St. Joseph - Harbor Village - Appearance and Answer with Exhibit A 425 Agreement 8-26-25.pdf

Harbor Village At Harbor Shores LLC, Petitioner Vs. City Of Benton Harbor, Respondent · 25-001739-TT

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STATE OF MICHIGAN 

MICHIGAN OFFICE OF ADMINISTRATIVE HEARINGS AND RULES 

MICHIGAN TAX TRIBUNAL 

 

 

 

 

 

HARBOR VILLAGE AT HARBOR 

SHORES, LLC, 

 

Petitioner, 

v 

CITY OF BENTON HARBOR, 

Respondent. 

 

 

MTT Docket No. 25-001739-TT 

PPN: 11-54-9425-3415-00-0 (City of Benton 

Harbor for tax billing purposes) 

PPN: 11-76-3400-0015-00-0 (City of St. Joseph 

parcel number) 

 

 

 

 

 

 

 

/ 

 

 

Adam J. Brody (P62035) 

Deborah I. Ondersma (P55907) 

VARNUM, LLP 

Attorneys for Petitioner 

333 Bridge ST, NW 

P.O. Box 352 

Grand Rapids, MI 49501-0352 

ajbrody@varnumlaw.com 

diondersma@varnumlaw.com 

 

 

Toby Koenig (P72367) 

BLOOM SLUGGETT, PC 

Attorney for Respondent 

161 Ottawa Ave. NW, Suite 400 

Grand Rapids, MI 49503 

(616) 965-9343 

toby@bloomsluggett.com 

 

 

 

 

 

 

 

/ 

 

 

 

APPEARANCE 

NOW COMES attorney Toby Koenig, of the law firm of Bloom Sluggett, PC, and hereby 

enters his appearance on behalf of Respondent in this matter. 

 

 

 

 

Dated: August 26, 2025 

Respectfully submitted, 

 

BLOOM SLUGGETT, PC 

 

/s/ Toby Koenig 

 

 

 

Toby Koenig (P72367) 

Attorney for Respondent 

161 Ottawa Ave. NW, Suite 400 

Grand Rapids, MI 49503 

(616) 965-9340

2 

 

4903-3076-8481, v. 1 

STATE OF MICHIGAN 

MICHIGAN OFFICE OF ADMINISTRATIVE HEARINGS AND RULES 

MICHIGAN TAX TRIBUNAL 

 

 

 

 

 

HARBOR VILLAGE AT HARBOR 

SHORES, LLC, 

 

Petitioner, 

v 

CITY OF BENTON HARBOR, 

Respondent. 

 

 

MTT Docket No. 

PPN: 11-54-9425-3415-00-0 (City of Benton 

Harbor for tax billing purposes) 

PPN: 11-76-3400-0015-00-1 (City of St. Joseph 

parcel number) 

 

 

 

 

 

 

 

/ 

 

 

 

 

MTT Docket No. 

PPN: 11-54-9425-3415-00-0 (City of Benton 

Harbor for tax billing purposes) 

PPN: 11-76-3400-0015-00-0 (City of St. Joseph 

parcel number) 

 

Adam J. Brody (P62035) 

Deborah I. Ondersma (P55907) 

VARNUM, LLP 

Attorneys for Petitioner 

333 Bridge Street, NW 

P.O. Box 352 

Grand Rapids, MI 49501-0352 

ajbrody@varnumlaw.com 

diondersma@varnumlaw.com 

 

 

Toby Koenig (P72367) 

BLOOM SLUGGETT, PC 

Attorney for Respondent 

161 Ottawa Ave. NW, Suite 400 

Grand Rapids, MI 49503 

(616) 965-9343 

toby@bloomsluggett.com 

 

 

 

 

 

 

 

/ 

 

 

 

 

 

 

RESPONDENT’S ANSWER TO PETITION AND AFFIRMATIVE DEFENSES 

NOTE: The subject property is part of a 425 Agreement between the 

City of St. Joseph and the City of Benton Harbor. The City of St. 

Joseph is filing this Answer to Petitioner’s Petition as Respondent 

because the City of St. Joseph is the assessing unit. The City of 

Benton Harbor is responsible only to mail the tax bills. The 425 

Agreement is attached as “Exhibit A” to this Answer. 

 

Respondent through its attorneys hereby submits its Answer to Petition and Affirmative 

Defenses as follows: 

1. Admitted. 

 

2. Respondent admits the subject property’s parcel number and property address, and that 

the subject property is subject to a “425 Agreement” pursuant to PA 425 of 1984

3 

 

4903-3076-8481, v. 1 

between the City of St. Joseph and the City of Benton Harbor, Berrien County, 

Michigan. Petitioner’s allegation as to its party in interest status involves a legal 

conclusion to which no response is required. 

 

3. Denied that the City of Benton Harbor assesses the subject property; rather, pursuant 

to the 425 Agreement, the City of St. Joseph establishes the assessment. Admitted that 

the City of Benton Harbor levies and collects the property taxes on the subject property. 

 

4. Admitted. 

 

5. Admitted. 

 

6. Admitted. 

 

7. Admitted that Petitioner protested the 2025 assessment to the 2025 March Board of 

Review and that the Board of Review denied the requested relief. The remaining 

allegations contain a conclusion of law to which no response is required. 

 

8. Admitted. 

 

9. Denied that Respondent City of Benton Harbor established the values in Paragraph 9 

of the petition in that the City of St. Joseph established the values for the ad valorem 

roll. Admitted that the values alleged correctly reflect the subject property’s assessment 

on the ad valorem property tax roll for the tax year at issue. 

 

10. Denied as untrue. 

 

11. Respondent admits that Petitioner contends the values in dispute, but denies that the 

property is improperly assessed and further denies that Petitioner is entitled to any 

relief. 

 

12. Paragraph 12 contains a request for relief to which no response is required, to the extent 

a response is required, Respondent denies that Petitioner is entitled to any relief. 

 

13. Paragraph 13 contains a restatement of Petitioner’s claim to which no response is 

required; to the extent a response is required, Respondent denies as untrue in that the 

property was properly assessed and Petitioner is not entitled to any relief. 

 

14. Denied as untrue. 

 

 

AFFIRMATIVE DEFENSES 

1. Petitioner has failed to state a claim upon which relief can be granted. 

2. Petitioner’s claims against Respondent are barred because the valuation methods used 

comply with the Constitution, state law, and prevailing State Tax Commission procedures.

4 

 

4903-3076-8481, v. 1 

 

3. Respondent’s assessment reflects 50% of the subject property’s true cash value, and 

the values on the roll, including the taxable value, comply with the General Property Tax Act. 

 

4. Petitioner has failed to allege facts to support standing to bring this appeal or that it is 

a proper party-in-interest. 

 

5. Petitioner has failed to allege facts to support its allegation that the taxable value of the 

subject property is improper. 

 

6. Respondent reserves the right to identify further affirmative defenses as may become 

known through discovery. 

 

 

WHEREFORE, Respondent requests that the Tribunal dismiss Petitioner’s petition with 

prejudice and award Respondent its costs, attorney fees, and all such further and additional relief 

as this Tribunal may deem appropriate. 

 

 

 

 

 

 

 

Dated: August 26, 2025 

Respectfully submitted, 

 

BLOOM SLUGGETT, PC 

 

/s/ Toby Koenig 

 

 

 

Toby Koenig (P72367) 

Attorney for Respondent 

 

 

PROOF OF SERVICE 

Tonya Voakes, being duly sworn, deposes and says that she is employed by Bloom 

Sluggett, PC, and that on August 26, 2025, she served a copy of Respondent’s Appearance and 

Respondent’s Answer to Petition with Affirmative Defenses by First Class and electronic mail 

upon: 

 

Adam J. Brody (P62035) 

Deborah I. Ondersma (P55907) 

VARNUM, LLP 

Attorneys for Petitioner 

333 Bridge Street, NW 

P.O. Box 352 

Grand Rapids, MI 49501-0352 

ajbrody@varnumlaw.com 

diondersma@varnumlaw.com 

 

 

 

 

 

 

 

 

/s/ Tonya Voakes 

 

 

 

 

 

 

 

 

 Tonya Voakes

EXHIBIT A

EXHIBIT A

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FINAL 

DEVELOPMENT GOOPERATION AGREEMENT AMONG 

BENTON HARBOR, 87, JOSEPH AND HARBOR SHORES 

- 

OOMMUNITY REDEVELOPMENT, ING. 

This Davelopmant Soaperation Agreement Is made as of Novamtber 3, 2008, batwaan the City 

of Benton Harbor, a Michigan munielpal corporation, the principal businesa address of whieh ts 

200 E. Wail Straet, P.O, Box 648, Benton Harbor, Mi 49028-0848 Atin.: City Manager (“Benton 

Harbor”), 

tha City of St. Joseph, a Michigan munlolpal corporation, the principal business 

address of which Is 700 Broad Street, 8. Joseph, Ml 49085-1278, Attn: 

City Manager (St. 

Joseph"); 

and 

Harbor Shores 

Community 

Redevelopment, 

Ine, 

a 

Michigan 

nonprofit 

corporation, the principal business addrane of which is 900 Fifth Thitd Center, 114 Lyon Street, 

NW, 

Grand Rapids, Mi 49609-2487; attn: Mr. John G. Cameron, vr, (the ‘Davelaper’), 

RECITALS 

A. 

The parties desire, through cooperation, to foster quality economic development to 

benefit tha respactiva communities to bring about the enhancement of the tax bases of both 

communities, and to thereby create jobs and provide services and produits to the residents, 

property awhers, and visitors of hoth communities, 

. 

Bi 

The Developer has propasad an edenomia development projact, the construction coste 

of which are estimated to total between $400 and $300 million, #9 be tocated In Banton Harbar, 

In Benton Charter Township, and, after the termination of thia Agreement, in Bt, doseph, to 

Consist 

af: 

* 

Approximately 1,000 residential housing 

units Including units 

in multiple miderise 

buildings, residential town homes, single famiily residences, realdantla! above retail and a 

continuing care development faciity; 

+ 

Commertial development to include about 200,000 square feet of space, including retail, 

; 

aris and antertalnment space; 

. 

Marines will be included with access Via the St. Jageph and Faw Paw Rivers ta Lake 

ehigen: 

+ 

A prarnier hotel containing approximately 480 hatal rooms with a 20,000 équare foot 

ballroom/eonferanca center, an Indoar water park and a spaditnass center: 

+ 

Asmaller boutlque hotel with approximately 120 rooms! 

+ 

Upgrades to the existing Jean Kiock Park: and 

¢ 

Apremlar, Jack Nicklaus Signature 18-hole golf course: 

(the “Project) which will require the conditional transfer of cartain Properly depicted on the 

attached Exhibii A and described on tha attached Exhibit B (the “Conditionally Transferred 

Property”) from &t, Joseph to Benton Harber , 

AGREEMENT 

NOW, THEREFORE, In exchange for the consideration in and refarrad to by this Agreement, 

the parties agras a6 follows: 

 

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a 

ARTICLE| 

Purpose, Authority, Representations and Findings 

1.1 

Purpose, 

This Agreement is intended to fully effect and fully addrasé all matters 

conceming the conditional transfer of the Conditionally Transferred Property from the jurisdiction 

of St. Joseph to the jurisdiction of Benton Marhor. 

. 

1.2 

Authority, 

This Agreement is made pursuant to 1984 PA, 425, as amended, MCL 

124.21 ef seg, (“Act 426"), as well as the general authority of 1909 P.A, 279, MCL 117.4 ef seq. 

(‘Act 279"), as amended, and the city charters of each of the cities. 

1.3 

 Eindings 

and Representations. Benton Harbor and St. Jozeph, by action of each of their 

respective city commissions in approving 

this Agreement, have each made the following 

findings and representations. 

(a) 

Laoal Unite, 

Each party, as a home rule city organized and existing under Act 

279, Is 4 “local unit” as defined by Act 425, 

(6) 

Prolect. The Project is an “economic development project" as defined In Act 425, 

(c) 

Service Oasirad. Because Benton Harbor ls “qualified local governmental unit" 

as defined in 1996 PA. 381, as amended, MCL 125.2651 

@f seq. (“Act 381"), the 

Developer may and wishes to take advantage of certaln opportunities for funding 

aspects of the Project on the Conditionally Transferred Property that are only avaliable 

under applicable if the Conditionally Transferred Property is located In Benton Harbor, 

(4) 

Considered Factors. 

Benton Harbor and St. Joseph have, as required by. Act 

bt considered certain factors prior to entering into this written contract, including the 

allowing. 

(1) 

| Gomposition of the population; population density; land area and land 

uses; assessed valuation; topography, natural boundaries and drainage basing; 

* past and probable future growth, including population increase and business, 

commercial, 

and 

industrial 

development 

in 

the 

Conditionally 

Transferred 

Properly; and the comparative data for St, Joseph and the portion of St. Jasaph 

ramalning after the transfer of the Conditionally Transferred Property. 

(2) 

Need for organizad ‘community servicea; tha present costs and adequacy 

of governmental services In the Conditionally Transferred Praperty; the probable 

future 

need 

for 

services 

In 

the 

Conditionally 

Transferred 

Property; 

the 

practicabllity 

of supplying 

such 

services 

to 

the 

Conditionally Transferred 

- 

Praperty; the probabie effect of the transfer and of altamnative courses of action 

on the cost and adequacy of services in the Conditionally Transferred Property 

and on the remaining partion of St. Joseph the probable changa In taxes and tax 

rates in the Conditionally Transferred Property 

in relation to the benefits expected 

to acerue from the transfer; and the financial ability of Benton Harbor to provide 

and maintain services in the Conditionally Transfarred Property. 

(3) 

The general effect of the conditional transfer upon Benton Harbor and St, 

Joseph and the relationship of the conditional transfer to any established land 

ise plans. 

(e) 

 Bublie-Hearing, Pursuant to Act 425, the Benton Harbor City Commission held 

public hearings on Septamber 26, 2008 and October 3, 2008, and the St. Josaph City 

Commission held a public hearing on September 26, 2005, regarding the conditional 

a Da 

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transfer of the Conditionally Transferred Property and the other provisions of this 

Agreement, notices of which public hearnga were given in the manner provided by the 

Open Meatings Act, Act 287 of the Public Acts of Michigan of 1976, a amended, 

() 

- 

Malority Vote, 

The Benton Harbor City Commission and the St, Joseph City 

Commission each decided, by majority vote of the members elected and serving on 

eaoh body, to enter into thls Agreement, 

. 

(9) 

 Hearlngs, 

Notice 

and 

No Referendum. 

Neither the Benton Harbor 

City 

Gommiséion nor the St. Joseph City Commission adopted a resolution ealling for a 

referendum ori the conditional transfer 

to be made pursuant to thla Agraemant, and more 

than 30 days have elapsed since the latter of the public hearings was held ragarding this 

Agreement and since the respective sity commissions adopted resolutions Indleating 

thelr intention to enter into this Agreement and neither the Benton Harber City Clerk nor 

the St. Joseph City Clerk has received a petition calling for a referendum on this 

Agreement or tha conditional tranafer of property pursuant to this Agreement. 

14 

St. Joseph Representation Conceming Property for Transfer, 

St. Joseph represents and 

covenants that it has not rapresented to any obliges, lenders, bond holders or creditors that it 

ls dependent upon any revenue from the Conditionally Transferred Property to ‘meet any 

obligations of St. Joseph or any entity created or controlled by St. Joseph. 

St, Joseph further 

represents and covenants that It knows of no special assessments which have been levied 

against the Conditionally Transfarred Property, 

However, St. Jopaph has two voted debt 

miliage levies pursuant to which it has issued bonds and pledged its full falth and cradit for their 

repayment. 

ARTICLE fl 

Transfer 

and Effects 

2.1 

Transfer of Property. 

The Conditionally Transferred Property is hereby conditionally. 

transferred from the jurisdiction of St. Josaph to the jurisdiction of Benton Harbar. 

; 

2.2 

Effect of Transfer. 

Exeept as otherwise specifically provided in this. Agreement, tha 

Conditionally Transferred Property shall, for all purposes, ba within the jurisdictian of Benton 

Harbor and St. Joseph shall have no further jurisdiction over that property. 

(a) 

Zoning 

of Transferred Ares. 

Unless and 

until rezoned, 

the Conditionally 

Transferred Property will retali 

its existing zoning under the 

St. Joseph's Zoning 

Ordinance, 

St Joseph shall continue to have jurisdiction over zoning of and 8t, 

Josaph’s zoning ordinance shall apply to the zoning of the Conditlonally Transferred 

Property. 

To the extent St. Joseph's zoning ordinance requires notloa of any proposed 

action affecting the Conditionally Traneferred Property to be given to any persons, St. 

Joseph shall also provide Benton Harbors City Manager with that notices, 

(b) 

Governmental Servicas, 

In order to assure continulty after the expiration of the 

term of this Agreement and due to the proximity of municipal services and consequent 

éfficiency In previding such services, governmental services shall be provided to the 

Conditionally Transferred Property as follows: 

{1} 

The Daveloper shall construct and ingtall the public water distribution and 

sanitary sewer collection and disposal lines, valves, pumps and othar facilities. 

Once constructed, they shall be connected to the St. Joseph water and sanitary 

sewer sysiems 

and 

St. 

Joseph 

shalt 

be 

responsible 

for 

their 

operation, 

maintenance, repair and replacement, 

The Developer (Including any successor 

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developers, property owners, or occupants, as provided under the applicable St, 

Joseph ordinanda afd regulations) shall pay any applicable connection fees, 

rates and chargea 

for connecting 

to the 

St. Josaph systems. 

The water 

distribution and sanitary sewer collection and disposal lines, valves, pumps and 

other facilities to ba constructed pursuant ta this provision shall ba canstructed in 

accordance with St. Joseph's standards and all plans and specifications shall be 

submitted to, raviawed and approved by St. Joseph's engineers prior to stating. 

any construction. 

St. Joseph shail have a right (but not any obligation) to Inspect 

all such water distribution and sanitary sewer collection and disposal lines, 

valves, pumps and other facilities as they are being constructed and, prior to 

connection to the St, Joseph system, St. Joseph shall be provided “as built" 

drawings depicting such water distribution and sanitary sewer collection and 

disposal lines, valves, pumps and other facilities as actually constructed. 

(2) 

St Joseph 

shall provide law enforcamant, 

fire protection, 

fire code 

administration 

and 

enforcamant, 

and 

construction 

cede 

(and 

property 

maintenance code) administration and enforcement. 

This Agreement shall not 

affect any existing mutual aid agreements Ifvolving the parties. 

(8) 

Recognizing that the Conditionally Transferred Property lias In Benton 

Hatbor's jurisdiction and go there may be actions that can only be taken by 

Benton Harbor, the parties shall, to the extent feasible, jointly and cooperatively 

provida aconomic development servicas, 

(4) 

The party responsible under this agreement to provida any governmental 

services to the Conditionally Transferred Property area and Its ocaupants shall 

provide such services on the same basis and to the sarne extent as that party 

provides such governmental services to other property within its jurisdictional 

limits. 

The assessments, rates, fees and charges, if any, for al) such services 

shall be as established by the responsible party as otherwise applicable within 

the legal limits of that party, 

(a) 

bility 

and Enforcement 

of 

Ordinances. The Condltlonatly Transferred 

Property will be treated as If t were within the jurisdictional limits of St. Joseph for the 

purpose of applying and enforcing all ordinances, rules, and regulations, 

St. Joseph 

shall be responsible for enforcing all such ordinancas, rules and regulations. 

(d) 

Taxes. 

For the purposes of all taxation, including, without limitation, ad valorem 

real and personal property taxes, income taxes, hotel/motel tax, ete., the Conditionally 

Transferred Property shall be considered as being within the Jurisdictional limite of 

Benton 

Harbor. 

However, 

any property taxes levied against 

the 

Conditionally 

Transferred Property of St. Joseph's tax roll for 2005 and prior years shail remain a ilen 

on the affected parcel(s) in the Conditionally Transferred Property and, when collected, 

such taxes, including any applicable penatties, Interest and administration fees shail ba 

remitied to St. Joseph. 

Moreover, St. Josaph shall provide-asseseing services for the 

Conditionally Transferred Property and prepare that portion of Benton Harbor's real and 

personal (including any industrial facilities, lessee-yser, or similar) property tax rolls. 

(8) 

Special Agsezaments. The Conditionally Transferred Property shail be within the 

legal limits and jurisdiction of Benton Harbor for purposes of spacial assessments, 

However, because the Conditionally Transferred Property will return 16 the jurisdiction of 

St, Joseph at the termination of this Agreement, Benton Harbor shall not levy any special 

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FINAL 

assessments againet the Conditionally Transferred Property without St. Joseph's prior 

approval by a resolution of the St. Jesaph City Cornmisaian, 

Vating. Any parsens residing on the Conditionally Transferred Property shall be 

entitlad to vote on the same basis ag al! other persons residing within the lagal limits of 

St Joseph, The partias recognize that because at the termination of this Agreement, the 

Conditionally Transferred Property will once again lie within St. Joseph's jursdictional. 

limits, the long-term interests of those registered electors who may reside on the 

Conditionally Tranaferred Property will likely be to have Input into St. Josaph electoral 

matters. 

In addition, St. Joseph will be adopting, implementing and enforcing the 

ordinancas and policias, Including utility policias, affecting tha Gonditlonally Transfarred 

Property during the term of this Agreement, 

The parties therefore determined that, on 

balance, the intereate of those registered electors who may reside on the Conditionally 

Transferred Property are more likely advanced by providing they are electors in St. 

Jogeph during 

the term 

of this Agreament, 

if 

= court 

of competent jurisdiction 

determines that the voting rights of the registared electors rasiding on the Conditionally 

Transferred Property should be different than as provided in this provision, this provision 

shall be revised in accordance with such court’s opinion and ordér and tha remainder of 

this Agreement shall be unaffected by such court's determination. 

(9) 

Park Admissions, 

Residents of the Conditionally Transferred Property shall be 

considered residents of both Benton Harbor and St, Joseph for purposes of library and 

park privileges in either community. 

(h) 

Gurrent Grants, 

St, Joseph shall continue to administer and implement twa 

Michigan Department of Environmental Quality grants wholly or partlally granted to 

benefit the Conditionally Transferrad Property. 

Sharing of Revenues, 

Revenues from the Conditionally Transferred Property shail be 

shared by the City and the Township during the term of this Agreement and any ranewals as 

‘ollowa: 

G0°d 

(a) 

 Fermuta for Sharing Ad Valoram Property Taxes, 

(1) 

Ad valorem real and personal property taxes (including, without limitation, 

any industrial factities taxes or other property taxes in lieu of abated ad valorem 

real and personal property taxes) levied against property within Benton Harbor 

shall apply in tha Conditlonally Transferred Property. 

Benton Harbor will be 

responsible for collecting 

all ad valorem real and personal property taxes 

(Including all industrial facilities and similar raplacement property taxes) levied 

against the Conditionally Transferred Property and may retaln ali such taxes 

which ara collected in excess of the amounts to be remitted to St. Joseph under 

this Agreement. Benton Harbor shall pay to the St. Joseph from the ad valorem 

real and personal property taxes (indluding 

all Industrial facilities and similar 

replacement property taxes) Benton Harbor collects from the Conditionally 

Transferred Property an amount equivalent to whatever tillage rate fa levied in 

St. Jaseph during that tax year for operating purposes (currently 15.86 mills) 

levied against the taxable value of the Conditionally Transferred Property or any 

portion of the Conditionally Transferred Property to the extent that taxable value 

Ig not Included in the "captured taxable value" as defined In Act 361, 

St. Joseph 

shail notify Benton Harbor of St. Joseph's general operating millage rate not later 

than June 

1 

of each year. 

The 2008 taxable value 

of tha Conditionally 

Transferred Property is $565,019. 

Excapt as provided in subsection 2.3(d), 

If 

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Benton Harbor’s millaga rate is lees than the total millage rate levied by St. 

° 

Joseph ag described In this éubsection and the following subsection 2,3(a)(2) of 

this Agreament, the amount Benton Harbor remits to St. Joseph pursuant to this 

subsection and subsection 2.3(a)(2) of this Agreement shail ba limited to the total 

amount 

of the 

taxes 

collected 

by Benton 

Harbor from 

the 

Conditionally 

Transferred Property, 

(2) 

Banton Harbor shall also remit to St. Joseph from the ad valorem real and 

personal property taxes (including all industrial facilities and similar replacement 

roperty taxes) Benton Harbor collects from the 

Conditionally Transferred 

roperty an amount equivalent to whatever voted debt millaga rate (currently 

1.98 mills) is levied in St, Joseph during that tax year Javied against the taxable 

value of the Conditionally Transferred: Property or any portlon of the Conditionally 

Transferred Property to the extent that taxable value 

in not Included 

in the 

“captured taxable value” as defined in Act 381. Except ag provided In subsection 

 2.3(d), if Benton Harbor's millage rate is less than the totai millage rate levied by 

St, Joseph as described 

In 

this subsection and 

the preceding subsection 

2.3(a)(1) of this Agreement, the amount Benton Harbor remits to St. Joseph 

pursuant to this subsection and subsection 2.3(a)(1) of this Agreement shail. 

ba 

limited to the total amount of the taxes collected by Benton Harbor from the 

Conditionally Transferred Praperty. 

(8) 

The amounts to be remitted to St. Joseph shalt be pald within 30 days of 

the data upon which they are collected from the taxpayer or, upon settlement 

with the Berrien County Treasurer and payment from the delinquent tax revolving 

fund, Any amount not paid to St. Joseph within that 30-day period shall bear 

interest at a rate of 1.0% per month until paid, 

(4) 

If, subsequent to the remittance of such taxes to St. Joseph, a challenge 

by an owner of property within the Conditionally Transferred Property results In a 

determination that taxes are to be refunded, and Banton Harbor, for that or 

another reason, such as the return of the property for delinquent taxes, 

Is 

required to refund all or 8 portion of those taxes to the property owner, then upen 

hotice from Benton Harbor, St. Joseph shail promptly repay to Benton Harbor St, 

Joseph's pro rata share of any such tax refund together with St. Joseph’s share 

of any Interest due on the tax refund, 

{5) 

Benton Harbor shall annually provide to St. Joseph a parcel-by-parcel 

accounting of the state equalized value, taxable value, taxes Jeviad and taxes 

and other amount collected, including the collection date for each tax numbered 

parcel of property within the Conditionally Transferred Property. 

(8) 

Benton Harbor shall also, within 5 business days of Benton Harbors 

receipt of tham, provide the St. Joseph Clty Manager with a copy of all property 

tax 

Valuation 

appeals, 

all 

claims 

for 

tax 

exemptions, 

all 

notices 

from 

governmental agencies 

or offidals, 

and 

any 

other written communication 

ragarding or affecting the taxation of the Conditionally Transfarred Property. 

If 

Benton Harbor chooses not to contest any action by or on behalf of a taxpayer or 

property owner with respect to the taxation of any part of tha Conditionally 

Traneferred Property, St. Joseph shall be given the opportunity to do so for 

Benton Harbor and may direct any such action on Benton Harbors behalf, 

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Benton Harbor shall, to the extent possibie, preserve for St. Jaseph at least 10 

busines days in which to make a timely response to any such action. 

(7) 

Upon the filing 

of any application 

or request for 

a discretionary tax 

abatement or tax exemption (under 1974 P.A. 

198, as amended, 

or other 

applicable statute) for any parcel within the Conditionally Transferred Property, 

Benton Harbor shall give to St. Joseph written notice of that request and of the. 

date and time of the hearing on that request, 

If St. Joseph oblects in writing to 

the granting of the proposed tax abatement, Benton Harbor shall not grant the 

proposed tax abatement. 

(8), 

Because 

St, Joseph 

will be providing 

tax assessing and 

tax 

roll 

preparation services while Benton Harbor will be collecting the taxes, the parties 

shall equaily share any property tax administration fees which Benton Harbor 

collects as It collects the ad valorem real and personal property taxea (including 

all industrial facllitlas and similar replacement property taxes) levied against the 

Conditionally Transferred Property. 

(b) 

Stata and Federal Revenue Sharing, 

Because St. Joseph will be providing 

police, fire, and other municipal services to the Conditionally Transferred Property under 

the terms of this Agreement, Benton Harbor shall, within 30 days of Benton Harbors 

recalpt of such funds, rémit to St. Joseph state revenue sharing funds generated as a 

result of the conditional trangfer of the Conditionally Transferred Property to Benton 

Harbor. 

The amount of revenue sharing funds to be remitted to St. Joseph shall he 

calculated based on lower of the revenue sharing amounts computed using the formula 

appileable to Banton Harbor and the formula applicable to St. Joseph. For purposes of 

such galculations it shall be assumed that any Increases in valuation, any Increases in 

population, any increases in street mileage, and any other aspect of the Project would 

have ocourred on the Conditionally Transferred Property 

If 

It remained within St. 

Joseph's jurisdiction, 

Thus, St. Joseph shall receive such funds as if the Project had 

been developed and occupied on the Conditionally Transferred Property while 

it was 

within St. Joseph's jurisdiction, 

, 

(c) 

 Act54 Funds, Because St. Jogeph will be plowing and maintaining the local and 

major streets within the Conditionally Transferred Property, Benton Harbor shall, within 

80 days of Its receipt of such funds, remit to St. Joseph all major and local street funds 

Benton Harbor receives under 1951 F.A. 51, a3 amandead, MCL 247.651 ef seq. (“Act 

51") due to the conditional transfer of the Conditionally Transferred Property to the 

juriediction of Benton Harbor, The amount of Act 51 funds to be remitted to St. Joseph 

shall 6@ calculatad based on lower of the amounts computed using the formuta 

applicable to Banton Harbor and the formula applicable to St Joseph. 

For purposes of 

such calculations it shall he assumed that any Increases in valuation, any increases in 

population, any Increases in straet mileage, and any other aspect of the Project would 

have accurred on 

the Conditionally Transferred Property 

If 

it remained within 

St. 

Jogeph’s jurisdiction, 

Thus, &t. Joseph shall receive such funda as if the Project had 

been developed and occupied on the Conditionally Transferred Property while it was 

within St Joseph's jurisdiction. 

; 

{¢) 

Replacement 

of Property Taxas, 

If Benton Harbor, because of changes In law, 

no longer levies property taxes or levies a decraased level of property taxes ad Benton 

Harbor receives revenues It lg not currently receiving (i@,, It le not currently receiving 

such revenues at all ar is curranily recelving them at a lower level) from other sourees, 

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auch as Income taxes, sales taxes, value added taxes, revenue sharing, or other 

sources of municipal revenues that in whole or in part have the effect of replacing the 

property tax ravanues, Benton Harbor shall annually or more frequently pay to St. 

Joseph, within 80 days of the recelpt of those other revenues, & portion of those new 

revenues equal in proportion that St. Joseph's property tax revenues has to the other 

property 

tax 

revenues 

generated 

from 

the 

Conditionally 

Transferrad 

Property 

irnmadiately before the reduction in ad valorem property tax receipts from the property in 

the Conditionally Transferred Property that results from the change in law. 

(0) 

Gifts, Grants, Ete.. 

Unless specifically made fo St. Joseph, all gifts, granta, 

assistance funds, bequests, or other funds from any private or public source given as a 

result of the Conditionally Transferred Property and any activity performed upen or within 

the Conditionally Transferred Property, the ocoupancy of the Conditionally Transfarred 

Property, 

or for any other reason arising from the exletence or juriediction of the 

Conditionally Transferred Property shall belong to Benton Harbor. 

Unless otherwise : 

agreed by the parties, the party that is tha recipient of the gift, grant or assistance funds 

shall have tha obligation to comply with the terme of any such grant, gift or assistance 

and the other parties to this Agreement shail hava no such obligation. 

ARTICLE II! 

Brownfield Funding 

3.1 

Acknowledgement. 

The parties understand that, pursuant fo tha Act 384, certain 

portions 

of the Conditionally Transferred Property are considered contaminated and are 

therefore “facilities,” are “adjacent or contiguous’ to such contaminated property (facilities), or 

are “functionally obsolete" or “blighted” all as defined under Act 381. Therefore, pursuant to Act 

381, the Berrien County Brownfield Redevelopment Authority (the “BCBRA”) is authorized to 

and will be Implementing a brownfield plan covering the Conditionally Transferred Property 

pursuant to which it will capture tax increment revenues resulting from the Increased value of 

the real and personal property In the Conditionally Transferred Property ocdurring after 2005, 

Thoae captured tax revenues, Initially collected by Benton Harbor and remitted to the BCBRA, 

will be used by the BCBRA fo relmburse the Developer for the costs incurred by the Develaper 

for “eligible activities,” as “ellgibla activities" are defined In Act 381 as of the date of this 

Agreement, on of related to the Conditionally Transferred Property. 

; 

3.2 

Limitations. 

Tha Developer agrees for itself and any its successors in interest to the 

Project that: 

(a) 

Reimbursement Limitation, 

Unlees the St. Joseph City Commission and the 

Benton Harbor City Commission otherwise consent by duly adopted resolutions, neither 

tha Developer nor any of its successors in interest to any portion of the Project will seek 

to be relmbursed from brownfiald tax Increment revenues tore than a total of $70 million 

for 

all “eligible activities” as “eligible activities’ are defined in Act 381 as of the date of 

this Agreement, plus interast at a rate not to exceed 4.5% per annum If it is not subject 

to federal income taxation under tha United Statas Internal Revenue Code or at a rate 

not to exceed 6.0% per annum if it is subject to federal income taxation under the United 

States Intemal Revenue Code. 

Interest shall not begin to accrue until 30 days after the 

properly completed request for reimbursement ia filed with the BCBRA, 

(>) 

Timetimitation, Uniess the St, Joseph City Commission and the Benton Harbor 

City Commission otherwise consent by duly adopted resolutions, neither the Developer 

hor any of its successors 

In interest to any portion of the Project will seek any 

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reimbursement from brownfield tax Increment ravenuee to ba made from any taxes 

ievied after Dacembear 30, 2025, 

; 

(c) 

— 

Limitations on Types af Goats, 

(1) 

Unless the St. Joseph City Commission and the Benton Harber City 

Commigsion 

otherwise 

consent 

by 

duly adopted 

resofutiong, 

neither tha 

Developer nor any of Its successors in interest to any portion of the Project will 

- 

seek any reimbursement from brownfield tax increment revenues to be made for 

any Project costs (including Interest) except those costs (including Interest) which 

state agencles of competent jurisdiction have approved the capture of school 

operating taxes and use of those captured school operating taxes together with 

othér captured tax Increment revenues to pay. 

(2) 

Unless the St. Joseph City Commission and the Benton Harbor City 

Commission 

otherwise 

consent 

by 

duly 

adopted 

resolutions, 

neither 

the 

Developer hor any of Its suiccesgors in interest to any portion of the Project will 

geek any reimbursement fram brownfield tax increment revenues to be made for 

any 

Project costs except costs incurred for “eligible activities” 

as “eligible 

activities” are defined in Act 381 as of the date of this Agreament, together with 

Interast at a rate not to exceed 4.5% per annum 

if it is not subject to federal 

Income taxation under tha United States Internal Revenue Gode or at a rate not 

to excaed 6.0% par annum if It is subject te federal income taxation under the 

_ 

United States Internal Revenue Code. Interest shail not begin to accrue until 30 

days after the properly completed raquest for relmbursement Is filed with the 

BCBRA. 

. 

. 

(3) 

The Developer shall assure the St. Joseph Clty Manager is notified in 

writing 

of any proposed amendments 

to any BCBRA 

plan 

related to the 

Conditionally Transferred Property or the Project in the sare. manner and at the 

game time as any owner of the affected property would be fotifled of any such 

proposed amendments, The Developer may fulfill this requirement by delivering 

ta the City Manager any notices the Developer receives (officially or non- 

officially) In connection with any such proposed brownfield plan amendment. 

In 

addition, the Developer shall assure the City receives a copy of and haa an 

opportunity ta cammant on any proposed brownfield work plan related to the 

Conditionally Transferred Property or the Project at least 7 days before that plan 

ie submitted to any state agency for review and/or approval. 

(4) 

‘Ifa state agency of competent jurisdiction conducts a review or audit of 

payments for reimbursement mada 

to the Develgper (or its suceassor or 

assigns) pursuant to this Agreement and determines payments were improperly 

made 

or 

if a court of competent jurisdiction renders such an opinion that 

payments for reimbursement were Improper under applicable law, the Developer 

shall within 30 days after any such determination is made ramit to the BCBRA 

any such amounts improperly paid together with any required Interest, costs or 

penalties imposed on the BCBRA. However, the Developer shall have the right, 

at the Developer's expense and, unloss repayment is required by 

an order from 

an agency of court of competent juradiction, before any such 

repayment 

is 

made, to appeal on behalf of the BCBRA or either of the other parties to this 

Agreement, any such determination made by that state agency of court. 

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3.3 

Administrative Expenses. 

The parties shall use their reasonable best efforts to aseura 

that any Brownfield Authority administrative or operating expenses paid from tax Increment 

revenues generated by the Projact are used only for those Incremental administrative and 

operating axpensas directly related to the Project. 

3.4 

Accounting, The partlos shall use their reasonable best efforts to aasure there is a full 

and complete annual accounting, prepared by the BCBRA with the assistance of the parties, 

. 

provided to all the parties, which is complated, on a parcel-by-parcel basis where applicable, for 

all 

property 

valuations, 

tax 

assasamants, 

tax 

levies, 

tax 

collections, 

tax 

increment 

disbursements, reimbursements 

to the Developer 

or others, BCBRA administrative and 

operating expenses, tax increment revenues retained by the BCBRA, 

. 

ARTICLE iv 

Tamm and Termination 

4.1 

Term. Unless the St. Joseph City Commission and the Benton Harbor City Commission 

otherwise consent by duly adopted rasotutions to extend 

ite term 

or unless 

tt 

[3 eariier 

terminated as provided 

in this article V, this Agreement shail terminate at 14:59 p.m. on 

Dacamber 30, 2025. 

4.2 

Early Termination, 

This Agreement shall terminate earlier under any of the following 

circumstancas, 

(a) 

This Agreement shall terminate when reimbursements total the amount of the: 

reimbursement limitation provided in subsection: 3,2(a) of this Agraement, 

(b) 

Regardless 

of whether or not they total the amount of the reimbursement 

lirnitation provided in subsection 3.2(a) of this Agreement, this Agreement shall terminate 

at such time a¢ the Developer has been relmbursed 

all 

of the costs for which 

ralmbursement Is permitted under subsection 3,2(¢) of this Agreement. 

(c) 

This Agreement shall terminate with respect to any portion of the Conditionally 

Transferred Property which 

is not Included In an approved BCBRA brownfield plan, 

which includes aid is intended to benafit the Project, by December 30, 2007, 

4.3 

Jurigdiction of Property at Termination, Upon the termination of this Agraement or upon 

ite 

termination 

with 

respect 

to 

any 

portion 

of 

the 

Conditionally 

Transferred pment 

Conditionally Transferred Property or the affected portion thereof shall for all purposes be within 

the lagal Iimits and Jurisdiction af St. Joseph. 

ARTICLE V 

Miscallaneous 

5.1 

Notlees. Any notice, demand, or communication required, permittad, or desired to ba 

given under this Agreement shall be deemed effectively givan when personally delivered or 

mailed by first-class malt addressed to those addresses first provided above. The parties may, 

by written notice, designate any further or different address to which subsequent notices, 

demands, or communications may be given. 

6.2 

Interpretation. 

The article and other headings in thls Agreement are for reference 

purposes only and shall not in any way affect the meaning or interpretation of this Agreement, 

This Agreament is the ontire agreement betwean the parties with respect to ite sublect matter. 

it 

supersedes and replaces all previous or contemporaneous, express or implied, written or oral 

statements, covenants, representations or agreements. 

Se, no aral statements or prior or 

contemporaneaus written material not specifically incorporated in this Agreement shall be of any 

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forea and effect, and both parties anecifically ackriowledge, in antering into and executing this 

Agreement, they are relying selely upon the representations and agreements contained in thie 

Agreement and no others, This Agreement may not be amended except in writing signed by tha 

partias following public hearings before and resolutions adopted by the Benton Harbor City 

Commission and the St. Joseph City Commission. 

This Agreement may be exeauitad in any 

number of counterparts aad each such counterpart shall be considered & valid original. 

All the 

parties consultad fegal counsel and had input inte the drafting of this Agraemant, 

{It should 

therefore be construed as if it ware mutually drafted, 

§.3 

5.4 

Remedias, 

(a) 

Notification and Meeting. 

Before a party may undertake any lagal or equitable 

action purguant te or to enforce any provision of this Agreement, thet party shall first 

notify in writing the other partles of the basis for the claim, Including detalled recitations 

of the facts and the law upon which the elaiming party Is relying. The party(ias) receiving 

guch claim letter shall, within 21 days of recalving the claim, respond 

in writing 

identifying those issues on which there is agreement and stating in detail the facts and 

law upon which the responding party({les) is(are) relying. 

The parties shall echedule a 

meeting to ogcur within 14 days after the date the response is due to discuss and seek 

to resolve the dispute. These time frames may be adjusted by the written consent of the 

parties. 

(o) 

 Equilable Remedies Appropriata, 

The parties agree that ramedies at law are 

Inadequate and tha parties shall hava the right to all equitable remedies including, 

without limitation, mandamus, specific performances and injunctive relief. 

(c) 

Gost Resavery, 

To the extent ret prohibited by law, Benton Harbor and St, 

Joseph agree that the prevailing party in any actlon brought by either of tham against the 

other pursuant to or to anforca any provision of thia Agreement may, in addition to any 

other remedy to which it may be entitled, recover Its actual reasonable costs, Including, 

without iimitation, actual. reasonable filing fees, attorney fees, expert consulting and 

witness costs, discovery coats, Investigative costs,. professional fees and any other 

expanses Incurred to investigate, bring, maintain or defend any such action from ita firt 

acorual or first notice thereof through all appellate and any collection proceedings, 

Filing and 

Effective 

Data, 

(a) 

_Initie| Filing and Effective Date, 

In accordance with Act 425, following the parties 

execution of this Agreement, a duplicate original of the Agreement shalt be filed with the 

Berrien County Clerk, with the Michigan Searetary of State, with the State Boundary 

Commission, and with the Michigan Department of Treasury. This Agreement, certified 

by such County Clerk or Secretary of State, shall be prima facie evidence of the 

conditional transfer of the areas pursuant to this Agreement. 

This Agreement shall ba 

éffactive at 12:01 a.m. on November 3, 2005, provided it has bean filed with the County 

Clerk and Secretary of State. 

(6) 

Additlonal Filing. The partles agree to the filing of additional documents, such as 

notices, forrns and reports that may be required or requested by county, state or other 

agencies to giva full effect and to fully implement this Agreement, 

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The parties have executed this Agreement as of the date first written above by authority of the 

respective city commissions of each party. 

GITY OF BENTON HARBOR 

CITY OF ST, JOSEPH 

ae liye — 

& 

J. Goff, 

“o Oh, Hetircte. 

Pegoy A. Block, Clerk 

 

 

 

HARBOR SHORES COMMUNITY 

REDEVELOPMENT, INC. 

LA 

 

D, pie fel President 

By: 

Rober 

LaForest, Secretary 

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Acknowledged before me in Bereta 

_ County, Michigan on April 

, 2008, by Wilse Canke, not individually, but as Mayor of the City of Benton 

 

 

 

 

 

Harbor, 

Notary publi, State of Michigan, County of Heat 

My commission expires ieee 

Acting in the County of _ 

Reser 

pein 

Acknowledged before me in Batten, county, Michigan on April 

ao 

, 2008, by Joyce Taylor, not individually, out as Clerk of the City of Benton 

arbor. 

. 

 

 

Notary public, 

My commissien expires 

Acting in the County of 

2-47 “nee 

a 

7, bs 

f 

A, 

iF 

F 

; 

a 

State of Michi an Founty of Heute 

 

 

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Acknowledged before me in Sere er, County, Michigan on Anti 

22, 

2008, by Mary J. Goff, not individually, ‘but as Mayor of the City of St. Joseph. 

 

 

 

% 

4 

Be 

7 

Notary public, State of Michi an, 

7H pile 

of fond” 

My commisgion expires 

Acting in the County of 

 

Acknowledged befora me indereten 

, County, Michigan on April 

70 

, 2008, by Peggy A. Block, not individually, but as Clerk of the City of St. 

Joseph. 

 

 

 

Notary public, Slate of Michi an, County of ten 

My commission expires 

ener 

Acting in the County of 

 

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Adknowladged before me in Ser VP) 

County, Michigan on April 

> 

_, 2008, by D. Jeffrey Noel, not Individually, but as President of Harbor Shores 

Community Redevelopment, Inc. 

 

 

 

Notary public, State of Michigan, County of tied 

My commission expires 

2 

/:]1 ae 

Acting in the County of 

fy é¢7"e%, 

 

Acknowledged before me in Berton County, Michigan on April 

, 2006, by Robert LaForest, not individually, but as Secretary of the Harbor 

Shores Community Redevelopment, Inc. 

 

 

 

 

fay red 

on 

ts hc) 

Notary public, State of Michigan, County of tient 

My commission expires lables i 

erty 

Acting in the County of 

Gh 

 

Drafted By and Retum To: 

Alligon J, Mulder 

Warner Norcross & Judd LLP 

900 Fifth Third Genter 

411 Lyon Street NW 

Grand Rapide, Michigan 49503 

Telephone (816) 752-2000 

1260338 

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EXHIBIT A 

MAP OF CONDITIONALLY TRANSFERRED PROPERTY 

Sea following page. 

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SKETCH OF EXHIBIT A 

WHiTwAR DRSVE 

IT NoLan 

ST. JOSEPH RIvER 

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EXHIBIT B 

DESCRIPTION OF CONDITIONALLY TRANSFERRED PROPERTY 

All of that property withln the City of St. Joseph in Township 4 South, Range 19 Wast, Section 

13 lying easterly of the Paw Paw River; and all of that property within the City of St. Joseph in 

Township 4 South, Range 19 West, Sections 13, 23 and 24 lying northerly and westerly of the 

St. Joseph River and tha center line of the Old Paw Paw River and southerly and easterly of the 

following meander line: commencing at the intersection of the easterly Right-of-Way line of 

Upton Drive extended and the northerly line of the St. Jogeph River channel, thence northerly 

along sald easterly line extended to the northerly Right-of-Way 

line of the CSX Rallroad 

extended, thence easterly along the northerly Right-of-Way line of the OSX Railroad to the 

wasterly Right-of.Way line of atate highway M-63, thenea nartherly along sald westerly Right-ot- 

Way ling to the northerly haundary of the City of St. Joseph. 

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