View the PDF version Google Docs PDF Viewer
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. Docusign Envelope ID: 62D7718F-B324-4E9F-AA08-AD300B97D788 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. Docusign Envelope ID; 62D77 18F-B324-4E9F-AAQ8-AD300B97D789 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. Docusign Envelope ID: 62D7718F-B324-4E9F-AA08-AD300B97D789 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. Docusign Envelope 1D: 62D7718F-B3244E9F-AA08-AD300B97D789 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. Docusign Envelope 1D: 62D7718F-B324-4E9F-AA08-AD300B97D789 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. -6- Docusign Envelope |D: 62D7718F-B324-4E9F-AA08-AD300B97D789 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 -7- Docusign Envelope 1D: 6207718F-B324-4E9F-AA08-AD300B97D789 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. _8- Docusign Envelope ID: 62D7718F-B324-4ESF-AA08-AD300B97D789 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: Dacusign Envelope ID: 620771 8F-B324-4E9F-AA08-AD300B97D789 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 -10- Docusign Envelope 1D: 6207718F-B324-4E9F-AA08-AD300B97D789 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 -lI- Docusign Envelope ID: 62D7718F-B324-4E9F-AA08-AD300B97D789 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. -12- Docusign Envelope ID: 62D771 8F-B324-4E9E-AA08-AD300B97D788 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+ Docusign Envelope ID: 62D7718F-B324-4ESF-AA08-AD300B97D789 “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 ~14- Docusign Envelope ID: 62D7718F-B324-4E9F-AA08-AD300B97D789 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 Docusign Envelope ID: 62D7718F-B324-4E9F-AA08-AD300B97D789 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
Sign up for City of Muskegon Emails