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REAL ESTATE PURCHASE AND SALE AGREEMENT
Property located at 2675 Olthoff Drive
Muskegon, MI being Parcel #61-24-696-000-0069-00
by and between
BLUEWATER INDUSTRIAL DEVELOPMENT, LLC,
as Buyer
and
the CITY OF MUSKEGON
as Seller
REAL ESTATE PURCHASE AND SALE AGREEMENT
This Real Estate Purchase and Sale Agreement (the “Agreement”) is made this _[Y. day
of May, 2024, (the last date of execution of this Agreement by Buyer and Seller being the
(“Effective Date”) by and between BLUEWATER INDUSTRIAL DEVELOPMENT, LLC, a
Michigan limited liability company (“Buyer”), whose address is the 16920 Ferris Street, Grand
Haven, Michigan 49417, and the CITY OF MUSKEGON (“Seller”), whose address is 933
Terrace Street, Muskegon, MI 49440.
RECITALS
A. Seller is the fee simple owner of approximately 12.87 acres of unimproved land
located at 2675 Olthoff Drive, Muskegon, MI being parcel #61-24-696-000-0069-00 and depicted
on Exhibit A (the “Property”).
NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Buyer and Seller agree as follows:
AGREEMENT
1. Purchase and Sale. Subject to the terms and conditions contained in this Agreement,
Seller agrees to sell to Buyer and Buyer agrees to purchase from Seller, the Property. The sale of
the Property is subject to taxes for the year of Closing (as defined in Paragraph 14 (Taxes and
Assessments)) and all subsequent years and Permitted Exceptions (as defined in Paragraph 6
(Title Insurance)).
2. Purchase Price. The purchase price for the Property shall be One Hundred Thirty
Thousand Dollars ($130,000) (the “Purchase Price”).
3. Earnest Money Deposit. Within five (5) business days after execution and delivery of
this Agreement by the parties, Buyer shall deliver to the Title Company (as defined herein) an
earnest money deposit in the amount of One Thousand Dollars ($1,000) (the “Deposit”). The Title
Company shall hold the Deposit in escrow in accordance with this Agreement. If the title is not
marketable, if any contingencies cannot be met, or if Buyer is otherwise entitled to a refund of the
Deposit, then the Deposit shall be promptly refunded to Buyer.
4. Property Information. Within five (5) business days following the Effective Date,
Seller shall deliver, without warranty, to Buyer copies of the items listed below to the extent they
exist and are in Seller’s possession (collectively, the “Property Information”):
(i) Any prior title evidence, such as a title commitment or policy together with copies
of all easements and restrictions affecting the Property;
(ii) The most recent survey of the Property in hard copy and CAD form, if possible;
(iii) The written results, if any, of any environmental site assessments, engineering
reports, geotechnical reports, wetland studies or remediation plans, or other
inspections done at or on the Property, including testing and certification results
from any on-site grading activities completed to date;
(iv) All documentation, if any, relating to traffic mitigation and/or impact fees,
mobilization fees, concurrency fees, or other similar fees;
(v) All permits, if any, issued by governmental authorities for the Property; and
(vi) All documentation, if any, relating to site plans or utility plans.
All information obtained by Buyer or Buyer’s agents from Seller or Seller’s agents,
employees, or contractors, or by reason of any study, inspection, test, examination, assessment of
the Property, or other due diligence by Buyer or Buyer’s agents, including, but not limited to, the
Property Information (collectively, “Confidential Information”), shall be held strictly
confidential by Buyer and Buyer’s agents, subject only to mandatory disclosure pursuant to legal
process, and provided, however, that Buyer shall have the right to share such Confidential
Information with Buyer’s members, managers, investors, partners, employees, agents, contractors,
advisors, attorneys, accountants, consultants, bankers, and financial advisors who agree to respect
the confidentiality of this information. Seller makes no representation or warranty as to the
accurateness ot completeness of the Property Information.
5, Survey. Within five (5) business days after the Effective Date, Buyer shall order an
ALTA survey of the Property (the “Survey”). The Survey shall be prepared in accordance with
Buyer’s requirements. The cost of the Survey shall be paid by Buyer.
6. Title Insurance. Within five (5) business days after the Effective Date, Buyer shall
order a commitment for an ALTA owner’s policy of title insurance (the “Commitment”) in the
amount of the Purchase Price and insuring marketable title vested in Buyer, issued by the following
title insurance company (the “Title Company”):
Sun Title Agency
16916 Robbins Road
Grand Haven, MI 49417
Attn: TJ Pontarelli
Email: tjpontarelli@suntitleagency.com
Phone: 616-402-1700
The policy to be issued pursuant to the Commitment shall guarantee Buyer’s title to be in
the condition called for by this Agreement. If either the Survey or the Commitment reveals any
encroachments, overlaps, easements, restrictions, covenants, conditions, or other title matters that
are not objected to in writing or waived in accordance with the provisions herein, then such matters
shall be deemed “Permitted Exceptions.” If either the Survey or the Commitment reveals any
encroachments, overlaps, easements, restrictions, covenants, conditions, or other title matters that
are objectionable to Buyer, then Buyer, within thirty (30) days after receipt of the Survey and
Commitment (whichever is received last), may notify Seller in writing of such objections
(hereinafter “Title Objections”). Seller shall have a period of thirty (30) days after receipt of
Buyer’s written notice of Title Objections (the “Seller’s Cure Period”) to, at its option, cure any
such Title Objections it intends to cure at or before Closing (the “Seller’s Cure Notice”). Seller
shall use commercially reasonable efforts to cure any Title Objections and Seller must cure those
liens or encumbrances securing monetary obligations of Seller which can be discharged upon
payment of an ascertainable amount (the “Monetary Obligations”). If Seller elects not to cure or
fails to cure one or more Title Objections within the Seller’s Cure Period, Buyer may in addition
to any other remedy hereunder:
(i) Accept the uncured Title Objections, which shall then be deemed Permitted
Exceptions, and require Seller to deliver title to the Property at Closing in its
existing condition subject only to the Permitted Exceptions with no reduction in the
Purchase Price; or
(ii) Terminate this Agreement and require the Title Company to return to Buyer the
Deposit paid to date, whereupon this Agreement shall be automatically terminated
and all parties released from further obligation hereunder, except for those matters
that expressly survive such termination.
Buyer shall have the right to update the Commitment from time to time prior to Closing. If
any updated Commitment discloses new exceptions affecting title since the effective date of the
previous Commitment, Buyer shall have the right to have said exceptions depicted on the Survey
and to object to them in accordance with the timeframes and process provided for above, except
that (a) any new Title Objection must be given not later than five (5) business days after the date
of Buyer’s receipt of the updated commitment, (b) Seller’s Cure Period shall be thirty (30) days,
and (c) if any new Title Objection is not cured during the Seller’s Cure Period, then Buyer shall
have three (3) business days from the expiration of the Seller’s Cure Period cure period to terminate
this Agreement by written notice to Seller in accordance with clause (ii) in the preceding
paragraph.
At Closing, the Title Company shall issue to Buyer a “marked” commitment or an ownet’s
policy issued pursuant to the Commitment without standard exceptions and, as available and as
requested by Buyer, with extended coverage containing a “Gap” endorsement (if such endorsement
is required to insure the “Gap”), insuring the Buyer’s title in the condition as approved by Buyer
pursuant to this Paragraph 6, a “Same Land” endorsement, an “Access” endorsement, a
“Contiguity to Street” endorsement, a “Survey” endorsement, and a “P.I.N.” endorsement. Buyer,
at its expense, shall be responsible for obtaining any survey sufficient to delete the standard survey
exception and for the cost of any search required to delete the standard exception for oil, gas, and
mineral rights.
If any cure period provided to Seller under this Paragraph 6 extends beyond the expiration
of the Due Diligence Period, as defined in Paragraph 7, then the Due Diligence Period shall be
extended to the fifth (5"") business day following the expiration of such cure period.
7. Lease Up and Due Diligence. Commencing on the Effective Date and continuing until
the sooner of (a) sixty (60) days thereafter, or (b) the date Buyer and its tenant enter into a written
lease for the Property, Buyer shall use its best efforts to enter into a definitive lease agreement
with its intended tenant for the building and other improvements Buyer intends to construct on the
Property (the “Lease Up Period”). The “Due Diligence Period” shall commence upon the
expiration of the Lease Up Period and shall expire at 11:59 p.m. on the date that is 90 days
following the expiration of the Lease Up Period. Buyer shall use the Due Diligence Period to
satisfy Buyer’s standard conditions for title, survey, environmental, physical inspection, zoning,
utilities, final project costs, business feasibility, and all governmental approvals. Buyer may extend
the Due Diligence Period by two (2) additional 30 day extension periods by written notice to Seller
on or before the last day of the then current Due Diligence Period together with an additional
earnest money deposit in the amount of Five Thousand and 00/100 Dollars ($5,000) to be held by
the Title Company which shall be non-refundable to Buyer but applicable to the Purchase Price at
Closing.
Seller agrees to cooperate with Buyer in the pursuit of development and other incentives
for Buyer’s intended development project on the Property as well as Buyer’s intended tenant for
the project to the extent reasonably possible.
Buyer and its representatives and consultants shall have the right to enter the Property to
perform such tests as Buyer deems reasonably necessary, including, without limitation, soils and
engineering tests, demolition and asbestos surveys and environmental tests. Buyer shall
INDEMNIFY AND HOLD HARMLESS Seller, its partners, and it officers, directors, employees
and agents from all claims, liability, and expense arising as a result of any activities of Buyer or
its employees, agents, contractors, or representatives on the Property in connection with such
inspections, studies and tests, and Buyer shall restore any portion of the Property or improvements
disturbed by any such inspections, studies, and tests to the condition existing immediately prior to
such operation.
8 Failure of Due Diligence Contingencies. If any of the contingencies and conditions in
Paragraph 7 (Due Diligence) have not been met, or, in Buyer’s sole discretion, will not be met
during the Due Diligence Period Buyer shall have the right and option, upon written notice to
Seller prior to the end of the Due Diligence Period, to (1) waive any contingency or condition and
proceed to Closing and the Deposit shall be nonrefundable except in the event of Seller’s default
or (2) declare this Agreement terminated and have the Deposit, along with accrued interest, if any,
returned to Buyer immediately. If Buyer timely exercises its right to declare this Agreement
terminated and to receive a return of the Deposit, or if this Agreement otherwise becomes
terminated, Buyer and Seller shall have no further obligation or liability to each other under this
Agreement, except as expressly provided in this Agreement.
9. Conditions Precedent to Closing. Notwithstanding anything to the contrary contained
in this Agreement, in addition to the other conditions set forth in this Agreement, Buyer will have
no obligation to proceed with Closing unless all of the following conditions are satisfied or waived
in writing as of the Closing Date:
(i) Performance by Seller of its covenants and obligations under this Agreement;
(it) No action, suit, or proceeding before any court or governmental authority is
pending or threatened against Seller or the Property wherein an unfavorable
judgment or outcome would materially prevent the catrying out of this Agreement
or any of the transactions described herein;
(iii) Seller’s representations and warranties set forth in Paragraph 10 (Seller’s
Warranties) of this Agreement are true and accurate in all material respects as of
the Closing Date;
(iv) Site Delivery: Seller shall deliver exclusive possession of the Property at Closing
free and clear of all tenancies and other rights of possession.
(v) Satisfaction of Buyer’s standard conditions for title and survey, business feasibility,
concurrency, physical inspection, zoning, utilities, and all governmental approvals.
10. Seller’s Warranties. Seller represents and warrants as follows:
(i) Seller is the owner of the Property and has the full right, title, power, and authority
to enter into this Agreement and convey title to the Property free and clear of all
liens and encumbrances other than the Permitted Exceptions at Closing;
(it) Seller’s title to the Property is a good, marketable and recordable title in fee simple,
free and clear of all liens, encumbrances, easements, tenancies, rights, covenants,
restrictions, reservations, conditions, charges, agreements, and other exceptions to
title except:
a. The lien of real property taxes that are not due or payable on or before Effective
Date;
b. Permitted Exceptions;
c. The lien of Seller’s primary lender (if applicable) which shall be discharged
upon Closing;
d. The interest of the State of Michigan under Public Act 260 of 2003 and Public
Act 261 of 2003 will expire by or before 12/31/24; and
e. Any restrictions provided in Public Act No. 578 of Public Acts of 2018.
(iii) No litigation or other proceeding is pending or threatened with respect to the
Property;
(iv) The person executing this Agreement has been fully authorized and empowered to
bind Seller;
(v) Seller has received no notice of any violations of any federal, state, county or
municipal laws, ordinances, orders, regulations, or requirements affecting the
Property;
(vi) Seller is not a foreign person within the meaning of Section 1445 of the Internal
Revenue Code ("IRC"), i.c., the Seller is not a nonresident alien, foreign
corporation, foreign partnership, foreign trust or foreign estate (as those terms are
defined in the IRC and Income Tax Regulations);
(vii) During the term of this Agreement, Seller shall not sell, convey, lease, mortgage,
encumber, assign, or otherwise dispose of or market the Property or any parts .
thereof, nor shall Seller cause title to the Property to be adversely affected;
(viii) To the best of Seller’s knowledge, which is expressly limited to that of the City
Manager without further investigation, the Property is not subject to any unrecorded
restrictions or requirements with which Buyer must comply other than the State of
Michigan’s pursuant to Michigan Public Act 578 of 2018; and
(ix) No third party has an option to purchase, right of first refusal, right of first offer or
other similar right with respect to any portion of the Property and Seller has not
entered into any other contracts for the sale or lease of any portion of the Property
with any third party and, during the term of this Agreement, Seller shall not enter
into any lease, right of first refusal, option or other contract affecting the Property
without Buyer’s prior written consent except for the State of Michigan’s pursuant
to Michigan Public Act 578 of 2018.
(x) To the best of Seller’s knowledge, which is expressly limited to that of the City
Manager without further investigation, during the time Seller has owned or
operated the Property, no toxic or hazardous substances or wastes, including
without limitation any substance defined as hazardous under the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. 9601, ef seq,
as amended), or any federal, state or local environmental law, ordinance, rule or
regulation (collectively, “Hazardous Materials”) have been used, stored, released,
spilled, discharged, or otherwise disposed of on, in under, or otherwise affecting
the Property. Seller has not received and has no knowledge of the receipt by any
other party of any notice from any applicable governmental entity of the potential
or actual existence of any Hazardous Materials on, in, or under or otherwise
affecting the Property. For purposes of this subparagraph (x) “Seller’s
knowledge” shall mean the actual knowledge of the then current City Manager
without a duty to investigate.
The representations and warranties contained in this paragraph shall be true and correct on
the Closing Date and shall survive one (1) year from the Closing and continue in full force and
effect notwithstanding the Closing and consummation of the transaction contemplated herein, and
the obligation of the Buyer to close this transaction is expressly conditioned upon said
representations and warranties.
11. Buyer’s Warranties. Buyer represents and warrants to Seller the truth and accuracy of
each of the following:
(i) Buyer is validly existing and in good standing under the laws of the State of
Michigan, and has all requisite power and authority to enter into this Agreement
and to perform its obligations hereunder;
(ii) Buyer shall make a good faith effort to satisfy all conditions to Closing; and
(iii) The person executing this Agreement has been fully authorized and empowered to
bind Buyer.
The representations and warranties contained in this paragraph shall be true and correct on
force and
the Closing Date and shall survive one (1) year from the Closing and continue in fullherein,
effect notwithstanding the Closing and consummation of the transaction contemplated upon saidand
the obligation of the Seller to close this transaction is expressly conditi oned
representations and warranties.
12. Compliance with Municipal and State Regulations. All violations of law, ordinances
shall be
or orders of state, county, and municipal agencies affecting the Property at the date hereofn shall
cured by Seller before the date of closing, and all notices and warnings of such violatio be
complied with by Seller before that time, and the Property shall be conveyed free of all such notices
and warnings. Seller shall furnish Buyer with authorization to make and/or have made searches
for such violations.
13. Environmental Investigations. Within the Due Diligence Period, Buyer shall order a
Phase I Environmental Site Assessment for the Property (the “Phase I ESA”) by an environ mental
consultant selected by Buyer, along with such other additional environmental reports require d to
confirm that the Property is environmentally suitable for the Proposed Development, in Buyer’s
sole but reasonable discretion. The cost of the Phase I ESA shall be paid by Buyer. In the event
shall
that the Phase I discloses any evidence of any recognized environmental condition, Buyer
have the right to conduct such additional testing and investigation as buyer may desire in Buyer’s
sole discretion.
14. Taxes and Assessments. On or before the Closing, Seller shall pay all real estate taxes
and all general and special assessments that are then a lien upon and due and payable with respect
for
to the Property whether or not such assessments ate payable in installments. Real Estate taxes
ible for
the calendar year in which the Closing occurs shall be prorated with Seller being respons
and Buyer
such taxes from January 1 of such calendar year to and including the date of Closing
being responsible for the remainder of such taxes for the calendar year. The foregoing proration of
taxes shall be based upon the most recent available tax bill for the Property.
15. Closing and Closing Costs. Unless otherwise agreed to by the parties, this transaction
shall be closed in escrow through the offices of the Title Company. Closing of the transaction
contemplated hereby shall be held on a date mutually agreed upon by Buyer and Seller, but no
later than thirty (30) days after the expiration or earlier waiver of Due Diligence by Buyer
(“Closing”). Seller shall pay its own attorney fees, all applicable transfer taxes, deed stamps,
revenue stamps, real estate brokerage commissions, the premium for an owner’s title insurance
policy in Buyer’s name insuring fee title subject only to Permitted Exceptions, title search fees,
and one-half of the Title Company’s Closing fee. Buyer shall pay its Due Diligence costs, attorney
fees, recording fees, Survey fees, the cost of any title endorsements, and one-half of the Title
Company’s Closing fee. Buyer agrees to reimburse Seller for any survey fees paid by Seller related
to the Property in furtherance of this transaction. Exclusive possession of the Property shall be
given to Buyer at the Closing as set forth in further detail in Paragraph 17 (Possession) of this
Agreement.
16. Conveyance. At Closing, Seller shall deliver or cause the Title Company to deliver to
Buyer or the Title Company, as applicable, at Seller’s sole cost and expense, each of the following
items:
(i) Executed Quit Claim Deed (in recordable. form) subject only to the Permitted
Exceptions, along with such other documents, instruments, certifications, and
confirmations as may be reasonably required to fully effect and consummate the
conveyance transaction contemplated by this Agreement,
(ii) The “marked” title commitment or Pro Forma in the form specified in Paragraph
6 (Title Insurance) of this Agreement;
(iii) Closing Statement;
(iv) Real Estate Transfer Valuation Affidavit;
(v) The Stormwater Easement,
(vi) The Reimbursement Agreement,
(vii) The Stormwater Basin Maintenance Agreement;
(viii) Such evidence or documents as may be reasonably required by the Buyer or the
Title Company evidencing the status and capacity of Seller and the authority of the
person or persons who are executing the various documents on behalf of the Seller
in connection with the sale of the Property;
(ix) A certification (“Certification”) in a form to be provided or approved by Buyer,
signed by Seller under penalties of perjury, containing the following:
a. Seller’s U.S. Taxpayer Identification Number;
b. The home address of Seller (or the business address of Seller if seller is not an
individual);
c. A statement that Seller is not a foreign person within the meaning of Section
1445 of the IRC, ie., Seller is not a nonresident alien, foreign corporation,
foreign partnership, foreign trust, or foreign estate (as those terms are defined
in the IRC and Income Tax Regulations);
d. A statement that Seller is not (1) a “specially designated national and blocked
person” on the most current list published by the U.S. Treasury Department
Office of Foreign Asset Control; (2) listed in annex to, and is not otherwise
subject to the provisions of, Executive Order No. 13224 (the “Executive
Order”); and (3) acting on behalf of any person listed in the annex to, or is
otherwise subject to the provisions of the Executive Order.
In the event that Seller fails to deliver such Certification at Closing or Seller
delivers such Certification, but Buyer has actual knowledge that such
Certification is false or Buyer receives notice that the Certification is false from
any agent of the Buyer or the Seller, Buyer shall be entitled to withhold from
the Purchase Price a sum equal to fifteen percent (15%) of the total amount
which otherwise would have been realized by Seller from such sale, which sum
will be paid by the Buyer to the United States treasury pursuant to the
requirements of Section 1445 of the IRC and the regulations promulgated
thereunder;
e. An affidavit of title warranting that (1) no outstanding mechanic’s lien rights
exist, (2) the Property is not subject to any unrecorded interests or
encumbrances, adverse claims, possession, or occupancies excluding any
Aboriginal Antiquities Rights reserved to the State. of Michigan pursuant to
Michigan Public Act 578 of 2018, (3) the Property is not subject to any leases
oral or written, and (4) all assessments, utility charges, and taxes have been paid
to the date of Closing;
f. Closing Prorations: All adjustments shall be made based upon Seller being
responsible for the Closing Date and shall be in accordance with the customs in
respect to title closing recommended by Title Company; and
g. All applicable city, county, and state transfer declarations executed by Seller;
(x) All additional documents and instruments deemed necessary, in the reasonable
opinion of Buyer’s counsel for the proper consummation of this transaction; and
(xi) | The Property free and clear of all liens, encumbrances, easements, tenancie s, rights,
covenants, restrictions, reservations, conditions, charges, agreeme nts, and other
exceptions to title except the Permitted Exceptions.
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At Closing, Buyer shall deliver or cause to be delivered to Seller or the Title Company, as
applicable, at Buyer’s sole cost and expense, each of the following items:
(i) Closing Statement,
Gi) The Stormwater Easement;
(iii) The Reimbursement Agreement,
(iv) The Stormwater Basin Maintenance Agreement;
(v) The Purchase Price, as adjusted by prorations and credits, in immediately available
funds transferred to Title Company’s account with instructions to immediately
release the full amount to Seller upon Closing;
(vi) Property Transfer Affidavit; and
(vii) All additional documents and instruments deemed necessary, in the reasonable
opinion of Seller’s counsel for the proper consummation of this transaction.
Buyer on
17. Possession. Exclusive legal possession of the Property shall be deliveredtotoaccept
the date of Closing. Except as otherwise expressly provided herein, Buyer agrees the
Property in its “as is” condition.
) Seller to provide the following:
a. All Surveys, Legal Descriptions, Designs, Engineering, testing and studies
(collectively “Stormwater Design Documents”) necessary or appropriate for
the shared stormwater detention/retention basin necessary to provide for the
detention/retention of all stormwater from the Property and any other properties
identified and owned by Seller (the “Stormwater Basin”). The Stormwater
Design Documents shall be completed during the first 90 days of the Due
Diligence Period.
b. All materials, catch basins, risers, orifices, plantings, storm lines and other
improvements necessary or appropriate for the construction of the Stormwater
Basin and a properly sized stormwater line connecting the Stormwater Basin
and the Property at points to be agreed upon between Buyer and Seller with one
point being not less than 5 feet inside the Property (collectively, the
“Stormwater Improvements”).
c. A fully executed and recorded Stormwater easement agreement in a
commercially reasonable form acceptable to both Buyer and Seller for the
benefit of the Property and any other properties identified and owned by Seller
(the “Stormwater Easement”). The Stormwater Easement shall:
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i. provide that the basin shall be owned and maintained by Seller; and
ii. require all properties described therein to connect to the Stormwater
Improvements at such time as construction is commenced upon such
properties.
The form of the Stormwater Easement agreement shall be initially drafted by
Buyer and agreed to by Seller and Buyer during the Due Diligence Period.
(ii) Buyer will excavate and construct the Stormwater Basin in accordance with the
Stormwater Design Documents (the “Stormwater Basin Work”). All excavated
material will be placed, spread and graded upon Seller’s remaining property
adjacent to the Stormwater Basin provided, however, that Buyer shall be entitled to
keep and use any suitable fill materials excavated from the Stormwater Basin to
raise the level of the Property pursuant to Buyer’s intended development plans for
the Property.
Prior to Closing, Buyer and Seller shall agree upon the budget for the Stormwater
Basin Work to be completed by Buyer’s contractor. The budget shall be
incorporated into a recordable Reimbursement Agreement (the “Reimbursement
Agreement”) which shall be entered between Buyer and Seller and recorded with
the Muskegon County Register of Deeds at Closing. The Reimbursement
Agreement shall provide for the prorata reimbursement of Buyer for the actual cost
of the Stormwater Improvements based upon the total acreage of all properties
benefitted by the Stormwater Improvements by the owners or future owners of the
other properties to be benefitted by the Stormwater Improvements prior to and as a
condition of (a) the sale of any other property benefitted by the Stormwater
Easement or (b) the earlier commencement of any construction on such properties.
The Reimbursement Agreement shall require Seller to require the future buyers for
any benefited property to reimburse Buyer for its actual costs on a prorata basis
upon closing of the sale(s) by Seller to such future buyer(s). [f any such future buyer
does not make such reimbursements upon such sale, then Buyer shall have a lien
on the property sold as security for the collection of such obligation. The form of
the Reimbursement Agreement shall be initially drafted by Buyer and agreed to by
Seller and Buyer during the Due Diligence Period.
Buyer and Seller shall enter into a commercially reasonable Stormwater Basin
Maintenance Agreement (the “Stormwater Basin Maintenance Agreement”) that
will provide that Buyer shall maintain the Stormwater Basin until the earlier of (a)
the sale by Seller of any other property benefitted by the Stormwater Easement or
(b) the earlier termination of the Stormwater Basin Maintenace Agreement by
Seller for purposes of retaining another party to assume such maintenance
obligations.
18. Brokers. Seller represents that it has not dealt with any broker, realtor, or agent in
connection with this transaction except Brian Bench of Core Realty Partners (“Seller’s Broker” ),
and Buyer represents that it has not dealt with any broker, realtor, or agent in connect ion with this
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transaction except Steve Wilson of Northstar Commercial (“Buyer’s Broker”). At Closing, Seller
shall pay a commission of six percent (6%) of the Purchase Price to be split equally between
Seller’s Broker and Buyer’s Broker.
19. Entire Agreement, Amendments, and Waivers. This Agreement and all exhibits thereto
contain the entire agreement and understanding of the parties, supersedes all prior oral or written
agreements between the parties, and may not be amended or modified except by written consent
of both parties.
20. Further Assurances. The parties each agree to execute, acknowledge, deliver, and do
all such further acts, instruments, and assurances, and to take all such further action before or after
the Closing as shall be necessary or desirable to fully carry out this Agreement and to fully
consummate and effect the transactions contemplated hereby.
21. Interpretation and Choice of Law.
(i) The headings and captions herein are inserted for convenient reference only and the
same shall not limit or construe the paragraphs or sections to which they apply or
otherwise affect the interpretation hereof.
(ii) Both parties have contributed to the drafting of this Agreement. In the event of a
controversy, dispute, or contest over the meaning, interpretation, validity, or
enforceability of this Agreement or any of its terms or conditions, there shall be no
inference, presumption, or conclusion drawn whatsoever against either party by
virtue of that party having drafted this Agreement or any portion thereof.
(iii) | This Agreement shall be governed by and construed in accordance with the laws of
the state in which the Property is located.
22. Notices. Any notice, demand, request, or other communication which may or shall be
given or served by the Seller to or on the Buyer, or by the Buyer to or on the Seller, shall be deemed
to have been given or served on the date the same is sent by email or deposited in the United States
Mail, registered or certified, return receipt requested, postage prepaid or given to a nationally
recognized overnight courier service for next business day delivery and addressed as follows:
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If to the Seller: City of Muskegon
Attn: Jake Eckholm
933 Terrace Street
Muskegon, MI 49440
Phone: (231) -
Email: jake.eckholm@shorelinecity.com
With a Copy to: Parmenter Law
Attn: City of Muskegon City Attorney
601 Terrace Street
Muskegon, MI 49440
Phone: (231) 722-1621
Email: john@parmenterlaw.com
If to the Buyer: Bluewater Industrial Development, LLC
c/o NorthStar Commercial
16920 Ferris Street
Grand Haven, MI 49417
Attn: Steve Wilson
Phone Number: (616) 638-8844
Email Address: swilson@northstarcommercial.com
With a Copy to: Doug Poland
3770 Sundance Lane NE
Grand Rapids, MI 49525
Phone Number: (616) 560-3169
Email Address: dpoland@retaildevelopmentspecialists.com
The above addresses may be changed at any time by the parties by notice given in the
manner provided above.
Seller and Buyer agree that electronically reproduced signatures such as by email
transmission are valid for execution or amendment of this Agreement and that email is an
authorized form of notice as that term is used in this Purchase Agreement.
23, Condemnation. In the event that any portion of the Property shall be threatened by or
taken in condemnation or under the right of eminent domain after the Effective Date hereof and
prior to the Closing Date, this Agreement, at the option of Buyer, may either: (a) be declared null
and void with respect to the Property; (b) continued in effect and the proceeds received from such
condemnation or eminent domain proceeding shall be retained by Seller and applied to reduce the
Purchase Price, or (c) if condemnation or eminent domain proceedings are not completed, assigned.
at Closing to Buyer. If Buyer elects to complete the sale of the Property pursuant hereto, Seller
shall not negotiate a settlement of any pending condemnation or eminent domain proceedings
without the prior written consent of Buyer.
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24. Assignment & 1031 Exchange. Buyer shall have the right to assign its right to purchase
the Property, or any part thereof, without obtaining the Seller’s consent provided that no such
assignment shall relieve Buyer of its obligations under this Agreement. Either party may also elect
to exchange fee title in the Property for other Property of like kind and qualifying use within the
meaning of Section 1031 of the Internal Revenue Code of 1986, as amended, and the Regulations
promulgated thereunder. In order to facilitate the transaction, the electing party may retain the
services of a Qualified Intermediary within the meaning of Treas. Reg. 1.1031(k)-1(g)(4). The
Qualified Intermediary will provide services to the electing party in connection with the Section
1031 transaction. The parties expressly reserve the right to assign their rights under this Agreement
to a Qualified Intermediary on or before the date of Closing. However, this assignment in no way
relieves either party of any obligation or duty under the Agreement. The assigning or electing party
shall bear any and all additional cost or expense as a result of its 1031 exchange.
25. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, personal representatives, successors, and assigns.
26. Severability. If any provision or portion of this Agreement is determined invalid or
unenforceable, the remainder of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
27. Confidentiality. Neither party shall disclose the terms of this Agreement to any third
party except (i) legal counsel or other professional advisor(s) (provided that the disclosing party
causes such advisors to keep the terms of this Agreement strictly confidential), (41) prospective
mortgagees, partners and investors and their counsel and other professionals (provided that the
disclosing party causes such recipients to keep the terms of this Agreement strictly confidential)
and (iii) as required by applicable law or by subpoena or other similar legal process.
28, Calculation of Time Periods. Unless otherwise specified herein, in computing any
period of time described herein, the day of the act or event after which the designated period of
time begins to run is not to be included and the last day of the period so computed is to be included,
unless such last day is a Saturday, Sunday or legal holiday for national banks in the location where
the Property is located, in which event the period shall run until the end of the next day which is
neither a Saturday, Sunday or legal holiday.
29. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together constitute one and the same
instrument.
30. Force Majeure. Any delay on the part of either party to perform its obligations will be
excused if, and to the extent that, it is caused by an event or occurrence beyond the reasonable
control of the party and without its fault or negligence, such as, but not limited to: acts of God;
restrictions or prohibitions imposed or actions taken by a governmental authority (including, but
not limited to government shutdown orders as a result of pandemics); embargoes; fires; explosions;
natural disasters; riots; wars; sabotage; or court injunction or order, or by other causes which the
party determines justify delay; however, as soon as possible after the occurrence, the party shall
provide written notice to the other party describing such delay and communicating to the other
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party the anticipated duration of the delay and the time needed to cure to the extent, in the sole
discretion of the nonperforming party, the delay can be cured.
31. Disclosure. Steve Wilson, a member of Buyer, is a licensed real estate broker in the
State of Michigan.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Buyer and Seller cause this Agreement to be executed,
effective as of the Execution Date.
BUYER:
Date: May 3 _, 2024 BLUEWATER INDUSTRIAL
DEVELOPMENT;LLC, a Michiga
limited liability
By:
Steve Wilson vv”
Its: Manager
SELLER:
CITY OF MUSKEGON
Date: May JY, 2024 By: Keds — Ken Johnson/
Its; | Mayor
Ann Marie Meisch
Its: City Clerk
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EXHIBIT A
Property — Legal Description
LOT 69 AND PART OF LOT 68 OF THE PLAT OF PORT CITY INDUSTRIAL PARK NO. 6
AS RECORDED IN UBER 22 OF PLATS PAGES 5-8, MUSKEGON COUNTY RECORDS,
CITY OF MUSKEGON, MUSKEGON COUNTY, MICHIGAN AND MORE ALSO
DESCRIBED AS;
BEGINNING AT THE SOUTH 1/4 CORNER OF SECTION 35 ALSO BEING THE
SOUTHEAST CORNER OF LOT 69, PORT CITY INDUSTRIAL CENTER NO. 6 UBER 22,
PAGES 5-8,
THENCE NORTH 89 DEGREES 14 MINUTES 02 SECONDS WEST, A DISTANCE OF 633.62
FEET; -
THENCE NORTH 01 DEGREE 28 MINUTES 35 SECONDS EAST, A DISTANCE OF 889.87
FEET; .
THENCE SOUTH 89 DEGREES 7 MINUTES 7 SECONDS EAST, A DISTANCE OF 10.78
FEET;
THENCE EASTERLY, ALONG A CURVE TO THE RIGHT CURVE DATA BEING RADIUS
= 167.00 FEET, DELTA = 18 DEGREES 15 MINUTES 4 SECONDS, LONG CHORD = 52.97
FEET, LONG CHORD BEARING = SOUTH 79 DEGREES 59 MINUTES 35 SECONDS EAST,
A DISTANCE OF 53.20 FEET;
THENCE ALONG A LINE NON-TANGENT TO SAID CURVE, SOUTH 70 DEGREES 52
MINUTES 3 SECONDS EAST, A DISTANCE OF 564.06 FEET TO A CURVE TO THE
RIGHT;
THENCE SOUTHEASTERLY, ALONG SAID CURVE TO THE RIGHT CURVE DATA
BEING RADIUS = 167.00 FEE.T, DELTA = 72 DEGREES 20 MINUTES 38 SECONDS, LONG
CHORD = 197.13 FEET, LONG CHORD BEARING = SOUTH 34 DEGREES 41 MINUTES 44
SECONDS EAST, A DISTANCE OF 210.86 FEET;
THENCE ALONG A LINE NON-TANGENT TO SAID CURVE, SOUTH 01 DEGREES 28
MINUTES 35 SECONDS WEST, A DISTANCE OF 543.33 FEET TO THE SOUTH LINE OF
THE PORT CITY INDUSTRIAL CENTER NO. 6;
THENCE NORTH 89 DEGREES 15 MINUTES 10 SECONDS WEST, ALONG SAID SOUTH
LINE OF THE PORT CITY INDUSTRIAL CENTER NO. 6, A DISTANCE OF 75.52 FEET;
THENCE NORTH 89 DEGREES 14 MINUTES 02 SECONDS WEST, A DISTANCE OF 7.91
FEET TO THE POINT OF BEGINNING.
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SUBJECT TO A 10' PUBLIC UTILITY EASEMENT ALONG THE NORTH AND EAST 10!
OF THE PARCEL AND ANY AND ALL EASEMENTS, RESTRICTIONS, OR
RESERVATIONS OF RECORD OR APPARENT THEREOF.
SAID PARCEL CONTAINS 12.87 ACRES MORE OR LESS.
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