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Muskegon City Commission
Commission Meeting Date: 4/13/2021 Title: 425 Agreement Business Park North
Removal/Acquisition of 902 Pine Street
Submitted By: Jake Eckholm Department: Economic Development
Brief Summary: The department has been working with Muskegon County for some time now as to
their requested disposition of the 425 Shared Jurisdiction Agreement at Business Park North. We
have come to terms that have been agreed upon by the County Commission and are for your
consideration.
Detailed Summary:
Effectively, the City of Muskegon would remove the existing 425 agreement between the City,
County, and Dalton Township. This would forego claims to future income tax revenues sourced
from any jobs created at this site for the city, and so we determined that it was not in the best
interest of the community to simply agree to dispense of the agreement. We requested that the
County relinquish to us a roughly 113rd acre parcel at 902 Pine, which the county acquired in 2013
for a parking lot they never built. This site was the former location of a longstanding furniture store,
then Pine Street Antiques which was demolished by Muskegon County when they took possession
of the lot. City staff feel this lot would make a quality candidate for further workforce housing
options in the community, and potentially some mixed use commercial as well. The County would
not trade the lot for free in exchange for removal of the 425, so agreed to sell it for half of it's
appraised value, $24,000. The City countered by requesting that they invest some or all of that
revenue from the sale into the paving of another gravel lot located across Pine street from this lot
which is currently used by the County Sheriff's Department for parking. The County Administrator
agreed to these terms. This will increase the curb appeal and value for resale and development of
the lot we wish to trade.
There are two excavation companies that have conditional purchase agreements on much of the
site at Business Park North. Accurate Excavation and Ryerson Excavation have both requested to
purchase acreage there in order to build storage facilities for vehicles and potentially to store
excess materials and fill. As of now the County has informed us these are the only development
prospects they have for the sites. Staff has included the relevant documents and records on the lot
in your packet. Staff proposes to utilize the Economic Development Fund (493) to acquire this lot,
file the necessary Baseline Environmental Assessments with EGLE, and then immediately outlay a
Request For Proposals to see the lot redeveloped . The expectation is that we would achieve
market value for the lot, which should be in the $50,000 range in the event it is selected for a
potential LIHTC development.
Amount Requested: $24,000 Amount Budgeted: N/A (Capital Fund)
Fund(s) or Account(s): Economic Fund(s) or Account(s): Economic
Development Fund 493 (Current Balance Development Fund
$687,000)
Recommended Motion: A motion to direct staff and legal counsel to prepare necessary documents
to remove the City of Muskegon from the 425 Shared Jurisdiction Agreement at Business Park
North, and to approve the purchase of 902 Pine Street as presented.
For City Clerk Use Only:
Commission Action:
Link to Phase I Environmental Site Assessment for 902 Pine Street
http ://www.m uskegon-
mi.gov / cresou rces/Phase I Environmental Site Assessment 902 Pine Street.pdf
AGREEMENT TO BUY AND SELL REAL ESTATE
THIS AGREEMENT TO BUY AND SELL REAL ESTATE is executed between the
County of Muskegon, a Michigan municipal entity, of 990 Terrace Street, Muskegon, Michigan
49442 ("Seller"), and the City of Muskegon, a Michigan municipal corporation, 933 Terrace
Street, Muskegon, Michigan 49440-1397 ("Buyer"). The "Effective Date" ofthis Agreement is
the date it is signed by Seller.
RECITALS
Seller is the owner ofreal property located at 902 Pine Street, Muskegon, Michigan, and
legally described on Exhibit A, together with all easements, improvements and appurtenances
thereto (the "Real Estate"). Buyer wishes to purchase the Real Estate.
AGREEMENT
The parties agree as follows:
1. Sale and Purchase. Seller agrees to sell the Real Estate to Buyer, and Buyer
agrees to purchase the Real Estate from Seller, for the Purchase Price and according to the terms
and conditions set forth in this Agreement. Buyer will pay to Seller the Purchase Price in
immediately available funds at the Closing. Contemporaneously with the full execution of this
Agreement, Buyer shall deposit with the Title Insurance Company the Deposit, which will be
held in accordance with the terms of this Agreement.
2. Definitions. As used in this Agreement, the following terms are defined as:
(a) Agreement: This Agreement to Buy and Sell Real Estate.
(b) Closing: Consummation of the transaction described in this Agreement. The
Closing will take place on a day mutually determined by the patties, but not later than 90 days after the
Effective Date of this Agreement (the "Closing Date"), at the office of the Title Insurance Company.
"Pre-Closing" means that period from the date of this Agreement to the Closing Date, during which
time the patties will work in good faith to satisfy all requirements of this Agreement necessary to
transfer the Real Estate.
(c) Purchase Price: The Purchase Price shall be Twenty-Four Thousand Dollars
($24,000.00), payable by ce1tified fonds or wire transfer at Closing.
(d) Title Insurance Company: Transnation Title Agency, 570 Seminole Road,
Suite 102, Muskegon, Michigan 49444 (231-737-9111).
(e) Permitted Encumbrances: All encumbrances noted on the public record
are Permitted Encumbrances.
3. Title and Survey.
(a) Warranty Deed. At the Closing, Seller will transfer the Real Estate to
Buyer by warranty deed, subject to the Permitted Encumbrances and without warranties or
representations.
(b) Title Insurance. Within ten (10) days ofthe Effective Date, Seller will provide
Buyer a title commitment for an AL TA Owner's title insurance policy from the Title Insurance
Company, which will include copies of all recorded documents identified in the title commitment, in
the amount of the Purchase Price, covering title to the Real Estate on or after the Effective Date,
showing Seller as the owner of the Real Estate. The title commitment will provide for full coverage
subject to standard exceptions unless Buyer provides the Survey described below. The title
commitment will not provide coverage over the Permitted Encumbrances. Buyer shall be responsible
for the delivery of any Survey required by the Title Insurance Company for the removal of standard
exceptions. Any failure to deliver such a Survey shall mean that the title insurance policy will be issued
with standard exceptions. If the title commitment contains any exception that is not a standard
exception, and Buyer provides written notice thereof to Seller within ten (10) days after receipt ofthe
title commitment, then Seller shall have the option, but not the obligation, to promptly remove such
exception. If Seller elects not to remove such exception (in which event Seller shall notify Buyer in
writing), then Buyer or Seller may terminate this Agreement by written notice to the other within ten
(10) days of Seller's written notice ofits election not to remove the exception objected to by Buyer. If
neither Buyer nor Seller terminates this Agreement, then the parties shall proceed to Closing and such
exception shall be treated as a Permitted Encumbrance. If any party terminates this Agreement under
this paragraph, the parties will have no further rights or obligations except as otherwise specifically
provided. Seller will pay the cost of a title insurance policy to be subsequently issued pursuant to the
title commitment. The cost of any title insurance endorsements requested by Buyer shall be paid by
Buyer.
(c) Survey. Buyer may, within twenty (20) days after the Effective Date, obtain a
survey ("Survey") of the Real Estate. Any defects set forth on the Survey which are not objected to in
writing from Buyer to Seller within the Feasibility Period shall be deemed accepted by Buyer and shall
be Permitted Encumbrances. If Seller is unable or unwilling to cure such defects by the Closing Date,
then Buyer shall have the rights ascribed to Buyer the same as i fSeller fails to cure a title defect.
4. Contingencies. Seller's obligation to close under this Agreement is contingent
upon the approval of Seller's Board of Commissioners. Buyer's obligations under this Agreement
are further subject to the satisfaction or waiver ofeach and all o fthe following conditions:
(a) Feasibility; Inspections and Investigations. Buyer shall complete any
feasibility studies and inspections of the Real Estate (including without limitation environmental
inspections) and determine at Buyer's reasonable discretion that it is feasible and desirable for Buyer to
own and operate the Real Estate in a manner and upon terms and conditions reasonably satisfactory to
Buyer, and that Buyer, in its reasonable discretion, is satisfied with the results of its inspections and
investigations o fthe Real Estate. Except as provided in Section 3(b) with respect to title matters, Buyer
shall have sixty (60) days from the delivery of the title commitment, including copies of all recorded
documents identified in the commitment (the "Feasibility Period"), to give Seller written notice of any
2
objections to any material matter involving the Real Estate. Seller shall then have ten ( l 0) days after
receipt of such a written objection to cure the objectionable matter. Seller may, at any time after receipt
of a timely objection from Buyer, terminate this Agreement rather than cure the objectionable matter,
and the parties shall have no further rights or obligations hereunder except as otherwise specifically
stated. If Seller attempts but does not or cannot cure an objectionable matter within such ten ( l 0) day
period, then Buyer may, at any time before the completion of such cure, provide written notice to Seller
terminating this Agreement, and the parties shall have no further rights or obligations except as
otherwise specifically stated. Seller will, within ten (10) days ofthe Effective Date, deliver to Buyer
any surveys and environmental reports in its possession regarding the Real Estate.
(b) Effect ofNo Notice. If Buyer fails to give Seller timely written notice of an
objection to any material matter within the Feasibility Period, then any and all objections ofBuyer shall
be deemed waived, and the parties shall proceed to Closing.
(c) 425 Agreement. Buyer and Dalton Township are parties to a Contract for
Conditional Transfer of Jurisdiction dated September 24, 2002 (the "Section 425 Agreement")
pertaining to real property located in the County's Business Park North. Seller's obligation to close is
contingent upon Buyer and Dalton Township executing a termination of the Section 425 Agreement
prior to Closing.
5. Feasibility Period.
(a) Feasibility Period. During the Feasibility Period, Buyer will have full
access to the Real Estate during normal business hours for purposes of fully inspecting the
same.
(i) During the Feasibility Period, Buyer and its employees, agents or
contractors may go upon the Real Estate for the purpose of making any investigations or inspections
which Buyer deems necessary. Buyer shall use reasonable efforts to minimize any disturbance to the
Real Estate.
(ii) Buyer shall indemnify, defend and hold Seller harmless from and against
any and all liens, claims, losses, damages and liabilities arising out of Buyer's (and/or its employees,
agents or contractors) entry onto the Real Estate prior to Closing. Any damage caused by such entry,
inspections, testing or studies shall be promptly repaired by Buyer. The provisions ofthis Section shall
survive the Closing or any termination o fthis Agreement.
(b) Closing.
(i) Closing Documents. At the Closing, the following documents will
be executed and delivered by and between the parties:
(A) Buyer will pay all taxes and assessments due after Closing.
(B) Seller and Buyer will execute and deliver to each other a
Closing Statement reflecting the manner in which the Purchase Price is allocated and paid.
3
(C) Seller will deliver to Buyer, at Seller's cost, an owner's
policy of title insurance in the form contemplated by Section 3(b).
(D) Seller will execute and deliver the warranty deed for the Real
Estate.
(E) Buyer will deliver the fully executed termination of the
Section 425 Agreement prior to Closing.
(F) Such further documentation as is reasonably necessary to
evidence and close the transaction.
(ii) Purchase Price. At the Closing, Buyer shall pay the Purchase Price
in immediately available funds, subject to adjustment as provided below.
(iii) Closing Costs. At the Closing, the following expenses will be paid
and the Purchase Price will be adjusted in accordance with the following provisions:
(A) Buyer will pay all taxes and assessments, if any, due after Closing.
(B) Seller will pay any Michigan real estate transfer tax
applicable to this transaction. Buyer will be responsible for all recording fees pertaining to the
deed.
(C) Seller and Buyer shall share equally any closing fees charged
by the Title Insurance Company.
6. Possession. Seller will tender possession of the Real Estate to Buyer at Closing.
7. Wananties and Representations; Covenants; AS-IS Condition.
(a) Warranties and Representations. Seller represents and wanants to Buyer
as follows:
(i) Authority. Subject to the approval of Seller's Board of
Commissioners, Seller has the full capacity, right, power and authority to execute, deliver and
perform this Agreement and all documents to be executed by Seller, and all required actions and
approvals have been taken and obtained. The individuals signing this Agreement and all other
documents executed or to be executed on behalf of Seller are and will be authorized to sign on
Seller's behalf and to bind Seller. This Agreement and all documents to be executed by Seller
are and will be binding upon and enforceable against Seller.
(b) Buyer's Warranties and Representations. Buyer represents and wmrnnts
to Seller as follows:
(i) Authority. Subject to the approval of Buyer's City Commission, Buyer
has the full capacity, right, power and authority to execute, deliver and pe1form this Agreement and all
4
documents to be executed by Buyer, and all required actions and approvals have been talcen and obtained.
The individuals signing this Agreement and all other documents executed or to be executed on behalf of
Buyer are and will be authorized to sign on Buyer's behalf and to bind Buyer. This Agreement and all
documents to be executed by Buyer are and will be binding upon and enforceable against Buyer.
(c) Survival of Representations and Warranties. Any and all covenants,
representations, warranties and agreements made by Buyer or Seller in this Agreement or in
any instrument to be furnished pursuant to this Agreement will be true through and will survive
the Closing. Each party agrees to notify the other promptly if it becomes aware of any
transaction or occurrence prior to the Closing Date which would make any of their
representations or warranties in this Agreement untrue in any material respect.
(d) "AS-IS" "WHERE-IS" Condition of Real Estate and Personal Property.
(i) BUYER ACKNOWLEDGES AND AGREES THAT IT IS
PURCHASING THE REAL ESTATE "AS-IS" "WHERE-IS" AND "WITH ALL FAULTS"
WITHOUT ANY WARRANTIES, REPRESENTATIONS OR GUARANTEES, EITHER EXPRESS
OR IMPLIED, OF ANY KIND, NATURE, OR TYPE WHATSOEVER FROM, OR ON BEHALF
OF, SELLER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER
ACKNOWLEDGES AND AGREES THAT SELLER DISCLAIMS ANY AND ALL IMPLIED
WARRANTIES CONCERNING THE REAL ESTATE AND ANY PORTIONS THEREOF
INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF HABITABILITY,
MERCHANTABILITY OR FITNESS FOR APARTICULAR PURPOSE.
(ii) BUYER ACKNOWLEDGES AND AGREES THAT IT HAS NOT
RELIED, AND WILL NOT RELY, UPON ANY REPRESENTATIONS OR WARRANTIES (ORAL
OR WRITTEN) MADE BY OR PURPORTEDLY MADE ON BEHALF OF SELLER WITH
RESPECT TO THE PHYSICAL CONDITION OF THE REAL ESTATE, UNLESS SUCH
REPRESENTATIONS AND WARRANTIES ARE EXPRESSLY SET FORTH IN THIS
AGREEMENT.
(iii) BUYER AGREES THAT NO REPRESENTATION BY OR ON
BEHALF OF SELLER HAS BEEN MADE TO BUYER AS TO THE PHYSICAL CONDITION OF
THE REAL ESTATE, ANY RESTRICTIONS RELATED TO THE DEVELOPMENT OF THE
REAL ESTATE, THE APPLICABILITY OF OR COMPLIANCE WITH ANY GOVERNMENTAL
REQUIREMENTS, INCLUDING, BUT NOT LIMITED TO, ENVIRONMENTAL LAWS, OR THE
SUITABILITY OF THE REAL ESTATE FOR ANY PURPOSE WHATSOEVER.
(iv) Buyer is relying strictly upon Buyer's due diligence, investigations and
inquiries to malce the decision to purchase the Real Estate and to close. Upon Closing, Buyer will be
deemed to have been fully satisfied with the results of its inspections and investigations regarding the
Real Estate. Seller has no obligation after Closing to cooperate in any approvals or permits or to take or
not take any governmental action. Seller specifically disclaims any and all warranties or knowledge
regarding the environmental condition regarding the Real Estate. Seller advises Buyer to obtain
environmental reports and studies regarding the Real Estate. Buyer acknowledges that upon closing it
will be deemed to have full knowledge regarding the Real Estate.
5
8. Default.
(a) By Seller. Upon occurrence of any event of default by Seller, Buyer's sole
remedy shall be to terminate this Agreement.
(b) By Buyer. If, after the satisfaction of all contingencies, Buyer refuses to close
this transaction, then Seller may seek specific perf01mance of this Agreement or exercise any of the rights
and remedies accorded to Seller by the laws of the State of Michigan.
9. Miscellaneous.
(a) Assignment. This Agreement may be assigned by Buyer with the written
consent of Seller, which consent will not be unreasonably withheld. Buyer's assignee will enjoy the
full rights and benefits of this Agreement as if it were Buyer, but Buyer shall remain fully liable
hereunder.
(b) Eminent Domain. If, after the execution of this Agreement, but prior to
Closing, all or any mate1i.al portion (in Seller's reasonable judgment) of the Real Estate is talcen by
exercise of the power of eminent domain or any proceedings are threatened or instituted to effect such a
taking, Seller will immediately give Buyer notice of such occurrence, and Buyer may, within fourteen
(14) days after receipt of such notice, elect either (i) to terminate this Agreement, in which event all
obligations of the parties will cease and this Agreement will have no further force and effect, or (ii) to
close the transaction contemplated hereby as scheduled (except that if the Closing Date is sooner than
fourteen (14) days following Buyer's receipt of such notice, Closing will be delayed until Buyer makes
such election), in which event Seller will assign and/or pay to Buyer at Closing all condemnation
awards or other damages collected or claimed with respect to such taking.
(c) Notices. All notices, requests and demands to or upon any party to this
Agreement must be in writing and delivered personally or mailed first class, postage prepaid. Notice
will be deemed effective on the date postmarked, if by mail, or on the date of delivery, if personally
delivered.
(d) Waiver. No provision in this Agreement may be waived except in a writing
signed by the waiving party. No oral statements, course of conduct or course of dealing will be deemed
a waiver. No waiver by any party of any violation or breach of this Agreement will be deemed or
construed to constitute a waiver of any other violation or breach, or as a continuing waiver of any
violation or breach.
(e) Binding Effect. This Agreement will be binding upon and inure to the benefit
of the parties and their successors and assigns.
(f) Merger and Modification. This constitutes the entire Agreement between the
patties and any prior discussions, negotiations and agreements between the parties are merged herein.
No mnendment or modification of this Agreement will be enforceable except if in wii.ting and signed
by the party against whom enforcement is sought.
6
(g) Governing Law. This Agreement is governed by the laws of the State of
Michigan.
(h) Professional Representation. Each of the parties shall pay all of the costs that it
incurs incidental to this Agreement and the pe1f01mance of any related obligations, whether or not the
transactions contemplated by this Agreement are consummated. The paities have had a full and fair
opportunity to consult with advisors of their choosing regarding this Agreement and the transactions
contemplated herein. The parties enter into this Agreement lmowledgeably and voluntarily. This
Agreement shall be construed in a reasonable manner consistent with good faith and as if the parties
had jointly drafted it.
(i) Severability. Any terms of this Agreement that may be found to be contrary to
law or otherwise unenforceable will not affect the remaining terms of this Agreement, which will be
construed as if the unenforceable te1ms were absent from this Agreement.
G) Time of Performance. Time is of the essence of this Agreement.
Oc) Execution in Counte.tparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original and all of which when taken together
shall constitute one and the same Agreement. The delivery of an executed signature page to this
Agreement by facsimile, electronic or telecopy transmission shall constitute due execution and delivery
of this Agreement for all purposes.
10. Acknowledgment. By signing this Agreement, the paiiies acknowledge that they
have read this document, they know its contents and they are voluntarily signing it.
[Rest of Page intentionally left blank]
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BUYER:
Dated: CITY OF MUSKEGON
By:..,L_~~~~L_~ ~ ~-
Stephen
Its: Mayor
Dated: - - - - -- SELLER:
MUSKEGON COUNTY
By: ~S~
Robert Scolnick
Its: Board Chair
8
EXHIBIT A
(Legal Description)
Real prope1iy located in the City of Muskegon, County of Muskegon, State of Michigan,
and legally described as Revised Plat of 1903, Lots 11-16, Block 189.
(May be revised in accordance with the Title Commitment)
Parcel No. 61-24-205-189-001 l-00
86083:00001 :5325497-1
9
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AGREEMENT TO BUY AND SELL REAL ESTATE
THIS AGREEMENT TO BUY AND SELL REAL ESTATE is executed between the
County of Muskegon, a Michigan municipal entity, of 990 Terrace Street, Muskegon, Michigan
49442 ("Seller"), and the City of Muskegon, a Michigan municipal corporation, 933 Te1Tace
Street, Muskegon, Michigan 49440-1397 ("Buyer"). The "Effective Date" of thls Agreement is
the date it is signed by Seller.
RECITALS
Seller is the owner of real prope1ty located at 902 Pine Street, Muskegon, Michigan, and
legally described on Exhibit A, together with all easements, improvements and appmtenances
thereto (the "Real Estate"). Buyer wishes to purchase the Real Estate.
AGREEMENT
The patties agree as follows:
1. Sale and Purchase. Seller agrees to sell the Real Estate to Buyer, and Buyer
agrees to purchase the Real Estate from Seller, for the Purchase Price and according to the te1ms
and conditions set forth in this Agreement. Buyer will pay to Seller the Purchase Price in
immediately available funds at the Closing. Contemporaneously with the full execution of this
Agreement, Buyer shall deposit with the Title Insurance Company the Deposit, which will be
held in accordance with the terms of this Agreement.
2. Definitions. As used in thls Agreement, the following terms are defined as:
(a) Agreement: This Agreement to Buy and Sell Real Estate.
(b) Closing: Consummation of the transaction described in this Agreement. The
Closing will take place on a day mutually determined by the parties, but not later than 90 days after the
Effective Date of thls Agreement (the "Closing Date"), at the office of the Title Insurance Company.
"Pre-Closing" means that period from the date of this Agreement to the Closing Date, during which
time the parties will work in good faith to satisfy all requirements of this Agreement necessary to
transfer the Real Estate.
(c) Purchase Price: The Purchase Price shall be Twenty-Four Thousand Dollars
($24,000.00), payable by ceiti:fied funds or wire transfer at Closing.
(d) Title Insurance Company: Transnation Title Agency, 570 Seminole Road,
Suite 102, Muskegon, Michigan 49444 (231-737-9111).
(e) Permitted Encumbrances: All encumbrances noted on the public record
are Permitted Encumbrances.
1
3. Title and Survey.
(a) Wairnnty Deed. At the Closing, Seller will transfer the Real Estate to
Buyer by wananty deed, subject to the Permitted Encumbrances and without waiTanties or
representations.
(b) Title Insurance. Within ten (10) days of the Effective Date, Seller will provide
Buyer a title commitment for an ALTA Owner's title insurance policy from the Title Insurance
Company, which will include copies of all recorded documents identified in the title commitment, in
the amount of the Purchase Price, covering title to the Real Estate on or after the Effective Date,
showing Seller as the owner of the Real Estate. The title commitment will provide for full coverage
subject to standard exceptions unless Buyer provides the Survey described below. The title
commitment will not provide coverage over the Permitted Encumbrances. Buyer shall be responsible
for the delive1y of any Survey required by the Title Insurance Company for the removal of standard
exceptions. Any failure to deliver such a Survey shall mean that the title insurance policy will be issued
with standard exceptions. If the title commitment contains any exception that is not a standard
exception, and Buyer provides written notice thereof to Seller within ten (10) days after receipt of the
title commitment, then Seller shall have the option, but not the obligation, to promptly remove such
exception. If Seller elects not to remove such exception (in which event Seller shall notify Buyer in
writing), then Buyer or Seller may terminate this Agreement by written notice to the other within ten
(10) days of Seller's written notice of its election not to remove the exception objected to by Buyer. If
neither Buyer nor Seller terminates this Agreement, then the parties shall proceed to Closing and such
exception shall be treated as a Pennitted Encumbrance. If any party tenninates this Agreement under
this paragraph, the parties will have no further rights or obligations except as otherwise specifically
provided. Seller will pay the cost of a title insurance policy to be subsequently issued pursuant to the
title commitment. The cost of any title insurance endorsements requested by Buyer shall be paid by
Buyer.
(c) Survey. Buyer may, within twenty (20) days after the Effective Date, obtain a
survey ("Survey") of the Real Estate. Any defects set f01th on the Survey which are not objected to in
writing from Buyer to Seller within the Feasibility Period shall be deemed accepted by Buyer and shall
be Permitted Encumbrances. If Seller is unable or unwilling to cure such defects by the Closing Date,
then Buyer shall have the rights ascribed to Buyer the same as if Seller fails to cure a title defect.
4. Contingencies. Seller's obligation to close under this Agreement is contingent
upon the approval of Seller's Board of Commissioners. Buyer's obligations under this Agreement
are further subject to the satisfaction or waiver of each and all ofthe following conditions:
(a) Feasibility; Inspections and Investigations. Buyer shall complete any
feasibility studies and inspections of the Real Estate (including without limitation environmental
inspections) and dete1mine at Buyer's reasonable discretion that it is feasible and desirable for Buyer to
own and operate the Real Estate in a manner and upon te1ms and conditions reasonably satisfact01y to
Buyer, and that Buyer, in its reasonable discretion, is satisfied with the results of its inspections and
investigations of the Real Estate. Except as provided in Section 3(b) with respect to title matters, Buyer
shall have sixty (60) days from the delive1y of the title commitment, including copies of all recorded
documents identified in the commitment (the "Feasibility Period"), to give Seller written notice of any
2
objections to any material matter involving the Real Estate. Seller shall then have ten (10) days after
receipt of such a written objection to cure the objectionable matter. Seller may, at any time after receipt
of a timely objection from Buyer, terminate this Agreement rather than cure the objectionable matter,
and the patties shall have no fmther rights or obligations hereunder except as otherwise specifically
stated. If Seller attempts but does not or cannot cure an objectionable matter within such ten (10) day
period, then Buyer may, at any time before the completion of such cure, provide written notice to Seller
terminating this Agreement, and the patties shall have no :finther rights or obligations except as
otherwise specifically stated. Seller will, within ten (10) days of the Effective Date, deliver to Buyer
any surveys and environme1ital rep01ts in its possession regat·ding the Real Estate.
(b) Effect of No Notice. If Buyer fails to give Seller timely written notice of an
objection to any material matter within the Feasibility Period, then any and all objections of Buyer shall
be deemed waived, and the patties shall proceed to Closing.
(c) 425 Agreement. Buyer and Dalton Township are patties to a Contract for
Conditional Transfer of Jurisdiction dated September 24, 2002 (the "Section 425 Agreement")
pe1taining to real property located in the County's Business Pmk North. Seller's obligation to close is
contingent upon Buyer and Dalton Township executing a tennination of the Section 425 Agreement
prior to Closing.
5. Feasibility Period.
(a) Feasibility Period. During the Feasibility Period, Buyer will have full
access to the Real Estate during normal business hours for purposes of fully inspecting the
same.
(i) Dming the Feasibility Period, Buyer and its employees, agents or
contractors may go upon the Real Estate for the purpose of malcing any investigations or inspections
which Buyer deems necessaty. Buyer shall use reasonable eff01ts to minimize any disturbance to the
Real Estate.
(ii) Buyer shall indemnify, defend and hold Seller hatmless from and against
any and all liens, claims, losses, damages and liabilities at·ising out of Buyer's (and/or its employees,
agents or contractors) ently onto the Real Estate prior to Closing. Any damage caused by such ently,
inspections, testing or studies shall be promptly repaired by Buyer. The provisions of this Section shall
survive the Closing or any tennination of this Agreement.
(b) Closing.
(i) Closing Documents. At the Closing, the following documents will
be executed and delivered by and between the parties:
(A) Buyer will pay all taxes and assessments due after Closing.
(B) Seller and Buyer will execute and deliver to each other a
Closing Statement reflecting the manner in which the Purchase Price is allocated and paid.
3
(C) Seller will deliver to Buyer, at Seller's cost, an owner's
policy of title insurance in the fo1m contemplated by Section 3(b).
(D) Seller will execute and deliver the warranty deed for the Real
Estate.
(E) Buyer will deliver the fully executed termination of the
Section 425 Agreement prior to Closing.
(F) Such further documentation as is reasonably necessary to
evidence and close the transaction.
(ii) Purchase Price. At the Closing, Buyer shall pay the Purchase Price
in inm1ed~ately available funds, subject to adjustment as provided below.
(iii) Closing Costs. At the Closing, the following expenses will be paid
and the Purchase Price will be adjusted in accordance with the following provisions:
(A) Buyer will pay all taxes and assessments, if any, due after Closing.
(B) Seller will pay any Michigan real estate transfer tax
applicable to this transaction. Buyer will be responsible for all recording fees pe1iaining to the
deed.
(C) Seller and Buyer shall share equally any closing fees charged
by the Title Insurance Company.
6. Possession. Seller will tender possession of the Real Estate to Buyer at Closing.
7. Warranties and Representations; Covenants; AS-IS Condition.
(a) Warranties and Representations. Seller represents and warrants to Buyer
as follows:
(i) Authority. Subject to the approval of Seller's Board of
Commissioners, Seller has the full capacity, right, power and authority to execute, delive1' and
perform this Agreement and all documents to be executed by Seller, and all required actions and
approvals have been taken and obtained. The individuals signing this Agreement and all other
documents executed or to be executed on behalf of Seller are and will be authorized to sign on
Seller's behalf and to bind Seller. This Agreement and all documents to be executed by Seller
are and will be binding upon and enforceable against Seller.
(b) Buyer's Warranties and Representations. Buyer represents and warrants
to Seller as follows:
(i) Authority. Subject to the approval of Buyer's City Commission, Buyer
has the full capacity, right, power and authority to execute, deliver and pe1form this Agreement and all
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documents to be executed by Buyer, and all required actions and approvals have been talcen and obtained.
The individuals signing this Agreement and all other documents executed or to be executed on behalf of
Buyer are and will be authorized to sign on Buyer's behalf and to bind Buyer. This Agreement and all
documents to be executed by Buyer are and will be binding upon and enforceable against Buyer.
(c) Survival of Representations and Wananties. Any and all covenants,
representations, wananties and agreements made by Buyer or Seller in this Agreement or in
any instrument to be furnished pursuant to this Agreement will be true through and will survive
the Closing. Each party agrees to notify the other promptly if it becomes aware of any
transaction or occurrence prior to the Closing Date which would make any of their
representations or wananties in this Agreement untrue in any material respect.
(d) "AS-IS" "WHERE-IS" Condition of Real Estate and Personal Prope1ty.
(i) BUYER ACKNOWLEDGES AND AGREES THAT IT IS
PURCHASING THE REAL ESTATE "AS-IS" "WHERE-IS" AND "WITH ALL FAULTS"
WIIBOUT ANY WARRANTIES, REPRESENTATIONS OR GUARANTEES, EITHER EXPRESS
OR IMPLIED, OF ANY KIND, NATURE, OR TYPE WHATSOEVER FROM, OR ON BEHALF
OF, SELLER. WIIBOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER
ACKNOWLEDGES AND AGREES THAT SELLER DISCLAIMS ANY AND ALL IMPLIED
WARRANTIES CONCERNING THE REAL ESTATE AND ANY PORTIONS THEREOF
INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF HABITABILITY,
MERCHANTABILITY OR FITNESS FOR APARTICULAR PURPOSE.
(ii) BUYER ACKNOWLEDGES AND AGREES THAT IT HAS NOT
RELIED, AND WILL NOT RELY, UPON ANY REPRESENTATIONS OR WARRANTIES (ORAL
OR WRITTEN) MADE BY OR PURPORTEDLY MADE ON BEHALF OF SELLER WIIB
RESPECT TO THE PHYSICAL CONDITION OF THE REAL ESTATE, UNLESS SUCH
REPRESENTATIONS AND WARRANTIES ARE EXPRESSLY SET FORIB IN THIS
AGREEMENT.
(iii) BUYER AGREES THAT NO REPRESENTATION BY OR ON
BEHALF OF SELLER HAS BEEN MADE TO BUYER AS TO THE PHYSICAL CONDITION OF
THE REAL ESTATE, ANY RESTRICTIONS RELATED TO THE DEVELOPMENT OF nm
REAL ESTATE, THE APPLICABILITY OF OR COMPLIANCE WIIB ANY GOVERNMENTAL
REQUIREMENTS, INCLUDING, BUT NOT LIMITED TO, ENVIRONMENTAL LAWS, OR THE
SUITABILITY OF THE REAL ESTATE FOR ANY PURPOSE WHATSOEVER.
(iv) Buyer is relying strictly upon Buyer's due diligence, investigations and
inquiries to malce the decision to purchase the Real Estate and to close. Upon Closing, Buyer will be
deemed to have been fully satisfied with the results of its inspections and investigations regarding the
Real Estate. Seller has no obligation after Closing to cooperate in m1y approvals or permits or to talce or
not take any governmental action. Seller specifically disclaims any and all wmranties or knowledge
regm·ding the environmental condition regm·ding the Real Estate. Seller advises Buyer to obtain
environmental reports and studies regarding the Real Estate. Buyer acknowledges that upon closing it
will be deemed to have full knowledge regmding the Real Estate.
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8. Default.
(a) By Seller. Upon occmrnnce of any event of default by Seller, Buyer's sole
remedy shall be to te1minate this Agreement.
(b) By Buyer. If, after the satisfaction of all contingencies, Buyer refuses to close
this transaction, then Seller may seek specific pe1formance of this Agreement or exercise any of the rights
and remedies accorded to Seller by the laws of the State of Michigan.
9. Miscellaneous.
(a) Assignment. This Agreement may be assigned by Buyer with the written
consent of Seller, which consent will not be unreasonably withheld. Buyer's assignee will enjoy the
full rights and benefits of this Agreement as if it were Buyer, but Buyer shall remain fully liable
hereunder.
(b) Eminent Domain. If, after the execution of this Agreement, but prior to
Closing, all or any material portion (in Seller's reasonable judgment) of the Real Estate is talcen by
exercise of the power of eminent domain or any proceedings are threatened or instituted to effect such a
talcing, Seller will immediately give Buyer notice of such occmTence, and Buyer may, within fomteen
(14) days after receipt of such notice, elect either (i) to te1minate this Agreement, in which event all
obligations of the pmties will cease and this Agreement will have no further force and effect, or (ii) to
close the transaction contemplated hereby as scheduled (except that if the Closing Date is sooner than
fomteen (14) days following Buyer's receipt of such notice, Closing will be delayed until Buyer makes
such election), in which event Seller will assign and/or pay to Buyer at Closing all condemnation
awards or other damages collected or claimed with respect to such taking.
(c) Notices. All notices, requests and demands to or upon any pmty to this
Agreement must be in wiiting and delivered personally or mailed first class, postage prepaid. Notice
will be deemed effective on the date postmm·ked, if by mail, or on the date of delive1y, if personally
delivered.
(d) Waiver. No provision in this Agreement may be waived except in a W11ting
signed by the waiving pmty. No oral statements, comse of conduct or comse of dealing will be deemed
a waiver. No waiver by any pmty of any violation or breach of this Agreement will be deemed or
construed to constitute a waiver of any other violation or breach, or as a continuing waiver of any
violation or breach.
(e) Binding Effect. This Agreement will be binding upon and inme to the benefit
of the pmties and their successors and assigns.
(f) Merger and Modification. This constitutes the entire Agreement between the
pmties and any p1ior discussions, negotiations and agreements between the pmties are merged herein.
No mnendment or modification of this Agreement will be enforceable except if in wi·iting and signed
by the pmty against whom enforcement is sought.
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(g) Governing Law. This Agreement is governed by the laws of the State of
Michigan.
(h) Professional Representation. Each of the pmties shall pay all of the costs that it
incurs incidental to this Agreement and the pe1f01111m1ce of m1y related obligations, whether or not the
traJ.1Sactions contemplated by this Agreement are consummated. The pmties have had a full and fair
oppmtunity to consult with advisors of their choosing regarding this Agreement m1d the traJ.1Sactions
contemplated herein. The pmties enter into this Agreement knowledgeably and voluntrnily. This
Agreement shall be constrned in a reasonable manner consistent with good faith and as if the pmties
had jointly drafted it.
(i) Severability. Any tenns of this Agreement that may be found to be contrmy to
law or otherwise unenforceable will not affect the remaining terms of this Agreement, which will be
constrned as if the unenforceable tenns were absent from this Agreement.
G) Time of Pe1formance. Time is of the essence of this Agreement.
(k) Execution in Counterpmts. This Agreement may be executed in any number
of counterpmts, each of which shall be deemed to be an original and all of which when taken together
shall constitute one and the smne Agreement. The delivery of an executed signature page to this
Agreement by facsinille, electronic or telecopy trat1Smission shall constitute due execution and delivery
of this Agreement for all pmposes.
10. Acknowledgment. By signing this Agreement, the parties acknowledge that they
have read this document, they know its contents and they are voluntarily signing it.
[Rest of Page intentionally left blank]
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BUYER:
4/JtpJ d}d1
&l, )?@=}
: T~
Dated: J¥\a~
StephenGawron
Its: Mayor
Dated: - - - - - - SELLER:
MUSKEGON COUNTY
By: (?~~~
Robert Scolnick
Its: Board Chair
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EXHIBIT A
(Legal Description)
Real prope1iy located in the City of Muskegon, County of Muskegon, State of Michigan,
and legally described as Revised Plat of 1903, Lots 11-16, Block 189.
(May be revised in accordance with the Title Commitment)
Parcel No. 61-24-205-189-0011-00
86083:00001 :5325497-1
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