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Docusign Envelope !D: 62D7718F-B324-4E9F-AA08-AD300B97D789
METRO Act Permit
Bilateral Form
Revised 12/06/02
RIGHT-OF-WAY
TELECOMMUNICATIONS PERMIT
TERMS AND CONDITIONS
1 Definitions
1.1 Company shall mean Surf Air Wireless, LLC d/b/a Surf Internet organized under
the laws of the State of Delaware whose address is 228 Waterfall Dr., Elkhart, IN
46516.
1.2 Effective Date shall mean the date set forth in Part 13.
1.3 Manager shall mean Municipality's [Mayor/Manager/Supervisor/Village
President] or his/her/their designee.
1.4 METRO Act shall mean the Metropolitan Extension Telecommunications Rights-
of-Way Oversight Act, Act No. 48 of the Public Acts of 2002, as amended.
1.5 Municipality shall mean City of Muskegon, a Michigan municipal corporation.
1.6 Permit shall mean this document.
1.7 Public Right-of-Way shall mean the area on, below, or above a public roadway,
highway, street, alley, easement, or waterway, to the extent Municipality has the
ability to grant the rights set forth herein. Public right-of-way does not include a
federal, state, or private right-of-way.
1.8 Telecommunication Facilities or Facilities shall mean the Company’s equipment or
personal property, such as copper and fiber cables, lines, wires, switches, conduits,
pipes, and sheaths, which are used to or can generate, receive, transmit, carry,
amplify, or provide telecommunication services or signals. Telecommunication
Facilities or Facilities do not include antennas, supporting structures for antennas,
equipment shelters or houses, and any ancillary equipment and miscellaneous
hardware used to provide federally licensed commercial mobile service as defined
in Section 332(d) of Part I of Title III of the Communications Act of 1934, Chapter
652, 48 Stat. 1064, 47 U.S.C. 332 and further defined as commercial mobile radio
service in 47 CFR 20.3, and service provided by any wireless, 2-way
communications device.
1.9 Term shall have the meaning set forth in Part 7.
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2 Grant
2.1 Municipality hereby grants a permit under the METRO Act to Company for access
to and ongoing use of the Public Right-of-Way to construct, install and maintain
Telecommunication Facilities in those portions of the Public Right-of-Way
identified on Exhibit A on the terms set forth herein.
2.1.1 Exhibit A may be modified by written request by Company and approval
by Manager.
2.1.2 Manager shall not unreasonably condition or deny any request for a
modification of Exhibit A. Any decision of Manager on a request for a
modification may be appealed by Company to Municipality’s legislative
body.
2.2 Overlashing. Company shall not allow the wires or any other facilities of a third
party to be overlashed to the Telecommunication Facilities without Municipality’s
prior written consent. Municipality's right to withhold written consent is subject to
the authority of the Michigan Public Service Commission under Section 361 of the
Michigan Telecommunications Act, MCL § 484.2361.
2.3 Nonexclusive. The rights granted by this Permit are nonexclusive. Municipality
reserves the right to approve, at any time, additional permits for access to and
ongoing usage of the Public Right-of-Way by telecommunications providers and to
enter into agreements for use of the Public Right-of-Way with and grant franchises
for use of the Public Right-of-Way to telecommunications providers, cable
companies, utilities and other providers.
Contacts, Maps and Plans
3.1.1 Company Contacts. The names, addresses and the like for engineering and
construction related information for Company and its Telecommunication
Facilities are as follows: Steve Charney, Director of OSP Engineering,
3325 Middlebury St, Elkhart, IN 46516, 574-306-5678,
scharney@surfinternet.com.
3.2
3.2.1 The address, e-mail address, phone number and contact person (title or
name) at Company’s local office (in or near Municipality) is Adam Bates,
Director of OSP Construction, 400 76" St. SW, Byron Center, MI 49315,
517-375-1693, abates@surfinternet.com.
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3.2.2. If Company’s engineering drawings, as-built plans and related records for
the Telecommunication Facilities will not be located at the preceding local
office, the location address, phone number and contact person (title or
department) for them is Steve Charney, Director of OSP Engineering, 3325
Middlebury St, Elkhart, IN 46516, 574-306-5678,
scharney@surfinternet.com.
3.2.3 The name, title, address, e-mail address and telephone numbers of
Company’s engineering contact person(s) with responsibility for the design,
plans and construction of the Telecommunication Facilities is Steve
Charney, Director of OSP Engineering, 400 76" St. SW, Suite 15, Byron
Center, MI 49315, 574-306-5678, scharney@surfinternet.com; and/or
Adam Bates, Director of OSP Construction, 400 76" St. SW, Suite 15,
Byron Center MI, 49315, 517-375-1693, abates@surfinternet.com.
3.2.4 The address, phone number and contact person (title or department) at
Company’s home office/regional office with responsibility for engineering
and construction related aspects of the Telecommunication Facilities is
Steve, Charney, Director of OSP Engineering, 400 76" St. SW, Suite 15,
Byron Center, MI 49315, 574-306-5678, scharney@surfinternet.com,
and/or Adam Bates, Director of OSP Construction, 400 76" St. SW, Suite
15, Byron Center MI, 49315, 517-375-1693, abates@surfinternet.com.
3.2.5 Company shall at all times provide Manager with the phone number at
which a live representative of Company (not voice mail) can be reached 24
hours a day, seven (7) days a week, in the event of a public emergency. For
emergencies, please contact the Surf Internet Network Operations Center at
574-584-2300.
3.2.6 The preceding information is accurate as of the Effective Date. Company
shall notify Municipality in writing as set forth in Part 12 of any changes in
the preceding information.
3.3 Route Maps. Within ninety (90) days after the substantial completion of
construction of new Facilities in a Municipality, a provider shall submit route maps
showing the location of the Telecommunication Facilities to both the Michigan
Public Service Commission and to the Municipality, as required under Section 6(7)
of the METRO Act, MCLA 484.3106(7).
3.4 As-Built Records. Company, without expense to Municipality, shall, upon forty-
eight (48) hours notice, give Municipality access to all "as-built" maps, records,
plans and specifications showing the Telecommunication Facilities or portions
thereof in the Public Right-of-Way. Upon request by Municipality, Company shall
inform Municipality as soon as reasonably possible of any changes from previously
3.
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supplied maps, records, or plans and shall mark up maps provided by Municipality
so as to show the location of the Telecommunication Facilities.
4 Use of Public Right-of-Way
4.1 No Burden on Public Right-of-Way. Company, its contractors, subcontractors, and
the Telecommunication Facilities shall not unduly burden or interfere with the
present or future use of any of the Public Right-of-Way. Company’s aerial cables
and wires shall be suspended so as to not endanger or injure persons or property in
or about the Public Right-of-Way. If Municipality reasonably determines that any
portion of the Telecommunication Facilities constitutes an undue burden or
interference, due to changed circumstances, Company, at its sole expense, shall
modify the Telecommunication Facilities or take such other actions as Municipality
may determine is in the public interest to remove or alleviate the burden, and
Company shall do so within a reasonable time period. Municipality shall attempt
to require all occupants of a pole or conduit whose facilities are a burden to remove
or alleviate the burden concurrently.
4.2 No Priority. This Permit does not establish any priority of use of the Public Right-
of-Way by Company over any present or future permittees or parties having
agreements with Municipality or franchises for such use. In the event of any dispute
as to the priority of use of the Public Right-of-Way, the first priority shall be to the
public generally, the second priority to Municipality, the third priority to the State
of Michigan and its political subdivisions in the performance of their various
functions, and thereafter as between other permit, agreement or franchise holders,
as determined by Municipality in the exercise of its powers, including the police
power and other powers reserved to and conferred on it by the State of Michigan.
4.3 Restoration of Property. Company, its contractors and subcontractors shall
immediately (subject to seasonal work restrictions) restore, at Company’s sole
expense, in a manner approved by Municipality, any portion of the Public Right-
of-Way that is in any way disturbed, damaged, or injured by the construction,
installation, operation, maintenance or removal of the Telecommunication
Facilities to a reasonably equivalent (or, at Company’s option, better) condition as
that which existed prior to the disturbance. In the event that Company, its
contractors or subcontractors fail to make such repair within a reasonable time,
Municipality may make the repair and Company shall pay the costs Municipality
incurred for such repair.
44 Marking. Company shall mark the Telecommunication Facilities as follows: Aerial
portions of the Telecommunication Facilities shall be marked with a marker on
Company’s lines on alternate poles which shall state Company’s name and provide
a toll-free number to call for assistance. Direct buried underground portions of the
Telecommunication Facilities shall have (1) a conducting wire placed in the ground
4.
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at least several inches above Company’s cable (if such cable is nonconductive); (2)
at least several inches above that, a continuous colored tape with a statement to the
effect that there is buried cable beneath; and (3) stakes or other appropriate above
ground markers with Company’s name and a toll-free number indicating that there
is buried telephone cable below. Bored underground portions of the
Telecommunication Facilities shall have a conducting wire at the same depth as the
cable and shall not be required to provide the continuous colored tape. Portions of
the Telecommunication Facilities located in conduit, including conduit of others
used by Company, shall be marked at its entrance into and exit from each manhole
and handhole with Company’s name and a toll-free telephone number.
4.5 Tree Trimming. Company may trim trees upon and overhanging the Public Right-
of-Way so as to prevent the branches of such trees from coming into contact with
the Telecommunication Facilities, consistent with any standards adopted by
Municipality. Company shall dispose of all trimmed materials. Company shall
minimize the trimming of trees to that essential to maintain the integrity of the
‘Telecommunication Facilities. Except in emergencies, all trimming of trees in the
Public Right-of-Way shall have the advance approval of Manager.
4.6 Installation and Maintenance. The construction and installation of the
Telecommunication Facilities shall be performed pursuant to plans approved by
Municipality. The open cut of any Public Right-of-Way shall be coordinated with
the Manager or his designee. Company shall install and maintain the
Telecommunication Facilities in a reasonably safe condition. If the existing poles
in the Public Right-of-Way are overburdened or unavailable for Company’s use, or
the facilities of all users of the poles are required to go underground then Company
shall, at its expense, place such portion of its Telecommunication Facilities
underground, unless Municipality approves an alternate location. Company may
perform maintenance on the Telecommunication Facilities without prior approval
of Municipality, provided that Company shall obtain any and all permits required
by Municipality in the event that any maintenance will disturb or block vehicular
traffic or are otherwise required by Municipality.
4.7 Pavement Cut Coordination, Company shall coordinate its construction and all
other work in the Public Right-of-Way with Municipality’s program for street
construction and rebuilding (collectively “Street Construction”) and its program for
street repaving and resurfacing (except seal coating and patching) (collectively,
“Street Resurfacing”).
4.7.1 The goals of such coordination shall be to encourage Company to conduct
all work in the Public Right-of-Way in conjunction with or immediately
prior to any Street Construction or Street Resurfacing planned by
Municipality.
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4.8 Compliance with Laws. Company shall comply with all laws, statutes, ordinances,
rules and regulations regarding the construction, installation, and maintenance of
its Telecommunication Facilities, whether federal, state or local, now in force or
which hereafter may be promulgated. Before any installation is commenced,
Company shall secure all necessary permits, licenses and approvals from
Municipality or other governmental entity as may be required by law, including,
without limitation, all utility line permits and highway permits. Municipality shall
not unreasonably delay or deny issuance of any such permits, licenses or approvals.
Company shall comply in all respects with applicable codes and industry standards,
including but not limited to the National Electrical Safety Code (latest edition
adopted by Michigan Public Service Commission) and the National Electric Code
(latest edition). Company shall comply with all zoning and land use ordinances
and historic preservation ordinances as may exist or may hereafter be amended.
This section does not constitute a waiver of Company’s right to challenge laws,
statutes, ordinances, rules or regulations now in force or established in the future.
4.9 Street Vacation. If Municipality vacates or consents to the vacation of Public
Right-of-Way within its jurisdiction, and such vacation necessitates the removal
and relocation of Company's Facilities in the vacated Public Right-of-Way,
Company shall, as a condition of this Permit, consent to the vacation and remove
its Facilities at its sole cost and expense when ordered to do so by Municipality or
a court of competent jurisdiction. Company shall relocate its Facilities to such
alternate route as Municipality and Company mutually agree, applying reasonable
engineering standards.
4.10 Relocation. If Municipality requests Company to relocate, protect, support,
disconnect, or remove its Facilities because of street or utility work, or other public
projects, Company shall relocate, protect, support, disconnect, or remove its
Facilities, at its sole cost and expense, including where necessary to such alternate
route as Municipality and Company mutually agree, applying reasonable
engineering standards. The work shall be completed within a reasonable time
period.
4.11 Public Emergency. Municipality shall have the right to sever, disrupt, dig-up or
otherwise destroy Facilities of Company if such action is necessary because of a
public emergency. If reasonable to do so under the circumstances, Municipality
shall attempt to provide notice to Company. Public emergency shall be any
condition which poses an immediate threat to life, health, or property caused by any
natural or man-made disaster, including, but not limited to, storms, floods, fire,
accidents, explosions, water main breaks, hazardous material spills, etc. Company
shall be responsible for repair at its sole cost and expense of any of its Facilities
damaged pursuant to any such action taken by Municipality.
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AAD Miss Dig. If eligible to join, Company shall subscribe to and be a member of "MISS
DIG," the association of utilities formed pursuant to Act 174 of the Public Acts of
2013, as amended, MCL § 460.721 et seq., and shall conduct its business in
conformance with the statutory provisions and regulations promulgated thereunder.
4.13 Underground Relocation. If Company has its Facilities on poles of Consumers
Energy, Detroit Edison or another electric or telecommunications provider and
Consumers Energy, Detroit Edison or such other electric or telecommunications
provider relocates its system underground, then Company shall relocate its
Facilities underground in the same location at Company’s sole cost and expense.
44 Identification, All personnel of Company and its contractors or subcontractors who
have as part of their normal duties contact with the general public shall wear on
their clothing a clearly visible identification card bearing Company’s name, their
name and photograph. Company shall account for all identification cards at all
times. Every service vehicle of Company and its contractors or subcontractors shall
be clearly identified as such to the public, such as by a magnetic sign with
Company’s name and telephone number.
5 Indemnification
5.1 Indemnity. Company shall defend, indemnify, protect, and hold harmless
Municipality, its officers, agents, employees, elected and appointed officials,
departments, boards, and commissions from any and all claims, losses, liabilities,
causes of action, demands, judgments, decrees, proceedings, and expenses of any
nature (collectively “claim” for this Part 5) (including, without limitation,
attorneys’ fees) arising out of or resulting from the acts or omissions of Company,
its officers, agents, employees, contractors, successors, or assigns, but only to the
extent such acts or omissions are related to the Company’s use of or installation of
facilities in the Public Right-of-Way and only to the extent of the fault or
responsibility of Company, its officers, agents, employees, contractors, successors
and assigns.
5.2 Notice, Cooperation. Municipality shall notify Company promptly in writing of
any such claim and the method and means proposed by Municipality for defending
or satisfying such claim. Municipality shall cooperate with Company in every
reasonable way to facilitate the defense of any such claim. Municipality shall
consult with Company respecting the defense and satisfaction of such claim,
including the selection and direction of legal counsel.
5.3 Settlement, Municipality shall not settle any claim subject to indemnification under
this Part 5 without the advance written consent of Company, which consent shall
not be unreasonably withheld. Company shall have the right to defend or settle, at
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its own expense, any claim against Municipality for which Company is responsible
hereunder.
6 Insurance
6.1 Coverage Required. Prior to beginning any construction in or installation of the
Telecommunication Facilities in the Public Right-of-Way, Company shall obtain
insurance as set forth below and file certificates evidencing same with
Municipality. Such insurance shall be maintained in full force and effect until the
end of the Term. In the alternative, Company may satisfy this requirement through
a program of self-insurance, acceptable to Municipality, by providing reasonable
evidence of its financial resources to Municipality. Municipality’s acceptance of
such self-insurance shall not be unreasonably withheld.
6.1.1 Commercial general liability insurance, including Completed Operations
Liability, Independent Contractors Liability, Contractual Liability
coverage, railroad protective coverage and coverage for property damage
from perils of explosion, collapse or damage to underground utilities,
commonly known as XCU coverage, in an amount not less than Five
Million Dollars ($5,000,000).
Liability insurance for sudden and accidental environmental contamination
with minimum limits of Five Hundred Thousand Dollars ($500,000) and
providing coverage for claims discovered within three (3) years after the
term of the policy.
6.1.3 Automobile liability insurance in an amount not less than One Million
Dollars ($1,000,000).
6.1.4 Workers' compensation and employer's liability insurance with statutory
limits, and any applicable Federal insurance of a similar nature.
The coverage amounts set forth above may be met by a combination of
underlying (primary) and umbrella policies so long as in combination the
limits equal or exceed those stated. If more than one insurance policy is
purchased to provide the coverage amounts set forth above, then all policies
providing coverage limits excess to the primary policy shall provide drop
down coverage to the first dollar of coverage and other contractual
obligations of the primary policy, should the primary policy carrier not be
able to perform any of its contractual obligations or not be collectible for
any of its coverages for any reason during the Term, or (when longer) for
as long as coverage could have been available pursuant to the terms and
conditions of the primary policy.
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6.2 Additional Insured. Municipality shall be named as an additional insured on all
policies (other than worker’s compensation and employer’s liability). All insurance
policies shall provide that they shall not be canceled, modified or not renewed
unless the insurance carrier provides thirty (30) days prior written notice to
Municipality. Company shall annually provide Municipality with a certificate of
insurance evidencing such coverage. All insurance policies (other than
environmental contamination, workers' compensation and employer's liability
insurance) shall be written on an occurrence basis and not on a claims made basis.
6.3 Qualified Insurers. All insurance shall be issued by insurance carriers licensed to
do business by the State of Michigan or by surplus line carriers on the Michigan
Insurance Commission approved list of companies qualified to do business in
Michigan. All insurance and surplus line carriers shall be rated A+ or better by
A.M. Best Company.
6.4 Deductibles. If the insurance policies required by this Part 6 are written with
retainages or deductibles in excess of $50,000, they shall be approved by Manager
in advance in writing. Company shall indemnify and save harmless Municipality
from and against the payment of any deductible and from the payment of any
premium on any insurance policy required to be furnished hereunder.
6.5 Contractors. Company’s contractors and subcontractors working in the Public
Right-of-Way shall carry in full force and effect commercial general liability,
environmental contamination liability, automobile liability and workers’
compensation and employer liability insurance which complies with all terms of
this Part 6. In the alternative, Company, at its expense, may provide such coverages
for any or all its contractors or subcontractors (such as by adding them to
Company’s policies).
Insurance Primary. Company’s insurance coverage shall be primary insurance with
respect to Municipality, its officers, agents, employees, elected and appointed
officials, departments, boards, and commissions (collectively “them”). Any
insurance or self-insurance maintained by any of them shall be in excess of
Company’s insurance and shall not contribute to it (where “insurance or self-
insurance maintained by any of them” includes any contract or agreement providing
any type of indemnification or defense obligation provided to, or for the benefit of
them, from any source, and includes any self-insurance program or policy, or self-
insured retention or deductible by, for or on behalf of them).
Term. The term (“Term”) of this Permit shall be until the earlier of:
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Fifteen years (15) from the Effective Date; provided, however, that
following such initial term there shall be three subsequent renewal terms of
five (5) years. Each renewal term shal! be automatic unless Municipality
notifies Company in writing, at least twelve (12) months prior to the end of
any term then in effect, that due to changed circumstances a need exists to
negotiate the subsequent renewal with Company. Municipality shall not
unreasonably deny a renewal term; or
When the Telecommunication Facilities have not been used to provide
telecommunications services for a period of one hundred and eighty (180)
days by the Company or a successor of an assign of the Company, or
7.1.3 When Company, at its election and with or without cause, delivers written
notice of termination to Municipality at least one-hundred and eighty (180)
days prior to the date of such termination; or
714 Upon either Company or Municipality giving written notice to the other of
‘the occuirence or existence of a default by the other party under Sections
4.8, 6, 8-or 9 of this Permit and such defaulting party failing to cure, or
commence good faith efforts to cure, such default within sixty (60) days (or
such shorter period of time provided elsewhere in this Permit) after delivery
of such notice; or
Unless Manager grants a written extension, one year from the Effective
Date if prior thereto Company has not started the construction and
installation of the Telecommunication Facilities within the Public Right-of-
Way and two years from the Effective Date if by such time construction and
installation of the Telecommunication Facilities is not complete.
Performance Bond or Letter of Credit
8.1 Municipal Requirement. Municipality may require Company to post a bond (or
letter of credit) as provided in Section 15(3) of the METRO Act, as amended [MCL
§ 484.3115(3)].
Fees
9.1 Establishment: Reservation. The METRO Act shall control the establishment of
right-of-way fees. The parties reserve their respective rights regarding the nature
and amount of any fees which may be charged by Municipality in connection with
the Public Right-of-Way.
10 Removal
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10.1 Removal: Underground. As soon as practicable after the Term, Company or its
successors and assigns shall remove any underground cable or other portions of the
Telecommunication Facilities from the Public Right-of-Way which has been
installed in such a manner that it can be removed without trenching or other opening
of the Public Right-of-Way. Company shall not remove any underground cable or
other portions of the Telecommunication Facilities which requires trenching or
other opening of the Public Right-of-Way except with the prior written approval of
Manager. All removals shall be at Company’s sole cost and expense.
10.1.1 For purposes of this Part 10, “cable” means any wire, coaxial cable, fiber
optic cable, feed wire or pull wire.
10.2 Removal: Above Ground. As soon as practicable after the Term, Company, or its
successor or assigns at its sole cost and expense, shall, unless waived in writing by
Manager, remove from the Public Right-of-Way all above ground elements of its
Telecommunication Facilities, including but not limited to poles, pedestal mounted
terminal boxes, and lines attached to or suspended from poles.
10.3 Schedule. The schedule and timing of removal shall be subject to approval by
Manager. Unless extended by Manager, removal shall be completed not later than
twelve (12) months following the Term. Portions of the Telecommunication
Facilities in the Public Right-of-Way which are not removed within such time
period shall be deemed abandoned and, at the option of Municipality exercised by
written notice to Company as set forth in Part 12, title to the portions described in
such notice shall vest in Municipality.
tl Assignment. Company may assign or transfer its rights under this Permit, or the persons
or entities controlling Company may change, in whole or in part, voluntarily, involuntarily,
or by operation of law, including by merger or consolidation, change in the ownership or
control of Company’s business, or by other means, subject to the following:
11.1 No such transfer or assignment or change in the control of Company shall be
effective under this Permit, without Municipality’s prior approval (not to be
unreasonably withheld), during the time period from the Effective Date until the
completion of the construction of the Telecommunication Facilities in those
portions of the Public Right-of-Way identified on Exhibit A.
11.2 After the completion of such construction, Company must provide notice to
Municipality of such transfer, assignment or change in control no later than thirty
(30) days after such occurrence; provided, however,
11.2.1 Any transferee or assignee of this Permit shall be qualified to perform under
its terms and conditions and comply with applicable law; shall be subject to
the obligations of this Permit, including responsibility for any defaults
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which occurred prior to the transfer or assignment; shall supply
Municipality with the information required under Section 3.1; and shall
comply with any updated insurance and performance bond requirements
under Sections 6 and 8 respectively, which Municipality reasonably deems
necessary, and
11.2.2 In the event of a change in control, it shall not be to an entity lacking the
qualifications to assure Company’s ability to perform under the terms and
conditions of this Permit and comply with applicable law; and Company
shall comply with any updated insurance and performance bond
requirements under Sections 6 and 8 respectively, which Municipality
reasonably deems necessary.
11.3 Company may grant a security interest in this Permit, its rights thereunder or the
Telecommunication Facilities at any time without notifying Municipality.
12 Notices
12.1 Notices. All notices under this Permit shall be given as follows:
12.1.1 Ifto Municipality, to 933 Terrace St., Muskegon, MI 49440,
12.1.2 Ifto Company, to 400 76" St. SW, Byron Center, MI 49315, with a copy
to 228 Waterfall Dr., Elkhart, IN 46516
12.2 Change of Address. Company and Municipality may change its address or
personnel for the receipt of notices at any time by giving notice thereof to the other
as set forth above.
13 Other items
13.1 No Cable, OVS. This Permit does not authorize Company to provide commercial
cable type services to the public, such as “cable service” or the services of an “open
video system operator” (as such terms are defined in the Federal Communications
Act of 1934 and implementing regulations, currently 47 U.S.C. §§ 522 (6), 573 and
47 CFR § 76.1500).
13.2 Duties. Company shall faithfully perform all duties required by this Permit.
13.3 Effective Date. This Permit shall become effective when issued by Municipality
and Company has provided any insurance certificates and bonds required in Parts
6 and 8, and signed the acceptance of the Permit.
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13.4 Authority, This Permit satisfies the requirement for a permit under Section 5 of the
METRO Act [MCL 484.3105].
13.5 Amendment. Except as set forth in Section 2.1 this Permit may be amended by the
written agreement of Municipality and Company.
this Permit shall be liberally
13.6 Interpretation and Severability. The provisions ,ofsafety
construed to protect and preserve the peace, health and welfare of the public,
and should any provision or section of this Permit be held uncons titutional, invalid,
overbroad or otherwise unenforceable, such determination/hold ing shall not be
construed as affecting the validity of any of the remaining condit ions of this Permit.
If any provision in this Permit is found to be partially overbroad, unenforceable, or
invalid, Company aid Municipality may nevertheless enforce such provision to the
extent permitted under applicable law.
13.7 Governing Law. This Permit shall be governed by: the laws of the State of
Michigan.
; City of Muskegon
. Cy
Attest: , -
its:_{bauty Cheek . Hts; City clerk
Date: /O- 8°29
13+
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“Company accepts the Permit granted by Municipality upon the terms and conditions contained
therein.”
SURF AIR WIRELESS, LLC D/B/A SURF
INTERNET
By:
Its:
Date:
:ODMA\PCDOCS\GRRA7593 19\6
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Exhibit A
Public Right-of-Way to be Used by Telecommunication Facilities
Docusign Envelope ID: 62D77 18F-B324-4E9F-AA08-AD300B97D789
Exhibit B
Bond
-16-
Docusign Envelope [D: 62D77 18F-B324-4E9F-AA08-AD300B97D789
METRO Act Permit Application Form
Revised February 2, 2015
City of Muskegon
APPLICATION FOR
ACCESS TO AND ONGOING USE OF PUBLIC WAYS BY
TELECOMMUNICATIONS PROVIDERS
UNDER
METROPOLITAN EXTENSION TELECOMMUNICATIONS
RIGHTS-OF-WAY OVERSIGHT ACT
2002 PA 48
MCL SECTIONS 484.3101 TO 484.3120
BY
Surf Air Wireless, LLC d/b/a Surf Internet
(“APPLICANT”)
Unfamiliar with METRO Act?--Assistance: Municipalities unfamiliar — with Michigan
Metropolitan Extension Telecommunications Rights-of-Way Oversight Act (“METRO Act”)
permits for telecommunications providers should seek assistance, such as by contacting the
Telecommunications Division of the Michigan Public Service Commission at 517-284-8190 or via
its web site at METRO Act/Right of Way (michigan.gov).
45 Days to Act—Fines for Failure to Act: The METRO Act states that “A municipality shall
approve or deny access under this section within 45 days from the date a provider files an
application for a permit for access to a public right-of-way." MCL 484.3115(3), The Michigan
Public Service Commission can impose fines of up to $40,000 per day for violations of the
METRO Act. It has imposed fines under the Michigan Telecommunications Act where it found
providers or municipalities violated the statute.
Where to File: Applicants should file copies as follows [municipalities should adapt as
appropriate—unless otherwise specified service should be as follows]:
-- Three (3) copies (one of which shall be marked and designated as the master copy) with
the Clerk at 933 Terrace St., Muskegon, MI 49440.
City of Muskegon
Docusign Envelope ID: 62D7718F-B324-4E9F-AA08-AD300B97D789
APPLICATION FOR
ACCESS TO AND ONGOING USE OF PUBLIC WAYS BY
TELECOMMUNICATIONS PROVIDERS
By
Surf Air Wireless, LLC d/b/a Surf Internet
(“APPLICANT”)
This is an application pursuant to Sections 5 and 6 of the Metropolitan Extension
Telecommunications Rights-of-Way Oversight Act, 2002 PA 48 (the "METRO
Act") for access to and ongoing usage of the public right-of-way, including
public roadways, highways, streets, alleys, easements, and waterways (“Public
Ways”) in the Municipality for a telecommunications system. The METRO Act
states that “A municipality shall approve or deny access under this section within
45 days from the date a provider files an application for a permit for access to a
public right-of-way." MCL 484.3115(3).
This application must be accompanied by a one-time application fee of $500,
unless the applicant is exempt from this requirement under Section 5(3) of the
METRO Act, MCL 484.3105(3).
1 GENERAL INFORMATION:
ll Date: 08/06/2024
1.2 Applicant’s legal name:_ Surf Air Wireless, LLC
Mailing Address: 228 Waterfall Dr.
Elkhart, IN 46516
Telephone Number: 888-274-6381
Corporate website: https://surfinternet.com/
Name and title of Applicant’s local manager (and if different) contact person
regarding this application:
Contact Name: Adam Bates, Director of OSP Construction
Mailing Address: 400 76" St. SW, Suite 15
Byron Center, MI 49315
Telephone Number: 517-375-1693
E-mail Address: abates@surfinternet.com
1.3 Type of Entity: (Check one of the following)
Corporation
General Partnership
Limited Partnership
_ xX __ Limited Liability Company
2
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Individual
Other, please describe:
1.4 Assumed name for doing business, if any:
1.5 Description of Entity:
Jurisdiction of incorporation/formation, Delaware
Date of incorporation/formation; 6/30/2006
If a subsidiary, name of ultimate parent company;
Chairperson, President/CEO, Secretary and Treasurer (and equivalent officials for non-corporate
entities).
Gene Crusie, CEO
Ryan Delack, CFO
Brent Williams, COO
Patrick Wheeland, CTO
1.6 Attach copies of Applicant’s most recent annual report (with state ID number) filed
with the Michigan Department of Licensing and Regulatory Affairs and certificate of good
standing with the State of Michigan. For entities in existence for less than one year and for non-
corporate entities, provide equivalent information. (Please see attached)
1.7. Is Applicant aware of any present or potential conflicts of interest between
Applicant and Municipality? If yes, describe:
None
1.8 In the past three (3) years, has Applicant had a permit to install telecommunications
facilities in the public right of way revoked by any Michigan municipality?
1.9 Circle: Yes
If "yes," please describe the circumstances.
1.10 In the past three (3) years, has an adverse finding been made or an adverse final
action been taken by any Michigan court or administrative body against Applicant under any law
or regulation related to the following:
A felony; or
A revocation ot suspension of any authorization (including cable franchises) to provide
telecommunications or video programming services?
Circle: Yes
If "yes," please attach a full description of the parties and matters involved, includin g an
identification of the court or administrative body and any proceedings (by dates and file numbers ,
if applicable), and the disposition of such proceedings.
3
Docusign Envelope ID: 62D7718F-B324-4E9F-AA08-AD300B97D789
1.11 [If Applicant has been granted and currently holds a license to provide basic local
exchange service, no financial information needs to be supplied.] If publicly held, provide
Applicant’s most recent financial statements. If financial statements of a parent company of
Applicant (or other affiliate of Applicant) are provided in lieu of those of Applicant, please explain.
If privately held, and if Municipality requests the information within 10 days of the date of this
Application, the Applicant and the Municipality should make arrangements for the Municipality
to review the financial statements.
If no financial statements are provided, please explain and provide particulars.
A private review of the financial statements can be arranged if required by Municipality with an
approved and executed non-disclosure agreement.
2 DESCRIPTION OF PROJECT:
2.1 Provide a copy of authorizations, if applicable, Applicant holds to provide
telecommunications services in Municipality. If no authorizations are applicable, please explain.
2.2 Describe in plain English how Municipality should describe to the public the
telecommunications services to be provided by Applicant and the telecommunications facilities to
be installed by Applicant in the Public Ways.
Installation of Telecommunications Conduit and Fiber via underground or aerial
methods.
2.3 Attach route maps showing the location (including whether overhead or
underground) of Applicant’s existing and proposed facilities in the public right-of-way. To the
extent known, please identify the side of the street on which the facilities will be located. (If
construction approval is sought at this time, provide engineering drawings, if available, showing
location and depth, if applicable, of facilities to be installed in the public right-of-way).
A high-level map is attached which shows proposed routes and facilities. Final
detailed drawings will be provided as part of the formal permitting process with the
municipality or governing entity responsible for the right-of-ways. Approved
permits and engineered drawings will be shared with involved parties as part of the
process.
2.4 Please provide an anticipated or actual construction schedule.
Surf Internet intends to begin construction immediately upon receiving the
necessary permits from the municipality.
2.5 Please list all organizations and entities which will have any ownership interest in
the facilities proposed to be installed in the Public Ways.
Surf Air Wireless, LLC
Docusign Envelope ID; 62D7718F-B324-4E9F-AA08-AD300B97D788
2.6 Whowill be responsible for maintaining the facilities Applicant places in the Public
Ways and how are they to be promptly contacted? If Applicant's facilities are to be installed on
or in existing facilities in the Public Ways of existing public utilities or incumbent
telecommunications providers, describe the facilities to be used, and provide verification of their
consent to such usage by Applicant.
Surf Air Wireless, LLC
3 TELECOMMUNICATION PROVIDER ADMINISTRATIVE
MATTERS:
Please provide the following or attach an appropriate exhibit.
3.1 Address of Applicant’s nearest local office;
228 Waterfall Dr., Elkhart, IN 46516
3.2 Location of all records and engineering drawings, if not at local office;
3325 Middlebury St., Elkhart, IN 46516
3.3 Names, titles, addresses, e-mail addresses and telephone numbers of contact
person(s) for Applicant’s engineer or engineers and their responsibilities for the
telecommunications system,
Steve Charney, Director of OSP Engineering
A00 76 St. SW, Byron Center, MI 49315
scharney@surfinternet.com
574-306-5678
3.4 Provide evidence of self-insurance or a certificate of insurance showing Applicant’s
insurance coverage, carrier and limits of liability for the following:
Worker's compensation;
Commercial general liability, including at least:
3.4.1.1 Combined overall limits;
3.4.1.2 Combined single limit for each occurrence of bodily injury;
3.4.1.3 Personal injury;
3.4.1.4 Property damage;
3.4.1.5 Blanket contractual liability for written contracts, products, and
completed operations,
Docusign Envelope ID: 62D7718F-B324-4E9F-AA08-AD300B97D789
3.4.1.6 Independent contractor lability;
3.4.1.7 For any non-aerial installations, coverage for property damage
from perils of explosives, collapse, or damage to underground utilities (known as
XCU coverage);
3.4.1.8 Environmental contamination;
Automobile liability covering all owned, hired, and non-owned vehicles used by Applicant, its
employee, or agents.
3.5 Names of all anticipated contractors and subcontractors involved in the
construction, maintenance and operation of Applicant’s facilities in the Public Ways.
Docusign Envelope ID: 62D7718F-B324-4E9F-AA08-AD300B97D789
4 CERTIFICATION:
All the statements made in the application and attached exhibits are true and correct to the
best of my knowledge and belief.
NAME OF ENTITY (“‘APPLICANT”)
Surf Air Wireless, LLC d/b/a Surf Internet
Signed by:
By: Stolen. ihave
ADSF4F47A3AE459...
Title: Steve Charney, Director OSP Engineering
Date: 8/6/2024
S:\metroapplicationform.doc
Docusign Envelope ID: 62D7718F-B324-4E9F-AA08-AD300B97D789
) & DATE (MM/DDIYYYY)
ACCORD CERTIFICATE OF LIABILITY INSURANCE
Nee 8/6/2024
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW, THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain pollcles may require an endorsement. A statement on
this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
PRODUCER RONTACT Tracy Alexander
UNICO Group x
PHONE exp, (402) 434-7200 (AIG, Nol:
1128 Lincofn Mall, Suite 200 EMAL os: talexander@unitelinsurance.com
Lincoln, NE, 68508 INSURER(S) AFFORDING COVERAGE NAIC
#
INsURERA; The Phoenix Insurance Company 25623
INSURED . Travelers Property Casualty Co of America 25674
Surf Air Wireless, LLC
PO Box 552
nn Travelers
INSURERC: ravelers
€ P me fA
Casualty of
y
America
38188
Goshen, IN, 46527 INSURER
D:
E:
INSURER
INSURERF:
COVERAGES CERTIFICATE NUMBER: 1722966291873 REVISION NUMBER:
THIS 1S TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUGH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
ADDLISUBR
re TYPE OF INSURANCE inap |WvD POLICY NUMBER (HNIDDIVYYY) | (MMIDDIYYY) LIMITS
X | COMMERCIAL GENERAL LIABILITY H-630-1Y025674-PHX-24 6/1/2024 | 6/1/2025 | EAcH OCCURRENCE $ 1,000,000
DAMAGE TO RENTED
CLAIMS-MADE OccUR PREMISES (Ea occurrence) | $ 1,000,000
| MED EXP (Any one person) 3 10,000
A || PERSONAL & ADV INJURY _|$ 1,000,000
|GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,000
|X| poucy ERO LOG PRODUCTS - COMPIOP AGG | $ 2,000,000
OTHER: $
AUTOMOBILE LIABILITY 810-1Y02623A-24-13-G 6/1/2024 | 6/1/2025 | FOMBINEDSINGLELIMIT | § 1,000,000
X | ANY AUTO BODILY INJURY (Per person) | $
B SEO ONLY area TED BODILY INJURY (Per accident)| $
rX| HIRED NON-OWNED PROPERTY DAMAGE $
|“_| AUTOS ONLY AUTOS CNLY (Per aceldent)
$
X | UMBRELLALIAB X | occur CUP-1Y131133-24-I3 6/1/2024 | 6/1/2025 | cach occURRENCE $ 10,000,000
B EXGESS LIAB CLAIMS-MADE AGGREGATE $ 10,000,000
ozo |X [Retentions 10,000 $
C | AND EMPLOYERS’ LIABILITY
WORKERS GOMPENSATION
YIN UB-1¥027643-24-13-G
: “94.73.
SFkure |
6/1/2024 | 6/1/2025 |X | PER [8h
OTH:
ANYPROPRIETOR/PARTNERIEXEGUTIVE EL. EAGH ACGIDENT $ 1,000,000
OFFICER/MEMBEREXCLUDED? NIA
(Mandatory In NH) EL, DISEASE
- EAEMPLOYEE] $ 1,000,000
If yes, describe under
DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT | $ 1,000,000
DESCRIPTION OF OPERATIONS / LOGATIONS
/ VEHIGLES (ACORD 101, Additional Remarks Schedule, may be attached If more space Is required)
The City of Muskegon, its staff, and elected or appointed officials are named as additional insured as required by written contract.
CERTIFICATE HOLDER CANCELLATION
city of Muskegon SHOULD ANY OF THE ABOVE DESGRIBED POLICIES BE CANCELLED BEFORE
933 Terrace St, THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
ACGORDANCE WITH THE POLICY PROVISIONS.
Muskegon, MI, 49440
AUTHORIZED REPRESENTATIVE
Lyo— babe
© 1988-2015 ACORD CORPORATION, All rights reserved.
ACORD 25 (2016/03) The AGORD name and logo are registered marks of ACORD
Docusign Envelope ID; 62D7718F-B324~4E9F-AA08-AD300B97D789
Evanston Insurance Company
POLICY NUMBER: CPLMOL110115
MARKEL
CONTRACTOR’S POLLUTION LIABILITY
SUPPLEMENTAL DECLARATIONS
AMOUNTS INCURRED AS SUPPLEMENTARY PAYMENTS IN EXCESS OF THE DEFENSE EXPENSES
AGGREGATE LIMIT WILL REDUCE THE LIMIT OF LIABILITY AVAILABLE AND WILL BE APPLIED AGAINST THE
SELF-INSURED RETENTION OR DEDUCTIBLE.
Limits Of Insurance And Self-Insured Retention Or Deductible
LIMITS OF INSURANCE
Coverage Form Aggregate Limit $4,000,000
XJ Each Contractor's Pollution Condition Limit $1,000,000
Each Transportation Pollution Condition Limit $1,000,000
Bj Each Non-Owned Disposal Site Pollution Condition Limit $1,000,000
Each Crisis Management And Emergency Response Limit $1,000,000
XX] Defense Expenses Aggregate Limit $1,000,000
[_] SELF-INSURED RETENTION
X] DEDUCTIBLE
Each Pollution Condition $10,000
Retroactive Date (Not applicable with MEEI 0007)
Retroactive Date (Claims-Made And Reported Coverage Only)
This insurance does not apply to injury or damages that occurs before the Retroactive Date shown above.
Endorsements
Forms and Endorsements applying to this Coverage Form and made a part of this policy at time of issue:
SEE FORMS SCHEDULE MDIL 1001 ATTACHED
MDE! 2015 11 17 Page 1 of1
re
Docusign Envelope ID: 62D7718F-B324-4E9F-AA08-AD300B97D789
Filed by Corporations Division Administrator Filing Number: 223731099370 Date: 11/16/2023
Department of Licensing and Regulator
ANNUAL STATEMENT
For use by FOREIGN LIMITED LIABILITY COMPANY
(Required by Section 207, Act 23, Public Act of 1993)
Identification Number: 801879615
Annual Statement Filing Year! 2024
1, Limited Liability Company Name:
SURF AIR WIRELESS, LLC
2. The street address of the limited liability company's registered office and name of the resident agent at that office:
1, Resident Agent Name: THE CORPORATION COMPANY
2, Street Address: 40600 ANN ARBOR RD E STE 201
Apt/Suite/Other:
City: PLYMOUTH
State: MI Zip Code: 48170
3. Mailing address of the registered office:
P.O, Box or Street
Address:
Apt/Suite/Other:
City:
State: Zip Code:
This annual statement must be signed by a member, manager, or an authorized agent.
Signed this 16th Day of November, 2023 by:
Heather M Neveu Authorized Agent
By selecting ACCEPT, I hereby acknowledge that this electronic document is being signed in accordance with the Act. I further certify
that to the best of my knowledge the information provided is true,accurate, and in compliance with the Act.
C Decline © Accept
Docusign Envelope ID: 62D7718F-B324-4E9F-AA08-AD300B97D789
Filed by Corporations Division Administrator Filing Number: 223731099370 Date: 11/16/2023
MICHIGAN DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS
FILING ENDORSEMENT
This is to Certify that the 2024 ANNUAL STATEMENT
for
SURF AIR WIRELESS, LLC
ID Number: 801879615
received by electronic transmission on November 16, 2023 , is hereby endorsed.
Filed on November 16, 2023, by the Administrator.
The document is effective on the date filed, unless a subsequent effective date within 90 days after
received date is stated in the document.
In testimony whereof, | have hereunto set my
hand and affixed the Seal of the Department,
in the City of Lansing, this 16th day
of November, 2023.
Linda Clegg, Director
Corporations, Securities & Commercial Licensing Bureau
Docusign Envelope ID: 62D7718F-B324~4E9F-AA08-AD300B97D789
Pepartment of Licensing and Regulatory Affair 8
Lansing, Htichigan
This is to Certify That
SURF AIR WIRELESS, LLC
a(n) Delaware FOREIGN LIMITED LIABILITY COMPANY.
was validly authorized on October 30, 2014, to transact business in Michigan, and that said limited
liability company holds a valid certificate of authority to transact business in this state, and has satisfied its
annual filing obligations.
This certificate is issued pursuant to the provisions of 1993 PA 23 to attest to the fact that the limited liability company
is in good standing in Michigan as of this date and is duly authorized to transact in this state any business set forth
in its application which a domestic limited liability company formed under this act may lawfully conduct except as
limited by statements in its Application for Certificate of Authority or under the law of its jurisdiction of organization.
This certificate is in due form, made by me as the proper officer, and is entitled to have full faith and credit given
it in every court and office within the United States.
In testimony whereof, I have hereunto set my hand,
in the City of Lansing, this 16th day of February, 2024.
Borla. Aspe
Linda Clegg, Director
Sent by electronic transmission Corporations, Securities & Commercial Licensing Bureau
Certificate Number: 24020371401
Verify this certificate at: URL to eCertificate Verification Search http://www.michigan.gov/corpverifycertificate.
AHNSO1}9IPVSDIA SBY
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