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PURCHASE AND SALE AGREEMENT
2024-59(B)
This Purchase and Sale Agreement (this “Agreement”) is effective June 25, 2024 (“Effective
Date”) between Midtown Center, LLC, a Michigan limited liability company, with principal offices at
3265 Walker Avenue NW, Suite D, Grand Rapids, MI 49544 (“Buyer’’) and the City of Muskegon, a
municipal corporation, with principal offices at 933 Terrace Street, Muskegon, MI 49440 (“Seller”), with
reference to the following facts:
Background
A. Seller owns the real estate located at 1095 Third Street, Muskegon, MI 49441 and the vacant
lot located at 301 W. Muskegon Ave., Muskegon, MI 49441, as depicted on the Site Plan attached as
Exhibit A to this Agreement and legally described on Exhibit B attached to this Agreement (the
“Premises”’).
B. Buyer has agreed to purchase, and Seller has agreed to sell the Premises to Buyer according
_ to the terms and conditions of this Agreement.
It is agreed as follows:
1. Agreement to Sell and Purchase the Premises. Seller shall sell and Buyer shall purchase
the Premises, together with all beneficial easements, all improvements, fixtures, division rights,
hereditaments and appurtenances associated with the Premises, on the terms and conditions set forth in
this Agreement. The instrument conveying the Premises from Seller to Buyer shall contain a provision
relating to the Seller’s reversionary interest and Buyer’s occupancy restrictions, as more fully required in
this Agreement.
2. Purchase Price; Deposit and Manner of Payment. The purchase price for the Premises is
One Hundred Thousand and 00/100 Dollars ($100,000). Contemporaneously, with the execution of the
Agreement, Buyer will deposit the sum of Ten Thousand and 00/100 Dollars ($10,000) (the “Deposit”)
with Title Company (as defined below). At closing, and upon execution and delivery of a quit claim deed
and all other documents of transfer, Buyer will pay the remainder of the purchase price ($90,000) to the
Seller by Title Company check or wire transfer. If the purchase and sale contemplated by this Agreement
is closed, the Deposit shall be a credit against the purchase paid by Buyer. If Buyer terminates this
Agreement pursuant to any termination right granted by this Agreement, the Deposit shall be promptly
returned to Buyer.
3. Title Insurance. Seller shall, at Seller’s expense, order a commitment for owner's policy of
title insurance issued by Transnation Title Agency (the “Title Company’’) in the standard ALTA form,
without the standard printed exceptions, in the amount of the purchase price that shows that Seller has
good and marketable title to the Premises. Buyer represents and warrants that the Title Company is
independent and neither related nor affiliated with Buyer or Buyer’s attorneys.
4, Objections to Condition of Title. Buyer may raise objections to the exceptions,
requirements or encumbrances shown on the commitment at any time prior to expiration of the Inspection
Period (as defined below) by delivering written notice to Seller. If Buyer raises a title objection, Seller
shall have the option of affecting a remedy within thirty (30) days after receipt of the Buyer’s notice. If
Seller does not affect a remedy satisfactory to Buyer, Buyer may elect to close subject to such exception
or encumbrance or, if Buyer elects not to close, Seller or Buyer may terminate this Agreement by written
Purchase Agreement
notice to the other party to this Agreement. Any exception, requirement or encumbrance shown on the
title commitment which is not objected to by the Buyer during the Inspection Period is deemed accepted
by the Buyer.
5. Proration of Property Taxes and Rents. Real estate taxes and assessments, if any, that first
became or will become due and payable during the calendar year of the Date of Closing (as defined
below) shall be pro-rated on a calendar year basis. All real estate and personal property taxes with respect
to the Premises that first become due and payable on or before the Date of Closing, or which are assessed
retroactively for the period of time prior to the Date of Closing, shall be paid by Seller.
6. Assessments. Seller shall pay any existing special assessments that are due and payable, or a
on the Premises at or prior to Date of Closing.
lien or both,
7. Survey. Buyer may obtain a survey of the Premises, and Buyer or Buyer’s surveyor or other
agents may enter the Premises for that purpose prior to Date of Closing. In the event that a survey by a
registered land surveyor made prior to Date of Closing discloses an encroachment or substantial variation
from the presumed land boundaries or area, Seller shall have the option of affecting a remedy within 30
days after disclosure. If Seller does not affect a remedy satisfactory to Buyer, Buyer may elect to close
subject to such encroachment or variation or, if Buyer elects not to close, Seller or Buyer may terminate
this Agreement.
8. Representations and Warranties. The execution and delivery by Seller of the quit claim
deed shall constitute confirmation by Seller that the following representations and warranties are true and
correct as of the Date of Closing, as though made on and as of such time.
Seller represents and warrants to Buyer as follows:
a. Authority. Seller has full authority to enter into and perform this Agreement in
accordance with its conditions, without breaching or defaulting on any obligation or
commitments that Seller has to municipalities, lenders or any third party.
b. Other Agreements. Seller is not a party to any agreement or otherwise bound under
any obligation with any other party who has any interest in the Premises or the right to purchase
or lease the Premises.
c. Entire Interest. Seller's entire interest in the Premises will be transferred to Buyer
on the Date of Closing, free and clear of all liens, encumbrances, charges, and adverse claims,
contractual or otherwise; including any and all mineral, surface and division rights.
d. Litigation. There are no suits, actions, or proceedings pending or, to the best of
Seller's knowledge, threatened, by any party, including governmental authorities or agencies,
against or involving the Premises, or to which Seller is or may become a party in connection with
the Premises.
e. No Violations or Obligations. Except as disclosed in writing to, and accepted by
Buyer, there are, and shall be, no uncured violations or unsatisfied obligations with any
governmental authority, including, without limitation, environmental violations, of any laws,
ordinances, orders, regulations, rules, or requirements of any governmental authority, affecting
the Premises or any part thereof.
f. Accuracy. All statements and information relating to the Premises provided to
Buyer are true and accurate to best of Sellers knowledge.
Purchase Agreement
g. Brownfield Tax Increment Financing. Seller agrees to work with Buyer to submit
to the City of Muskegon Brownfield Redevelopment Authority an Amendment to the current
Brownfield Plan and Development and Reimbursement Agreement.
h. Commercial Rehabilitation Certificate. Seller agrees to work with Buyer to submit
to the State Tax Commission an application for a Commercial Rehabilitation Certificate not to
exceed a term of 10 years.
Buyer represents and warrants to Seller as follows:
a. Acceptance of Tenant Based Vouchers. Buyer agrees to identify and hold 20%
of the total apartment units in the first phase, which is the development of the existing building on the
Premises, and the second phase, which is vacant land on the Premises fronting Houston Avenue, for
tenants that have been awarded Tenant Based Vouchers by the Muskegon Housing Commission. At the
time of the first occupancy of units, at least 30 days before a voucher-eligible unit is scheduled to become
available, the Buyer must advertise that a voucher-eligible unit is available and refrain from leasing the
unit to market rate applicants. If a qualified voucher holding applicant, as determined by the Buyer, has
applied during the notice period, Buyer shall rent the available unit to the individual with the Tenant
Based Voucher.
b. Once 100% of the voucher-eligible units are occupied by individuals with
Tenant Based Vouchers, Buyer need not advertise that the Buyer has voucher-friendly units.
c. When voucher-eligible occupied units become vacant, Buyer shall be obligated
to advertise for 30 days that a unit is available for an individual with a Tenant Based Voucher and refrain
from leasing the unit to market rate applicants. If a qualified voucher holding applicant, as determined by
the Buyer, has applied during the notice period, Buyer shall rent the available unit to the individual with
the Tenant Based Voucher.
d. If an insufficient number of qualified individuals with Tenant Based Vouchers, as
determined by the Buyer, apply to fill 100% of the voucher-eligible units, then Buyer may rent to market
rate applicants.
e. The acceptance of Tenant Based Vouchers and the obligation to have 20% of the
units be eligible for Tenant Based Vouchers shall last for a term of 20 years from the receipt by Buyer of
Certificate of Occupancy for the first phase of the project. During the 20-year period referred to in the
previous sentence, Buyer shall, upon request of the Seller, provide the Seller with a list of units occupied
by individuals with Tenant Based Vouchers in a format required by Seller. Buyer shall not be required to
provide Seller with tenant names or other personal identifying information.
No Warranty of Premises. Buyer will have an opportunity to inspect all aspects of the Premises,
including its financial and physical condition and its legal status. Seller makes no warranty or
representation regarding the Premises and Buyer waives all implied warranties. Buyer is relying solely on
its own expertise and Buyer’s inspections and investigations made by Buyer pursuant to this Agreement.
Buyer is acquiring the Premises in its “AS IS” condition, without any warranties or representations,
express or implied, concerning the Premises from Seller.
9. Inspection Period.
a. Due Diligence Investigation. Upon Seller’s execution of this Agreement, Buyer and
Buyer’s agents, employees, contractors, and consultants may, prior to the Date of Closing,
conduct such inspections, investigations, appraisals, tests, feasibility studies, and determinations
of the Premises as Buyer, in its sole discretion, shall desire in order to determine that the
condition of the Premises is acceptable and that the Premises is suitable for Buyer's intended uses
(“Due Diligence Investigation”). The Due Diligence Investigation may include, but shall not be
limited to, inquiring as to the existence and/or adequacy of electrical, plumbing, sewer, water and
Purchase Agreement
other utility services, public services and access; physical condition of improvements, insuring as
to applicable zoning ordinances, use regulations and business codes; conducting soil tests of the
Premises, borings and other engineering and architectural tests; evaluation of the environmental
conditions which exist at the Premises (including, if desired by Buyer, a Phase I and Phase II
environmental site assessment and a baseline environmental assessment) and Seller's compliance
with all applicable state and federal environmental laws and regulations. Buyer shall pay the cost
of the Due Diligence Investigation. The Due Diligence Investigation shall begin on the Effective
Date and shall continue for a period of thirty (30) days (“Inspection Period”). Buyer shall
indemnify Seller and hold Seller harmless from any loss, damage, costs, and expenses (including
reasonable attorney fees) caused by Buyer’s Due Diligence Investigation.
b. Copy to Buyer. Within seven (7) days after the Effective Date, Seller shall provide
Buyer with a copy of any survey, title policy or commitment, and any results, data, or reports of
the environmental condition of the Premises in Seller’s possession or control. Seller
acknowledges that during the Inspection Period or at any time consistent with regulations before
or after Date of Closing, Buyer may make a petition to the Michigan Department of Environment,
Great Lakes and Energy (“EGLE”) for a baseline environmental assessment (“BEA”) adequacy
determination, or at the option of Buyer, may disclose the results of the BEA to EGLE without
such a petition.
10. Right to Terminate. At any time during the Inspection Period, Buyer may, in its sole
discretion, terminate this Agreement by delivering written notice to Seller, and this Agreement shall
thereafter be of no further force or effect.
11. Improvements. Buyer commits to undertake a first phase of development on the existing
building on the Premises and a second phase on vacant land on the Premises fronting Houston. As to the
first phase, Buyer agrees to submit requests for building permits for a mixed-use residential project that
occupies 100% of the first and second floors of the existing building by December 31, 2024, and
substantially complete the project within 24 months of issuance of building permits. As to the second
phase, Buyer agrees to submit plans and apply for building permits for an additional phase of housing
fronting Houston Avenue on the Premises with a minimum of twelve (12) new construction units within
90 days of receiving Certificate of Occupancy on the initial phase. The additional units in the second
phase of development on the Premises shall be substantially complete within 24 months of the issuing of
building permits. Failure to complete the Improvements in the schedule described shall result in a vote of
the Muskegon City Commission to consider the revocation of any approved Tax Abatements awarded to
the Premises by the Muskegon City Commission.
12. Real Estate Commission. Buyer and Seller both acknowledge and agree that neither has
dealt with any real estate agents, brokers, or salespersons regarding this sale, and that no agent, broker,
salesperson, or other party is entitled to a real estate commission upon the closing of this sale.
13. Closing.
a. Date of Closing. Unless the parties otherwise mutually agree, the closing shall be
held within thirty (30) days from the expiration of the Inspection Period (“Date of Closing”). The
closing shall be held at the offices of the Title Company. At closing, Seller shall deliver, or cause
to be delivered to Buyer, actual physical possession of the Premises, free of all tenants or other
occupants,
b. Costs. The costs associated with this Agreement shall be paid as follows:
Purchase Agreement
i. Seller shall pay all state and county transfer taxes in the amounts
required by law for the conveyance of the Premises,
il. Seller shall pay the premium for the owner’s policy of title insurance.
Buyer shall pay for any lenders policy of title insurance and the cost of any endorsements to
the owner’s policy requested by Buyer;
iii. Buyer shall pay for the cost of recording the warranty deed;
iv. Seller shall be responsible to pay for the recording of any instrument that
must be recorded to clear title to the extent required by this Agreement,
v. Buyer and Seller shall each pay one-half of any closing fees charged by
the Title Company;
Vi. Each party shall pay its own attorney;
c. Deliveries. At closing, Seller shall deliver:
i. In a form reasonably satisfactory to Buyer and the Title Company, a quit claim
deed to the Premises executed by Seller, subject only to the exceptions that are permitted under
this Agreement;
ii. An affidavit stating that neither Seller nor any of its principals is a “Foreign
Person” within the meaning of IRC Section 1445(f)(3); and
iii. Any additional documents as may be reasonably required by the Buyer or the
Title Company to effectuate the transaction contemplated by this Agreement.
14. Possession. Possession of the Premises will be delivered to Buyer on the Date of Closing
subject only to the possession rights of current occupants if any.
15. Notice. All notices, approvals, consents, and other communications required under this
Agreement shall be in writing and, shall be deemed given: (i) when delivered in person; (ii) when sent by
fax or email; (iii) one day after depositing in the custody of a nationally recognized receipted overnight
delivery service with delivery fees prepaid; or (iv) when sent by United States Mail first-class, registered,
or certified mail, postage prepaid and return receipt requested. The notice shall be effective immediately
upon personal delivery or upon transmission of the fax or email; one day after depositing in the custody of
a nationally recognized overnight delivery service and five days when sent by certified mail. Notices shall
be sent to the parties as follows:
To Seller: City of Muskegon
993 Terrace Street
Muskegon, MI 49442
Attn: Jake Eckholm
Email: jake.eckholm@shorelinecity.com
w/copy to Parmenter O'Toole
601 Terrace Street
Muskegon, Michigan 49440
Purchase Agreement
Attn: City of Muskegon Attorney
To Buyer: Muskegon Midtown Center, LLC
3265 Walker Avenue NW,
Grand Rapids, MI 49544
Attn: Dave Dusendang
Email: Dave@westurbanproperties.com
w/copy to:
16. Remedies. The parties acknowledge and agree that it would be difficult to measure actual
damages to either party from a breach by the other party of the covenants, restrictions, representations,
and warranties set forth in this Agreement and that the injury to non-breaching party from any breach
would be incalculable and irremediable and the damages would not therefore in and of themselves be an
adequate remedy. The parties therefore agree that in the event of a breach or default by either party, the
non-breaching party may terminate this Purchase and Sale Agreement or obtain from any court of
competent jurisdiction an injunction to enforce the terms and conditions of this Agreement. Nothing in
this paragraph shall limit either party’s right to pursue any remedy, including money damages for any
breach of this Agreement and specific performance.
17. Miscellaneous.
a, Governing Law and Venue. This Agreement is executed in accordance with, shall
be governed by, and construed and interpreted in accordance with the laws of the State of
Michigan. The exclusive venue for any claim under this Purchase and Sale Agreement is the
Circuit Court for the County of Muskegon or the United States District Court for the Western
District of Michigan.
b. Entire Agreement. This Agreement shall constitute the entire agreement, and shall
supersede any other agreements, written or oral, that may have been made or entered into, by and
between the parties with respect to the subject matter of this Agreement and shall not be modified
or amended except in a subsequent writing signed by the party against whom enforcement is
sought.
c. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
and be enforceable by, the parties and their respective legal representatives, permitted successors
and assigns.
d. Intentionally omitted.
e. Counterparts/Electronic Signatures. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original as against any party whose
signature appears thereon, and all of which together shall constitute one and the same instrument.
This Agreement shall become binding upon the parties when one or more counterparts,
individually or taken together, shall bear the signatures of all parties. Electronic signatures shall
have the same binding effect as original signatures.
Purchase Agreement
f. Non-Waiver. No waiver by any party of any provision of this Agreement shall
constitute a waiver by such party of such provision on any other occasion or a waiver by such
party of any other provision of this Agreement.
g. Severability. Should any one or more of the provisions of this Agreement be
determined to be invalid, unlawful, or unenforceable in any respect, the validity, legality, and
enforceability of the remaining provisions of this Agreement shall not in any way be impaired or
affected.
h. Assignment or Delegation. Neither party may assign all nor any portion of its
rights and obligations contained in this Agreement without the express written consent of the
other party.
i. Time is of the Essence. Seller and Buyer acknowledge and agree that the time
related provisions set forth herein are critical and essential terms of this Agreement and that time
is of the essence with regard to the transactions contemplated in this Agreement. Failure to
strictly comply with the time related provisions of this Agreement will be considered a breach of
the entire Agreement. If the date for closing, for the delivery of a document, or for giving of a
notice, falls on a Saturday, Sunday or bank holiday, then it shall be automatically deferred to the
next day that is not a Saturday, Sunday or bank holiday.
j. Survival of Representations and Warranties. The representations, warranties,
covenants, and agreements contained in this Agreement and in any instrument provided for in this
Agreement shall survive Closing and continue in full force and effect following the Date of
Closing.
(Signatures appear on following page.)
Purchase Agreement
Seller: City of Muskegon
By: CVO dex
Name: Ken Johnsén
Title: Maga
Date: uly al , 203-4
By: NeSpan. @ gj TM
Name: Ann Meisch
© TM
Title: City Clerk ;
Date: Q- Qe 2y
20
Buyer: Muskegon Midtown Center, LLC
By: hhwd KO. KLiuain Dna
Name: David Dusend: ang
Title: A7E EEE
Date: ZL 2 202 Y
Purchase Agreement
Exhibit A
Legal Description
Premises is situated in the City of Muskegon, County of Muskegon, State of Michigan, legally described
as:
Parcel 1:
Lot 9, except the West 15 feet thereof, all of Lots 10-12, and Lot 13, except a triangular piece in the SE
corner of said Lot 13 commencing at the Southeast corner thence North 3.85 feet, thence Southwesterly to
a point on the Southeasterly line of Lot 13, 3.85 feet West of the Point of Beginning, thence 3.85 feet to
the Point of beginning, Block 350 of the Revised Plat of 1903 of the City of Muskegon, as recorded in
Liber 3 of Plats, Page 71, Muskegon County Records.
Commonly known as 1095 Third Street, Muskegon, MI 49442
Parcel #: 24-205-350-0009-00
Parcel 2:
Lot 1, Block 350 of Revised Plat of 1903 of the City of Muskegon, as recorded in Liber 3 of Plats, Page
71, Muskegon County Records.
Commonly known as 301 W Muskegon Avenue, Muskegon, MI 49442
Parcel #: 24-205-350-0001-00
Purchase Agreement
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