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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 {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
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