View the PDF version Google Docs PDF Viewer
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 {4 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 DEVELOPMEN T, LLC, a Street, Grand Michigan limited liability company (“Buyer”), whose address is the 16920 Ferrisaddress Haven, Michigan 49417, and the CITY OF MUSKEGON (“Seller”), whose 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 (Taxes and the Property is subject to taxes for the year of Closing (as defined in Paragraphin 14Paragr Assessments)) and all subsequent years and Permitted Exceptions (as defined aph 6 (Title Insurance)). 4. 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 an of this Agreement by the parties, Buyer shall deliver to the Title Company (as defined herein) earnest money deposit in the amount of One Thousand Dollars ($1,000) (theent.“Deposit’”). The Title Company shall hold the Deposit in escrow in accordance with this Agreem d toIf athe title is not marketable, if any contingencies cannot be met, or if Buyer is otherwise entitle 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”): (4) 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, assess ment of the Property, or other due diligence by Buyer or Buyer’s agents, includ ing, 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 todisclo sure pursuant to legal process, and provided, however, that Buyer shall have the right share such Confidential yees, agents, contractors, Information with Buyer’s members, managers, investors, partners, emplo to respect advisors, attorneys, accountants, consultants, bankers, and financial advisors who agree ty as to the the confidentiality of this information. Seller makes no representation or watran accurateness or completeness of the Property Information. 5, Survey. Within five (5) business days after the Effective Date,edBuyer shall order an ALTA survey of the Property (the “Survey”). The Surveybyshall be prepar in accordance with Buyer’s requirements. The cost of the Survey shall be paidBuyer. 6. Title Insurance. Within five (5) business days after the Effect ive Date, Buyer shall order a commitment for an ALTA owner’s policy of title insurance (the,“Comm itment’”) in the issued by the following amount of the Purchase Price and insuring marketable title vested in Buyer 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 guaranCommitee Buyer’s title to be in the the condition called for by this Agreement. If either the Survey orions, tment reveals any encroachments, overlaps, easements, restrictions, covenants, condit or other title matters that are not objected to in writing or waived in accordance with the provis ions herein, then such matters shall be deemed “Permitted Exceptions.” If either the Surve y or the Commitment reveals any conditions, or other title matters that encroachments, overlaps, easements, restrictions, covenants,days are objectionable to Buyer, then Buyer, within thirty (30) after receipt of the Survey and Commitment (whichever is received last), may notify Seller thirty in writing of such objections (hereinafter “Title Objections”). Seller shall have a petiod of (30) days after receipt of Buyer’s written notice of Title Objections (the “Seller’s Cure Period”)r’s to, at its option, cure any such Title Objections it intends to cure at or before Closing (the “Selle Cure Notice”). Seller ions and Seller must cure those shall use commercially reasonable efforts to cure any Title Objectwhich liens or encumbrances securing monetary obligations of Seller ). If Seller can be discharged upon payment of an ascertainable amount (the “Monetary Obligations” 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 bé deeme d Permitted Exceptions, and require Seller to deliver title to the Property at Closing in in its existing condition subject only to the Permitted Exceptions with no reduction the Purchase Price; or (ii) Buyer the Terminate this Agreement and require the Title Company to return toy termin Deposit paid to date, whereupon this Agreement shall be automaticall ated matters and all parties released from further obligation hereunder, except for those that expressly survive such termination. Buyer shall have the right to update the Commitment from time to the time prior to Closing. If any updated Commitment discloses new exceptions affectsaid ing title since effective date of the previous Commitment, Buyer shall have the right to have exceptions depicted on the Survey and to object to them in accordance with the timeframes and process busine provided for above, except (5) that (a) any new Title Objection must be given not later than fivePerio ss days after the date Cure of Buyer’s receipt of the updated commitment, (b) Seller’sSeller d shall be thirty (30) days, and (c) if any new Title Objection is not cured during the s Cure ’s Cure Period, then Buyer shall have three (3) business days from the expiration of the Seller’ withPeriod cure period to terminate this Agreement by written notice to Seller in accordance clause (ii) in the preceding paragraph. At Closing, the Title Company shall issue to Buyer a “marked”ionscommi tment or an ownet’s policy issued pursuant to the Commitment without standard except and, as available and as requested by Buyer, with extended coverage containing a “Gap”theendor sement (if such endorsement is required to insure the “Gap”), insuring the Buyer’s title in condition as approved by Buyera “Access” endorsement, pursuant to this Paragraph 6, a “Same Land” endorsement, a an .” endorsement. Buyer, “Contiguity to Street” endorsement, a “Survey” endorsement, andient“P.L.N rd survey at its expense, shall be responsible for obtaining any survey suffic to delete the standa for oil, gas, and of any search required to delete the standard exception exception and for the cost mineral rights. Ifany cure period provided to Seller under this Paragraph 6 extend s 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. Tease 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 defini tive lease agreement with its intended tenant for the building and other improvemen intends to construct on the ts Buyer Property (the “Lease Up Period”). The “Due Diligatence Perio d” shall commence upon the expiration of the Lease Up Period and shall expire 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, environmen tal, physical inspection, zoning, governmental approvals. Buyer may extend utilities, final project costs, business feasibility, and all extens the Due Diligence Period by two (2) additional 30 day nceionPeriod periods by written notice to Seller on or before the last day of the then current Due Dilige together with an additional earnest money deposit in the amount of Five Thousand and but 00/100 Dollars ($5,000) to be held by at the Title Company which shall be non-refundable to Buyer applicable to the Purchase Price Closing. Seller agrees to cooperate with Buyer in the pursuit of devel opment and other incentives for Buyer’s intended development project on the Property as well as Buyet’s intended tenant for the project to the extent reasonably possible. Buyer and its representatives and consultants shall have the right toutenter the Property to perform such tests as Buyer deems reasonably necessysary,and including, witho limitation, soils and engineering tests, demolition and asbestos ,surve environmental tests. Buyer shall INDEMNIFY AND HOLD HARMLESS Seller its partneg as rs, and it officers, directors, employees and agents from all claims, liability, and expense arisin thea result of any activities of Buyer or its employees, agents, contractors, or representativesanyonportionPrope rty in connection with such inspections, studies and tests, and Buyer shall restore of the Property or improvements to disturbed by any such inspections, studies, and tests to the condition existing immediately prior such operation. 8 Failure of Due Diligence Contingencies. Ifany of the contingencies and conditions in Paragraph 7 (Due Diligence) have not been met, or, inright Buyer’s sole discretion, will not be met during the Due Diligence Period Buyer shall have the waiveandanyoption , upon written notice to to (1) Seller prior to the end of the Due Diligence Period,funda contingency or condition and proceed to Closing and the Deposit shall be nonre Depos ble except in the event of Seller’s default or (2) declare this Agreement terminated and have the sesit,itsalong with accrued interest, if any, returned to Buyer immediately. If Buyer timely exerci if this right to declare this Agreement Agreement otherwise becomes terminated and to receive a return of the Deposit, or tion or liabili terminated, Buyer and Seller shall have no further obliga ty to each other under this Agreement, except as expressly provided in this Agreement. 9, Conditions Precedent to Closing. Notwithstanding anyth ing 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 follo wing conditions are satisfied or waived in writing as of the Closing Date: (i) Performance by Seller of its covenants and obligations under this Agreement, 5 authority is No action, suit, or proceeding before any court or governmental unfavo pending or threatened against Seller or the Property wherein an Agreerable (i) judgment or outcome would materially prevent the carrying out of this ment or any of the transactions described herein; Seller’s representations and warranties set forth in Paragraph 10 (Seller ’s (iii) Warranties) of this Agreement are true and accurate in all materi al respec ts 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. Satisfaction of Buyer’s standard conditions for title and survey, business feasibility, concurrency, physical inspection, zoning, utilities, and all governmental approvals. (v) 10. Seller’s Warranties. Seller represents and warrants as follows: , and authority Seller is the owner of the Property and has the full right, title, powerand (i) to enter into this Agreement and convey title to the Proper ty free clear of all liens and encumbrances other than the Permitted Exceptions at Closing; Seller’s title to the Property is a good, marketable and recordable title in fee simple, (ii) nts, free and clear of all liens, encumbrances, easements, tenancies, rights, covena 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 affect ing the Property; (vi) Seller is not a foreign person within the meaning of Section 1445 of the Intern al Revenue Code ("IRC"), ic, 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) ge, During the term of this Agreement, Seller shall not sell, convey, lease, mortgaparts encumber, assign, or otherwise dispose of or market the Property or any 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 subject to any unrecorded Manager without further investigation, the Property is not 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) first offer or No third party has an option to purchase, right of first refusal, right ofSeller other similar right with respect to any portion of the Property and 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) d to that of the City To the best of Seller’s knowledge, which is expressly limiteSeller Manager without further investigation, during the time has owned or operated the Property, no toxic or hazardous substances or wastes, includive ing without limitation any substance defined as hazardous under the Compr ehens Environmental Response, Compensation and Liability Act (42 U.S.C. 9601, et seq, rule or as amended), or any federal, state or local environmental law, ordinance,releas regulation (collectively, “Hazardous Materials”) have been used, stored, ed, spilled, discharged, or otherwise disposed of on, in under, or otherwise affect ing the Property. Seller has not received and has no knowledge of the receipt by any the potential other party of any notice from any applicable governmental entity of or or actual existence of any Hazardous Materials on, in, or under otherwise affecting the Property. For purposes of this subparagraph (x) “Selle r’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 said the obligation of the Buyer to close this transaction is expressly conditioned upon representations and warranties. 11. Buyer’s Watranties. 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 the Closing Date and shall survive one (1) year from the Closing and continue in full force and of the transaction contemplated herein, and effect notwithstanding the Closing and consummationction the obligation of the Seller to close this transa is expressly conditioned upon said representations and warranties. 12. Compliance with Municipal and State Regulations. All violat ions of law, ordinances be or orders of state, county, and municipal agencies affecting the Property at the date hereof shall s and warnings of such violation shall be cured by Seller before the date of closing, and all notice rty shall be conveyed free of all such notices complied with by Seller before that time, and the Propeizatio n to make and/or have made searches and warnings. Seller shall furnish Buyer with author for such violations. 13. Environmental Investigations. Within the Due Diligence Period, Buyer shall order a Phase I Environmental Site Assessment for the Prope rty (the “Phase I ESA”) by an environmental consultant selected by Buyet, along with such other additi onal environmental reports required to the Proposed Development, in Buyer's confitm that the Property is environmentally suitable IforESA sole but reasonable discretion. The cost of the Phase shall be paid by Buyer. In the event that the Phase I discloses any evidence of any recog nized environmental condition, Buyer shall Buyer’s have the right to conduct such additional testing and investigation as buyer may desire in 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 lienleuponand due and payable with respect to the Property whether or not such assessments are bepayab in installments. Real Estate taxes for the calendar year in which the Closing occurs shall andprora ted with Seller being responsible for and Buyer such taxes from January 1 of such calendar year to including the date of Closing ion of the calendar year. The foregoing prorat being responsible for the remainder of such taxesblefortax taxes shall be based upon the most recent availa 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 thellyTitle Company. Closing of the transaction agreed upon by Buyer and Seller, but no contemplated hereby shall be held on a date mutuaor earlie later than thirty (30) days after the expiration r 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 commission s, the premium for an ownet’s title insurance only to Permitted Exceptions, title search fees, policy in Buyer’s name insuring fee title subjectBuyer and one-half of the Title Company’s Closing fee. shall pay its Due Diligence costs, attorney title endorsements, and one-half of the Title fees, recording fees, Survey fees, the cost of any Selle Company’s Closing fee. Buyer agrees to reimburse Exclursive for any survey fees paid by Seller related to the Property in furtherance of this transaction. r detail inposse ssion of the Property shall be given to Buyer at the Closing as set forth in furthe 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 costand expense, each of the following items: (i) subject only to the Permitted Executed Quit Claim Deed (in recordable. form)instruments, certifications, and Exceptions, along with such other documents, fully effect confirmations as may be reasonably required to 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 reaso nably required by the Buyer or the capacity of Seller and the authority of the Title Company evidencing the status and r person or persons who are executing the various documents on behalf of the Selle in connection with the sale of the Property; (ix) ded or approved by Buyer, A certification (“Certification”) in a form to be provithe signed by Seller under penalties of perjury, containing 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); 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); 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 from Certification is false or Buyer receives notice that the Certification is false 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; 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, of 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; 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; reasonable All additional documents and instruments deemed necessary, in thection; (x) and opinion of Buyer’s counsel for the proper consummation of this transa (x1) The Property free and clear of all liens, encumbrances, easements, tenancies, rights, covenants, restrictions, reservations, conditions, charges, agreements, and other exceptions to title except the Permitted Exceptions. 10 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, (ii) 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 availab le funds transferred to Title Company’s account with instructions to immedi ately release the full amount to Seller upon Closing; (vi) Property Transfer Affidavit; and. in the reasonable (vii) All additional documents and instruments deemed necessary, transac opinion of Seller’s counsel for the proper consummation of this tion. be delivered to Buyer on 17, Possession. Exclusive legal possession of the Property shallBuyer the date of Closing. Except as otherwise expressly provided herein, agrees to accept the Property in its “as is” condition. (i) Seller to provide the following: a. All Surveys, Legal Descriptions, Designs, Engineering, testing and studie s (collectively “Stormwater Design Documents”) necessary or appropriate for the shared stormwater detention/retention basin necessary to provide for the detention/tetention 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. other b. All materials, catch basins, risers, orifices, plantings, storm lines and water improvements necessary or appropriate for the construction of the Storm 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 agreem ent 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: 1 i. provide that the basin shall be owned and maintained by Seller ; and ii. require all properties described therein to connect to the Storm water Improvements at such time as construction is comm ence d upon such properties. The form of the Stormwater Easement agreement shall be initia lly drafted by ence Period. Buyer and agreed to by Seller and Buyer during the Due Dilig (ii) Buyer will excavate and construct the StormwaterBasi Basin in accordance with the Stormwater Design Documents (the “Stormwater Seller n Work”). All excavated material will be placed, spread and graded upon ’s remaining property adjacent to the Stormwater Basin provided, however, that Buyer shall be entitled to keep and use any suitable fill materials excavated fromdedthe Stormwater Basin to raise the level of the Property pursuant to Buyer’s inten development plans for the Property. t for the Stormwater Prior to Closing, Buyer and Seller shall agree upon the budgeThe Basin Work to be completed by Buyer’s contractor. budget shall be incorporated into a recordable Reimbursement Agreement (the “Rei mbursement Agreement”) which shall be entered between Buyer and Seller and recorded with the Muskegon County Register of Deeds at Closing.Buye The Reimbursement Agreement shall provide for the prorata reimbursement ofacreage r for the actual cost of the Stormwater Improvements based upon the total s or futurofe owner all properties benefitted by the Stormwater Improvements by the ownerovements prior to and s of the other properties to be benefitted by the Stormwater Impr itted by the Stormwater as a condition of (a) the sale of any other property benef on on such properties. Easement or (b) the earlier commencement of any rconst ructi The Reimbursement Agreement shall requi re Selle to requi re the future buyers for actual costs on a prorata basis any benefited property to reimburse Buyer for eitsbuyer upon closing of the sale(s) by Seller to such futur (s). If any such future buyer does not make such reimbursements upon such sale, thenoblig Buyer shall have a lien on the property sold as security for the collection of such ation. 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 commerciallyMainreasonable Stormwater Basin Maintenance Agreement (the “Stormwater Basin er Basi tenance Agreement”) that n until the earlier of (a) will provide that Buyer shall maintain the Stormwatby the Storm the sale by Seller of any other property benefitted water Easement or (b) the earlier termination of the Stormwater Basin Maintenace Agreement by Seller for purposes of retaining another patty to assume such maintenance obligations. 1. Brokers. Seller represents that it has notofdealt with any broker, realtor, or agent in h Core Realty Partners (“Seller’s Broker”) , connection with this transaction except Brian Bencbroke r, realtor, or agent in connection with this and Buyer represents that it has not dealt with any 12 transaction except Steve Wilson of Norths Closing, Seller tar Commercial (“Buyer’s Broker”). Atequall shall pay a commission of six percen t (6%) of the Purchase Price to be split y between Seller’s Broker and Buyer’s Broker. 19, Entire Agreement, Amendments, and Waivers, This Agreement and all exhibit s thereto supersedes all prior contain the entite agreement and understanding of the parties,modifi oral or written agreements between the parties, and may not be amended or ed 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 Agree ment and to fully consummate and effect the transactions contemplated hereby. 21. Interpretation and Choice of Law. (i) and the The headings and captions herein are inserted for convenient reference onlyapply same shall not limit or construe the paragraphs or sections to which they or otherwise affect the interpretation hereof. (ii) Both parties have contributed to the drafting of this Agreement. In the eventy,ofora controversy, dispute, or contest over the meaning, interpretation, validitbe no enforceability of this Agreement or any of its terms or conditions, there shall 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 shall may or shall be or on the Seller, given or served by the Seller to or on the Buyer, or by the Buyer to or be deemed to have been given or served on the date the same is sent by email deposited in the United States d or given to a nationally Mail, registered or certified, return receipt requested, postage prepai ry and addressed as follows: recognized overnight courier service for next business day delive 13 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 ate 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. 14 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), (ii) 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. 98. 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; but restrictions or prohibitions imposed or actions taken by a governmental authority (including,ons, not limited to government shutdown orders as a result of pandemics); embargoes; fires; explosi the natural disasters; riots; wars; sabotage; or court injunction or order, or by other causes which shall patty determines justify delay, however, as soon as possible after the occurrence, the party the other provide written notice to the other party describing such delay and communicating to 15 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] 16 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 DEVELOPMEN LC, a Michiga limited liability pan / Steve Wilson Its: Manager SELLER: CITY OF MUSKEGON Date: May _/7_, 2024 By: oY OndeelKen Johnson/’ Its; Mayor Bye gD nc No we Ann Marie Meisch Its: City Clerk 17 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 FERT; 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 = 167.00 FEE.T, DELTA= 72 DEGREES 20 MINUTES 38 SECONDS, LONG BEING RADIUS = 197.13 FEET, LONG CHORD BEARING= SOUTH 34 DEGREES 41 MINUTES 44 CHORD SECONDS EAST, A DISTANCE OF 2.10.86 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. 18 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. 19 FIRST AMENDMENT TO REAL ESTATE PURCHASE AND SALE AGREEMENT This First Amendment to Real Estate Purchase and Sale Agreement (the “Amendment”) is made this .7.2/“day of October, 2024, (the last date of execution of this Agreement by Buyer and Seller being the (“Effective Date”) by and between 2675 OLTHOFF, 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. Buyer and Seller are parties to that certain Real Estate Purchase and Sale Agreement dated My 14, 2024 assigned by Bluewater Industrial Development, LLC to Buyer on September 5, 2024 (as assigned, the “Agreement”). B. The Agreement contemplates an offsite storm water detention area. Offsite stormwater detention is no longer required for Buyer’s development of the Property and Buyer and Seller desire to amend the Agreement to eliminate all provisions related thereto. NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Agreement is amended as follows: AGREEMENT 1, Paragraph 16 of the Agreement is hereby amended by (a) deleting Subparagaphs (v), (vi) and (vii) from the list of Seller’s deliveries at Closing and (b) deleting Subparagaphs (11), (iii) and (iv) from the list of Buyer’s deliveries at Closing. 2. Paragraph 17 of the Agreement is hereby amended to read in its entirety as follows: 17. Possession. Exclusive legal possession of the Property shall be delivered to Buyer on the date of Closing. Except as otherwise expressly provided herein, Buyer agrees to accept the Property in its “as is” condition. 3. Due Diligence Extension. Buyer hereby exercises its first thirty (30) day extension of the Due Diligence Period and will make the required additional earnest money deposit of Five Thousand and 00/100 Dollars ($5,000.00) on or before Monday, October 14, 2024. 4, Capitalized Terms. Capitalized terms appearing but not defined herein shall have the meanings assigned to them in the Agreement. 5, Effect. Except as modified herein, all other terms of the Agreement remain in full force and effect. IN WITNESS WHEREOF, Buyer and Seller cause this Agreement to be executed, effective as of the Execution Date. BUYER: Date: October 11, 2024 2675 OLTHOFF, LLC, a Michigan limited liability company By: BLUEWATER INDUSTRIAL DEVELOPMENT, LLC, a Michigan limited liability company Its: | Manager W. Poland Dougias Its: Manager SELLER: CITY OF MUSKEGON Date: October QQ_, 2024 By: Nerd Kén Johnson * Its: | Mayor By \\\)e~Sea!Tg\Qv‘ .) Ann Marie Meisch Its: City Clerk
Sign up for City of Muskegon Emails