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CITY OF MUSKEGON CITY COMMISSION MEETING AUGUST 13, 2019 @ 5:30 P.M. MUSKEGON CITY COMMISSION CHAMBERS 933 TERRACE STREET, MUSKEGON, MI 49440 AGENDA □ CALL TO ORDER: □ PRAYER: □ PLEDGE OF ALLEGIANCE: □ ROLL CALL: □ HONORS AND AWARDS: A. Presentation of 2019 Beautification Awards □ INTRODUCTIONS/PRESENTATION: □ CITY MANAGERS REPORT: □ CONSENT AGENDA: A. Approval of Minutes City Clerk B. Designation of Voting Delegates for the Michigan Municipal League Annual Business Meeting City Clerk C. Adopt a Resolution Approving the Reclassification of a Tavern License to a Class C License for Port City Cruise Lines, LLC City Clerk D. Adopt a Resolution Approving the Off-Premises Tasting Room License for Wonderland Distilling Co. City Clerk E. Memorandum of Understanding – Justice Assistance Grant Public Safety F. 2019 Verizon/Central Dispatch License Agreement Public Safety G. LC Walker Arena – Ironmen Lease City Manager H. Water Main Easement Department of Public Works I. DPW Roofing Department of Public Works J. Industrial Park Lift Station Pump Department of Public Works Page 1 of 2 K. Public Meeting Training Development Services L. Opportunity Zone Incentive Program Economic Development M. Lakeside Business Improvement District (BID) Initial Resolution Planning & Economic Development N. Sale of Lots 3 & 4 of Seaway Industrial Park Planning & Economic Development O. Acceptance of Property from Muskegon County Planning & Economic Development P. Lease of Yuba Street Property to the Community Foundation from Muskegon County Planning & Economic Development Q. Sale of the Buildable Lot at 1245 5th Street Planning & Economic Development R. Community Relations Committee Establishment of Farmers Market Advisory Board City Clerk S. Community Relations Committee Appointment Recommendations City Clerk □ PUBLIC HEARINGS: □ COMMUNICATIONS: □ UNFINISHED BUSINESS: □ NEW BUSINESS: A. Convention Center – Site and Utilities Bid Pack City Manager □ ANY OTHER BUSINESS: □ PUBLIC PARTICIPATION: ► Reminder: Individuals who would like to address the City Commission shall do the following: ► Fill out a request to speak form attached to the agenda or located in the back of the room. ► Submit the form to the City Clerk. ► Be recognized by the Chair. ► Step forward to the microphone. ► State name and address. ► Limit of 3 minutes to address the Commission. ► (Speaker representing a group may be allowed 10 minutes if previously registered with City Clerk.) □ CLOSED SESSION: □ ADJOURNMENT: ADA POLICY: THE CITY OF MUSKEGON WILL PROVIDE NECESSARY AUXILIARY AIDS AND SERVICES TO INDIVIDUALS WHO WANT TO ATTEND THE MEETING UPON TWENTY-FOUR HOUR NOTICE TO THE CITY OF MUSKEGON. PLEASE CONTACT ANN MARIE MEISCH, CITY CLERK, 933 TERRACE STREET, MUSKEGON, MI 49440 OR BY CALLING (231) 724- 6705 OR TTY/TDD DIAL 7-1-1-22 TO REQUEST A REPRESENTATIVE TO DIAL (231) 724-6705. Page 2 of 2 Memorandum To: Mayor and Commissioners From: Frank Peterson Re: City Commission Meeting Date: August 8, 2019 Here is a quick outline of the items on our agendas: Work Session: 1. Disability Network of West Michigan will be in attendance to talk about the services they provide our community. We have also asked them to provide us with a proposal to more formally cooperate/assist the city with accessibility issues. 2. We will be discussing a proposed land lease with the Community Foundation to allow for the construction and operation of the FARM incubator at the former farmers market site. Important to note is that the CFFMC and John Essex have agreed to this course of action. 3. Staff is planning to undertake a number of public meetings/facilitations as we work to update the master plan, parks plan, etc. Planning staff has spent considerable time meeting with resident groups to take comments on a variety of issues. Over that time, it has become apparent that our staff (and our various boards) could probably use some training in properly dealing with the public. There are many different sides to each conversation, and some residents handle that differently than others. A properly trained staff should be able to help keep discussions moving forward in a respectful and engaging manner. We plan to offer this training to staff, Commissioners, neighborhood boards, and other city-appointed committees. 4. Dave Alexander will be in attendance to discuss the potential of creating a Business Improvement District in the Lakeside Business District. 5. Jake Eckholm will be in attendance to talk about a proposed incentive program to help guide additional opportunity zone investments into the City of Muskegon’s opportunity zones. At this time, the state has done very little to set Michigan apart from other States; this leave the individual communities responsible for making their zones attractive to out- of-state investors. We believe package proposed will provide those investors with an incentive that stands out as equal to or better than other communities and other states. 6. Mike Franzak will be in attendance to discuss recreation marihuana and staff’s recommendation as to how to zone and license for the uses. There were a number of questions raised by the Commission at the last work session, and I believe Mike is in a position to answer most of them. We also learned recently that Muskegon will be treated as a community that disproportionately suffered from illegal marihuana laws. This will bring certain benefits to our community if we opt to allow recreational marihuana. LARA is planning an event in Muskegon on August 28 to help us learn more. 7. Suburban Nation – Chapter 3. Regular Session: 1. Under the Consent Agenda, we are asking the Commission to consider the following: a. Approval of meeting minutes from the most-recent City Commission meeting. b. Designation of the voting delegates for the upcoming MML conference in Detroit. c. Approval of a resolution reclassifying the Aqua Star’s liquor license to a Class C license. This is the same license used by most bars and restaurants in the city. d. Approval of a resolution approving the tasting room for Wonderland Distilling in the Lakeside Business District. e. Approval of the memorandum of understanding between the County, Muskegon, and Muskegon Heights for the distribution of the annual JAG Grant. f. Approval of an agreement with Verizon related to the space Central Dispatch rents from the City at Central Station. g. Approval of a 5-year lease with the Ironmen at the LC Walker Arena. h. Approval of an easement for a water main to service the fire hydrants that the New Hemisphere Design distribution center. i. Approval of the bids to replace a portion of the roof at the Public Services building. j. Approval of the purchase of a lift station pump. k. Approval of an agreement to provide public meeting training to staff, commissioners, and other city-related groups. l. Approval of the opportunity zone incentive package. m. Approval of the initial resolution establishing the Lakeside Business Improvement District. n. Approval of the sale of two lots in the Seaway Industrial Park. o. Acceptance of a parcel of property from Muskegon County (former Carpenter Brothers site) to service as a greenspace and water retention area. p. Approval of the Yuba street property lease with the Community Foundation. q. Approval of the sale of a buildable lot at 1245 5th Street to Community EnCompass. We are actually selling them a lot for $1 in exchange for them selling us a nearby lot for $1. Let me know if you have any questions/comments/concerns Frank Date: August 7, 2019 To: Honorable Mayor and City Commissioners From: Ann Marie Meisch, City Clerk RE: Approval of Minutes SUMMARY OF REQUEST: To approve the minutes of the July 23, 2019 Regular Meeting. FINANCIAL IMPACT: None. BUDGET ACTION REQUIRED: None. STAFF RECOMMENDATION: Approval of the minutes. CITY OF MUSKEGON CITY COMMISSION MEETING JULY 23, 2019 @ 5:30 P.M. MUSKEGON CITY COMMISSION CHAMBERS 933 TERRACE STREET, MUSKEGON, MI 49440 MINUTES The Regular Commission Meeting of the City of Muskegon was held at City Hall, 933 Terrace Street, Muskegon, MI at 5:30 p.m., Tuesday, July 23, 2019, Pastor Tim Cross, Living Word Church, opened the meeting with prayer, after which the Commission and public recited the Pledge of Allegiance to the Flag. ROLL CALL FOR THE REGULAR COMMISSION MEETING: Present: Mayor Stephen J. Gawron, Vice Mayor Eric Hood, Commissioners Byron Turnquist, Debra Warren, and Willie German, Jr., Acting City Manager LeighAnn Mikesell, City Attorney John Schrier, and City Clerk Ann Meisch. Absent: Commissioners Ken Johnson and Dan Rinsema-Sybenga 2019-58 CONSENT AGENDA: A. Approval of Minutes City Clerk SUMMARY OF REQUEST: To approve the minutes of the July 8, 2019 Worksession and July 9, 2019 Regular Meeting. FINANCIAL IMPACT: None. BUDGET ACTION REQUIRED: None. STAFF RECOMMENDATION: Approval of the minutes. B. Approval of the Fair Housing Agreement in Partnership with Muskegon Heights and Norton Shores Community & Neighborhood Services SUMMARY OF REQUEST: The Cities of Muskegon, Muskegon Heights, and Norton Shores are entering into an agreement with the Fair Housing Center of West Michigan, to provide fair housing service activities in the County of Muskegon. This agreement will provide concentrated tests, surveys, education and support of investigations within each CDBG grantee city for a period of 3 years, beginning July 2019 – June 2022, with bi-annual reports. FINANCIAL IMPACT: Base on population, the City of Muskegon will pay the Page 1 of 5 annual cost determined in partnership with Muskegon Heights and Norton Shores. STAFF RECOMMENDATION: To approve the Agreement and authorize the Mayor to sign. C. Approval of a Neighborhood Enterprise Zone Certificate Planning & Economic Development SUMMARY OF REQUEST: An application for a Neighborhood Enterprise Zone (NEZ) Certificate has been received from John Spruit for the new construction of a home at 301 Terrace Point. The applicant has met local and state requirements for the issuance of the NEZ certificate. FINANCIAL IMPACT: Taxation will be 50% of the State average for the next 12 years. BUDGET ACTION REQUIRED: None. STAFF RECOMMENDATION: Approval of the NEZ certificate. D. Transfer of 235, 239, 240, and 250 Monroe; 395 Houston; 219 and 271 Merrill; and 1261 5th Street from the City of Muskegon to the Brownfield Redevelopment Authority Planning & Economic Development SUMMARY OF REQUEST: Staff is requesting that 235 Monroe, 239 Monroe, 240 Monroe, 250 Monroe, 395 Houston, 219 Merrill, 271 Merrill and 1261 5th Street be transferred from the City of Muskegon to the Brownfield Redevelopment Authority, a Municipal Authority of the City of Muskegon. FINANCIAL IMPACT: None. BUDGET ACTION REQUIRED: None. STAFF RECOMMENDATION: Approval of the transfer and for the Mayor and Clerk to sign the deed. E. Prein & Newhof – SRF & DWRF Engineering Services Agreement Amendment #1 Department of Public Works SUMMARY OF REQUEST: Authorize the DPW Director to sign an amendment to the engineering services agreement with Prein & Newhof. The amendment covers an increase in engineering services primarily related to adding water main work into several of the State Revolving Fund (SRF) sewer projects. Costs for this work will be covered under the sale of bonds through the Drinking Water Revolving Fund and State Revolving Fund program, and included within the principal forgiveness offered by the MDEQ on these projects. FINANCIAL IMPACT: $199,400.00 BUDGET ACTION REQUIRED: None. This project was included in the 19-20 budget. Page 2 of 5 STAFF RECOMMENDATION: Authorize the DPW Director to sign an amendment to the engineering services agreement with Prien & Newhof. F. Musketawa Trail Connector – Contract Amendment Department of Public Works SUMMARY OF REQUEST: Authorize the DPW Director to sign an amendment to the engineering services agreement with Hubbell, Roth & Clark, Inc. (HRC) to allow them to complete design engineering services on the project to MDOT standards in preparation for construction in 2021. HRC began work on this project in 2015, however work was suspended due to a lack of funding to complete construction. MDOT has recently provided conditional commitment for $400,000 to support the project and MDNR is also anticipated to contribute funding for the project. HRC is the best situated team to complete the design of the project based on their prior work. FINANCIAL IMPACT: $42,360.00 BUDGET ACTION REQUIRED: None. This project was included in the 19-20 budget. It is expected that the financial impact will be spread over 19-20 and 20-21 fiscal years. STAFF RECOMMENDATION: Authorize the DPW Director to sign an amendment to the engineering services agreement with Hubbell, Roth, & Clark, Inc. H. Gaming License Request from Women’s Division Chamber of Commerce City Clerk SUMMARY OF REQUEST: The Women’s Division Chamber of Commerce is requesting a resolution recognizing them as a non-profit organization operating in the City for the purpose of obtaining a Gaming License. FINANCIAL IMPACT: None. BUDGET ACTION REQUIRED: None. STAFF RECOMMENDATION: Approval Motion by Commissioner Warren, second by Commissioner German, to approve the consent agenda as presented, except item G. ROLL VOTE: Ayes: Turnquist, Gawron, Hood, Warren, and German Nays: None MOTION PASSES 2019-59 REMOVED FROM CONSENT AGENDA: A. Beach Street Department of Public Works SUMMARY OF REQUEST: Authorize the Mayor and Clerk to sign the Cost Sharing Page 3 of 5 Agreement with Muskegon County for the water main and road reconstruction project on Beach Street. Authorize the DPW Director to sign the Professional Services Agreement with Johnson and Anderson for the Engineering work on the Beach Street Project. FINANCIAL IMPACT: $800,000 ($685,000 Construction + $115,000 Engineering) Split approximately 50/50 between the Major Street and Water Funds. BUDGET ACTION REQUIRED: Non. This project was included in the 19-20 budget. The dollar amounts will be adjusted in a future reforecast to reflect the construct cost estimates. STAFF RECOMMENDATION: Authorize the Mayor and Clerk to sign the cost sharing agreement with Muskegon County and authorize the DPW Director to sign the Professional Services Agreement with Johnson and Anderson. Motion by Commissioner Turnquist, second by Vice Mayor Hood, to authorize the Mayor and Clerk to sign the cost sharing agreement with Muskegon County and authorize the DPW Director to sign the Professional Services Agreement with Johnson and Anderson. ROLL VOTE: Ayes: Gawron, Hood, Warren, German, and Turnquist Nays: None MOTION PASSES 2019-60 NEW BUSINESS: A. Sale of the Property at 159 Amity, 158 Allen, 923 Jay, 201 Jay, and 974 Spring Planning & Economic Development SUMMARY OF REQUEST: Staff is seeking approval to sell the five vacant parcels at 159 Amity, 158 Allen, 923 Jay, 201 Jay, and 974 Spring to Grace Community, LLC, a Michigan Limited Liability Company. Grace Community, LLC, will be combining these with the adjacent properties that they are purchasing for the development of retail and office space. FINANCIAL IMPACT: Staff recommends a sale price of $11,288. BUDGET ACTION REQUIRED: None. STAFF RECOMMENDATION: Approval of the sale and for the Mayor and Clerk to sign the purchase agreement, resolution, and deed. Motion by Commissioner German, second by Vice Mayor Hood, to approve the sale and for the Mayor and Clerk to sign the purchase agreement, resolution, and deed. ROLL VOTE: Ayes: Gawron, Hood, Warren, German, and Turnquist Nays: None Page 4 of 5 MOTION PASSES B. Resolution Authorizing Ballot Language for Charter Amendment Regarding Civil Service City Clerk SUMMARY OF REQUEST: To adopt the resolution to place a question on the November 5, 2019 ballot to amend the Civil Service procedure for filling positions of employment to eliminate the “Rule of 3” for adoption by the voters of the City of Muskegon. FINANCIAL IMPACT: None. BUDGET ACTION REQUIRED: None. STAFF RECOMMENDATION: Approval of the resolution. Motion by Commissioner Warren, second by Vice Mayor Hood, to approve the resolution authorizing ballot language for a charter amendment regarding civil service. ROLL VOTE: Ayes: Hood, Warren, German, Turnquist, and Gawron Nays: None MOTION PASSES PUBLIC PARTICIPATION: Public comments were received. ADJOURNMENT: The City Commission meeting adjourned at 6:12 p.m. Respectfully Submitted, Ann Marie Meisch – MMC, City Clerk Page 5 of 5 Date: August 7, 2019 To: Honorable Mayor and City Commissioners From: Ann Marie Meisch, City Clerk RE: Designation of Voting Delegates for the Michigan Municipal League Annual Business Meeting SUMMARY OF REQUEST: To designate by action of the Commission, one of our officials who will be in attendance at the Convention as an official representative to cast the vote of the municipality at the Annual Meeting; and, if possible, to designate one other official to serve as an alternate. FINANCIAL IMPACT: None. BUDGET ACTION REQUIRED: None. STAFF RECOMMENDATION: Approval. Date: August 7, 2019 To: Honorable Mayor and City Commissioners From: Ann Marie Meisch, City Clerk RE: Adopt a Resolution Approving the Reclassification of a Tavern License to a Class C License SUMMARY OF REQUEST: To adopt a resolution approving the reclassification of a Tavern License to a Class C License for Port City Cruise Lines, LLC at 560 Mart Street. FINANCIAL IMPACT: None. BUDGET ACTION REQUIRED: None. STAFF RECOMMENDATION: Adopt the resolution approving the license reclassification. Date: August 7, 2019 To: Honorable Mayor and City Commissioners From: Ann Marie Meisch, City Clerk RE: Adopt a Resolution Approving the Off-Premises Tasting Room License SUMMARY OF REQUEST: To adopt a resolution approving an Off-Premises Tasting Room License & Permit Application for Wonderland Distilling Co., 1989 Lakeshore Drive. FINANCIAL IMPACT: None. BUDGET ACTION REQUIRED: None. STAFF RECOMMENDATION: Adopt the resolution approving the license. Commission Meeting Date: August 13, 2019 Date: July 29, 2019 To: Honorable Mayor and City Commissioners From: Jeffrey A. Lewis Director of Public Safety RE: Memorandum of Understanding – Justice Assistance Grant SUMMARY OF REQUEST: The Director of Public Safety requests that the Commission authorize the Director and the City Manager to enter into an agreement with the City of Muskegon Heights and Muskegon County in regards to the disbursement of the FY 2019 Justice Assistance Grant. It if further requested that the Mayor be authorized to sign the Memorandum of Understanding. Note that time is of the essence as this grant requires a governing body review period and the grant submission and the grant deadline is August 23rd . Although the Bureau of Justice Assistance has designated us as being in a disparate funding situation due to the County providing more than 50% of the jail facilities, our proposal is to keep the allocations exactly as they initially came down from the BJA which is as follows: County of Muskegon $0; City of Muskegon $20,463 and City of Muskegon Heights $14,732 Note that BJA uses crime data versus population in making these allocation decisions. The City of Muskegon portion is planned to be used in continuation of the manner in which the previous year’s JAG funding was used which is for the prosecution of city ordinance cases dealing primarily with neighborhood issues. FINANCIAL IMPACT: None. BUDGET ACTION REQUIRED: None. STAFF RECOMMENDATION: Staff recommends approval of this request. MEMORANDUM OF UNDERSTANDING THE CITY OF MUSKEGON THE COUNTY OF MUSKEGON THE CITY OF MUSKEGON HEIGHTS FY 2019 JUSTICE ASSISTANCE GRANT (JAG) PROGRAM AWARD Regular Funding/Local Solicitation This Agreement is made and entered into on the ____ day of August , 2019, by and between the County of Muskegon, acting by and through its governing body, the Board of County Commissioners, located at 990 Terrace Street, Muskegon, Michigan 49442 and the City of Muskegon, acting by and through its governing body, the City Commission, located at 933 Terrace Street, Muskegon, Michigan 49443-0536, and the City of Muskegon Heights, acting by and through its governing body, the City Council, located at 2724 Peck Street, Muskegon Hts., MI 49444, all of Muskegon County, State of Michigan, witnesseth: WHEREAS, the CITY OF MUSKEGON has agreed to serve as the applicant/fiscal agent for the joint funds under the: Justice Assistance Grant(Local Solicitation) as the Bureau of Justice Assistance has designated the allocation to the law enforcement communities in Muskegon County as a disparate allocation; and WHEREAS, each governing body, in performing governmental functions or in paying for the performance of governmental functions, hereunder, shall make that performance or those payments from current revenues legally available to that party; and WHEREAS, each governing body find that the performance of this Agreement is in the best interest of all parties, that the undertaking will benefit the public, and that the division of costs fairly compensates the performing party for the services or functions under this Agreement; and Page 1 of 3 WHEREAS, the breakdown of allocated funding agreed upon by those entities involved in the disparate funding is $ 20,463 to the CITY OF MUSKEGON and $ 14,732 to the CITY OF MUSKEGON HEIGHTS; and WHEREAS, the CITY OF MUSKEGON, CITY OF MUSKEGON HEIGHTS and COUNTY OF MUSKEGON believe it to be in their best interests to allocate the JAG funds as specified in this Agreement. NOW THEREFORE, THE COUNTY OF MUSKEGON, CITY OF MUSKEGON AND CITY OF MUSKEGON HEIGHTS agree as follows: AGREEMENT 1. THE CITY OF MUSKEGON will act as the fiscal agent/applicant agency. 2. The total eligible joint allocation for the disparate jurisdictions of $ 35,195 will be allocated as follows: COUNTY OF MUSKEGON - $ 0; CITY OF MUSKEGON - $20,463 CITY OF MUSKEGON HEIGHTS - $ 14,732. 3. Each municipality will be responsible for its actions in the use of any equipment purchased under this Agreement and the fiscal agent shall not be liable for any civil liability that may arise from the purchase of the use of the equipment. 4. The CITY OF MUSKEGON HEIGHTS will be responsible for submitting quarterly reports to the CITY OF MUSKEGON by the third day of the month following the quarter in the reporting fashion required by the CITY OF MUSKEGON and for any month in which an expenditure under the grant has occurred the CITY OF MUSKEGON HEIGHTS will submit a reimbursement request to the CITY OF MUSKEGON by the third day of the following month along with backup documentation such as invoices. 5. The CITY OF MUSKEGON HEIGHTS will be responsible for the accuracy of all data submitted to the CITY OF MUSKEGON for submission to the Bureau of Justice Page 2 of 3 Programs and will be liable for penalties as a result of submitting the data late and for any inaccurate data. 6. Nothing in the performance of this Agreement shall impose any liability for claims against the CITY OF MUSKEGON passing from this program or from the CITY OF MUSKEGON HEIGHT’s expenditure of the JAG funds. 7. By entering into this Agreement, the parties do not intent to create any obligations, express or implied, other than those set out herein. Further, this Agreement shall not create any rights in any party not a signatory hereto. COUNTY OF MUSKEGON Dated:_______________, 2019 By:____________________________ Susie Hughes, Chairman County Board of Commissioners CITY OF MUSKEGON Dated:_______________, 2019 By:____________________________ Stephen Gawron, Mayor CITY OF MUSKEGON HEIGHTS Dated:_______________, 2019 By:_____________________________ Kimberley Sims, Mayor Page 3 of 3 AGENDA ITEM NO. _______________ CITY COMMISSION MEETING __________________________ TO: Honorable Mayor and City Commissioners FROM: Frank Peterson, City Manager DATE: August 6, 2019 RE: LC Walker Arena – Ironmen Lease SUMMARY OF REQUEST: City staff is requesting approval of the attached lease to allow the West Michigan Ironmen to play indoor football at the LC Walker Arena for five seasons, beginning in 2020. FINANCIAL IMPACT: BUDGET ACTION REQUIRED: None at this time. STAFF RECOMMENDATION: To authorize the Clerk and Mayor to sign the lease with Muskegon Football. COMMITTEE RECOMMENDATION: None. L.C. WALKER ARENA MUSKEGON INDOOR FOOTBALL CONTRACT THIS AGREEMENT made and entered into on the ___ day of August, 2019 by and between the L.C. Walker Arena and Event Center (hereinafter referred to as “Arena”) of 470 West Western Avenue, Muskegon, MI. 49440 and MANA, LLC, (hereinafter referred to as “Ironmen Football”). WITNESSETH: WHEREAS, Arena is located at 470 West Western Avenue, Muskegon, County of Muskegon, Michigan; and WHEREAS, Ironmen Football is organized for the purposes of promoting and sponsoring league play of a professional indoor football team; and WHEREAS, the parties desire to enter into an agreement for the use of the facilities operated by Arena; IT IS, THEREFORE, AGREED THAT: 1. USE OF PREMISE: Arena agrees that for the term of this agreement that Ironmen Football may utilize the Arena for professional indoor football and related indoor football game activities as follows: a. Fully equipped sports arena for playing indoor football. Ironmen Football to set up/tear down artificial turf, uprights, wall pads, and/or other equipment as may be required. Ironmen Football will be allowed access to Arena at 7:00AM on scheduled game days and will be allowed three (3) hours time for tear down, immediately following the game. Ironmen Football to provide and/or compensate for staffing at any pre-game event including amateur games, camps, cheerleading camps or any other event as may be approved by the Arena; b. Operating public address system and lighting; c. Seating facilities for spectators in arena area; d. Four (4) dressing rooms for teams use on game days during indoor football season from 9:00AM to one (1) hour after game conclusion. e. Sufficient officials’ room, trainer’s working area and press box area which meet the requirements for professional indoor football games. Ironmen Football to be responsible for any required equipment. f. Heat at comfortable temperature; g. Facility clean-up after games. Ironmen Football agrees to hold its entire league scheduled home games, both regular season and playoffs, at the L.C. Walker Arena. 2. TERM OF AGREEMENT: This agreement shall be effective for the period commencing on January 31st, 2020 and ending on June 30th, 2024. 3. COMPENSATION, FEES: Ironmen Football shall pay to the Arena compensation for its right to use the Arena upon the following schedule for all games played (including playoff and exhibition games): a. Arena Fees Per Game: $275.00 rent per game inclusive of all box office, ticket printing fees and arena staffing. i) LC Walker Arena keep 100% of the food/beverage and 100% of the parking revenues per home game played. ii) Ironmen Football shall pay a facility fee of $1.50 per ticket printed for all 2020 and 2021 regular season and playoff games played. iii) Ironmen Football shall pay a facility fee of $2.00 per ticket printed for all 2022 and 2023 regular season and playoff games played. iv) Ironmen Football shall pay a facility fee of $2.50 per ticket printed for all 2024 regular season and playoff games played. b. The Arena shall receive ten (10) sets of season tickets for admission to all home games during the term of this agreement. 4. OTHER FACILITIES AND/OR SERVICES PROVIDED: a. Staffing: Arena shall in connection with the operation of the building provide to Ironmen Football: ticket takers, door guards, ushers, and security. Ironmen Football shall provide the following personnel for the operation of the indoor football game: medical services personnel, equipment repair personnel, game officials, spot light operator, music operator and/or any other personnel required. Ironmen Football shall have access to all technologies in the Arena, but will be responsible for any replacements/repairs deemed the responsibility of Ironmen Football. Arena and Ironmen Football will work together and each will use their best efforts to create a user-friendly atmosphere, which recognizes the importance of each and every customer using the facility. The Arena and Ironmen Football shall cooperate to assure adequate training for all staff and personnel to enhance the image of the County and City of Muskegon Community, L.C. Walker Arena and West Michigan Ironmen. b. Merchandise. Arena will purchase and sell Ironmen Football merchandise in the Team Store. Ironmen Football will receive 20% of the net proceeds from said merchandise sales. c. Parking. Staff, players and owners will be allowed parking access to the arena lot immediately adjacent to the arena building along Shoreline Drive, per availability. d. Music Services. Arena shall be responsible for ASCAP, BMI, SEASAC and any other licensor of music, in connection with the operation of Ironmen Football games. 5. ARENA ADVERTISING SALES: Ironmen Football to sell and receive 100% of the proceeds from the sale of program ads, temporary banners, padding, promotions, kiosks and any other activities related to an arena football game. All such advertising items and activities shall require Arena approval. Temporary signage and kiosks must be removed and stored prior to 5:00AM the next day. 6. SCHEDULING AVAILABILITY: At the request of Ironmen Football, Arena will submit a list of twelve (12) available play dates for the upcoming season by November 1st prior to the season. Said dates will be held until the conclusion of the league schedule. Unused dates to be released by Ironmen Football upon creation of the indoor football league schedule. Arena will utilize its best efforts to maintain good date availability for all playoff dates which cannot be scheduled in advance of the season. 7. INSURANCE AND INDEMNITY: a. Ironmen Football shall obtain and retain throughout the term of this day to day rental, insurance coverage of and for all claims arising out of or resulting from Ironmen Football’s use of the L.C. Walker Arena, which coverage shall include the following. Each policy shall contain the provision that no cancellation shall be effective unless thirty (30) days advance written notice is given by the carrier to the Arena. All insurance policies shall name the City of Muskegon as additional insureds and loss payees: i) Broad form comprehensive general liability insurance including: (a) Premises/operations (b) Products/Completed operations hazard, (c) Broad form contractual and (d) Personal injury. This general liability insurance shall provide the following limits of liability: $2,000,000.00 ($1,000,000.00 primary and $1,000,000.00 umbrella). ii) Comprehensive automobile liability insurance for all owned and non- owned vehicles used on behalf of the Ironmen Football in the amounts not less than $1,000,000.00 for bodily injury and property damage, and including loading and unloading hazards. iii) Worker’s compensation insurance providing statutory coverage for the State of Michigan. iv) Such additional insurance which Arena and/or City may reasonably require from time to time. v) Certificate of insurance in a form satisfactory to the City of Muskegon shall be filed with the Arena at least thirty (30) days prior to the commencement of Ironmen Football’s use under this agreement. b. Ironmen Football agrees that it will indemnify and hold and save, the City of Muskegon whole and harmless of, from and against all claims, demands, actions, damages, loss, costs, liabilities, expenses and judgments incurred by, recovered from or imposed on or against them or any of them on account of any injury or damage to person or property to the extent that any such damage may be incident to, arise out of, or be caused, either proximately or remotely, wholly or in part, by an act, omission, negligence or misconduct on the part of the Ironmen Football or any of its agents, servants, employees, contractors, patrons, guests, licensees or by or of any other person entering upon the L.C. Walker Arena with either the express or implied invitation or permission of Ironmen Football or when any such injury or damage is the result, proximate or remote, of the violation by Ironmen Football or any of its agents, servants, employees, contractors, patrons, guests, licensees or invitees of any law, ordinance or governmental order of any kind, or when any such injury or damage may in any other way arise from or out of the occupancy or use by Ironmen Football, its agents, servants, employees, contractors, patrons, guests, licensees or of any portion of the L.C. Walker Arena. Such indemnification of the above entities by the Ironmen Football shall be effective unless such damage or injury results from the sole negligence of the City of Muskegon. Ironmen Football covenants and agrees that in case the City of Muskegon shall be made a party to any litigation commenced by or against Ironmen Football or relating to this agreement or to the portion of the L.C. Walker Arena subject to this agreement, then Ironmen Football shall and will pay all costs and expenses, including reasonable attorneys’ fees and court costs, incurred by or imposed upon them, their officers, officials, agents, employees, volunteers, or attorneys by virtue of any such litigation. 8. RELEASE OF HAZARDOUS MATERIALS: Ironmen Football shall not cause or allow the release of hazardous materials or pollution as defined by any local, state or federal law or regulation to occur upon the premises. In the event of such release, Ironmen Football shall be responsible for any and all costs, including clean up, penalties, fines, or damages to third parties. Ironmen Football agrees to indemnify and hold harmless the City of Muskegon from any such exposures or costs. 9. PRACTICE/TRAINING CAMP: Ironmen Football shall have daytime use of the arena on game days beginning at 9:00AM. Additional opportunities to access Arena for practices will be determined by Arena Manager and per availability. 10. LIABILITY/RESPONSIBILITY: Arena assumes no responsibility whatever for any property of Ironmen Football placed in said building and arena is expressly relieved and discharged from any and all liability for any loss, injury, or damage to persons or property that may be sustained during the effective date of this contract by reason of the occupancy and operation of said building or any part thereof under this agreement. 11. DEFAULT: Ironmen Football covenants that if any default is made in the payment of fees or any part thereof at the time specified in this contract, or if any default is made in any of the covenants or agreements herein contained, or if Ironmen Football cancels this agreement for any cause, the provisions of this contract shall cease and terminate at the Arena’s option, and Ironmen Football may be put out of the premises by appropriate legal proceedings. Further, and in addition, should Ironmen Football be in default with regard to payments or fees due hereunder or other default occur, the Arena shall be allowed, without initiating legal proceedings against Ironmen Football and without verbal or written notice to take such money from box office receipts due Ironmen Football and to withdraw from and/or to be relieved of the Arena’s responsibilities under this agreement. Upon default, Arena may cease providing any or all services called from this agreement. Ironmen Football shall save the Arena harmless from any and all claims or actions for damages or injunctions. 12. FEES AND EXTRA SERVICES: Any sum due the Arena from Ironmen Football or any accommodations, extra services, material or cost of repair, shall be a first lien on the box office receipts and on any property of the Ironmen Football which may be in the L.C. Walker Arena and Event Center. Settlements shall take place within 4 working days from game day. Any balance due the Arena shall be paid at this time. 13. COMPLIANCE WITH LIQUOR LAWS: Ironmen Football acknowledges that all of the L.C. Walker Arena and Event Center is a “licensed premises” under the Michigan Liquor Control Act. Ironmen Football covenants that it will not do or permit to be done anything which will violate the terms and conditions of said Liquor License or the regulations of the Michigan Liquor Control Commission. 14. ENTRANCE: All articles, exhibits, fixtures, materials, displays, etc., shall be brought into or out of the building at such entrances and exits as designated by the Arena Manager. 15. TERMINATION: Ironmen Football agrees upon the termination of this agreement, it shall vacate the Arena leaving it in the same condition as it existed on the date of this agreement except for the consequences of ordinary use and wear thereof and damage by the elements or fire or other casualty. 16. RELATIONSHIP OF PARTIES: No provision of this Agreement herein contained shall be construed by the parties or by any other person as one creating a partnership or joint venture between the parties as to the use of the Arena by Ironmen Football or as to the operation of Ironmen Football business in the Arena, it being the intent of the parties that this Agreement is solely that of a contract for the use of a portion of the premises owned by the City and known as the L.C. Walker Arena and Event Center. 17. REMOVAL OF PROPERTY: Personal equipment in connection with Ironmen Football activities belonging to Ironmen Football shall be removed from the Arena at or before the termination of this Agreement. Said property shall not include advertising facilities, fixtures, locker room or arena equipment, non-removable signage, advertising or messages, scoreboards, tables, platforms, benches, seating or any property except the personal belongings of Ironmen Football and its personnel. All such excepted property shall be and is the property of the Arena and shall be removed from the building. 18. NUMBER OF PATRONS: Ironmen Football shall fully cooperate with Arena and shall not cause to be admitted to the premises a larger number of persons than the rated capacity of the individual areas hereby rented. Maximum capacities shall be established as mandated by the City of Muskegon Fire Departments. Capacities may be reduced due to setups or obstructions. 19. PUBLIC AREA OBSTRUCTIONS PROHIBITIED: No portion of the sidewalks, ramps, entries, corridors, passageways, vestibules, halls, lobbies, stairways, aisles, or access to public utilities of the L.C. Walker Arena and Event Center shall be obstructed by Ironmen Football or used for any purposes other than for ingress or egress from the day to day rental of d premises. 20. PUBLIC SAFETY: Ironmen Football agrees that at all times they will conduct their activities with full regard to public safety, and will observe and abide by all applicable regulations and requests by the Arena and duly authorized governmental agencies responsible for public safety. 21. FLAMMABLE MATERIALS: Materials used for decorative purposes must be treated with flame proofing and approved the Muskegon Fire Department. Nor shall Ironmen Football without written consent of the Building Manager and approval of the appropriate City official, such as the fire marshal, building inspector, or other appropriate official, place or operate any engine or motor or machine on the premises, or use oils, burning fluids, kerosene, propane, or gasoline, or any other flammable chemical for mechanical or other purposes. 22. CONDITION OF PREMISES: Ironmen Football shall have examined the premises prior to the execution of this Agreement and are presumed to be satisfied with the physical condition of the premises. Ironmen Football by entering into this Agreement and the usage of the Arena, agrees that the premises are in safe, sanitary condition, and in good repair. 23. PERMITS, LICENSES AND COPYRIGHTS: Ironmen Football agrees to obtain and pay for all necessary permits and licenses required by Federal, State or local laws. Ironmen Football warrants that all copyrighted material to be performed has been duly authorized or licensed by the copyright owners or/their representatives and agrees to indemnify and hold harmless the City of Muskegon from any and all claims, losses, expenses, including legal fees, which might arise from any such permits, licenses and copyrights. 24. RIGHT TO INSPECT: Arena reserves the right to inspect and control all events being held on premises. 25. COMPLIANCE WITH LAW: Ironmen Football shall not conduct, or permit to be conducted on the premises, any performance or activity which either by speech, song, music, or other conduct, is in violation of the laws of the United States, the State of Michigan, or the rules and regulations of the L.C. Walker Arena and Event Center. 26. ASSIGNMENT: Ironmen Football may not assign this day to day rental without the prior written consent of the Arena. 27. UNAVAILABILITY OF FACILITIES: In the event that the facilities herein rented or any portion thereof are not available for occupancy upon commencement or during the term of this Agreement due to fire, casualty, acts of God, strikes or national emergency or other cause beyond the control of the Arena, this permit and the obligations of the Arena and Ironmen Football herein shall terminate. Ironmen Football hereby waives any claim against the Arena for damages by reason of such termination. 28. BREACH OF AGREEMENT: In the case of the breach of any one or more of the terms of this Agreement by Ironmen Football, the right to the use of the premises shall terminate without notice or demand. Upon the termination of this Agreement, Ironmen Football agrees to vacate the premises immediately. The parties agree that Arena is in full control of the premises and may refuse admission to or put out any person including Ironmen Football for good cause. No action by Arena under this paragraph shall cause forfeiture of any fees or payments due the Arena. 29. CANCELLATION: Should Ironmen Football cancel an already scheduled game, without giving a minimum of seven (7) days advance notice to the Arena Manager, the Arena may charge Ironmen Football the full amount of Arena Fees Per Game as specified in Section 3(a) of this agreement. 30. BINDING EFFECT: Each and every term of this contract shall be binding upon the parties and their successors and assigns, and cannot be varied or waived by any oral representations or promise of any agent or other person of the parties hereto, unless the same be in writing and mutually signed by the duly authorized agent or agents who executed this. 31. LEGAL CONSTRUCTION: The Agreement shall be governed by the laws of the State of Michigan. 32. ENTIRE AGREEMENT: The parties hereto agree that all of their agreements are fully set forth herein and that no oral statement or representations of any kind have been made upon which either party shall have the right to reply. This shall not limit the Arena from imposing any reasonable additional rules or regulations which may be necessary in the best interest of the operations of the facilities. IN WITNESS WHEREOF, the Arena and Ironmen Football have caused this indenture to be executed the day and year first above written. WITNESSES: L.C. Walker Arena ________________________________ By________________________________ ________________________________ ________________________________ Ironmen Football ________________________________ By________________________________ ________________________________ ________________________________ AGENDA ITEM NO. __________ CITY COMMISSION MEETING __ TO: Honorable Mayor and City Commission FROM: Department of Public Works DATE: August 13th, 2019 SUBJECT: Water Main Easement SUMMARY OF REQUEST: Authorize the DPW Director and City Clerk to sign the private water main easement with 2420 Remembrance Drive LC. The easement allows for installation of a privately owned water main across a section of city owned property that fronts on Black Creek Road. The water main is being installed to provide fire protection via a hydrant on the site that is being developed by KL Industries for warehouse and storage and serves no other public purpose. FINANCIAL IMPACT: None BUDGET ACTION REQUIRED: None. STAFF RECOMMENDATION: Authorize the DPW Director and City Clerk to sign the easement. PRIVATE WATERMAIN EASEMENT AND RIGHT OF WAY GRANT KNOW ALL MEN by these presents, that the City of Muskegon, a Michigan Municipal Corporation, whose address is 933 Terrace Street, Muskegon, Michigan (Grantor), FOR AND IN CONSIDERATION of the sum of One and no/100 Dollars ($1.00) and other valuable considerations, paid to it by 2420 Remembrance Drive L.C., a Michigan Limited Liability Company, whose address is 4460 44th Street SE, Suite C200, Grand Rapids, Michigan 49512 (Grantee), DOES HEREBY CONVEY to the Grantee, over a portion of property owned by Grantor described on Exhibit A (“Burdened Property”) and for the benefit of the property owned by Grantee described on Exhibit A (“Benefitted Property”) an easement and right of way in which to construct, use, repair, and replace watermain and appurtenant parts thereof and to enter upon sufficient land adjacent to said easement and right of way for the purpose of the construction, operation, maintenance, repair and/or replacement thereof, The easement aforementioned is specifically described as follows (“Easement Property”): An easement for watermain 20.00 feet in width located in part of the Southeast one- quarter of Section 34, Town 10 North, Range 16 West, City of Muskegon, Muskegon County, Michigan, the centerline of said 20.00 foot wide watermain easement being described as: COMMENCING at the East one-quarter corner said Section 34; thence South 88°52'47" West 1399.72 feet along the East-West one-quarter line of said section; thence South 00°39'52" East 488.26 feet along the West right-of-way line of Black Creek Road (a 66.00 foot wide public right-of-way) to the PLACE OF BEGINNING; thence South 89°12'21" West 175.26 feet; thence North 00°47'43" West 173.57 feet; thence South 89°15'24" West 190.32 feet to the place of ending of said 20.00 foot wide watermain easement. IT IS UNDERSTOOD that buildings, fences, walls, trees, or any type of structure(s) which would inhibit the intended use of this easement will not be placed upon the Easement Property without the prior written consent of the Grantee, its heirs, successors or assigns. Condition and Maintenance. Grantee shall be solely responsible for all repairs, replacements, and maintenance of the watermain and appurtenant parts and the Easement Property and shall not allow it to become unsightly or a nuisance. If Grantee fails to meet any of its obligations under this easement, Grantor shall have the right, but not the obligation, to perform in the place of Grantee and if Grantee incurs or expends any sums, then those sums shall become immediately due and payable by Grantee. Insurance. Grantee shall obtain liability insurance as part of its owner’s policy for the Benefited Property to cover any liabilities that arise as a result of the use by Grantee or its agents, employees, representatives, and contractors of the easement and shall name Grantor as an additional insured under such policy. Indemnification. Grantee agrees to indemnify and hold Grantor harmless from any and all claims, debts, causes of actions, or judgments for any damage to any property or injury to any person that may arise out of Grantee’s actions within, use of, or around the easement, by itself, its agents, employees, representatives, and contractors. This provision shall survive the termination of this Agreement. General. All rights granted under this easement shall not be further assignable by Grantee except as an appurtenance to and in conjunction with the sale of the Benefitted Property. The easement, rights and responsibilities set forth in this easement shall be perpetual and shall run with the Benefitted and Burdened Property and shall bind the successors and assigns of the Burdened and Benefitted Property. Exempt pursuant to: MCL 207.505(a) and MCL 207.526(a). IN WITNESS WHEREOF, the undersigned have hereunto affixed their signatures this _______ day of ________________________, 2019. GRANTOR: City of Muskegon By: _________________________ Name: ___________________ Title: STATE OF MICHIGAN ) ) ss COUNTY OF MUSKEGON) On this _______ day of ___________________, 2019, before me, a Notary Public, in and for said County, personally appeared , who executed the within instrument and severally acknowledged the same to be his or her free act and deed. ____________________________ , Notary Public Muskegon County, Michigan My commission expires: GRANTEE: 2420 Remembrance Drive L.C., a Michigan Limited Liability Company By: _________________________ Name: ___________________ Title: STATE OF MICHIGAN ) ) ss COUNTY OF KENT ) On this _______ day of ___________________, 2019, before me, a Notary Public, in and for said County, personally appeared , who executed the within instrument and severally acknowledged the same to be his or her free act and deed. ____________________________ , Notary Public Kent County, Michigan My commission expires: This instrument drafted by: Moore & Bruggink 2020 Monroe Avenue NW Grand Rapids, Michigan 49505 Exhibit A Burdened Property Benefitted Property AGENDA ITEM NO. __________ CITY COMMISSION MEETING __ TO: Honorable Mayor and City Commission FROM: Department of Public Works DATE: August 13th, 2019 SUBJECT: DPW Roofing SUMMARY OF REQUEST: Award the contract for roofing of Section #1 at the DPW Building to the low bidder Ostrander Roofing in the amount of $141,494.00. This will repair the front section of roofing at DPW primarily over the office areas of the building, which has suffered from several leaks over the last year. FINANCIAL IMPACT: $141,494.00 BUDGET ACTION REQUIRED: None. This project was included in the 19-20 budget. STAFF RECOMMENDATION: Award the contract for to Ostrander Roofing. CITY OF MUSKEGON BID TABULATION: DPW - SECTION #1 PROJECT: 2019 ROOF REPLACEMENT DATE: 7/9/19 NAME OF BIDDER NAME OF BIDDER NAME OF BIDDER VENDOR CERTIFIED BUILDING SOLUTIONS HOEKSTRA ROOFING OSTRANDER ROOFING TELEPHONE 231-578-3254 269-720-3004 616-240-0553 QUOTED BY JULIE FAUCHER PHIL WOOD RICHARD OSTRANDER CREW SIZE 8 7 6 PROJECTED START DATE 10/1/19 10/14/19 8/15/19 BID BOND AND PERFORMANCE BOND Yes No Yes DESCRIPTION UNIT PRICE TOTAL PRICE UNIT PRICE TOTAL PRICE UNIT PRICE TOTAL PRICE PROJECT PRICING LABOR BID $ 110,500 $ 96,875 $ 88,500 US COMMUNITIES BID $ 59,976 $ 50,494 $ 50,494 LINE ITEM PRICING: REPLACEMENT OF METAL DECK SQ. FT. $ 12 SQ. FT. $ 9.50 SQ. FT. $ 7.00 REPLACEMENT OF DRAIN PER DRAIN $ 1,000 SQ. FT. $ 2,800.00 SQ. FT. $ 450.00 SUB-TOTAL $ 170,476 $ 147,369 $ 138,994 ESTIMATED FREIGHT FEES $ 2,500 $ 2,500 $ 2,500 TOTAL $ 172,976 $ 149,869 $ 141,494 AGENDA ITEM NO. __________ CITY COMMISSION MEETING __ TO: Honorable Mayor and City Commission FROM: Department of Public Works DATE: August 13th, 2019 SUBJECT: Industrial Park Lift Station Pump SUMMARY OF REQUEST: Authorize staff to purchase a replacement pump for the Industrial Park sewer lift station at a cost of $16,333 from Kennedy Industries (sole supplier). Due to wear and tear the pump motor died and needs to be replaced. The pump is 20 years old and was nearing the end of its life expectancy. FINANCIAL IMPACT: $16,333 BUDGET ACTION REQUIRED: None. This project was included in the 19-20 budget (Lift Station Repairs) STAFF RECOMMENDATION: Approve the purchase of a replacement pump from Kennedy Industries. Date: 8/13/2019 To: Honorable Mayor and City Commissioners From: Development Services RE: Public Meeting Training SUMMARY OF REQUEST: Approve funding for training on managing civil, productive public meetings. Beth Buelow and a co-facilitator will lead a four session training targeting department and division heads as well as the mayor and commissioners with the objective of preparing us to present information and manage interactions in a proactive, positive, and productive manner. Additional workshops will be offered to neighborhood associations with the objective to provide them tools to communicate and collaborate with city leaders. Training is expected to be scheduled fall of 2019. FINANCIAL IMPACT: $10,000 BUDGET ACTION REQUIRED: Will be included in the next quarterly forecast STAFF RECOMMENDATION: Approve funding for public meeting training. Managing Civil, Productive Public Meetings: 4-Part Seminar Series for City of Muskegon Staff and Elected Officials Preliminary Proposal Prepared for LeighAnn Mikesell, Director of Municipal Services From Beth L. Buelow, PCC, 231.260.1949, firstname.lastname@example.org Submitted June 17, 2019 Rationale: The City of Muskegon is in midst of a new wave of development, which is being met with feelings of excitement about growth and revitalization on the one hand, and fears about gentrification and a widening socio- economic divide on the other. This tension can cause even well-meaning people to lose their capacity to act in a civil manner. The good news is that the city has proven resilient and willing to do the hard work of addressing its challenges and seizing its opportunities. We have passionate, invested residents, and deeply committed, highly skilled public servants. It’s in the city’s best interest to model how to navigate change so that it’s done with its citizens, not to its citizens. And with a growing number of major downtown and neighborhood projects underway, now is the ideal time to provide city officials, staff, and residents the communication tools they need to move through this critical point in Muskegon’s evolution as partners and co-creators of our collective future. Overall Objectives: (1) For city staff and officials to feel confident about presenting information and managing public- facing interactions in a proactive, positive, and productive manner. (2) For citizens to have the tools they need to make their voices heard and be in a collaborative relationship with their leaders. Key Assumptions: When stakes and emotions are high, reactivity increases. This reactivity —and its resulting tension—can be de-escalated by creating an environment where all stakeholders can be seen, heard, and feel safe. By approaching situations with a “mediation mindset” that includes intention, curiosity, strategy, empathy, and humility, productive conversations— even ones involving conflict—are possible. NAM Component: The responsibility for civil conversations isn’t only held by city officials; residents also can benefit from being mindful and purposeful about how they communicate in public settings. In conjunction with the staff seminars, each of the 15 neighborhood associations will receive a condensed workshop (45-60 minutes) focused on how to prepare for public meetings, be more influential, and engage in productive dialogue with city leaders. Discussions might use current issues as examples, but the intention is to keep the information at a high, general level, without getting into debate or problem solving. The specific agenda for the workshop can be co-created with NAM. Facilitators: All sessions (NAM and City) will be led by Beth Buelow, City of Muskegon resident (Nelson Neighborhood Assoc). Beth is a Professional Certified Coach specializing in communication and leadership. She’s a trained mediator, experienced speaker/facilitator, and former non-profit professional. She’s led dozens of workshops on conflict and communication for groups as diverse as health care leaders to accountants to entrepreneurs. For this project, Beth is actively seeking a co-facilitator (preferably a Person of Color or someone who is representative of the diversity of Muskegon’s neighborhoods) to partner on some or all of this proposal’s components. Seminar Overview: This four-part seminar series focuses on providing information and opportunities for practice for all appropriate city staff and elected officials. Each session will be a combination of content delivery and small/large group discussions, along with in-session practice, observation, and feedback. Ideally, each session would be 3-4 hours long and would take place once per week over four consecutive weeks. Outcomes: At the conclusion of the trainings, staff will have: 1. Tools to help them prepare for public meetings and interactions with the public. 2. An understanding of why they need to consider the perspectives of others and how that would be beneficial to them. 3. Improved confidence in public speaking and diffusing conflict. Financial Investment: To be discussed once scope is determined. Every effort will be made to design a program that both satisfies the desired objectives and works within the available budget. 1 CITY STAFF/OFFICIALS SEMINAR SESSION SUMMARIES SESSION ONE: Laying the Inner Groundwork for a Successful Interaction Content and practice will be focused on deconstructing the “us vs them” dynamic by examining what leads to divisiveness, how to navigate power differentials, and the importance of identifying common ground and shared values. In addition, we’ll explore strategies for how to self-manage through personal triggers, biases, assumptions, and attitudes, using frameworks such as the Ladder of Inference (as popularized by Peter Senge, The Fifth Discipline). SESSION TWO: Building Your Case Learn strategies for preparing for the interaction and building empathy. Among the questions explored: What are the anticipated responses you’ll get to your presentation? In what ways are your constituents right? What about their fears/concerns is justified? If you shared their beliefs, how would you want to be responded to? Participants will learn how to present their case in a clear, compelling manner that focuses on what their audience wants and needs to hear, rather than being solely focused on what the presenter wants to tell them. SESSION THREE: Setting Everyone Up for Success Here we move to the meeting itself and learn how to create a generative, healthy space for productive dialogue. Information covered includes how to create a clear framework and agenda for the meeting; setting intentions, expectations, and group agreements that facilitate fairness, respect, structure, and security (emotional and physical); and increasing awareness of nonverbal cues and dynamics of the space that contribute to both tension and safety. SESSION FOUR: Facilitating Healthy, Productive Conflict Despite our best intentions, conflict is likely to arise during any public gathering where people care deeply about the outcome. This calls on professionals to be skilled in active listening and ways of eliciting additional information that help people feel seen and heard without escalating to debate. Participants will learn how to identify, acknowledge, and address fears that are underneath the concerns, anger, and confusion of their constituents. This includes learning the basics of negotiation and, in particular, how to differentiate between values, interests, and positions. Finally, we will practice techniques for responding to people who argue, vent, or dominate. TO BE DETERMINED: Who amongst staff will participate? Offer elected officials similar/same content? If yes to elected officials, do they all attend together? What about any version of this training for citizen boards/commissions/committees (ideally, yes!)? Is there any type of follow-up or supplement to these trainings for staff? For instance, facilitators supporting leaders in prepping for specific meetings, attending with the intention of offering feedback, and having a post-meeting debrief focused on communication and presentation skills? 2 AGENDA ITEM NO. _______________ CITY COMMISSION MEETING __________________________ TO: Honorable Mayor and City Commissioners FROM: Jake Eckholm, Director of Economic Development DATE: August 13th, 2019 RE: Opportunity Zone Incentive Program SUMMARY OF REQUEST: The City of Muskegon is fortunate to have its entire downtown corridor within an Opportunity Zone. The Economic Development Department is recommending additional localized, Commission reviewed incentives in order to encourage large scale investment in this competitive market. FINANCIAL IMPACT: None at this time, all incentives would be paid out 15 years after the eligible Opportunity Zone Investment. Funds would be allocated and reserved based on new income tax created and property tax collection increases as a result of opportunity fund investments, such as new apartment/housing buildings or businesses. BUDGET ACTION REQUIRED: None at this time. STAFF RECOMMENDATION: To authorize the incentive package as presented. CITY OF MUSKEGON opportunity zone Claiming the distinction of “West As Muskegon’s industrial past makes way Michigan’s Shoreline City”, Muskegon is for a mixed-use future, large waterfront the largest city on the eastern shore of sites have become available for OPPORTUNITIES IN The Lake Michigan with a population just redevelopment. Moving from east to CITY OF MUSKEGON under 40,000. In addition to having the west: the centrally located Harbor 31 site, largest beach on Michigan’s west coast, the expansive acreage of the Western Muskegon also contains miles of Waterfront district, and the vacant, WESTERN WATERFRONT lakefront along the south shore of former Tank Farm property are all Muskegon Lake. The city is located 180 well-positioned to benefit from the area’s miles northeast of Chicago, 190 miles unmatched natural amenities as well as FOUNDRY SQUARE west of Detroit, and 80 miles due east of its reviving downtown. Milwaukee. Today, Muskegon is D o w n t o w n VACANT SCHOOL BUILDING Muskegon is in the a progressive city midst of major and has an HARBOR 31 reinvestment. The appreciation for its removal of a significant history renewal-era, urban while continuing AMERIBANK BUILDING shopping mall has forward growth and made available movement in much vacant land creating a new in the heart of the TANK FARM PROPERTY identity for itself. city. The Morris The casual and Grants, loans, and tax abatements Street property friendly atmosphere are also available. The owner or offers significant allows the local developer should coordinate with acreage in the the City of Muskegon to resident, vacationer, downtown core, determine which incentives are or fisherman to truly two blocks from most appropriate for their kick back, relax and enjoy. the available AmeriBank Building; both development project. Please The city’s core neighborhoods contain a are sited just minutes from the lakeshore contact: series of sites primed for redevelopment. and other recreational opportunities. LeighAnn Mikesell A former school, once embedded in its With a clear vision for the future, Director of Municipal Services neighborhood, offers the opportunity to Downtown Muskegon is on course to 933 Terrace Street again serve as a community anchor. become the hub of the city, county, and Muskegon, MI 49443 Redevelopment of old school buildings is beyond. (231) 724-6702 email@example.com not unfamiliar to the area, as a variety of For more information please visit our repurposed facilities have brought new website: www.shorelinecity.com life to their respective communities. muskegon opportunity zone INCENTIVES Mixed-Use Development Investment Match: The first $75 Million in qualified opportunity fund investment deployed on a new mixed-use development within SETTING MUSKEGON APART a City of Muskegon Opportunity Zone shall be eligible to receive a match equal 1.An environment of investor to 2% of the initial eligible investment. confidence. Proposed projects will Opportunity Fund Investment Incentive Amount not be delayed or derailed by zoning, regulation, or politics: $1,000,000 $20,000 $5,000,000 $100,000 A one-stop shop for all opportunity zone issues – $15,000,000 $300,000 Note: Matching dollars are paid upon successful completion of the investment and satisfaction connection person/team for of the initial 10-year holding period opportunity zone questions, ideas, incentives, etc. Form Based Code – limited Missing Middle Housing Development Investment Match: The first $25 Million applicability of planning in qualified opportunity fund investment deployed in new “missing-middle” commission and city commission housing within a City of Muskegon Opportunity Zone shall be eligible to receive Redevelopment Ready Community a match equal to 3.5% of the initial eligible investment. Certified Opportunity Fund Investment Incentive Amount One-stop meetings and $1,000,000 $35,000 pre-development meetings $5,000,000 $175,000 2.Updated zoning/codes to expedite $10,000,000 $350,000 projects: Note: Matching dollars are paid upon successful completion of the investment and satisfaction of the initial 10-year holding period Form Based Code Imagine Muskegon Lake Plan Neighborhood Housing Development Investment Match: The first $10 Million in qualified opportunity fund investment deployed in new single-family housing 3.Clear local investment strategy: (attached and detached) within a City of Muskegon Opportunity Zone shall be Updated City Waterfront Plan eligible to receive a match equal to 3% of the initial eligible investment. Updated Zoning Codes Opportunity Fund Investment Incentive Amount 2014 Muskegon Farmers Market 2020 Muskegon Convention Center $1,000,000 $30,000 $5,000,000 $150,000 $10,000,000 $300,000 CITY-FOCUSED SPENDING IN Note: Matching dollars are paid upon successful completion of the investment and satisfaction of the initial 10-year holding period OPPORTUNITY ZONES 1.Brownfield Incentives Port-Related Industrial Redevelopment Incentives: The first $25 Million in qualified opportunity fund investment deployed in new port facilities (buildings) 2.Utility Investment located on current city-owned property within a City of Muskegon Opportunity Zone shall be eligible to receive a match equal to 5% of the initial eligible 3.Downtown Development Authority investment. Opportunity Fund Investment Incentive Amount $1,000,000 $50,000 $5,000,000 $250,000 $25,000,000 $1,250,000 Note: Matching dollars are paid upon successful completion of the investment and satisfaction of the initial 15-year holding period Commission Meeting Date: Aug. 13, 2019 Date: Aug. 13, 2019 To: Honorable Mayor & City Commission From: Planning & Economic Development Department RE: Lakeside Business Improvement District (BID) initial resolution SUMMARY OF REQUEST: We are requesting the attached resolution be adopted establishing a Business Improvement District for the Lakeside commercial district along Lakeshore Drive from 1595 Lakeshore (Wasserman’s Flowers) to 2801 Lakeshore (Muskegon County Club). The boundaries are outlined in the attached map as the district are those commercial properties with frontage on Lakeshore Drive. It is also requested that the commission establish an initial Lakeside BID board with the following recommended individuals as offered by the Lakeside District Association: Troy Wasserman – Wasserman’s Flowers, 1595 Lakeshore Richard Ghezzi – Ghezzi’s Market, 2017 Lakeshore Mark Flermoen – VF Ventures, 1845 Lakeshore Michael Kordecki – Marine Tap Room, 1983 Lakeshore Ann Funk – Auto Body Clinic, 2054 Lakeshore Blake Evans – Water’s Edge Fitness, 2465 Lakeshore City Manager (by statute) – City of Muskegon FINANCIAL IMPACT: The city can anticipate receiving approximately 15 percent of the proceeds that would be an administrative fee for staff support if the BID is established and the BID board concurs. BUDGET ACTION REQUIRED: None STAFF RECOMMENDATION: To adopt the resolution as presented. CITY OF MUSKEGON Resolution No. ______ Resolution initiating the MUSKEGON LAKESIDE BUSINESS IMPROVEMENT DISTRICT (BID) A resolution establishing the Lakeside Business Improvement District, designating the boundaries of the BID, and establishing the Lakeside Business Improvement District Board. Resolved by the Commission of the City of Muskegon: By way of this resolution, and subject to the requirements of Act 49 of the Public Acts of 1999, the City Commission establishes the Lakeside Business Improvement District, with the boundaries of this Business Improvement District being outlined on the attached map. This district includes the follow classes of property: 90 Total Assembled Properties fronting Lakeshore Drive in the district 2 Exempt Properties are non-profit and 8 Exempt Properties are government 38 Residential Properties are not assessed Further, by way of this resolution, the City Commission establishes the Lakeside Business Improvement District Board, consisting of seven members, the persons nominated for this board by the Lakeside District Association shall be the following: Troy Wasserman – Wasserman’s Flowers, 1595 Lakeshore Richard Ghezzi – Ghezzi’s Market, 2017 Lakeshore Mark Flermoen – VF Ventures, 1845 Lakeshore Michael Kordecki – Marine Tap Room, 1983 Lakeshore Ann Funk – Auto Body Clinic, 2054 Lakeshore Blake Evans – Water’s Edge Fitness, 2465 Lakeshore City Manager (by statute) – City of Muskegon Adopted this 13th day of August 2019. Ayes: ___________________________________________________________________ ___________________________________________________________________ Nays: ___________________________________________________________________ ___________________________________________________________________ CITY OF MUSKEGON By: ________________________________ Stephen J. Gawron Mayor ________________________________ Ann Marie Meisch City Clerk CERTIFICATION This resolution was adopted at a meeting of the City Commission, held on August 13, 2019. The meeting was properly held and noticed pursuant to the Open Meetings Act of the State of Michigan, Act 267 of the Public acts of 1976. CITY OF MUSKEGON By: _________________________________ Ann Marie Meisch, Clerk Commission Meeting Date: August 13, 2019 Date: August 6, 2019 To: Honorable Mayor & City Commission From: Planning & Economic Development Department RE: Sale of Lots 3 & 4 of Seaway Industrial Park SUMMARY OF REQUEST: To approve the sale of lots 3 & 4 of Seaway Industrial Park to Adam McCausland for $292,000. The lots total 3.4 acres and are zoned I-1, Light Industrial and are also located in the Medical Marihuana Overlay District. FINANCIAL IMPACT: The sale of this lot will generate additional tax revenue for the City and will place the property back on the City’s tax rolls thus relieving the City of continued maintenance costs. BUDGET ACTION REQUIRED: None STAFF RECOMMENDATION: To approve the attached resolution and purchase agreement and to authorize both the Mayor and the Clerk to sign the deed. Lot 3 Parcel #24-895-002-0001-00 Size: 1.6 Acres Location: On Young St south of St Mary’s Cemetery (no address available). Notes: Heavily wooded lot. Lot 4 Parcel #24-895-0001-0001-00 Size: 1.8 Acres Location: Corner of Young St / Park St, south of St Mary’s Cemetery (no address available) Notes: Heavily wooded lot. 2 Resolution No. _______ MUSKEGON CITY COMMISSION RESOLUTION APPROVING THE SALE OF LOTS 3 & 4 OF SEAWAY INDUSTRIAL PARK FOR $292,000. WHEREAS, Adam McCausland, be allowed to purchase parcel numbers: 24-895-002-0001-00 and 24- 895-001-0001-00 for a total of $292,000; and WHEREAS, the sale would generate additional tax revenue for the City and relieve the City of further maintenance costs; and NOW THEREFORE BE IT RESOLVED, that parcel numbers 24-895-002-0001-00 and 24-895-001- 0001-00 be sold to Adam McCausland, for $292,000. CITY OF MUSKEGON SEC 31 T10N R16W PT BLK 1 AND PT VAC ALLEY IN SD BLK 1 YOUNG & WILLIAMS ADDN COM AT SE COR OF THE NW FRL 1/4 SD SEC TH N 00D 00M 00S E 1295.50 FT ALG E LN SD NW FRL 1/4 TH S 89D 46M 54S W 33.00 FT ALG S ROW LN YOUNG AVE & ITS EXTENSION IN SD YOUNG & WILLIAMS ADDN FOR POB TH S 00D 00M 00S W 249.79 FT ALG THE W R/W LN PARK AVE TH S 89D 43M 30S W 274.43 FT TH N 00D 00M 00S E 250.08 FT ALG E ROW LN WAALKES ST TH N 89D 46M 54S E 274.43 FT ALG SD S ROW LN YOUNG AVE TO POB ALSO INCL E 1/2 OF VAC WAALKES ST ADJ THERETO PURSUANT TO CITY OF MUSKEGON VACATE RESOLUTION #2012-39(E) CITY OF MUSKEGON PT OF BLK 2 AND PT OF THE VAC ALLEY IN SD BLK 2 YOUNG & WILLIAMS ADDN COM AT THE SE COR OF THE NW FRL 1/4 SEC 31 T10N R16W TH N 00D 00M 00S E 1295.50 FT ALG THE E LN OF S NW FRL 1/4 TH S 89D 46M 54S W 373.43 FT ALG THE S R/W LN OF YOUNG AVE AND ITS EXTENSION IN SD YOUNG & WILLIAMS ADDN FOR POB TH S 00D 00M 00S W 250.13 FT ALG THE W R/W LN OF WAALKES ST TH S 89D 43M 30S W 266.00 FT TH N 00D 00M 00S E 250.39 FT ALG THE E R/W LN OF TEMPLE ST TH N 89D 46M 54S E 266.00 FT ALG SD S R/W LN OF YOUNG AVE TO POB PROPOSED ESMT OVER RUDDIMAN CREEK DRAIN: THAT PT OF THE FOLLOWING DESCRIBED ESMT LYING OVER AND ACROSS THE ABOVE PARCEL A 50 FT WDE STRIP OF LAND C/L DESCRIBED AS COM AT THE W 1/4 COR OF SEC 31 T10N R16W TH S 89D 49M 59S E 1031.12 FT ALG THE S LN OF THE NW FRL 1/4 OF SD SEC FOR POB OF SD C/L TH N 45D 25M 16M E 354.00 FT TH N 02D 08M 16S E 495.50 FT TH N 43D 12M 46S E 749.75 FT FOR POE OF SD C/L ON THE S R/W LN OF YOUNG AVE IN YOUNG & WILLIAMS ADDN THE SIDELINES OF SD 50 FT WIDE STRIP OF LAND EXTEND OR SHORTEN TO ALLOW NO GAPS OR OVERLAPS ALSO INC W 1/2 OF VAC WAALKES ST ADJ THERETO PURSUANT TO CITY OF MUSKEGON VACATE RESOLUTI Adopted this 13th day of August 2019 Ayes: Nays: Absent: By: _________________________ Stephen Gawron Mayor Attest: _________________________ Ann Marie Meisch, MMC City Clerk 3 CERTIFICATION I hereby certify that the foregoing constitutes a true and complete copy of a resolution adopted by the City Commission of the City of Muskegon, County of Muskegon, Michigan at a regular meeting held on August 13, 2019. By: ________________________ Ann Marie Meisch, MMC City Clerk 4 Date: 8/13/2019 To: Honorable Mayor and City Commissioners From: Department of Planning and Economic Development RE: Acceptance of Property from Muskegon County SUMMARY OF REQUEST: Accept the quit claim deed from Muskegon County for property at 1390 Henry Street commonly referred to as the Carpenter Brothers site. DPW and Planning staff have been working with the West Michigan Shoreline Regional Development Commission and the county to design a green infrastructure project on the parcel. The project will treat a portion of the city’s stormwater prior to the outlet at Rotary Park, and city staff will be responsible for maintenance since it serves our stormwater system. The parcel also includes the downtown Bark Park, and the DDA has taken responsibility for maintenance of that facility. FINANCIAL IMPACT: None. BUDGET ACTION REQUIRED: None. STAFF RECOMMENDATION: Accept the quit claim deed. O:\CLERK\Common\Word\Agenda Items for Next Meeting\2019\081319\P1_Commission Request Carpenter Brothers Quit Claim Deed.doc Date: 8/13/2019 To: Honorable Mayor and City Commissioners From: Department of Planning and Economic Development RE: Lease of Yuba Street Property to the Community Foundation for Muskegon County SUMMARY OF REQUEST: Lease a portion of the old farmer’s market property to the Community Foundation for Muskegon County for up to 5 years with an option to purchase. The lease includes approximately 7 of the total 15.3 acre site and the majority of the buildable land. The property will be used to develop a food processing incubator and business development center targeted at stage one or two entrepreneurial companies or existing mature companies looking for an offsite location for test manufacturing of new products. FINANCIAL IMPACT: Revenue from the lease. BUDGET ACTION REQUIRED: None. STAFF RECOMMENDATION: Approve the lease and direct the mayor and clerk to sign. O:\CLERK\Common\Word\Agenda Items for Next Meeting\2019\081319\Q1_Commission Request Yuba Ground Lease.doc GROUND LEASE THIS GROUND LEASE is made and entered into on this _____ day of ________________, 2019 (the “Effective Date”), by and between CITY OF MUSKEGON, a Michigan municipal corporation ("Lessor"), and COMMUNITY FOUNDATION FOR MUSKEGON COUNTY, a Michigan nonprofit corporation of 425 W. Western Avenue, Suite 200, Muskegon, Michigan 49440 ("Lessee") based upon the following facts: A. Lessor is the owner of certain real estate containing approximately 15.25 acres, located at 731 Yuba Street, Muskegon, Michigan 49442,. Lessor is leasing to Lessee the westerly 7 +/- acres (bounded by Yuba, Eastern, Rathborne, Walton, and Murphy), as more particularly described on Exhibit A attached hereto ("Property"). B. Lessor and Lessee desire to allow Lessee to construct a food processing accelerator on the Property. C. Lessor and Lessee have agreed that the Property shall be leased to Lessee pursuant to the terms and conditions of this Lease. In consideration of the mutual covenants herein contained, Lessor and Lessee agree as follows: ARTICLE I DEMISE AND DESCRIPTION 1.01 Property. Lessor leases to Lessee, and Lessee leases from Lessor, the Property. Except as otherwise provided under this Lease, Lessee has inspected the Property, and agrees to accept the same in its present "as is" condition, with no warranty whatsoever concerning its condition or permitted use, and subject to and benefited by all easements, restrictions, mortgages, liens and encumbrances, all zoning laws and ordinances affecting the same, and any matter that would be discoverable upon an inspection of the Property. 1.02 Environmental Condition. Lessee represents and warrants that it has had the opportunity to investigate all matters of interest pertinent to the Property including its environmental condition, as it has determined to be necessary. Notwithstanding any other provision of this Lease, Lessee waives any objection to the environmental condition of the Property. Lessee hereby releases Lessor from all responsibility, claims, obligations, and liability arising from or associated with (i) the presence or release of any Hazardous Substance at or relating to the Property; and (ii) any environmental condition associated with or arising from the use of the Property prior to, on or after the Effective Date. “Hazardous Substance” means any material, substance, toxic chemical, contaminant, pollutant, or waste as defined by any Environmental Law and includes but is not limited to petroleum, petroleum products, hazardous chemicals, hazardous waste, toxic substances, toxic chemicals, pesticides, radioactive materials, polychlorinated biphenyls, asbestos, radon gas, metals, and any other element, compound, mixture, solution, substance, material, waste or the like that may pose a present or potential danger to human health, safety, and the environment. “Environmental Law” means any federal, state, or local law, including the common law, relating to the protection of the environment (including air, surface water, groundwater, drinking water supply, surface or subsurface land), human health, or occupational health and safety. ARTICLE II OWNERSHIP 2.01 Ownership. Lessee shall at all times during the term of this Lease have title to all buildings, improvements, fixtures and other types of fixed personalty appurtenant to the Property, constructed on or adjacent to the Property by Lessee (the “Facility”). Except as provided under Section 19.20, upon expiration or early termination of this Lease, title to the Facility shall automatically, without action on the part of either of the parties hereto, vest in Lessor, its successors and assigns. Notwithstanding the foregoing, upon Lessor's request, Lessee covenants and agrees that upon expiration of this Lease, or upon such termination, it will execute and deliver to Lessor a bill of sale to the Facility on the Property, as Lessor may reasonably request. Lessee shall not permit any willful or deliberate damage to the Facility. If, for any reason, Lessor takes title to the Facility by reasons of the termination or expiration of the Lease, such act shall constitute an automatic assignment by Lessee to Lessor of Lessee's right to receive any rents or payments from any Lessees, subtenants, sublessees or other occupants of the Facility, and Lessee shall cooperate with Lessor in notifying such Lessees, subtenants, sublessees and occupants of Lessor's right to receive the same. ARTICLE III TERM 3.01 Term. The term of this Lease shall commence on the Effective Date and shall continue for a period of five (5) years from the Effective Date (the "Term"). Expiration of the Term (unless extended or sooner terminated as hereinafter provided) shall be at midnight five (5) years after the Effective Date. 3.02 Effect of Lessee's Holding Over. Any holding over after the expiration of the Term of this Lease, with or without the consent of Lessor, shall be construed to be a tenancy from month to month, at monthly rental equal to ten times the annual Rent, divided by twelve, and shall otherwise be on the terms and conditions herein specified, so far as applicable. ARTICLE IV RENT 4.01 Rent. During the Term, the annual rent for the Property for each year of the Lease payable by Lessee to Lessor shall be One Hundred ($100) Dollars ("Base Rent"). Base Rent shall be payable, in advance, without demand, notice, setoff or counterclaim at Lessor's address -2- set forth above or at such other place as Lessor may direct by written notice, from time to time, from Lessor to Lessee. 4.02 Additional Rent. All sums in addition to Base Rent due to be paid to Lessee under the terms of this Lease shall constitute "Additional Rent." All Additional Rent shall be due and payable immediately upon demand to Lessee at such place as the Lessee shall from time to time designate. Base Rent and Additional Rent shall be collectively referred to as "Rent." 4.03 Interest. Rent, or any portion thereof, and other charges due to Lessor hereunder not paid when due, shall bear interest at an annual rate equal to three percent (3%) or the highest rate permitted by applicable statute, whichever is lower ("Default Rate"). 4.04 Triple Net Lease. The Rent provided for in this Lease shall be an absolutely net return to Lessor for the Term, free from any losses, expenses or charges with respect to the Property, including, without limitation, maintenance, repairs, cost of replacement of buildings, or improvements, insurance, taxes, assessments or other charges imposed upon or related to the Property, or with respect to any easements or rights appurtenant thereto (except as otherwise expressly provided herein). All such amounts shall be paid by Lessee. ARTICLE V CONSTRUCTION, ALTERATIONS AND ADDITIONS 5.01 Development of Property, Construction, Alterations and Additions (a) Lessee shall have sole authority and discretion for the specifications, design, and planning for the development of the Property (the “Project”), including schedule for commencement and completion of each phase of the Project, projected costs, revenues, and sources of funds. (b) Lessee shall use its best efforts to use contractors whose primary offices are located in Muskegon County, Michigan, and the construction contracts shall be assignable to Lessor following an event of default on the Lease. (c) All construction, alterations and additions or other work necessary or desirable to place the Property in a condition suitable to construct the Facility and associated improvements for the Intended Use shall be performed in a good and workmanlike manner by or for Lessee, and at Lessee's sole cost and expense. (d) Lessee shall, at Lessee's sole cost and expense, procure all permits and licenses and make all contracts necessary for the performance of construction, alterations, additions and other work on the Property. Such work shall fully conform to all applicable statutes, ordinances, regulations, and codes, including all Environmental Laws, as well as any restrictions recorded in the deed records for the Property. Lessee acknowledges that Lessor has advised Lessee pursuant to -3- MCL 324.20116(1) that Lessor has knowledge or information or is on notice through a recorded instrument that the Property is a "facility" within the meaning of MCL 324.20101(o). Lessee acknowledges that the environmental condition of the Property may impact development and construction on the Property, particularly as it relates to any prior releases that may have impacted the surface or the subsurface of the Property, and agrees to take all appropriate precautions so as to not exacerbate any such environmental condition. Lessee acknowledges receipt of: i. a written description of the general nature and extent of the release(s) that qualifies the Property as a "facility" attached to this Agreement as Exhibit B; and ii. environmental restrictions, if any, that have been previously recorded in the deed records for the Property attached as Exhibit C. (e) Lessee's contractors shall perform their work on the Property only. Lessee shall be responsible for periodic removal from the Property of all trash, rubbish and surplus materials resulting from any work being performed on the Property. 5.02 Development Schedule. Lessee shall have commenced construction of the Project within nine (9) months following the Effective Date. Lessee shall complete development of and construction of the Facility by December 31, 2020. If Lessee shall fail to comply with any obligation under Section 5.01 or this Section 5.02, Lessor may terminate the Lease, effective ninety (90) days following written notice thereof to Lessee, if such failure is not cured within such ninety day period. ARTICLE VI USE OF PROPERTY 6.01 Intended Use. The Property shall be used solely for the erection, maintenance and operation of facilities used as a food processing accelerator as may be constructed and operated on the Property by Lessee or the present and future affiliates or successors of Lessee, or other subtenants and occupants ("Intended Use"). The Property shall be used for a food accelerator or for other agri-business, and no other purpose without Lessor's prior written consent, which shall not be unreasonably withheld, delayed or conditioned. 6.02 Protection of Lessor's Title in Property. Lessee shall not suffer or permit the Property, or any portion thereof, to be used by the public, as such, without restriction or in such manner as might impair Lessor's title to the Property or any portion thereof, or in such manner as may reasonably make possible a claim or claims of adverse usage or adverse possession by the public, as such, or of implied dedication of the Property or any portion thereof. -4- 6.03 Uses Prohibited. Lessee shall comply with all applicable laws, rules, codes, regulations and restrictions on the Property ("Legal Requirements"), and Lessee shall not use, nor permit the Property or any part thereof to be used, for any purpose or purposes other than the purpose or purposes for which the Property are hereby leased; and no use shall be made or permitted to be made of the Property, or acts done, which will cause a cancellation of any insurance policy covering the Facility or Property, or any part thereof, nor shall Lessee sell or permit to be kept, used, or sold in or about the Property, any article which may be prohibited by the standard form of fire insurance policy carried by Lessee. Lessee shall, at its sole cost, comply with all requirements pertaining to the Property and with all requirements of any insurance organization or company necessary for the maintenance of insurance, as herein provided, covering any building, improvements or appurtenances at any time located on the Property. Also prohibited is any use that would violate any Legal Requirement or cause any restriction to be placed on the use of the Property. 6.04 Waste and Nuisance Prohibited. During the Term of this Lease, Lessee shall comply with all Legal Requirements affecting the Property, the breach of which might result in any penalty to Lessor, or forfeiture of Lessor's title to the Property, or restriction against Lessor's title to the Property. Lessee shall not commit, or suffer to be committed, any waste on the Property, or any nuisance or illegal act. 6.05 Environmental Matters. (a) Lessee has advised Lessor that Lessee does not presently engage in a business which requires the use of any Hazardous Substance other than incidental use of nonmaterial amounts thereof. Except as consistent with the foregoing, Lessee shall not cause or permit any Hazardous Substance to be brought upon, kept, or used in or about the Property by Lessee, its agents, em- ployees, contractors, or invitees. Lessor shall be entitled to inspect the Property from time to time to determine if any Hazardous Substance is present. (b) Lessee shall, at all times, comply with any and all Environmental Laws, including, but not limited to, the obligations set forth in MCL 324.20107a. (c) Lessee shall not discharge, leak, spill, or emit, or permit to be dis- charged, leaked, or emitted, any Hazardous Substance into the atmosphere, ground, or any body of water, if that material (as is reasonably determined by Lessor, or any governmental authority) does or may pollute or contaminate the same, or may adversely affect (i) the health, welfare, or safety of persons, whether located on the Property or elsewhere, or (ii) the condition, use, or enjoyment of the Property or any other real or personal property. (d) Lessee hereby agrees that it shall be fully liable for all costs and expenses related to the use, storage, and disposal of any Hazardous Substance kept on the Property by Lessee, or any subtenants, and the Lessee shall give immediate notice to the Lessor of any violation or potential violation of the provisions of subsection (c) above. Lessee shall defend, indemnify, and hold -5- harmless Lessor and its agents from and against any claims, demands, penalties, fines, liabilities, settlements, damages, costs, or expenses (including, without limitation, attorneys and consultants' fees, court costs, and litigation expenses) of whatever kind or nature, known or unknown, contingent or otherwise, arising out of or in any way related to (i) the presence, disposal, release, or threatened release of any such Hazardous Substance that is on, from, or affecting the soil, water, vegetation, buildings, personal property, persons, animals, or otherwise; (ii) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to that Hazardous Substance; (iii) any lawsuit brought or threatened, settlement reached, or government order relating to that Hazardous Substance; or (iv) any violation of any laws applicable thereto. The provisions of this subsection (d) shall be in addition to any other obligations and liabilities Lessee may have to Lessor at law or equity and shall survive the transactions contemplated herein and shall survive the termination of this Lease. 6.06 Redelivery of Property. Lessee shall pay the Rent and all other sums required to be paid by Lessee hereunder in the amounts, at the times, and in the manner herein provided, and shall keep and perform all the terms and conditions hereof on its part to be kept and performed and, at the expiration or sooner termination of this Lease (subject to Section 19.20), peaceably and quietly quit and surrender to Lessor the Property free and clear of all liens and encumbrances and in good order and condition, subject to reasonable wear and tear, casualty (to the extent insurance proceeds are delivered to Lessor), ordinary depreciation, and obsolescence and subject to the other provisions of this Lease. In the event of the nonperformance by Lessee of any of the covenants of Lessee undertaken herein, this Lease may be terminated as herein provided. Upon termination of this Lease, Lessee shall promptly execute and deliver to Lessor such deeds or other instruments as may be required to convey any interest which it might have in the Property. 6.07 Abandonment of Property. Lessee shall not vacate or abandon the Property, or any part thereof, at any time during the Term but Lessee shall not be deemed to have vacated or abandoned the Property during times when alterations, casualty or other activity under this Lease dispossesses Lessee of day to day use of the Property. If Lessee does abandon, vacate or surrender the Property, or any part thereof, or is dispossessed by process of law, or otherwise, any personal property belonging to the Lessee or its subtenants and left on the Property shall be deemed abandoned at the option of Lessor. 6.08 Signs. Lessee may erect, maintain, and remove such signs as it deems necessary, appropriate, or desirable to its business operations in, on, or about the Property, provided that the signs are in compliance with all Legal Requirements. ARTICLE VII TAXES AND ASSESSMENTS 7.01 Taxes as Additional Rent. As Additional Rent hereunder, Lessee shall pay and discharge as they become due, promptly and before delinquency, without proration, all taxes, assessments, rates, charges, license fees, municipal liens, levies, excises or imposts, whether -6- general or special or ordinary or extraordinary, of every name, nature and kind whatsoever, including, without limitation, all governmental charges of whatsoever name, nature or kind, which may be levied, assessed, charged or imposed, or which may become a lien or charge on or against the Property, or any part thereof, the leasehold of Lessee herein, the Facility, or any building or buildings or other improvements now or hereafter on the Property, or on or against Lessee's estate hereby created which may be a subject of taxation, or on or against Lessor's interest in the Property during the Term hereof. If the right is given to pay either in one sum or in installments, Lessee may elect either mode of payment, and its election shall be binding upon Lessor. If, by making any such election to pay in installments, any of such installments shall be payable without penalty after the termination of this Lease, or any extended term hereof, such unpaid installments shall also be paid by Lessee. Failure to pay taxes, assessments, levies and the like herein shall carry with it the same consequence as failure to pay any installment of Rent. 7.02 Receipts. Lessee shall obtain and deliver to Lessor receipts or duplicate receipts for all taxes, assessments and other items required hereunder to be paid by Lessee, promptly upon the request of Lessor. ARTICLE VIII INSURANCE 8.01 Insurance Coverage of Facility and Improvements. Lessee shall, at all times during the Term, and at Lessee's sole expense, keep all improvements which are now or which may hereafter become a part of the Property or the Facility, or both, insured with broad form fire and extended coverage insurance with an all-risk endorsement against loss or damage by fire, earthquake, flood, war and other extended coverage hazards for not less than the full replacement value of such improvements (excluding foundations and excavation), with loss payable to Lessor and Lessee as their interests may appear. Any loss adjustment shall require the written consent of Lessor and Lessee. 8.02 Liability Insurance. Lessee shall maintain in effect, at its sole expense, throughout the Term, commercial general liability insurance coverage with respect to the Property with a single limit coverage amount of not less than Two Million Dollars ($2,000,000) each occurrence for personal injury, death, or property damage. Such insurance shall specifically insure against all liability assumed hereunder, as well as liability imposed by Legal Requirements, and shall insure both Lessor and Lessee. Said insurance shall be so endorsed as to create the same liability on the part of the insurer as though separate policies had been written for Lessor and Lessee. 8.03 Lessor's Right to Pay Premiums on Behalf of Lessee. All of the policies of insurance referred to in this Article shall be written in form and by insurance companies reasonably satisfactory to Lessor. Lessee shall pay all of the premiums therefor, and shall deliver such policies or certificates thereof to Lessor and all others designated by Lessor, and in the event of the failure of Lessee to obtain such insurance in the names herein called for, to pay the premiums therefor, or to deliver such policies or certificates thereof to Lessor, Lessor shall be entitled, but shall have no obligation, to obtain such insurance and pay the premiums therefor, -7- which premiums shall be repayable to Lessor upon written demand therefor, and failure to repay the same shall carry with it the same consequence as failure to pay any installment of Rent. Each insurer mentioned in this Article shall agree, by endorsement on the policy or policies issued by it, or by independent instrument furnished to Lessor, that it will give to Lessor and any mortgagee of the Property thirty (30) days' written notice before the policy or policies in question shall expire, or be altered or cancelled. Lessor shall not unreasonably withhold its approval as to the form or the insurance companies selected by Lessee. 8.04 Definition of Full Replacement Value. The term "full replacement value" of improvements, as used herein, shall mean the actual replacement cost thereof from time to time, less exclusions provided in the normal fire insurance policy. If either party believes that the full replacement value, that is to say, the then replacement cost less exclusions, has increased or decreased, it shall have the right, but, except as provided below, only at intervals of not less than five (5) years, to have such full replacement value redetermined by the fire insurance company which is then carrying the largest amount of fire insurance on the Facility and other improvements on the Property, hereinafter referred to as the "impartial appraiser." The party desiring to have the full replacement value so redetermined by such impartial appraiser shall forthwith on submission of its request for redetermination to such impartial appraiser give written notice to the other party hereto. The determination of such impartial appraiser shall be final and binding on the parties hereto, and Lessee shall forthwith increase, or may decrease, the amount of the insurance carried pursuant to this Article, as the case may be, to the amount so determined by the impartial appraiser. Such determination shall be binding for a period of five (5) years, and until superseded by agreement between the parties hereto or by a subsequent redetermination by an impartial appraiser. Each party shall pay one-half of the fee, if any, of the impartial appraiser. If during any such five (5) year period Lessee shall have made improvements to the Property or the Facility, Lessor may have such full replacement value redetermined at any time after such improvements are made, regardless of when the full replacement value was last determined. 8.05 Blanket Insurance Policies. Notwithstanding anything to the contrary contained in this Article, Lessee's obligations to carry the insurance provided for herein may be brought within the coverage of a so-called blanket policy or policies of insurance carried and maintained by Lessee; as long as the coverage afforded Lessor shall not be reduced or diminished or otherwise be different from that which would exist under a separate policy meeting all other requirements of this Lease by reason of the use of such blanket policy of insurance, and all other requirements of this Article shall be satisfied. 8.06 Cost of Insurance Deemed Additional Rent. The cost of insurance required to be carried by Lessee in this Article shall be deemed to be Additional Rent hereunder. 8.07 Waiver of Subrogation. Lessee, for itself and its respective successors and assigns (including, without limitation, any person, legal entity, firm or corporation which may become subrogated to any of its rights) waives any and all rights and claims for recovery against Lessor, and its officers, directors, shareholders, employees, agents and assigns, or any of them, on account of any loss or damage to any of its property located on the Property insured under any valid and collectible insurance policies, to the extent of any recovery collectible under such -8- insurance policies. Each insurance policy carried by Lessee and insuring all or any part of such property shall provide that the insurance company waive all right of recovery by way of subrogation against Lessor. ARTICLE IX ENCUMBRANCE OF FACILITY AND LEASEHOLD INTEREST 9.01 Loans to Lessee. Lessee shall have the right to finance the construction of the Facility and pledge this Lease and the leasehold interest herein as security for the financing, provided that the amortization period of the new loan shall not exceed the remaining term of this Lease. 9.02 Protection of Lessee's Mortgage. During the existence of any mortgage of this Lease or an interest herein by Lessee of which the Lessor has been given notice by the Lessee or the mortgagee, the Lessor will not terminate this Lease because of any default by the Lessee hereunder if, within a period of thirty (30) days after the Lessor has mailed written notice of its intention to terminate this Lease for such cause to the mortgagee at its last known address, the mortgagee shall commence cure of such default and is actively pursuing in good faith cure of the default. ARTICLE X REPAIRS AND DESTRUCTION OF IMPROVEMENTS 10.01 Maintenance of Improvements. Lessee shall, throughout the Term, at its own cost and without any expense to the Lessor, keep and maintain the Property and the Facility, including, without limitation, all structural, nonstructural, interior and exterior portions thereof, in good, sanitary and neat order, condition and repair, subject to ordinary wear and tear, casualty, ordinary depreciation, and obsolescence. Lessee shall, except as specifically provided herein, restore, repair, replace or rehabilitate any improvements of any kind which may be destroyed or damaged by fire, casualty or any other cause whatsoever except to the extent such insurance proceeds are delivered to Lessor in lieu thereof. Lessor shall not be obligated to make any repairs, replacements or renewals of any kind, nature or description whatsoever to the Property or the Facility or any buildings or improvements thereon. Lessee shall also comply with and abide by all Legal Requirements affecting the Property, the improvements thereon, or any activity or condition on or in such Property. 10.02 Damage to and Destruction of Improvements. The damage, destruction, or partial destruction of the Facility or any other building or improvements which are on the Property shall not release or diminish Lessee's obligations hereunder. In case of damage to or destruction of the Facility or any other improvement on the Property, Lessee shall, in accordance with Section 5.01 hereof and at its own expense, promptly repair and restore the same to a condition as good as or better than that which existed prior to such damage or destruction. Without limiting such obligations of Lessee, it is agreed that, so long as Lessee is not then in default hereunder, and subject to the rights of any mortgagee of the Property, the proceeds of any insurance covering -9- such damage or destruction shall be made available to Lessee for such repair or replacement. Insurance proceeds shall be held in trust by Lessor for construction disbursement to Lessee. ARTICLE XI LIENS 11.01 Lessee's Duty to Keep Property Free of Liens. Lessee shall keep all of the Property, and every part thereof, the Facility, and all other buildings and improvements at any time located thereon, and the leasehold estate of Lessee, free and clear of any and all construction liens for or arising out of or in connection with work or construction by, for or permitted by Lessee on or about the Property or the Property, and any obligations of any kind incurred by Lessee, and at all times shall promptly and fully pay and discharge any and all claims on which any such lien may or could be based, and shall indemnify Lessor and all of the Property, the Property, the Facility and the leasehold estate against all such liens and claims of liens and suits or other proceedings pertaining thereto. 11.02 Lessee's Leasehold Interest. Except as permitted under Section 9.01, Lessee agrees that it will not mortgage or encumber its leasehold interest in the Property without Lessor's prior written consent, which shall not be unreasonably withheld, delayed or conditioned. ARTICLE XII EASEMENTS AND OTHER NONEXCLUSIVE RIGHTS 12.01 Utility Easement. This Lease is subject to all utility easements pertaining to the Property, whether or not of record. Lessor may, without consent of the Lessee, grant any other easements for public or private utilities or other uses as required by Lessor, provided that such easements do not unreasonably restrict the use of the Property for the purposes contemplated by this Lease. ARTICLE XIII PROHIBITION OF INVOLUNTARY ASSIGNMENT; EFFECT OF BANKRUPTCY OR INSOLVENCY 13.01 Prohibition of Involuntary Assignment. Neither this Lease nor the leasehold estate of Lessee, nor any interest of Lessee hereunder in the Property, the Facility, the Property, or any improvements thereon, shall be subject to involuntary assignment, transfer or sale by operation of law in any manner whatsoever, and any such attempt at involuntary assignment, transfer or sale shall be void and of no effect. 13.02 Effect of Bankruptcy, Insolvency, Etc. Without limiting the generality of the provisions of the preceding section, Lessee agrees that: - 10 - (a) in the event any proceedings under federal bankruptcy law shall be commenced by or against Lessee, and if commenced against Lessee, shall not be dismissed within thirty (30) days; or (b) in the event Lessee becomes insolvent or makes an assignment for the benefit of its creditors; or (c) if a receiver is appointed in any proceeding or action to which Lessee is a party, with authority to take possession or control of all or any part of the Property or the business conducted thereon by Lessee, and such receiver is not discharged within a period of thirty (30) days after his appointment; or (d) any involuntary assignment prohibited by the provisions of the preceding section shall occur; then such event or occurrence shall be deemed to constitute a breach of this Lease by Lessee and shall, at the election of Lessor, but not otherwise, without notice of entry or other action of Lessor, terminate this Lease and also all rights of Lessee under this Lease and in and to the Property and also all rights of any and all persons claiming under Lessee. 13.03 Bankruptcy without Termination. If following the filing of a petition by or against Lessee in a bankruptcy court Lessor shall not be permitted to terminate this Lease as hereinabove provided because of the provisions of Title 11 of the United States Code relating to Bankruptcy, as amended (the "Bankruptcy Code"), the Lessee (including Lessee as Debtor-in- Possession) or any trustee for Lessee agrees to promptly, but no later than fifteen (15) days after petition by Lessor to the bankruptcy court, assume or reject this Lease, and Lessee agrees not to seek or request any extension or adjournment of any petition to assume or reject this Lease by Lessor with such court. Lessee's, or the trustee's, failure to assume this Lease within said fifteen (15) day period shall be deemed a rejection. Lessor shall thereupon immediately be entitled to possession of the Property without further obligation to Lessee or the trustee, and this Lease shall be terminated, except that Lessor's right to damages for Lessee's default shall survive such termination. Lessee or any trustee for Lessee may only assume this Lease if (a) it cures or provides adequate assurance that the trustee will promptly cure any default hereunder, (b) it compensates or provides adequate assurance that the Lessee will promptly compensate Lessor for any actual pecuniary loss to Lessor resulting from Lessee's default and (c) it provides adequate assurance of future performance under this Lease by Lessee. In no event after the assumption of this Lease by Lessee or any trustee for Lessee shall any then existing default remain uncured for a period in excess of ten (10) days. Adequate assurance of future performance of this Lease shall include, without limitation, adequate assurance (d) of the source of rent required to be paid by Lessee hereunder, and (e) that assumption or permitted assignment of this Lease will not breach any provision hereunder. - 11 - ARTICLE XIV SUBLETTING; ASSIGNMENT; TRANSFER TO MORTGAGEE 14.01 Assignment and Subletting. Lessee shall not assign or transfer this Lease or any part of the Property (the foregoing herein collectively called "Transfers") without Lessor’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned. The foregoing notwithstanding and notwithstanding any other provision of this Lease, Lessor's consent shall not be required for any Transfer: (a) which is a subtenancy, concession or license given in the ordinary course of operating the Property for the Intended Use, any subsequent use by Lessee, or any use by a transferee to whom Lessor has previously consented; or (b) to a lender as collateral for a loan or line of credit made or given to Lessee for the financing of the Facility as provided in Section 9.01, or given to Lessee or a transferee to whom Lessor has consented, or the parent, subsidiary, or entity related or affiliated with Lessee or such transferee to the extent such is permitted hereunder. 14.02 Occupants/Subtenants. Lessee, in its sole discretion, may sublease the Property to lessees for the Intended Use, and Lessee may further license, lease or sublease any space in the Facility (which includes the parking) under any lease, sublease or other agreement, contract, or other instrument or arrangement, subject to Legal Requirements. All sublessees, concessionaire, and licensees shall take such part or the entire Property or Facility subject and be subordinate to the terms and conditions of this Lease. 14.03 Transfer to Mortgagee. Notwithstanding anything to the contrary in this Lease, Lessee shall have the unrestricted right to assign or transfer its interest in this Lease to a mortgagee or to another party designated by the mortgagee in lieu of default of the mortgage on the leasehold interest of the Property. The transfer of Lessee's interest in the Property shall not affect the terms of this Lease, and such new lessee shall comply with all terms and conditions of this Lease. 14.04 Limitation. Any assignment, transfer, lease, sublease, or license permitted above shall be subject to this Ground Lease. ARTICLE XV INDEMNIFICATION OF LESSOR 15.01 Indemnification of Lessor. Lessor shall not be liable for any loss, injury, death or damage to persons or property, including, but not limited to, claims made for medical malpractice, which at any time may be suffered or sustained by Lessee, or by any persons who may at any time be using or occupying or visiting the Property or the Facility, or may be in, on or about the same, whether such loss, injury, death or damage shall be caused by or in any way result from or arise out of any act, omission, or negligence of Lessee or of an occupant, subtenant, visitor or user of any portion of the Property or the Facility, or shall result from or be caused by any other matter or thing, whether of the same kind as or of a different kind than the matters or things above set forth, and Lessee shall indemnify and defend Lessor from and against all claims, liabilities, losses or damages whatsoever, including, without limitation, attorneys' - 12 - fees, on account of any such loss, injury, death or damage. Lessee hereby waives all claims against Lessor for damages to the Facility and improvements that are now on or are hereafter placed or built on the Property and to the property of Lessee in, on, or about the Property to the Facility, from any cause arising at any time. The foregoing provisions of this Section shall not apply to loss, injury, death or damage arising by reasons of the negligence or misconduct of Lessor, or its invitees, licensees, agents or employees. ARTICLE XVI WARRANTIES OF TITLE AND QUIET POSSESSION 16.01 Warranties. Lessor covenants that Lessor is seized of the Property, in fee simple, and has full right to make this Lease, and that so long as Lessee is not in default hereunder, Lessee shall have quiet and peaceable possession of the Property during the Term, in accordance with the terms and conditions hereof. Said warranties are limited to Lessee and all persons claiming under Lessee. ARTICLE XVII DEFAULT 17.01 Event of Default. If: (a) Lessee fails to make any payment of Rent on the due date thereof and fails to cure such delinquency within ten (10) days after written notice thereof has been given by Lessor to Lessee; or (b) Lessee breaches any covenant of this Lease other than the covenant for the payment of Rent and fails to cure such breach within thirty (30) days after written notice thereof has been given by Lessor to Lessee; or (c) Lessee becomes involved in a legal proceeding which results in the levy of execution on or the acquisition of his leasehold interest by a trustee in bankruptcy, receiver, assignee or other legal officer appointed in any insolvency or creditors' proceedings, and such default is not corrected or cured within thirty (30) days after receipt of written notice to do so; or then, and in any of the foregoing events, Lessee shall be deemed to have committed an Event of Default under this Lease. If Lessee commits an Event of Default, it shall be lawful for Lessor, at its option after giving any written notice as required in subsections (a) through (c), inclusive, without formal demand or further notice of any kind, and in addition to all other rights and remedies provided at law or in equity, to: - 13 - (a) Terminate this Lease, repossess the Property and be entitled to recover immediately, as liquidated agreed final damages, in lieu of any further deficiencies, the total amount due to be paid by Lessee during the balance of the Term, less the fair rental value of the Property for said period, together with any other sum of money owed by Lessee to Lessor. Lessor's right to terminate this Lease shall be subject to the terms and conditions set forth in Section 9.02 of this Lease. Upon termination under any provision of this Lease, including without limitation Section 5.02 or this Section 17.01, Lessee shall immediately deliver to Lessor all designs, and engineering and architectural plans and specifications related to the Project. (b) Terminate Lessee's right of possession and repossess the Property without demand or notice of any kind to Lessee and without terminating this Lease, in which case Lessor may, but need not, relet all or any part of the Property for such rent and upon such terms as shall be satisfactory to Lessor. For the purposes of such reletting, Lessor may make such repairs, alterations, additions, or physical changes in or to the Property as may be necessary or convenient. If Lessor shall fail or refuse to relet the Property, then Lessee shall pay to Lessor as damages the total amount due to be paid by Lessee during the balance of the Term. If the Property is relet and a sufficient sum shall not be realized from the reletting, after payment of all costs and expenses of such repairs, alterations, additions, or physical changes and the expense of such reletting and the collection of rent occurring therefrom, to satisfy the rent herein provided to be paid during the remainder of the Term, Lessee shall satisfy and pay any such deficiency upon demand. Lessee agrees that Lessor may file suit to recover any sums falling due under the terms of this section from time to time, and that any suit, or recovery of any portion due Lessor hereunder shall be no defense to any subsequent action brought for any amount not theretofore reduced to judgment in favor of Lessor. (c) Have specific performance of Lessee's obligations. 17.02 Lessor's Right to Perform. In the event that Lessee, by failing or neglecting to do or perform any act or thing herein provided by it to be done or performed, shall be in default hereunder and such failure shall continue after written notice from Lessor specifying the nature of the act or thing to be done or performed, then Lessor may, but shall not be required to, do or perform or cause to be done or performed such act or thing, entering upon the Property for such purposes, if Lessor shall elect, and Lessor shall not be or be held liable or in any way responsible for any loss, inconvenience, annoyance or damage resulting to Lessor on account thereof, and Lessee shall repay to Lessor, on demand, the entire expense thereof, including compensation to the agents and employees of Lessor. Any act or thing done by Lessor pursuant to the provisions of this Section shall not be or be construed as a waiver of any such default by Lessee, or as a waiver of any covenant, term or condition herein contained, or of the requirement of performance thereof, or of any other right or remedy of Lessor, hereunder or otherwise. All amounts payable by Lessee to Lessor under any of the provisions of this Lease, if not paid when the same become due as in this Lease provided, shall bear interest from the date they become due until paid, at the Default Rate. - 14 - 17.03 Waiver. The waiver by Lessor of, or the failure of Lessor to take action with respect to, any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition, or of subsequent breach of the same, or of any other term, covenant or condition herein contained. The subsequent acceptance of Rent hereunder by Lessor shall not be deemed to be a waiver of any preceding breach by Lessee of any term, covenant or condition of this Lease, other than the failure of Lessee to pay the particular Rent so accepted, regardless of Lessor's knowledge of such preceding breach at the time of acceptance of such Rent. ARTICLE XVIII EFFECT OF EMINENT DOMAIN 18.01 Effect of Total Condemnation. In the event the entire Property shall be appropriated or taken under the power of eminent domain by any public or quasi-public authority, or shall be conveyed by Lessor to any public or quasi-public authority under a threat of such appropriation or taking, this Lease shall terminate and expire as of the date of such taking or conveyance, Rent shall be prorated to such date, and Lessee and Lessor shall thereupon be released from any liability thereafter accruing hereunder. All proceeds shall first be used to pay off indebtedness, and any excess funds shall belong to Lessor and the Lessee as their interests may appear. 18.02 Effect of Partial Condemnation. If the taking consists of less than fifty percent (50%) of the Property, there will be no termination of the Lease. If there is a taking of more than fifty percent (50%) of the Property, then either Lessor or Lessee may terminate the Lease, and if the Lease is terminated, the proceeds will be applied in the same way as under the preceding section. If the Lease is not terminated, then Lessee shall rebuild to the extent possible and consistent with the previous structures, and subject to the rights of any mortgagee of the Property, the proceeds shall be used first to pay for such rebuilding, and any excess will go to Lessor and Lessee as their interests may appear. ARTICLE XIX MISCELLANEOUS 19.01 Utilities. Lessee shall fully and promptly pay for all water, sewer, gas, heat, light, power, janitorial services, garbage disposal, communication service, telephone service and other public utilities of every kind furnished to the Property or to the Facility throughout the Term, and all other costs and expenses of every kind whatsoever, of or in connection with the use, operation and maintenance of the Property or the Facility, and all activities conducted thereon or therein, and Lessor shall not have responsibility of any kind for any payment thereof. Utility payments shall be deemed Additional Rent under this Lease. - 15 - 19.02 Lessor's Right of Entry. Lessee shall permit Lessor, and agents and employees of Lessor, to enter into and upon the Property at all reasonable times for the purpose of inspecting the same or for the purpose of posting notices. 19.03 Surrender of Lease. The voluntary or other surrender of this Lease by Lessee, or by a mutual cancellation thereof, shall not work a merger, and may, at the option of Lessor, terminate all existing subleases or subtenancies, or may, at the option of Lessor, operate as an assignment to it of any or all such subleases or subtenancies. 19.04 Remedies Cumulative. All remedies hereinbefore and hereinafter conferred on Lessor shall be deemed cumulative, and no one remedy shall be exclusive of another or of any other remedy conferred by law. 19.05 Notices. (a) All notices, demands or other writings in this Lease provided to be given or made or sent shall be deemed to have been fully given or made or sent when made in writing and delivered to the principal office of, and acknowledged by, the party to whom notice is given, or deposited in the United States mail, registered and postage prepaid, and addressed as follows: TO LESSOR: City of Muskegon P.O. Box 356 Muskegon, MI 49443-0356 Attention: City Manager Parmenter Law P.O. Box 786 Muskegon, MI 49443-0786 Attention: John Schrier TO LESSEE: Community Foundation for Muskegon County 425 W. Western Avenue, Suite 200 Muskegon, Michigan 49440 Attention: President (b) The address to which any notice, demand or other writing shall be given or made or sent to any party, as provided in the preceding subsection, may be changed by written notice given by such party in accordance with this Section. 19.06 Captions. The captions appearing under the Article and Section number designations of this Lease are for convenience only and are not a part of this Lease and do not in any way limit or amplify the terms and provisions of this Lease. 19.07 Construction. This Lease shall be construed and interpreted according to the laws of the State of Michigan that are applied to leases made and to be performed in that state. - 16 - 19.08 Memorandum of Lease. Lessor and Lessee agree that neither shall be permitted to record this lease or a memorandum of this lease with the applicable register of deeds without the prior written consent of the other, which may be withheld in such party's sole discretion. 19.09 Subordination; Attornment; Estoppel Certificate. This Lease shall be subject and subordinate to the interests of the holders of any notes secured by mortgages on the Property, now or in the future, and to all ground or underlying leases and to all renewals, modifications, consolidations, replacements, and extensions thereof, and while the provisions of this Section are self-executing, Lessee shall execute such customary documents as may be reasonably necessary to affirm or give notice of such subordination. Such subordination shall be contingent upon Lessor or any mortgagee providing Lessee with a customary non-disturbance agreement. Upon request of the holder of any note secured by a mortgage on the Property, Lessee shall agree in writing that no action taken by such holder to enforce said mortgage shall terminate this Lease or invalidate or constitute a breach of any of its provisions, and Lessee shall attorn to such mortgagee, or to any purchaser of the Property at any foreclosure sale, or sale in lieu of foreclosure, for the balance of the Term on all the terms and conditions herein contained. While the provisions of this Section are self-executing, all persons affected thereby shall execute such documents necessary to affirm or give notice of such attornment. At the request of Lessor, Lessee shall within ten (10) days deliver to Lessor, or anyone designated by Lessor, a certificate stating and certifying as of its date (a) the date to which Rent and other charges under this Lease have been paid, (b) whether or not there are then existing any setoffs or defenses against the enforcement of any of the agreements, terms, covenants, or conditions hereof on the part of Lessee to be performed or complied with (and, if so, specifying the same), and (c) if such be true, that this Lease is unmodified and in full force and effect and Lessor is not in default under any provision of this Lease. Upon the same terms and conditions as provided in this Section, Lessor shall provide an estoppel certificate to Lessee within ten (10) days of Lessee's request. 19.10 Parties Bound. The covenants and conditions herein contained shall, subject to the provisions of this Lease as to assignment, transfer and subletting, apply to and bind the heirs, successors, executors, administrators and assigns of all the parties hereto, and all of the parties hereto shall be jointly and severally liable hereunder. 19.11 Expenses of Enforcement. Lessee shall pay all reasonable attorneys' fees and expenses incurred by Lessor in enforcing any provision of this Lease, as Additional Rent, together with interest thereon from the date paid at the Default Rate. 19.12 Litigation. Lessor and Lessee do hereby waive trial by jury in any action, proceeding or counterclaim brought by either against the other upon any matters whatsoever arising out of or in any way connected with this Lease, Lessee's use or occupancy of the Property, or any claim of injury or damage or both. It is further mutually agreed that if Lessor commences any summary proceeding for nonpayment of any rent, Lessee will not interpose any - 17 - counterclaim whatsoever in any such proceeding; provided, however, that the foregoing shall not constitute a waiver of Lessee's right to bring a separate action for any claim Lessee may have. 19.13 Covenants and Conditions. All covenants and conditions contained in this Lease are independent of one another. All of the covenants of Lessee contained herein shall, at the option of Lessor, be construed as both covenants and conditions. 19.14 Limitation on Liability. If Lessor is in default of this Lease, and as a consequence Lessee recovers a money judgment against Lessor, the judgment shall be satisfied only out of the proceeds of sale received on execution of the judgment and levy against the right, title and interest of Lessor in the Property, out of rent or other income from the Property receivable by Lessor, or out of the consideration received by Lessor from the sale or other disposition of all or any part of Lessor's right, title and interest in the Property. 19.15 Accord and Satisfaction. No payment by Lessee or receipt by Lessor of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as rent be deemed an accord and satisfaction, and Lessor shall accept such check or payment without prejudice to Lessor's right to recover the balance of such rent or to pursue any other remedy in this Lease as provided. 19.16 Counterparts. This Lease may be executed in counterparts each of which shall be deemed an original and all of which together shall constitute one agreement. Faxed signatures, or scanned and electronically transmitted signatures on this Lease, shall be deemed to have the same legal effect as original signatures on this Lease. 19.17 Brokers. Each party under this Lease represents and warrants that it has dealt with no broker in connection with this Lease. 19.18 Survival. All obligations arising prior to the termination of this Lease and all provisions of this Lease allocating responsibility or liability between the parties, including without limitation the indemnity provisions contained herein, shall survive the termination of this Lease. No obligation which survives the term of this Lease shall give Lessee any possessory interest in the Property nor have the effect of extending the Term of this Lease. 19.19 Entire Agreement; Amendment. This Lease represents the entire agreement between the parties. Except as expressly referenced herein, no oral or written, prior or contemporaneous agreements shall have any force or effect, and the Lease may not be amended, altered or modified unless done so by means of a written instrument signed by both parties. 19.20 Option to Purchase. So long as Lessee is not in default, during the Term of this Lease, Lessee shall have the right to purchase the Property upon the terms and conditions contained in this Paragraph (the "Option"). The Option shall survive any sale of the Property. Lessee may not assign the Option without the consent of Lessor, which shall not be unreasonably withheld, delayed or conditioned. - 18 - (a) Election. If Lessee elects to exercise the Option, it shall give Lessor written notice of such election on or before the expiration of the Term. Such notice shall be deemed given when received by Lessor. The purchase price for the Property shall be Fifty Thousand Dollars ($50,000) (the "Purchase Price"). The Purchase Price shall be payable in full at closing with funds immediately available. The closing ("Closing") shall take place at the offices of Lessee or such other location mutually agreed to by the parties, and at a time and date to be selected by Lessee, but in no case later than forty-five (45) days after Lessee exercises its option to purchase (the "Closing Date"). (b) As Is. Lessee has already undertaken a due diligence investigation of the Property, and therefore will the Property in its "AS IS" condition. Lessee shall be responsible, at its sole cost and expense, for obtaining such title commitments/policies and conducting such other investigations as it determines necessary. Lessee acknowledges that Lessor has advised Lessee pursuant to MCL 324.20116(1) that Lessor has knowledge or information or is on notice through a recorded instrument that the Property is a "facility" within the meaning of MCL 324.20101(r). Lessee acknowledges receipt of written description of the general nature and extent of the release(s) that qualifies the Property as a "facility" attached to this Lease as Exhibit B. (c) Conveyance. At the time of Closing, Lessor shall execute and deliver to Lessee a quit claim deed conveying good marketable title to the Property subject to such restrictions, easements, interests, and reservations of record; taxes and assessments; and any matters that would be disclosed by an accurate ALTA/ACSM Land Title Survey and other exceptions caused by or through Lessee or its subtenants, concessionaires and licensees. (d) Costs. All costs to close the transaction including without limitation, fees of the title company, transfer taxes, and like (except the fees and expenses of Lessor's attorneys and accountants), shall be paid for by Lessee. Lessor and Lessee have executed this Lease as of the date first indicated above. LESSOR: LESSEE: CITY OF MUSKEGON COMMUNITY FOUNDATION FOR MUSKEGON COUNTY By _________________________________ By Its ______________________________ Its - 19 - EXHIBIT A Legal Description of the Property The property address and tax parcel number listed below are provided solely for informational purposes, without warranty as to accuracy or completeness. If the information listed below is inconsistent in any way with the legal description listed above, the legal description listed above shall control. Tax Parcel Numbers: 61-11-20-312-001 61-11-20-312-002 61-11-20-333-001 - 20 - EXHIBIT B DESCRIPTION OF RELEASES - 21 - EXHIBIT C USE RESTRICTIONS - 22 - Commission Meeting Date: August 13, 2019 Date: August 13, 2019 To: Honorable Mayor and City Commissioners From: Planning & Economic Development RE: Sale of the Buildable Lot at 1245 5th St SUMMARY OF REQUEST: Staff is seeking approval to sell the vacant, buildable lot at 1245 5th St to Bethany Housing Ministries, Inc. d/b/a Community EnCompass for $1 with the understanding that they will sell us their vacant buildable lot at 174 Mason Ave for $1. The deal would be contingent upon the City receiving verification of a clean title commitment and any backup documents. FINANCIAL IMPACT: None BUDGET ACTION REQUIRED: None STAFF RECOMMENDATION: Approval of the sale and for the Mayor and Clerk to sign the resolution and deed. COMMITTEE RECOMMENDATION: None 8/13/2019 1245 5th St (Now Vacant) 0.12 acres True Cash Value - $4,000 174 Mason Ave 0.19 acres True Cash Value - $4,800 8/13/19 Resolution No. _______ MUSKEGON CITY COMMISSION RESOLUTION APPROVING THE SALE OF A BUILDABLE LOT AT 1245 5th St FOR $1. WHEREAS, Bethany Housing Ministries, Inc. d/b/a Community EnCompass will be allowed to purchase the parcel designated as number 24-205-377-0001-00, located at 1245 5th St. for $1; and WHEREAS, Bethany Housing Ministries, Inc. d/b/a Community EnCompass will sell their parcel designated as number 24-205-386-0007-00, located at 174 Mason Ave to the City of Muskegon for $1; and WHEREAS, Bethany Housing Ministries, Inc. d/b/a Community EnCompass shall provide evidence of a clean title commitment and any backup documents to the City in order to finalize the deal; and NOW THEREFORE BE IT RESOLVED, that parcel number 24-205-377-0001-00, located at 1245 5th St to be sold to Bethany Housing Ministries, Inc. d/b/a Community EnCompass for $1 with the conditions listed above. CITY OF MUSKEGON REVISED PLAT OF 1903 LOT 1 EX SELY 79.5 FT TH'OF & E 1/2 OF LOT 2 EX SELY 79.5 FT TH'OF BLK 377 Adopted this 13th day of August 2019. Ayes: Nays: Absent By: _________________________ Stephen J. Gawron Mayor Attest: ________________________ Ann Meisch, MMC City Clerk I hereby certify that the foregoing constitutes a true and complete copy of a resolution adopted by the City Commission of the City of Muskegon, County of Muskegon, Michigan at a regular meeting held on August 13, 2019. By: ________________________ Ann Meisch, MMC City Clerk 8/13/19 QUIT CLAIM DEED KNOW ALL MEN BY THESE PRESENTS: That the CITY OF MUSKEGON, a Municipal Corporation, of 933 Terrace Street, Muskegon, Michigan 49440, QUIT CLAIMS TO: BETHANY HOUSING MINISTRIES, INC., DBA COMMUNITY ENCOMPASS, a Michigan Non-Profit Corporation, of 1105 Terrace Street, Muskegon, MI 49442, the following described premises situated in the City of Muskegon, County of Muskegon, State of Michigan, to wit: CITY OF MUSKEGON REVISED PLAT OF 1903 LOT 1 EXCEPT SOUTHEASTERLY 79.5 FEET THEREOF & EAST 1/2 OF LOT 2 EXCEPT SOUTHEASTERLY 79.5 FEET THEREOF BLOCK 377, otherwise known as 1245 5th St. (#24-205-377-0001-00). for the sum of less than One Dollar ($1) Subject to any easements or use restrictions of record. This deed is exempt from real estate transfer tax pursuant to the provisions of MCLA 207.505(h)(i) and MCLA 207.526 Sec. 6(h)(i). Dated this 13th day of August 2019 Signed in the presence of: CITY OF MUSKEGON ______________________________ By_________________________________ Stephen Gawron, Its Mayor ______________________________ and________________________________ Ann Marie Meisch, MMC, Its Clerk STATE OF MICHIGAN COUNTY OF MUSKEGON The foregoing instrument was acknowledged before me this 13th day of August 2019, by STEPHEN GAWRON and ANN MARIE MEISCH, MMC, the Mayor and Clerk, respectively, of the CITY OF MUSKEGON, a municipal corporation, on behalf of the City. ____________________________________ PREPARED BY: Hope Mitchell _______________________, Notary Public City of Muskegon Acting in the County of Muskegon, MI 933 Terrace St Room 202 Muskegon County, MI Muskegon, MI 49440 My Comm. Expires: ___________________ Telephone: (231) 724-6702 WHEN RECORDED RETURN TO: SEND SUBSEQUENT TAX BILLS TO: GRANTEE GRANTEE Date: August 13, 2019 To: Honorable Mayor and City Commissioners From: Ann Marie Meisch, City Clerk RE: Community Relations Committee Establishment of Farmers Market Advisory Board SUMMARY OF REQUEST: To establish the Farmers Market Advisory Board. FINANCIAL IMPACT: None. BUDGET ACTION REQUIRED: None. STAFF RECOMMENDATION: To concur with the recommendation of the Community Relations Committee and establish the Farmers Market Advisory Board. Date: August 13, 2019 To: Honorable Mayor and City Commissioners From: Ann Marie Meisch, City Clerk RE: Community Relations Committee Appointment Recommendations SUMMARY OF REQUEST: To accept appointments as follows: Accept the appointments of: Ron Hayward to the Neighborhood Association Representative position on the Citizen Police Review Board. Karen Evans to the Mayor/City Commission Appointment position on the District Library Board. Kimberly Williams to the Citizen Representative from Ward 4 position on the Equal Opportunity Committee. Larry Boersma, Dianne Snow, Jon Visser, and John Zandstra to the Seasonal Farmers positions on the Farmers Market Advisory Board. Kristin Johnson and Kathi Upman to the Seasonal Crafters/Artisans positions on the Farmers Market Advisory Board. Woody Van Blargan to the Seasonal Food Vendor position on the Farmers Market Advisory Board. Melanie Lyonnais and Cindy Larsen to the Citizens At Large positions on the Farmers Market Advisory Board. FINANCIAL IMPACT: None. BUDGET ACTION REQUIRED: None. STAFF RECOMMENDATION: To concur with the recommendations of the Community Relations Committee and approve the appointments. AGENDA ITEM NO. _______________ CITY COMMISSION MEETING __________________________ TO: Honorable Mayor and City Commissioners FROM: Frank Peterson, City Manager DATE: August 6, 2019 RE: Convention Center – Site and Utilities Bid Pack SUMMARY OF REQUEST: City staff is requesting acceptance of the letter of recommendation from Clark Construction awarding Concrete, Electrical Hotel Power, and Earthwork to Cascade Cement Contracting, Newkirk Electric, and Accurate Excavators, respectively at a total cost of $2,386,258. Approving these three bids will allow Clark to move toward the anticipated August 22 commencement of work, while finalizing the remaining bid packages in anticipation of awarding the remainder of the contract at the August 27 City Commission meeting. FINANCIAL IMPACT: $2,386,285 to be funded with bond proceeds BUDGET ACTION REQUIRED: None at this time. STAFF RECOMMENDATION: To authorize the City Manager to accept the recommendation and award the contracts as described. COMMITTEE RECOMMENDATION: None.