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PURCHASE AND SALE AGREEMENT
TIDS PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into as of January
2&, 2022 (the "Effective Date") by and between 2725 Olthoff LLC, a Michigan limited liability company,
of 55 Campau Avenue NW, Suite 300, Grand Rapids, Michigan 49503 ("Buyer") and the City of
Muskegon, a Michigan municipal corporation, of 933 Terrace, Muskegon, Michigan 49440 ("Seller").
RECITALS
A. Seller owns that certain real property located in the City of Muskegon, County of
Muskegon, State of Michigan, commonly known as 2725 Olthoff Drive, consisting of approximately 34.37
acres of vacant land in the Port City Industrial Park having permanent parcel number 61 -24-696-000-0067-
00 and adjacent and contiguous real property located in the Township of Fruitport, County of Muskegon,
State of Michigan, commonly known as East Broadway, Muskegon, Michigan 49444 consisting of
approximately 28 acres of vacant land having permanent parcel number 61-15-102-200-0001-00 (together,
the "Parent Parcel").
B. Subject to the terms of this Agreement, Seller desires to sell and Buyer desires to
purchase a portion of the Parent Parcel consisting of approximately 18.79 acres, as depicted on Exhibit A
attached hereto and to be more particularly described on Exhibit B to be attached hereto at a later date as
described in this Agreement, together with all of Seller's right, title and interest in and to all improvements,
hereditaments, tenements, rights, leases, rents, issues, profits, easements appurtenant thereto, all
collectively referred to herein as the "Property."
C. Upon completion of the sale and purchase of the Property, Seller shall retain title
to the residual portion of the Parent Parcel which is not being conveyed to Purchaser as part of the Property
(the "Retained Property"). The Retained Property is described on Exhibit C to be attached hereto at a
later date. Seller and Buyer shall work together to obtain the issuance of all governmental approvals
necessary to split the portion of the Property as shown as Exhibit A and described on Exhibit B out of the
Parent Parcel in order to cause such portion of the Property to constitute a separate approximately 20 acre
legal parcel substantially in the location and ponfiguration shown on Exhibit A (the "Land Division").
AGREEMENT
NOW, THEREFORE, taking into account the foregoing Recitals, and in consideration of
the mutual covenants, agreements and conditions set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer and Seller agree as
follows:
1. AGREEMENT TO PURCHASE AND SALE. Subject to the conditions and upon the
tenns of this Agreement, Seller hereby agrees to sell, convey and assign the Property to Buyer, and Buyer
agrees to buy and accept the Property from Seller.
2. PURCHASE PRICE/DEPOSIT. The purchase price to be paid for the Property (the
"Purchase Price") at the Close of Escrow is One Thousand Five Hundred and 00/100 Dollars ($1,500.00)
per acre. The.Purchase Price shall be deposited by Buyer into Escrow (as defined below) in immediately
available funds on or before the Close of Escrow. Upon the full execution of this Agreement, Buyer shall
deposit in escrow with the Title Company the sum of Five Thousand and 00/100 Dollars ($5,000.00; the
"Earnest Money Deposit"). The Earnest Money Deposit shall be applied to the Purchase Price at the Close
of Escrow.
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3. TITLE AND SURVEY.
(a) Title. As evidence of title to the Property, Buyer shall order within 7 days after
the legal description of the Property is attached as Exhibit B to this Agreement, at Seller's cost and expense,
from First American Title Insurance Company, whose address is 4362 Cascade Road, SE, Suite 109, Grand
Rapids, MI 49545 (the "Title Company") a commitment ("Title Commitment') to issue an owner's title
insurance policy insuring the Property in the amount of the Purchase Price, without the standard printed
exceptions, which shall be in a form approved by the American Land Title Association ("ALTA") and
acceptable to Buyer; provided, however, that Buyer may request that the title insurance policy insure the
Property in an amount greater than the Purchase Price ("Additional Coverage"), in which case Buyer shall
pay for any additional cost of such Additional Coverage. Upon receipt of the Title Commitment, Buyer
shall provide a copy of the Title Commitment to Seller. Buyer shall notify Seller in writing within 20 days
after Buyer's receipt of the Title Commitment if the Title Commitment discloses any exceptions not
acceptable to Buyer nor Buyer's lender, if any, or that, in Buyer's judgment, could interfere with Buyer's
intended use of the Property (individually and collectively, a "Defect"). Seller may elect to remove each
Defect at Seller's expense on or before the Close of Escrow after Buyer's notice of the Defect. In addition,
Seller shall satisfy the requirements set forth in the Title Commitment on or before the Close of Escrow. If
Seller fails or refuses to remove any Defect or satisfy any requirement on the Title Commitment, then Buyer
may: (i) proceed to closing, waiving the Defect or requirement at issue; or (ii) terminate this Agreement by
a written notice to Seller, the Earnest Money Deposit shall be returned to Buyer, and neither Seller nor
Buyer shall have any further liability to the other under this Agreement.
(b) Survey. Within 7 days after the legal description of the Property is attached as
Exhibit B to this Agreement, Buyer shall order a 2021 ALTA/NSPS land title survey of the Property which
is certified to Buyer, Buyer's lender, and the Title Company, insuring the transaction along with their
underwriter, and Buyer's assignee, if any, all at Buyer's expense ("Survey"). Buyer shall deliver a copy of
the Survey to Seller within 7 days of receipt by Buyer. If the Survey shows any deviation from apparent
boundaries or represented acreage, violation of zoning ordinances, or building and use restrictions, flood
hazard area, encroachment, or condition that is not acceptable to Buyer ("Survey Defect"), Buyer may
(i) proceed to closing, waiving the Survey Defect; or (ii) terminate this Agreement by a written notice to
Seller, the Earnest Money Deposit shall be returned to Buyer, and neither Seller nor Buyer shall have any
further liability to the other under this Agreement.
4. BUYER'S DUE DILIGENCE PERIOD Buyer's obligation to purchase the Property and
the remainder of Buyer's obligations under this Agreement shall be subject to Buyer's determination that
the Property is suitable for the Project (as defined below) on or before the date that is 180 days after the
Effective Date ("Due Diligence Period") provided, however, that Buyer may extend the Due Diligence
Period for up to thirty (30) days by providing written notice to Seller prior to the expiration of the Due
Diligence Period. This Agreement may be terminated upon written notice to Seller by Buyer on or before
the expiration of the Due Diligence Period in Buyer's sole discretion then Buyer shall be relieved of all
obligations and liabilities under this Agreement and the Earnest Money Deposit shall be refunded to Buyer.
(a) Inspections. Buyer may conduct such inspections of the Property that Buyer
desires, including, but not limited to, compliance of the Property with applicable laws, ordinances and
regulations, the suitability of the Property for Buyer's intended use, and the environmental condition of the
Property, to be performed at Buyer's discretion and expense. Buyer shall indemnify Seller and hold Seller
harmless for any damages, including injuries, that occur as part of Buyer's inspections. If the Property is a
"facility" within the meaning of Part 201 of the Michigan Natural Resources and Environmental Protection
Act, MCL 324.20101 et seq ("Part 201"), Buyer shall deliver to Seller the report that made the
determination that the Property is a facility and, if Seller consents in writing prior to submission, Buyer
may, at Buyer's expense, prepare and, after closing, submit to the Michigan Department of Environment,
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Great Lakes and Energy ("EGLE") a "baseline environmental assessment," or "BEA," pursuant to Section
26 of Part 201, MCL 324.20126. Buyer may also, at Buyer's expense, prepare a due care plan to meet due
care obligations, if any, at the Property imposed under MCL 324.20107a.
(b) Land Division. Seller shall use commercially reasonable efforts to cause the
Property to be split from the Parent Parcel ("Land Division") in accordance with 1967 PA 288, MCL
560.101 et seq. ("Land Division Act") to be completed by the expiration of the Due Diligence Period, and
Buyer shall reasonably cooperate with Seller, at no cost or expense to Buyer. If Seller is unable, despite its
commercially reasonable efforts, to effectuate the Land Division within the Due Diligence Period, then
either party may elect to terminate this Agreement, by notice of such election to terminate delivered to the
other party prior to the effectuation of the Land Division, and in the event of such termination, the Earnest
Money Deposit shall be returned to Buyer and neither party shall have any further liability or obligation
hereunder (other than the provisions of this Agreement that expressly survive Closing and/or termination
of this Agreement). Once the Land Division is effectuated, the associated legal description of the Property
shall be attached hereto as Exhibit B, the associated legal description of the Retained Property shall be
attached hereto as Exhibit C, and the Buyer and Seller shall arrange to have the Title Company modify the
Commitment to reflect the actual legal description of the Property and make the associated revisions to the
Commitment. Any new title exceptions resulting therefrom shall be subject to Buyer's approval, including,
without limitation, the requirement of any additional title endorsements. Further, such legal description of
the Property shall be utilized for purposes of Exhibit A to the Deed (defined in Section 5(c)). If Land
Division Act approval is obtained, at Closing Seller shall convey at least one division right to Buyer at the
closing.
(c) Development. Buyer intends to construct a life science research and office facility
consisting initially of approximately 125,000 square feet ("Phase I"), 50,000 square feet of which will
initially be unoccupied shell space (the "Shell Space"), with an anticipated expansion of another 125,000
square feet (the "Project"). Buyer may investigate and inspect the Property during the Due Diligence Period
and determine that the Property is suitable for the Project, including, but not limited to the condition of the
surface and soil thereunder; the availability and condition of adjoining roadways, utilities, and sewers; a
geotechnical analysis of the Property; Buyer's satisfaction that all governing municipalities and all other
government and regulatory agencies having jurisdiction over the Property or Buyer will permit and approve
the Project ("Permits and Approvals"), including, but not limited to, the Permits and Approvals of an
onsite incinerator;
(d) Intentionally Omitted.
(e) Intentionally Omitted
(f) Documents to be Provided by Seller. Within five (5) business days of the
Effective Date, to the extent in the possession or control of Seller, Seller shall deliver to Buyer full,
complete, accurate, and legible copies of the following documentation all to the extent within Seller's
possession or control (the "Property Documents"), for Buyer's review and approval, in its sole discretion:
(i) all plans and specifications, soil, engineering, environmental reports and
studies or architectural notices, studies, reports or plans, and all other reports concerning the
Property which relate to the physical condition or operation of the Property (collectively, the "Plans
and Reports");
(ii) Intentionally Omitted
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(iii) copies of any and all written notices received by Seller from any
governmental or quasi-governmental authorities with respect to (A) violations or alleged violations
of any License, law, code or regulation, including, without limitation, any health and sanitation,
fire or building codes; (B) defects or other deficiencies in the Property, and (C) results of all
inspections of the Prope1ty;
(iv) such other documents or items as Buyer may reasonably request in
connection with its due diligence investigation of the Property or the operation thereof.
(g) Intentionally Omitted
Buyer's obligation to purchase the Property and the remainder of Buyer's obligations under this
Agreement shall be subject to its approval of each contingency set forth below on or before the Close of
Escrow:
(i) Date Down of Representations; No Breach of Covenants. All of the
representations and warranties of Seller pursuant to Section 10 below shall be true and correct in all material
respects as of the Close of Escrow and, prior to the Close of Escrow, there shall be no material breach of
Seller's covenants or obligations under this Agreement.
(ii) Proforma. The Title Company's commitment to issue a marked-up title
commitment or proforma owner's policy to be issued at the Close of Escrow, along with title insurance
policy endorsements required by Buyer and to be obtained at Buyer's expense.
5. ESCROW.
(a) Escrow Holder; Escrow Instructions. First American Title Insurance Company,
Attn: Craig Wandrie (the "Escrow Holder") shall establish an escrow for the purchase and sale of the
Property (the "Escrow"). This Agreement, together with such further written instructions, if any, as both
parties jointly provide to Escrow Holder, shall constitute the escrow instructions to the Escrow Holder.
(b) Opening and Close of Escrow. The Escrow shall be deemed open as of the
Effective Date and shall close (the "Close of Escrow") effective on the transfer of the Property which shall
be deemed to have occurred as of 12:01 a.m. local time on the date of the Close of Escrow. The Close of
Escrow shall occur on the date that is thirty (30) days after the expiration of the Due Diligence Period;
provided, however, that (i) the Close of Escrow shall take place on an earlier date as shall be specified by
Buyer on at least one week's notice to Seller after the completion ofthe Land Division. The Close of Escrow
shall be held at the Title Company, unless otherwise agreed in writing by the parties.
(c) Seller Deposits Into Escrow. As a condition precedent to the Close of Escrow in
favor of Buyer, Seller shall deliver or cause to be delivered the items set forth below to Escrow Holder to
permit the closing of the transaction contemplated hereby:
(i) Duly executed and acknowledged quit claim deed (the "Deed");
(ii) duly executed non-foreign affidavit;
(iii) payoff letters from the holders or claimants of, or with respect to, any
encumbrance or monetary lien affecting the Property;
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(iv) any and all transfer declarations or disclosure documents, duly executed
by the appropriate parties, required in connection with the recordation of the Deed by any state,
city, or county agency having jurisdiction over the Property or the transactions contemplated
hereby;
(v) a duly executed closing statement setting forth the Purchase Price and
closing adjustments ("Closing Statement");
(vi) an assignment to Buyer of (i) all of the right, title and interest of Seller in,
to and under each service contract, utility contract and similar contract or commitment (if
assignable), including but not limited to the Contracts, affecting all or any po1tion of the Property,
which Buyer determines, in its sole discretion, to retain; and (ii) all governmental licenses, permits
and approvals (if assignable), affecting all or any portion of the Property, which Buyer determines
to retain, together with originals of all items assigned;
(vii) any other documents reasonably required by the Title Company or Escrow
Holder to consummate this transaction.
(d) Buyer Deposits Into Escrow. As a condition precedent to the Close of Escrow in
favor of Seller, Buyer shall deliv(;lr or cause to be delivered in a timely manner to permit the closing of the
transaction contemplated hereby by the Close of Escrow the following:
(i) to Escrow Holder a sum equal to the Purchase Price less any credits against
the Purchase Price and other adjustments provided for herein, plus any other sums required for
costs to be paid by Buyer pursuant to the terms of this Agreement;
(ii) to Escrow Holder a duly executed counterpart of the Closing Statement;
(iii) , to Escrow Holder any executed or other documents reasonably required
by the Title Company or Escrow Holder to consummate this transaction;
(e) Authorization to Close Escrow. Provided Buyer has not terminated this
Agreement prior to expiration of the Due Diligence Period, once Buyer and Seller have deposited into the
Escrow or delivered to the other party (and provided Escrow Holder with notice of the same), as applicable,
the items required by this Agreement and the Title Company is irrevocably and unconditionally committed
to issuing the Title Policy, Escrow Holder shall:
(i) Cause the Deed to be recorded with the Muskegon County Register of
Deeds. (the "County"), and cause a conformed copy of the Deed to be mailed to Buyer after the
same has been recorded.
(ii) Deliver to Seller the Purchase Price, as adjusted on the Closing Statement..
(iii) Cause the Title Policy to be issued to Buyer by the Title Company, without
the standard printed exceptions (with delivery of the original of the Title Policy to occur as soon as
possible.
(t) Possession. At the Close of Escrow, Seller shall deliver to Buyer actual physical
possession of the Property, free of all tenants or other occupants.
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6. CLOSING COSTS.
(a) Seller Costs. Seller shall pay (i) any documentary transfer tax, revenue tax or
excise tax (and any surtax thereon) due in connection with the consummation of this transaction; (ii) Seller's
legal, accounting and other professional fees and expenses, and the cost of all certificates, instruments and
documents required to be delivered, or to cause to be delivered, by Seller hereunder; (iii) fifty percent (50%)
of all escrow fees of the Escrow Holder; and (iv) any and all costs, expenses or fees associated with Seller's
paying off of any loans or liens on the Property.
(b) Buyer Costs. Buyer shall pay (i) all costs incurred by Buyer in connection with
its investigation of the Property, including the cost of any appraisal, ALTA/NSPS survey, site inspections
or environmental audits; (ii) Buyer's legal, accounting, and other professional fees and expenses and the
cost of all certificates, instruments, and documents required to be delivered by Buyer hereunder; (iii) fifty
percent (50%) of all escrow fees of the Escrow Holder; and (iv) the fees for recording the Deed.
(c) Cost of the Title Policy. Seller shall pay the cost of the premium for the Title
Policy in the amount of the Purchase Price, excluding any special endorsements requested by Buyer which
shall be paid by the Buyer. Buyer shall pay the cost of the Additional Coverage.
(d) Other Costs. Any other costs of the Escrow or of closing pertaining to this
transaction not otherwise expressly allocated among Buyer and Seller under this Agreement shall be split
with Seller paying fifty percent (50%) and Buyer paying fifty percent (50%)
(e) Cancellation of Escrow. Notwithstanding the provisions of this Section 6, if the
Escrow fails to close for any reason (other than the breach of this Agreement by one or both of the parties),
the costs incurred through the Escrow shall be borne equally by Buyer and Seller. Otherwise, the party
who first breached this Agreement shall bear all the costs of the Escrow.
7. PRORATIONS AND ADJUSTMENTS. Seller shall pay all property taxes (real or
personal) and special assessments in respect of the Property that are a lien or due and payable or both as of
the Close of Escrow; Buyer shall be responsible for all property taxes that become a lien or due and payable
or both following Close of Escrow.
8. TITLE.
(a) Conveyance. Title to the fee simple interest in the Property shall be conveyed to
Buyer by the Deed at the Close of Escrow.
(b) Title Policy. The title to be conveyed to Buyer shall be insured by an Extended
ALTA Owner's Policy of Title Insurance (the "Title Policy") with aggregate liability in the amount of the
Purchase Price (or greater amount as may be requested by Buyer under Section 3(a) above), dated the date
the Deed is recorded, issued by the Title Company, insuring that title to the fee interest in the Property is
vested in Buyer, subject only to the exceptions acceptable to Buyer. The Title Policy shall include the
endorsements required by Buyer, at Buyer's expense, and shall exclude any stipulation for arbitration.
Buyer shall provide a copy of the Survey to the Title Company so that the Title Company can delete or
modify the standard printed exceptions.
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9. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to Seller that the following matters are true and correct as of the execution of this Agreement and
will be true and correct as of the Close of Escrow:
(a) Organization. Buyer is a limited liability company, duly organized, validly
existing and in good standing under the laws of the State of Michigan.
(b) Authority; Enforceability; Conflict. This Agreement and all the documents to
be executed and delivered by Buyer to Seller or Escrow Holder pursuant to the terms of this Agreement
(i) have been or will be duly authorized, executed and delivered by Buyer; (ii) are or will be legal and
binding obligations of Buyer as of the date of their respective executions; (iii) are or will be enforceable in
accordance with their respective terms (except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency, moratorium and other principles relating to or limiting the rights of
contracting parties generally); and (iv) do not, and will not at the Close of Escrow, violate any provision of
any agreement to which Buyer is a party, any of Buyer's organizational documents or any existing
obligation of or restriction on Buyer under any order, judgment or decree of any state or federal court or
governmental authority binding on Buyer.
(c) Project Investment. Provided that Buyer receives all necessary Permits and
Approvals for the construction and operation of the Project, Buyer shall use commercially reasonable efforts
to construct the Project, including, but not limited to, making an initial investment in the construction of
the Project of at least Forty Million Dollars ($40,000,000) within Three Hundred Sixty-Five (365) days
after the later of (i) the Close of Escrow or (ii) the date that Buyer receives all necessary Permits and
Approvals for the construction and operation of the Project and the Tax Abatement. If the Project is
completed, Buyer shall initially employ at least fifty (50) persons atthe Project within One Hundred Twenty
(120) days following completion of construction of the Project and the commencement of operations at the
Project. If Phase I of the Project (i) has not Commenced within three years of Close of Escrow or, (ii) is not
Completed within five years of Close of Escrow ("Construction Requirements"), Buyer shall re-convey the
Property to Seller by quit claim deed within five (5) days of Buyer's failure to satisfy either or both of the
Construction Requirements; provided, however, that the time periods for satisfying the Construction
Requirements shall be extended for reasonable periods of time for any delays caused by weather conditions,
labor disputes or shortages, material shortages, fire or other casualty, epidemics or pandemics, government
orders, or other reasons which are beyond the reasonable control of Buyer, and any actual delay caused by
Seller or its agents, employees or contractors. For purposes of this paragraph, "Commenced" shall be the
day Buyer secures a building permit for Phase I of the Project and physically starts construction of Phase I
of the Project on the Property and "Completed" shall be the day Buyer secures the temporary Certificate of
Occupancy for Phase I of the Project other than the Shell Space.
10. REPRESENTATIONS AND WARRANTIES OF SELLER. The city manager of
Seller, to the best of his knowledge and without any investigation, represents and warrants to Buyer that
the following matters are true and correct as of the execution of this Agreement and will be true and correct
as of the Close of Escrow:
(a) Authority; Enforceability; Conflict. This Agreement and all the documents and
items to be executed and delivered by Seller pursuant to the terms of this Agreement (i) have been or will
be duly authorized, executed and delivered by Seller; (ii) are or will be legal and binding obligations of
Seller as of the date of their respective executions; (iii) are or will be enforceable in accordance with their
respective terms (except to the extent that such enforcement may be limited by applicable bankruptcy,
insolvency, moratorium and other principles relating to or limiting the rights of contracting parties
generally); (iv) do not, and will not as of the Close of Escrow, violate any provision of any agreement to
which such Seller is a party, any of such Seller's governing documents or any existing obligation of or
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restriction on Seller under any order, judgment or decree of any state or federal court or governmental
authority binding on Seller; and (v) will be sufficient to convey title (if they purport to do so).
(b) Notices. Seller has not received any notice of (i) any violation of any applicable
laws, moratoria, initiative, referenda, ordinances, rules, regulations, codes, standards, judgments, orders,
directives, injunctions, writs or decrees promulgated by any federal, state or local governmental body or by
any quasi-governmental body having authority over Seller or the Property or the operations thereof
( collectively, "Laws").
(c) Compliance. The sale of the Property is in all material respects in compliance
with all applicable Laws, including all applicable zoning building codes, environmental, zoning,
subdivision, and land use Laws. Buyer's proposed use of the Property for a life science research and office
facility containing an onsite incinerator shall be permitted as ofright under Seller's zoning ordinances.
(d) Accuracy of Information. To the best of Seller's knowledge, the Property
Documents delivered by Seller are, to the extent applicable, true in all material respects, and there are no
other written material agreements or understandings to which Seller or any of its affiliates are a party or are
bound relating to the Property or their operation or use other than as delivered or disclosed in writing to
Buyer or disclosed on the Title Commitment.
(e) Litigation; Condemnation. There are no (i) actions, suits or proceedings pending
or, to Seller's knowledge, threatened before or by any governmental authority or other person, against or
affecting Seller, any of its affiliates or the Property or (ii) to Seller's knowledge, proposed or threatened
eminent domain or similar proceedings which would affect any Land or Improvements in any manner
whatsoever.
(f) Tax Abatement. Seller will work with Buyer in connection with Buyer's
application for a property tax abatement under the Commercial Redevelopment Act, PA 255 of 1978, as
amended (the "Tax Abatement"). The portion of the Property located within the City of Muskegon will be
located in a Commercial Redevelopment District under the Commercial Redevelopment Act.
(g) Title. Seller is the sole owner of the Property and has good, valid and marketable
title to the Property free and clear of all liens, encumbrances, rights, reservations, easements and other
exceptions other than those of record and/or those which are to be discharged at closing.
(h) CC&RS. Seller has received no notice or complaint with respect to any violation
of any covenant, condition or restriction applicable to the Property.
(i) Hazardous Materials. To the best of Seller's knowledge, (A) Seller does not now
use the Property or permit the Property to be used in a manner which violates any federal, state or local law,
regulation or ordinance or any judicial decisions, rules, regulations or publications promulgated thereunder
regarding the environment or materials which are or could be hazardous to persons or property (collectively
"Environmental Enactments"), and Seller has never done so in the past.
11. BUYER AND SELLER COVENANTS.
(a) Utilities. Within Twenty-Six (26) weeks after the Close of Escrow, Seller shall, at
Seller's sole cost and expense, cause all electric, gas, data and telecommunications, water, sanitary sewer
and storm sewer utilities to be extended along OlthoffDrive and stubbed to the edge of the Property ("Seller
Utility Work"). Seller shall be responsible for obtaining all pe1mits and approvals necessary for the Seller
Utility Work.
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(b) Approvals. Seller shall reasonably and cooperatively assist Buyer in Buyer's
efforts to obtain the Permits and Approvals, including, without limitation, any tax abatements, grants and/or
other incentives available from any state, county and/or local governmental authorities, and any approvals
relative to the environmental condition of the Property and Buyer's proposed incinerator.
(c) Tax Exemption. At Buyer's request, Seller will request an Eligible
Manufacturing Personal Property Tax Exemption from the State of Michigan for all eligible personal
property owned by Buyer and located on the Property.
Seller's obligations under this Section 11 shall survive the Close of Escrow.
12. INTENTIONALLY OMITTED
13. BROKER'S COMMISSION. Buyer and Seller agree that a brokerage fee shall be paid
by Seller to Core Realty in connection with the purchase and sale of the Property (the "Brokerage Fee").
Buyer and Seller each agrees to indemnify, defend and hold harmless the other from and against any and
all losses, claims, damages, costs or expenses (including attorneys' fees) which the other may incur as a
result of any claim made by any person to a right to a sales or brokerage commission or finder's fee other
than the Brokerage Fee in connection with this transaction to the extent such claim is based, or purportedly
based, on the acts or omissions of Seller or Buyer, as the case may be.
14. LIKE KIND EXCHANGE. Seller and Buyer acknowledge that one or both of them may
elect to include the Property in a tax deferred exchange transaction pursuant to Section 1031 of the Internal
Revenue Code of 1986, as amended (a "1031 Exchange"). Each party (the "Cooperating Party") agrees,
at the request of the other party (the "Requesting Party"), to cooperate with the Requesting Party and third
parties in achieving a 1031 Exchange, including consenting to the assignment of this Agreement in
connection with a 1031 Exchange. The Requesting Party shall not be relieved from any obligations
hereunder due to a 1031 Exchange and shall pay into Escrow any additional closing expenses which may
result from participation in a 1031 Exchange. The Cooperating Party shall not be required to hold title to
any property (other than the Property) in connection with a 1031 Exchange, nor shall the Requesting Party
be entitled to delay the Close of Escrow in order to accommodate a 1031 Exchange.
15. NOTICES. All notices, requests and demands to be made hereunder to the parties hereto
shall be made in writing to the addresses set forth below and shall be given by any of the following means:
(a) personal service; (b) certified or registered mail, postage prepaid, return receipt requested; (c) nationally
recognized courier or delivery service or by email. Such addresses may be changed by notice to the other
parties given in the same manner as provided above. Any notice, demand or request sent in accordance with
this Section shall be deemed effective upon the date personally delivered to the recipient or on the date of
mailing, postage prepaid, by registered or certified mail, or by nationally recognized courier or delivery
service. Refusal to accept delivery of any notice, request or demand shall be deemed to be delivery thereof.
Notice to any one co-party shall be deemed notice to all co-parties.
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To Seller: To Buyer:
City of Muskegon 2725 Olthoff LLC
Attn: Frank Petersen Attn: Shane Woods
933 Terrace Street 1210 East Pontaluna Road
Muskegon, Michigan 49440 Norton Shores, Michigan 49456
Email: frank.peterson@shorelinecity.com Email: shane.woods@nbrlab.com
with a copy to:
Parmenter Law
Attn: Christopher L. Kelly
601 Terrace Street
Muskegon, Michigan 49440
Email: chris@parmenterlaw.com
with a copy to:
Rhoades McKee PC
55 Campau Avenue NW, Suite 300
Grand Rapids, Michigan 49503
Attn: Timothy R. Dudley
Email: trdudley@rhoadesmckee.com
To Escrow Holder and/or Title Agent:
First American Title Insurance Company
4362 Cascade Road, SE, Suite 109
Grand Rapids, Ml 49546
Attn: Craig Wandrie
Email: cwandrie@firstam.com
16. MISCELLANEOUS PROVISIONS.
(a) Incorporation of Prior Agreements. This Agreement contains the entire
understanding of Buyer and Seller with respect to the subject matter hereof, and no prior or
contemporaneous written or oral agreement or understanding pertaining to any such matter shall be
effective for any purpose. No provision of this Agreement may be amended or added to except by an
agreement in writing, expressly stating that such agreement is an amendment of this Agreement, signed by
the parties to this Agreement or their respective successors in interest.
(b) Buyer's Right to Assign. Buyer shall have the right to assign its rights under this
Agreement to any affiliate of Buyer.
(c) Intentionally Omitted.
(d) Time is of the Essence. Time is of the essence for this Agreement.
(e) Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and to their respective transferees, successors, and assigns.
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purchase and sale agreement~ olthofffinal_26jan2022
(f) No Third Party Beneficiaries. This Agreement is made and entered into solely
for the protection and benefit of the parties and their successors and permitted assigns. No other person
shall have any right of action hereunder.
(g) Governing Law. This Agreement shall be construed in accordance with and
governed by the internal laws of the State of Michigan without giving effect to any "conflict of law" rules
of such state.
(h) Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which, when taken together, shall constitute one and
the same instrument. Executed copies hereof may be delivered by email or other electronic means and upon
receipt will be deemed originals and binding upon the parties hereto, regardless of whether originals are
delivered thereafter. ·
(i) Interpretation; Construction. Wherever possible, each prov1s1on of this
Agreement shall be interpreted in such a manner as to be valid under applicable law, but, if any provision
of this Agreement shall be invalid or prohibited thereunder, such invalidity or prohibition shall be construed
as if such invalid or prohibited provision had not been inserted herein and shall not affect the remainder of
such provision or the remaining provisions of this Agreement. The language in all parts of this Agreement
shall be in all cases construed simply according to its fair meaning and not strictly against the party that
drafted such language. Section and paragraph headings of this Agreement are solely for convenience of
reference and shall not govern the interpretation of any of the provisions of this Agreement.
(j) Exhibits; Schedules; Recitals Verified. All Exhibits attached hereto are
incorporated herein by reference. The Recitals to this Agreement are hereby stated to be true and correct
and are incorporated herein by this reference.
(k) Waiver by a Party. The waiver of any contingency, representation, warranty,
covenant, or other matter or provision hereof may only be made in writing (including electronic mail) by
the party benefited by the same.
(I) Further Assurances. In addition to the actions recited herein and contemplated
to be performed, executed and/or delivered hereunder, Buyer and Seller agree to perf01m, execute and/or
deliver or cause to be performed, executed and/or delivered any and all such further acts, instruments and
assurances as may be reasonably required to consummate the transactions contemplated hereby.
(m) Intentionally Omitted.
{n) Business Days. As used in this Agreement, a "business day" shall mean a day
other than Saturday, Sunday or any day on which banking institutions in Muskegon County, Michigan, are
authorized by law or other governmental action to close. All other references to "days" or "calendar days"
in this Agreement shall refer to calendar days. If any period expires or delivery date falls on a date that is
not a business day under this Agreement, such period shall be deemed to expire and such delivery date shall
be deemed to fall on the immediately succeeding business day.
(o) Survival. All covenants, representations or indemnities set fmih in this Agreement
shall survive the Close of Escrow or any termination of this Agreement for a period of one (1) year from
either Close of Escrow or Termination.
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purchase and sale agreement- olthoff final_26jan2022
(p) Confidentiality. Neither Buyer, Seller, shall issue (or cause to be issued) any
press releases concerning the subject matter hereof, structure of the transactions or the status of negotiations
conducted hereunder except as may be jointly agreed to by Seller and Buyer or as any of them may
reasonably consider necessary in order to satisfy the requirements of applicable law; provided, however,
that notwithstanding anything herein to the contrary, Buyer may, free from the restrictions of this paragraph,
report on the transaction completed by this Agreement in connection with its due diligence investigations
and with any meetings or conference calls with, or disclosures made to, Buyer's consultants, contractors,
investors, principals, employees, agents, attorneys, accountants and other advisors. Seller may, free from
the restrictions of this paragraph, comply with the requirements of the Freedom oflnformation Act and the
Open Meetings Act which includes public meetings.
[Signatures on following pagesJ
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purchase and sale agreement - olthofffinal_26jan2022
"BUYER"
2725 OLTHOFF LLC, a Michigan limited
liability company
"SELLER"
CITY OF MUSKEGON,
a Michigan municipal corporation
By: ~
Nam~om
Title: Mayor
6
Date: f-
, 2022:Q_ i-
B~~~~
Name: Ann Meisch '
Title: Cle~
Date: j -· ') ;\,a , 2022
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purchase and 1a.le agreement ~olthoff fin al_26jan2022
EXHIBIT A
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purchase and sale agreement• olthofffinal_26jan2022
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JOBllUMBER PROJECT
ISSUED FOR: DATE
2103040 2725 OLTHOFF, LLC
SHEET TITLE
CONCEPT LAYOUT
EXHIBITB
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purchase and sale agreement• olthofffinal_26jan2022
EXHIBITC
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purchase and sale agreement• olthofffinal_26jan2022
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