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MUNICIPAL SERVICES AGREEMENT
THIS MUNICIPAL SERVICES AGREEMENT (“Agreement”) is entered into on this
24th day of September, 2024 _ between GenCap Nelson Limited Dividend
Housing Association, LLC, a Michigan limited liability company its successors and/or assigns
(the “Sponsor”) and the CITY OF MUSKEGON, 933 Terrace Street, Muskegon, MI
49440 (the “City”) is made pursuant to the following terms:
RECITALS
A. Developer has assumed an agreement to purchase a site in the City of Muskegon
known as Nelson School Apartments for the construction of a proposed low-income housing
project (the “Project’).
B. The parties recognize that due to the high concentration of persons residing at
the Project that the City will be providing a higher level and greater amount of Municipal Services
(as defined in this Agreement) to the Project.
C. The City, through its Police and Fire Departments and otherwise, provides
Municipal Services within the City. The Project will have special needs for these types of
Municipal Services and Developer acknowledges that such needs may be greater than typically
situated residential developments.
D. The Developer desires to guarantee that certain Municipal Services will be provided
to the Project during the term that the Payment in Lieu of Tax (hereinafter referred to as the
“Contract for Housing Exemption”) Ordinance for this Project is in place, such Municipal Services
to include, but not be limited to:
L. Emergency services, including police and fire services specifically administered
through the City, and, on public streets and sidewalks, maintenance, repair, snow removal,
and street lighting; also to include other matters as the City deems necessary;
2. Other miscellaneous services as may, from time to time, be mutually agreed to for
the benefit of the Project;
3. Said municipal services shall be provided in the customary way and in accordance
with all laws, rules and regulations of the United States of America, State of Michigan,
County of Muskegon and City of Muskegon or other applicable jurisdictions or bodies.
(All of the above collectively referred to as “Municipal Services”)
4, Nothing in this Agreement shall be deemed to waive any defense to claims based
on sovereign or governmental immunity.
AGREEMENT
The parties agree as follows:
1. Provision of Services. The City will provide the Municipal Services.
2. Payment. The Developer shall pay a service charge on or before July 1, of each
year during the time the CONTRACT FOR HOUSING EXEMPTION is in effect (the “Municipal
Service Fee”), The Municipal Service Fee shall be three (3%) percent of the net rent adjusted for
vacancies received annually, excluding project paid utilities, starting during the calendar year that
a unit in the Project is placed in service. The first year shall be pro-rated based on that portion of
the City’s fiscal year (July 1 — June 30) that any unit is ready to be placed in service.
3. Term. Payment for Municipal Services shall commence during the calendar year
the CONTRACT FOR HOUSING EXEMPTION Ordinance becomes effective and continue for
as long as the CONTRACT FOR HOUSING EXEMPTION is in effect.
4. Audit. Developer shall submit, upon request, a copy of the annual audit of the
Project prepared by an independent CPA’s along with the payment of the Municipal Service Fee.
5. Exclusive Benefit. The obligations of the Developer hereunder are imposed solely
and exclusively for the benefit of the City and no other person or entity shall have the standing to
enforce such obligations or be deemed to be beneficiaries of such obligations.
6. Remedies. The Developer agrees that if it does not perform its obligations under
this Agreement the City is entitled to pursue any and all remedies legal or equitable that it is entitled
to under Michigan law. The Developer agrees to be liable for all costs of collection including
reasonable attorney's fees and costs incurred by the City in the enforcement of the terms of this
Agreement, if Developer is found to be in default of this Agreement by a court of competent
jurisdiction.
7. Assignment. Upon the written consent of the City, the Developer may transfer or
assign its rights and obligations under this Agreement to a buyer (“Transferee”) of the Project. The
Transferee must agree to assume the Developer’s obligations under this Agreement and the
Development Agreement which has been executed by the Developer with the City. Upon
assignment and assumption of this Agreement by the Transferee (or an affiliate, as provided
below), the Developer shall be relieved of any further liabilities or obligations accruing under this
Agreement or the Development Agreement. Notwithstanding the foregoing, the Developer may
assign this Agreement, without the written consent of the City, to an affiliate of Developer
(provided that such affiliate agrees to assume the Developer's obligations hereunder and provided
that the Developer and assignee give prior notice of the assignment to the City with evidence that
the assignee has agreed to assume the obligations of the Developer).
8. Severability. If any term or condition of this Agreement is found to be void,
invalid, or unenforceable, the validity or enforceability of the remaining terms and conditions shall
not be affected or impaired and will continue in full force and effect.
9. Notices. All notices under this Agreement must be in writing and sent to the
respective parties as follows:
If to Developer:
GenCap Nelson Limited Dividend Housing Association, LLC
David Weiss
6938 North Santa Monica Boulevard
Fox Point WI. 53217
If to the City:
City of Muskegon
Attn: City Manager
933 Terrace Street
Muskegon, MI 49440
Every notice must be in writing and sent by one of the following methods:
a. Personal delivery, in which case delivery shall be deemed to occur the day of the
delivery;
b. Certified or registered mail, postage prepaid, return receipt requested, in which case
delivery shall be deemed to occur the day it is officially recorded by the U.S. Postal Service
that is has delivered it to the intended recipient; or
c. Next day delivery by a recognized private delivery service such as Federal Express,
providing proof of mailing and delivery comparable to certified or registered mail, return
receipt requested, in which case delivery shall be deemed to occur upon delivery as
recorded by the delivery service.
Either party may change the address provided in this paragraph for itself or its attorney by
providing notice of such change to the other party as required in this paragraph.
10. No Waiver. No delay, omission, or failure of the City to act under this Agreement
or to insist upon strict compliance with any term and condition of this Agreement, and no custom
or practice of the parties at variance with the terms and conditions of this Agreement shall
constitute a waiver of City’s right to demand exact compliance with this Agreement. No waiver
of any right or remedy of City shall be construed as a bar to or a waiver of any such right or
remedy on any future occasion.
11. Headings. The headings in this Agreement have only been inserted for
convenience and shall not affect the meaning or interpretation of this Agreement. No heading
shall have any legal significance of any nature whatsoever.
12. Binding Effect. This Agreement shall be binding on the parties, their heirs,
successors, and assigns.
13. Amendments. There shall be no modification or amendments to this Agreement,
including this section, unless they are in writing and signed by all the parties to this Agreement.
14. Governing Law. This Agreement has been executed in the State of Michigan, and
shall be governed by Michigan law.
15. Complete Agreement. This Agreement contains the entire agreement between
the parties and supersedes all prior oral or written representations, negotiations and agreement on
the subject matter stated herein.
{Signatures on next page}
Municipal Services
Agreement Signature Page
IN WITNESS WHEREOF, this Municipal Services Agreement is executed as of the day and year
first written above.
CITY:
CITY OF MUSKEGON
Dated: G — o- Y , 20939 Oo Y By: Nor~ Qed oem—_|
Ken John$on, Mayor
Dated: Q-=>*\_, 2023 Wa4 od — Weare
~
Ann Meisch, City Clerk
DEVELOPER:
GenCap Nelson Limited Dividend Housing
Association, LLC
Name: 2shea Hahveg
Its: Authorized Signer
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