION
Please take notice that on August 27, 2024, the City Commission of the City of Muskegon adopted an ordinance
amending the zoning map to provide for the change of zoning for 1700 Oak Ave from MC to RM-1.
Copies of the ordinance may be viewed and purchased at reasonable cost at the Office of the City Clerk in the
City Hall, 933 Terrace Street, Muskegon, Michigan, during regular business hours.
This ordinance amendment is effective ten days from the date of this publication.
Published ____________________, 2024
By ___________________________
Ann Meisch, MMC
City Clerk
---------------------------------------------------------------------------------------------------------------------
PUBLISH ONCE WITHIN TEN (10) DAYS OF FINAL PASSAGE.
Account No. 101-80400-5354
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Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: August 27, 2024 Title: Acquisition of vacant buildable lots at 60 E
Walton, 1192 Ambrosia, 456 McGlaughlin, 379
McLaughlin, and 1047 Wood Street
Submitted by: Jake Eckholm, Development Department: Economic Development
Services Director
Brief Summary:
Development Services has been working with Rashard Thrower to acquire his vacant properties with
the intent to retain his firm Q9 Development, LLC to construct affordable infill housing on the
properties within the next 48 months.
Detailed Summary & Background:
For three years staff have been working with Mr. Thrower to attempt a housing infill project on these
lots. Initially, the owner hoped to build and retain affordable rental properties on the sites, but due to
interest rate increases, construction cost inflation, and the desire to keep rents low in his home
neighborhood that project concept became non-viable. Staff then worked with Mr. Thrower to try to
develop a "for-sale" project as we have done with other builders that buy their lots and construct
units, but again the prices needed to generate any return and prevent losses on the project made
the homes unattainable for most folks in the community, and there was some concern that a lack of
comparable sales in these areas would prevent sales from going through as well.
Finally, staff proposed to Mr. Thrower that the city could potentially acquire the properties and then
retain Mr. Thrower and a contractor partner to build on the sites, as we have done for the ARP and
Midtown phase projects. This would allow us to build more economical models and keep them at
affordable prices while regaining losses through the Brownfield, while eliminating the risk to Mr.
Thrower were he to build on these lots privately.
The attached purchase agreement includes a 4-year exclusive right for Mr. Thrower to act as the
builder for the city on these properties. If we do not successfully complete a residential construction
project by then, the city is free to select any other builder, sell the properties for private construction,
or any other reasonable option. It should be noted that a separate purchase agreement for a
property owned by Mr. Thrower on Peck Street will come to the Commission at a later meeting, but it
made sense to separate that one as it was formerly a gas station and staff would like a longer due
diligence period to conduct an environmental site assessment.
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Diverse housing types
Diversity reflected in businesses and business owners Improved reputation for inspections department
Progress toward completion of ongoing economic development projects
Goal/Action Item:
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2027 Goal 2: Economic Development Housing and Business
Amount Requested: Budgeted Item:
$25,000 Yes No N/A
Fund(s) or Account(s): Budget Amendment Needed:
Public Improvement Fund Yes No N/A
Recommended Motion:
To approve the Real Estate Purchase Agreement as presented, and to authorize the mayor and clerk
to sign.
Approvals: Guest(s) Invited / Presenting:
Immediate Division
Head Yes
Information
Technology
Other Division Heads
Communication
Legal Review
Page 172 of 177
REAL ESTATE PURCHASE AGREEMENT
This Agreement is made by and between Rashard Thrower (“Thrower”), of 701 Orchard Avenue,
Muskegon, Michigan 49441 and Q9 LLC, a Michigan limited liability company (“Q9”) (Thrower and Q9
collectively, the “Seller Parties”), and the City of Muskegon, a Michigan municipal corporation, of 933
Terrace Street, Muskegon, Michigan 49444 (“Buyer”) (collectively the “Parties”), with reference to the
following facts:
Background
A. Thrower owns real property located in the City of Muskegon, County of Muskegon, State
of Michigan, commonly known as 1047 Wood Street, Muskegon, Michigan.
B. Thrower is the sole member of Q9. Q9 owns real property located in the City of Muskegon,
County of Muskegon, State of Michigan, commonly known as 60 East Walton Avenue, 1192 Ambrosia
Street, 456 McLaughlin Avenue, and 370 McLaughlin Avenue, Muskegon, Michigan. (together with Recital
A, the “Properties”).
C. Seller Parties desire to sell, and Buyer desires to purchase, all of Seller Parties’ interests
in the Properties on the terms and conditions of this Agreement.
Therefore, for good and valuable consideration, the parties agree as follows:
1. Sale of Property. Seller Parties agree to sell, and Buyer agrees to purchase, all of Seller
Parties’ interest in the Properties, subject to all easements, matters, building, and use restrictions, apparent
or of record, zoning ordinances, and any Permitted Exceptions (defined below). The parties acknowledge
and agree that the Properties are vacant.
2. Purchase Price and Manner of Payment. The purchase price for the Properties is
Twenty-Five Thousand and 00/100 Dollars ($25,000.00) (“Purchase Price”), which shall be payable in full
at Closing in cash or other immediately available funds to Seller Parties as follows:
a. $5,000.00 for 60 East Walton Ave.
b. $5,000.00 for 1192 Ambrosia St.
c. $5,000.00 for 456 McLaughlin Ave.
d. $5,000.00 for 370 McLaughlin Ave.
e. $5,000.00 for 1047 Wood St.
3. Title Insurance. At Buyer’s expense, Buyer will obtain a standard owner’s policy of title
insurance from Transnation Title Agency (the “Title Company”) for the Properties, effective as of the date
of Closing, and may obtain a commitment for the policy to ensure Buyer will hold good and marketable title
to the Property at Closing, free and clear of all mortgages, liens, and similar encumbrances, in the amount
of the Purchase Price. Buyer’s obligations under this Agreement shall be fully contingent upon Buyer’s
complete satisfaction with Buyer’s review of such title commitment in Buyer’s sole discretion (the “Title
Commitment”). In the event the reservations, restrictions, or easements of record disclosed by said Title
Commitment are, in the reasonable discretion of Buyer, deemed unreasonable, Seller Parties shall have
fourteen (14) days from the date Seller Parties are notified in writing of such unreasonableness and such
unmarketability of title, to remedy such objections to Buyer’s reasonable satisfaction on or before the date
of Closing. If Seller Parties fail to resolve such restrictions or remedy the title within the time above
specified, Buyer may elect either of the following as Buyer’s sole remedy: (i) proceed with the purchase and
acquire the Properties subject to the defects and other Permitted Exceptions (as defined below), or (ii)
terminate this Agreement by written notice to Seller Parties, in which case neither party shall have any
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further obligations under this Agreement except as provided herein. The term “Permitted Exceptions”
means any matters and exceptions revealed on the Title Commitment, matters of record, or defects
revealed by any survey which Buyer (x) initially accepts in Buyer’s sole discretion, (y) does not identify as
a defect, or (z) initially raises as a defect but later accepts in Buyer’s sole discretion.
4. Survey. Seller Parties shall provide Buyer with any existing surveys of the Properties.
Prior to the expiration of the Inspection Period, Buyer may, at Buyer’s own expense, obtain a survey of the
Properties, and Buyer or Buyer’s surveyor or other agents may enter the Properties for that purpose. If a
survey by a registered land surveyor discloses a material encroachment or substantial variation from the
presumed land boundaries or area, Buyer will notify Seller Parties of such encroachment or variation, and
Seller Parties shall have the option of effecting a remedy within fourteen (14) days after disclosure. If Seller
Parties elect not to remedy the encroachments or variations prior to Closing or otherwise fails to make any
election within such 14-day period, Buyer may either proceed to Closing and purchase the Properties
subject to said encroachments or variations or terminate this Agreement.
5. Inspection. The period commencing on the Effective Date and expiring thirty (30) days
thereafter at 11:59pm EST shall be referred to as the “Inspection Period”. During the Inspection Period,
Buyer, at Buyer’s sole cost and expense, may conduct all inspections, reviews, investigations,
assessments, and other due diligence with respect to the Properties desired by Buyer, in Buyer’s sole
discretion, to determine whether the Properties will be suitable for Buyer’s acquisition and to determine the
condition of the Properties and other matters pertaining to the Properties such as, without limitation, its
environmental status, zoning classification, tax classification, and the contents of applicable restrictive
covenants and building codes (the “Inspections”). If during the Inspection Period Buyer determines in its
sole discretion that it does not desire to consummate the transactions contemplated by this Agreement for
any reason, then Buyer may terminate this Agreement by delivering written notice of termination to Seller
Parties, and neither party will have any further obligation to the other under this Agreement, except for
those duties and obligations herein that expressly survive termination.
6. Property Taxes; Assessments. Taxes first billed in the years prior to the year of Closing
will be paid by Seller Parties without proration through December 31, 2023. Real estate taxes paid or to
be paid in the year of Closing shall be paid for by Buyer or otherwise reimbursed by Buyer to Seller Parties
at Closing if paid by Seller Parties. Any real estate tax bill which first becomes due and payable during a
calendar year is deemed to be related to that entire calendar year. All taxes, fees, and special assessments
that become due and payable after Closing shall be the responsibility of Buyer. Seller Parties acknowledge
its obligation to pay outstanding fees owed to Safe Built and the City of Muskegon concerning the
Properties. The Parties agree that any such outstanding fees that exist at the date of Closing shall be paid
for at Closing from the Purchase Price proceeds.
7. First Right of Refusal. The Parties acknowledge and agree that if Buyer seeks to develop
housing on the Properties, for a period of forty-eight months from the date of Closing, Seller Parties, or an
affiliated entity that Seller Parties assign this right to with the written consent of Buyer, shall have First Right
of Refusal to develop housing on the Properties.
8. Closing. The closing of this sale (“Closing”) shall be at such date, time, and location as
mutually agreed by the parties, but in no event later than September 27, 2024 (“Closing Deadline”). If the
Closing does not occur by the Closing Deadline, then either party may elect to terminate this Agreement by
written notice to the other party, in which case neither party shall have any further obligations under this
Agreement.
9. Closing Costs. The following costs associated with this Agreement and the Closing shall
be paid as follows: (i) Buyer shall pay the premium for the owner’s title policy and any lender’s policy; (ii)
shall pay the cost of any state and county transfer taxes in the amount required by law; (iii) Buyer shall pay
the costs of recording the warranty deed; and (iv) Buyer and Seller Parties split equally and will pay the
closing fees charged by the Title Company, except that Seller Parties shall be solely responsible for all Title
Company fees related to securing the marketability of its Title to the Properties.
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10. Closing Deliveries. At Closing, Seller Parties shall execute and deliver warranty deeds
conveying each of the Properties to Buyer, together with all of Seller Parties’ right, title, and interest in all
adjoining public ways; and Buyer shall deliver the Purchase Price pursuant to Section 2 above. The parties
shall execute and deliver such other documents reasonably required to close the transaction. Seller Parties
shall deliver possession of the Properties to Buyer at Closing.
11. Seller Representations and Warranties. Seller Parties represent and warrant to Buyer
that the statements contained in this Section 10 are true and correct as of the Effective Date and also at
the time of Closing. For purposes of this Agreement, “Seller Parties’ knowledge” or “Knowledge of Seller
Parties” and any similar phrases shall mean the actual or constructive knowledge of Thrower.
a. To the best of Seller Parties’ knowledge, that there is no pending litigation affecting
the Properties or Seller Parties’ interest in the Properties; there are no unrecorded interests of any
person(s) or entity(ies) in and to the Properties; the Properties are not subject to any oral or written
rental, leasing, contract, or other arrangement that would limit or restrict the use of the Properties;
and Seller Parties have not received any notice of, and have no knowledge of, existing violations
on the Properties or any portion thereof of any zoning, building, fire, health, pollution, environmental
protection, hazardous substance or waste disposal law or ordinance. The representations and
warranties set forth in this paragraph shall survive the Closing and delivery of the warranty deed.
b. Seller Parties represent, covenant, and warrant that Q9 LLC is a Michigan limited
liability company duly organized, validly existing and in good standing under the laws of the State
of Michigan. Seller Parties hereby represent and warrant to Buyer that Seller Parties have full power
and authority to enter into this Agreement and other related documents and to consummate the
transaction contemplated by this Agreement. Seller Parties have duly executed and delivered this
Agreement as its lawful, valid, and legally binding obligation, and this Agreement is enforceable in
accordance with its terms. Seller Parties are not a party to any contract, settlement, judicial order,
or other agreement of any kind that would prohibit or otherwise restrict the ability of Seller Parties
to sell the Properties to Buyer pursuant to this Agreement.
12. Real Estate Commission. Buyer and Seller Parties acknowledge and agree that no
agent, broker, salesperson, or other party is entitled to a real estate commission upon the Closing of this
sale. Buyer and Seller Parties agree to indemnify and hold the other harmless from any liability, including
reasonable attorney fees, occasioned by reason of any person or entity asserting a claim for a real estate
commission arising from actions taken by the other party.
13. Notice. All notices, approvals, consents and other communications required under this
Agreement shall be in writing and shall be deemed given: (i) when delivered in person; (ii) when sent by
email; or (iii) when sent by a nationally-recognized receipted overnight delivery service with delivery fees
prepaid. The notice shall be effective immediately upon personal delivery or upon transmission of the email;
and one day after depositing with a nationally recognized overnight delivery service. Notices shall be sent
to the parties as follows:
To Seller Parties: Rashard Thrower To Buyer: City of Muskegon
[address] Attn: Jake Eckholm
[address] 933 Terrace Street
Email: rashardthrower@theq-9.com Muskegon, MI 49444
Email: jake.eckholm@shorelinecity.com
With copy to: Parmenter Law
Attn: John Schrier
601 Terrace Street
Muskegon, MI 49440
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Email: john@parmenterlaw.com
14. Review by Legal Counsel. Seller Parties acknowledge that this Agreement was prepared
by Parmenter Law, legal counsel for Buyer, on behalf of Buyer only; that Parmenter Law does not represent
Seller Parties in this transaction; that conflicts may exist or arise between the individual interests of Buyer
and Seller Parties and that legal counsel is prohibited from representing parties where a legal conflict exists;
and that Seller Parties are strongly advised to seek (and have had an adequate opportunity to seek) advice
from independent legal counsel with respect to their rights, the execution of this Agreement, and the
consummation of the purchase of the Properties.
15. Miscellaneous. This Agreement is executed in accordance with, shall be governed by,
and construed and interpreted in accordance with the laws of the State of Michigan. This Agreement shall
constitute the entire agreement, and shall supersede any other agreements, written or oral, that may have
been made or entered into, by and between the parties with respect to the subject matter of this Agreement
and shall not be modified or amended except in a subsequent writing signed by the party against whom
enforcement is sought. The effective date of this Agreement shall be the last date as of which all parties as
shown below have signed this Agreement (“Effective Date”).
The parties have executed this Agreement to be effective as of the Effective Date.
SELLER PARTIES – BUYER – The City of Muskegon, a Michigan
municipal corporation
Q9, LLC, a Michigan limited liability company
By: Rashard Thrower By: Kenneth Johnson
Its: Sole Member Its: Mayor
Date: ______________, 2024 Date: ______________, 2024
Thrower
Rashard Thrower By: Ann Meisch
Date: ______________, 2024 Its: City Clerk
Date: ______________, 2024
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Exhibit A
Description of Premises
The following described premises situated in the City of Muskegon, County of Muskegon, State of Michigan:
60 W. Walton, Muskegon, MI 49442
CITY OF MUSKEGON REVISED PLAT OF 1903 W ½ LOT 19 BLK 189
Tax ID No. 61-24-205-189-0019-00
1192 Ambrosia St., Muskegon, MI 49442
CITY OF MUSKEGON REVISED PLAT OF 1903 LOT 1 & W 53 FT OF N 94 LOT 5 BLK 262
Tax ID No. 61-24-205-262-0001-00
456 McLaughlin Ave., Muskegon, MI 49442
CITY OF MUSKEGON REVISED PLAT OF 1903 LOTS 11-12 BLK 79
Tax ID No. 61-24-205-079-0011-00
370 McLaughlin Ave., Muskegon MI 49442
CITY OF MUSKEGON REVISED PLAT OF 1903 LOTS 7 & 10 BLK 261
Tax ID No. 61-24-205-261-0007-00
1047 Wood St., Muskegon, MI 49442
THE NORTHEASTERLY 110.0 FEET MEASURED ON IONA STREET OF LOT 1, BLOCK 248, REVISED
PLAT OF 1903 OF THE CITY OF MUSKEGON, ACCORDING TO THE PLAT THEREOF RECORDED IN
LIBER 3 OF PLATS, PAGE 71, IN THE OFFICE OF THE REGISTER OF DEEDS FOR MUSKEGON
COUNTY, MICHIGAN.
Tax ID No. 24-205-248-0001-30
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