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City of Muskegon
City Commission Meeting
Agenda
July 25, 2023, 5:30 pm
Muskegon City Hall
933 Terrace Street, Muskegon, MI 49440
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to watch and give comment, they must contact the City Clerk’s Office with at least a two-business day notice.
The participant will then receive a zoom link which will allow them to watch live and give comment. Contact
information is below. For more details, please visit: www.shorelinecity.com
The City of Muskegon will provide necessary reasonable auxiliary aids and services, such as signers for the
hearing impaired and audio tapes of printed materials being considered at the meeting, to individuals with
disabilities who want to attend the meeting with twenty-four (24) hours’ notice to the City of Muskegon.
Individuals with disabilities requiring auxiliary aids or services should contact the City of Muskegon by writing
or by calling the following: Ann Marie Meisch, MMC – City Clerk, 933 Terrace Street, Muskegon, MI 49440;
231-724-6705; [email protected]
Pages
1. Call To Order
2. Prayer
3. Pledge of Allegiance
4. Roll Call
5. Honors, Awards, and Presentations
5.a MCC Student Recognition 1
6. Public Comment on Agenda Items
7. Consent Agenda
7.a Approval of Minutes - City Clerk 7
7.b MML Workers' Compensation Fund Board Ballot 56
7.c Tax Foreclosure City Property Acquisition 2023 - Economic Development 60
7.d Deputy City Manager Contract - Manager's Office 76
7.e AT&T Lease Agreement Renewal - DPW 84
7.f Water Supply System Bonds - Finance 160
7.g Sanitary Sewer Collection System Bonds - Finance 180
7.h Update to Paid Parking Policy - Manager's Office 200
8. Public Hearings
8.a Creation of a Redevelopment Area District - Planning 205
9. Unfinished Business
10. New Business
10.a Issuance of a Redevelopment Area Liquor License at 350 W. Western Ave - 212
Planning
11. Any Other Business
12. Public Comment on Non-Agenda items
13. Closed Session
14. Adjournment
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: 7/25/23 Title: MCC Student Recognition
Submitted By: Emily Morgenstern Department: Police Department
Brief Summary: Recognition of Muskegon Community College graphic design students for their
work designing the City’s community bus.
Detailed Summary & Background:
The Police Department would like to recognize Alexander Smith and Alex Near for their hard work
on designing the wrap for the new City community bus donated by Ramos and Sons. Alexander
and Alex are students at Muskegon Community College working on their Associate of Arts and
Science in Graphic Design. Their creativity skills captured the essence of our great city and will be
displayed throughout our neighborhoods at various community engagement events.
Goal/Focus Area/Action Item Addressed:
Amount Requested: N/A Budgeted Item:
Yes No N/A
Fund(s) or Account(s): Budget Amendment Needed:
Yes No N/A
Recommended Motion:
Approvals: Guest(s) Invited / Presenting:
Immediate Division Head
Information Technology Yes
Other Division Heads No
Communication
Legal Review
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: July 25, 2023 Title: Approval of Minutes
Submitted By: Ann Marie Meisch, MMC Department: City Clerk
Brief Summary: To approve the minutes of the June 27, 2023 Regular Meeting, July 10, 2023
Worksession, and July 11, 2023 Regular Meeting.
Detailed Summary & Background:
Goal/Focus Area/Action Item Addressed:
Amount Requested: Amount Budgeted:
Fund(s) or Account(s): Fund(s) or Account(s):
Recommended Motion: To approve the minutes.
Approvals: Get approval from division head at a minimum prior Guest(s) Invited / Presenting
to sending to the Clerk.
Immediate Division Head Information Technology Yes
Other Division Heads Communication No
Legal Review
For City Clerk Use Only:
Commission Action:
City of Muskegon
City Commission Meeting
Minutes
June 27, 2023, 5:30 pm
Muskegon City Hall
933 Terrace Street, Muskegon, MI 49440
Present: Mayor Ken Johnson
Commissioner Rachel Gorman
Commissioner Rebecca St.Clair
Commissioner Eric Hood
Vice Mayor Willie German, Jr.
Commissioner Michael Ramsey
Commissioner Teresa Emory
Staff Present: City Manager Jonathan Seyferth
City Clerk Ann Meisch
City Attorney John Schrier
Deputy City Clerk Kimberly Young
1. Call To Order
Mayor Johnson called the Muskegon City Commission meeting to order at 5:30
p.m.
2. Prayer
Minister Rex Griggs, Zion Baptist Church, opened the meeting with a prayer.
3. Pledge of Allegiance
The Pledge of Allegiance to the Flag was recited by the Commission and the
public.
4. Roll Call
As recorded above
5. Honors, Awards, and Presentations
6. Public Comment on Agenda Items
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No public comments were received.
7. Consent Agenda
Action No. 2023-70
Motion by: Commissioner St.Clair
Second by: Commissioner Ramsey
To accept the consent agenda as presented, minus item 7d, 7e, 7h, 7k.
Ayes: (7): Mayor Johnson, Commissioner Gorman, Commissioner St.Clair,
Commissioner Hood, Vice Mayor German, Commissioner Ramsey, and
Commissioner Emory
MOTION PASSES (7 to 0)
7.a Approval of Minutes - City Clerk
To approve the minutes of the May 23, 2023 Regular Commission
Meeting.
STAFF RECOMMENDATION: To approve the minutes.
7.b Arena Concessions - Finance/Arena
Staff is seeking City Commission approval to enter into a 3-year
Agreement with HCK Management to provide concession services at
Trinity Health Arena.
For several years, Trinity Health Arena has outsourced its concessions to
a 3rd party management team. The City of Muskegon is seeking a qualified
team to provide Concession Management duties including, but not limited
to: tracking sales, labor and food costs, hiring staff, cleaning concession,
inventory, ordering supplies/goods, and working with arena management
to continue to provide and enhance a great customer experience.
It is important that arena management is able to control all food, beverage,
and expenses associated with concessions. An RFP was issued for
concession management and HCK Management was the only proposal
submitted. HCK Management is qualified to provide this service.
STAFF RECOMMENDATION: To award the proposal to manage
concessions at Trinity Health Arena to HCK Management for a 3 year
term beginning 9/1/2023 and ending 9/1/2026, subject to negotiation and a
contract will be presented to the City Commission.
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7.c Rezoning of 1043 Washington Avenue - Planning
Request to rezone the property at 1043 Washington Avenue from R-2,
Medium Density Single Family Residential to Form Based Code,
Neighborhood Edge, by FMA Rentals, LLC.
The existing building has 5 residential units and a commercial suite. The
owner would like to convert the commercial suite to another residential
unit. The FBC, Neighborhood Edge designation would allow for all
residential units or a commercial suite, so it could be converted back to
commercial again in the future as the market demands.
STAFF RECOMMENDATION: To approve the request to rezone the
property at 1043 Washington Ave from R-2 to Form Based Code,
Neighborhood Edge.
7.f MEDC RAP 2.0 Grant - Development Services
Staff is requesting approval of the attached resolution for inclusion with
our MEDC Revitalization and Placemaking (RAP) 2.0 grant
application due June 30th, 2023 and commit to funding a local match
obligation of $250,000 for Hackley Park electrical upgrade project costs in
future fiscal years, if the project is selected.
In September 2022, the city was awarded $6M in grant funding as part of
“Round 1” of the MEDC RAP 1.0 program. MEDC is continuing the
program into 2023 as RAP 2.0. The program would provide access to
grant funds for gap financing of place-based infrastructure development,
real estate rehabilitation and development, and public space
improvements. https://www.michiganbusiness.org/rap/2/
This tool provides access to real estate and place-based infrastructure
development gap financing in the form of grants of up to $5M per project
for real estate rehabilitation and development, grants of up to $1M for
public space place-based infrastructure per project, and grants of up to
$20M to local or regional partners who develop a subgrant program.
The city’s grant application seeks $3.25M to fund the following projects:
$1M in place-based infrastructure/public space funding to support the
redevelopment and revitalization of the historic Hackley Square at 349 W.
Webster Ave as well as Hackley Park. At this time, commitment of the
$250,000 local match is an unbudgeted cost and would be accounted for
in a future reforecast. A review of savings within the Public Works budget
will serve to identify the funds.
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$2M for the rehabilitation of the vacant Catholic Charities of West
Michigan building at 1095 Third St. The City Commission approved a
purchase agreement for the building and surrounding parking. As of March
2023, the city is under contract with a new developer, West Urban
Properties, to construct a new mixed-use development.
AMOUNT REQUESTED: $3,250,000
AMOUNT BUDGETED: $0
FUND OR ACCOUNT: 101-901-801-923XXX
STAFF RECOMMENDATION: To approve the resolution and authorize
the Clerk to sign and commit to funding a local match obligation for
Hackley Park electrical upgrade project costs in future fiscal years if the
project is selected.
7.g End of Year Budget Amendment - Finance
At this time staff is asking for approval of the End of Year Budget
Amendment for FY2022-23 budget year. Staff has prepared the End of
Year Budget Amendment for the 22-23 budget year, highlights of the
amendments are as follows:
101 General Fund
Revenues:
101-000-438 Income Tax collections have been better than projected for
the 4th Quarter. We can increase revenue from $10,750,000 to
$11,000,000
101-000-482 Electric Permits revenue should go up to $210,000 from
$195,000
101-000-483 Plumbing Permits revenue should be changed to $112,000
from $105,000
101-000-484 Heating Permits revenue should be changed to $157,000
from $146,000
101-000-486 Rental Property revenue should be changed to $427,000
from $400,000
101-000-696-004963 Loan Proceeds revenue is recorded for the Fire
Truck loan for $761,603
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101-000-684-004800 Misc.& Sundry revenue should be changed to
$142,000 from $100,000.
Expenditures Amendments
City Commission Dept 101- Increase expenditures by $12,000 due to
MML expenditures
City Promotions & Public Relations Dept 103- Increase expenditures by
$38,000 due expenses created by the new Community Relations
positions.
Finance Department Dept 202- Increase expenditures by $8,000 due to
8% payroll for nonunion personnel
Income Tax Dept 205- Increase expenditures by $41,000 mainly due to
postage increases, salary increases and insurance payout for both Union
and Non-Union.
City Clerk Dept 215- Increase expenditures by$56,000 mainly due to
postage increases, salary increases and insurance payout for both Union
and Non-Union.
City Treasurer Dept 253- Increase expenditures by $41,000 mainly due to
postage increases, salary increases and insurance payout for both Union
and Non-Union.
City Assessor Dept 257 Increase expenditures by $12,000 due to some
unexpected tax appeal fees.
Insurance Services 272 – Increase expenditures by $195,000 due lawsuits
and insurance claims. MMRA requires a that members have a minimum
self-insured retention amount.
Police Dept 301- Increase expenditures by $291,000 due to payroll and
overtime.
Fire Dept 336 - Increase expenditures by $85,000 due to payroll and
overtime.
Building Dept 387- Increase expenditures by $610,000 because most of
the permit fees are up significantly and Safebuilt gets a of the revenue
generated from permits.
Central Fire Station 340 – Increase expenditures by $10,000 due utility
costs.
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Community Event Support Dept 446 - Increase expenditures by $10,000
to cover landscaping, snow plowing, and miscellaneous fees. These costs
should be offset by additional revenues.
Planning Dept 701-Increase expenditures by $105,000 off the expense for
the Marihuana Social Equity and Education programs, to cover the city’s
participation in the countywide broadband study, additional site prep for
the infill housing, and other miscellaneous items.
Forestry Dept 771- Increase expenditures by 10,000 due contractual
services costs and supplies.
Capital Projects 901- Increase expenditures by $761,603 for the purchase
of the new fire truck. These costs were previously approved by
Commission and we required to add this asset to our books.
Debt Service 906- Increase expenditures by $1,300 due Agent Fees and
Interest adjustments.
Transfer 999- Additional $102,000 to the Arena
234 Pigeon Hill Brownfield
Revenues:
Tax collections need to be bumped up by $840
Expenditures Amendments
Expenditures need to match the increase in revenue by the same amount
of $840
237 Terrace Point Brownfield
Revenues:
Property Tax values and Tax Capture exceed original projects by
$97,000.00
Expenditures Amendments
Expenditures need to match the increase in revenue by the same amount
of 97,000
252 Farmers Market
Revenues:
Increase revenues by $43,000 this includes reimbursement from the DDA
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Expenditures Amendments
Increase expenditures by $60,000 ($30,000 for contractual and misc.
services and $30,000 for an ice maker and cameras.
This year the Farmer’s Market did not require any funds from the General
Fund.
254 Arena
Expenditures Amendments
Increase expenditures by $102,00 due to payroll increases and
contractual services.
445 Public Improvement
Expenditures Amendments
Increase expenditures by $100,000 to cover unexpected project costs on
capital projects.
482 STATE GRANTS
Expenditures Amendments
Increase expenditures by $4,750,000 for ARPA Expenditures.
643 ENGINEERING SERVICES
Expenditures Amendments
Increase expenditures by $25,000 due to salary rate increases.
STAFF RECOMMENDATION: To approve the End of Year Budget
Amendment as presented.
7.i Transfer of Obsolete Property Rehabilitation Exemption Certificate
#3-016-0027 from P & G Holdings NY, LLC to the new owners, Shaw
QOZB2, LLC - Economic Development
Shaw QOZB 2, LLC has requested an Obsolete Property Rehabilitation
Exemption Certificate transfer for the property 920 Washington Avenue.
On July 12, 2016, the City Commission approved an Obsolete Property
Certificate to P&G Holdings NY, LLC for 920 Washington Ave. State
issued this certificate on 12/13/2016.
Shaw QOZB 2, LLC has purchased the property for redevelopment that
will result in adaptive reuse of nearly 630,000 square feet of dilapidated
7
former industrial space into a lively mixed-use development. The project is
projected to result in over $120 million in tax capture over 20 years
between property taxes and new income taxes.
The previous owner (P&G Holdings NY, LLC) had an OPRA parcel on the
property and needs to be transferred over to the new owner.
STAFF RECOMMENDATION: to approve the adoption of the following
resolution approving the transfer of the Obsolete Property Rehabilitation
Exemption Certificate # 3-16-0027 from P&G.
7.j Contract Award - City Hall Boiler Replacement - Public Works
Staff is requesting authorization to enter into a contact with Hurst
Mechanical, in the amount of $534,964 for the replacement of the boiler(s)
and related equipment at City Hall.
Bids were solicited for the replacement of the boiler at City Hall after a
design was completed by Rhodes Engineering. Hurst Mechanical was the
only bid received, however the bid is in line with the engineer’s estimate
and Hurst has performed quality work for the City in the past.
Furthermore, the tight timeframe to complete the project before cold
weather returns has led staff to recommend award to Hurst on the basis of
timing, quality and a reasonable price.
Hurst’s bid is attached. They recommend adding $17,500 in asbestos
abatement costs, which staff agrees with, and staff has also requested a
performance bond for an additional $5,000 cost to ensure the work is done
properly and timely.
This work is budgeted in FY24 (up for adoption this evening), but again
due to the tight timeframe before cold weather staff requests approval
tonight to avoid losing the two weeks until the 7/10 meeting.
STAFF RECOMMENDATION: To authorize staff to enter into a contact
with Hurst Mechanical. in the amount of $534,964 for the replacement of
the boiler(s) and related equipment at City Hall.
7.l DWRF Lead Water Line Engineering - Public Works
Staff requests approval to enter into a contract with Prein & Newhof, Inc.
for engineering services related to lead service line replacements under
the DWRF program.
At the meeting on October 25, 2022, Commission authorized engineering
services for several projects related to the FY23 DWRF & CWSRF
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program through the state. That authorization included approval for work
in the Glenside Neighborhood, for the reconstruction of Wilcox, Thompson
and Edgewater streets in the Bluffton neighborhood, for the reconstruction
of Morton Avenue from Lincoln to Denmark in Lakeside, for repairs to the
Harbour Towne and Edgewater lift stations also in Bluffton, and for the
replacement of approximately 500 lead service lines in the City. The
authorization included $1,319,600 in funds from the FY23, FY24 and FY25
budgets.
Prein & Newhof and DPW have recently discovered that while that item
included the lead service line work in the description of the cover sheet, it
did not include an actual proposal for that work – meaning the cost of the
work was not included. Upon further review, a proposal by Prein &
Newhof was found from January of this year in the amount of $296,400.
Only the design portion of the proposal ($38,000) is funded by City funds-
on-hand; the much larger construction engineering portion goes into the
bond and qualifies for the principal forgiveness and other program
benefits.
This work is critical to both our lead service line replacement efforts
(required by state regulations and in the best interests of our residents and
water system regardless), as well as to the DWRF program we have
benefitted from lately. In fact, two weeks from now DPW staff will return
with the final details of this program. Current information from EGLE
indicates we expect to receive 75% forgiveness on the drinking water
portion of the loan this year, potentially worth over $6,900,000 in grant and
aid.
This year is the final year of three-year program whereby Prein & Newhof
was selected as one of two firms to perform the City’s state revolving fund
work. Based on that process, Commission’s prior support of this
engineering work being awarded to Prein & Newhof, and the critical nature
of this work that will lead, in part, to a substantial award of grant and aid
from the state, staff requests this additional cost be awarded to Prein &
Newhof.
AMOUNT REQUESTED: $296,000 Total - $38,000 (Design/Cash) and
$258,400 (Construction/Bond)
AMOUNT BUDGETED: $150,000 is budgeted in FY24 for all DWRF and
CWSRF engineering fees. Only the $38,000 design portion counts against
this; the remainder will be bonded.
9
FUND OR ACCOUNT: 591 (Water Fund)
STAFF RECOMMENDATION: To authorize staff to modify the existing
professional services agreement with Prein & Newhof for additional
services related to the FY23 DWRF lead service line replacements.
7.m EGLE Brownfield Loan Application - City of Muskegon and the
Meadows LLC - Economic Development
The City of Muskegon has been invited to submit an EGLE Brownfield
Loan Application with The Meadows LLC as the Developer.
Fishbeck (the consultant) has submitted a proposal on behalf of the City of
Muskegon for a $1M loan. The pre-vetting process for the EGLE Loan has
been completed and The City of Muskegon is invited to apply for this
project with The Meadows LLC as the developer.
The Harbor 31 project (as a whole redevelopment) is a planned mixed-use
development on approximately 25 acres of Muskegon Lake waterfront in
downtown Muskegon. Proposed uses include a hotel, 33-single and
multifamily residential units, a two-story office building, 48 rental
townhomes, two four-story buildings with grade level retail and apartments
above, a 100-unit waterfront apartment building, a marina, and an in/out
boat service sales and rental operation. For these uses to safely occur,
significant due care measures are required to mitigate environmental
concerns. Vapor barriers and venting systems are necessary beneath
proposed site structures to prevent potential intrusion of harmful vapors.
The cost to implement due care is significant and poses a threat to project
completion. Brownfield funding will be used to complete due care activities
for The Meadows and The Commons so that the development can be
safely completed. The Meadows currently owns the property where The
Commons are located. Eventually The Commons will split from The
Meadows and form a separate LLC and Brownfield Plan.
Staff Comments:
The focus areas for this loan include the projects below:
• 170 Viridian Drive (The Meadows)- This parcel includes the
development of 22 residential rental townhomes known as the Meadows
at Harbor 31. Additional analytical testing is estimated at $25,000 for this
parcel and includes the collection of soil, groundwater and/or soil gas
samples across this parcel to determine if vapor mitigation is necessary at
this parcel.
• 630 & 633 Terrace Street (The Commons East and West)- These
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parcels are located along the eastern and western sides of the
entrance drive to the Harbor 31 Redevelopment. These parcels will each
have a mixed-use building, approximately 30,000 square feet in size.
Therefore, approximately 60,000 square feet of vapor mitigation is
necessary on these parcels. It is anticipated that each building will need a
below slab vapor barrier and/or active mitigation. The projected cost for
vapor mitigation system construction is approximately $8/sq foot, equating
to an estimated $480,000.
• Total costs are expected to be $116,233,000. This includes
assessment/investigation, demolition, abatement, due care activities,
response activities, non-environmental public structure, Non-
Environmental Site Preparation, Contingency (up to 15% of grant/loan),
Administration (up to 3% of grant/loan), EGLE Project Sign (grant/loan
requirement), Grant Closeout Report (grant/loan requirement), Capital
Investment (whole site), and State of Michigan Budget Appropriation.
The applicant for the EGLE Brownfield Loan is the City of Muskegon. The
applicant project contact will be Contessa Alexander. The applicant
signing authority will be Jonathan Seyferth. The project consultant is Kirk
Perschbacher, Fishbeck. The project contact will be responsible for the
day to day operations, working closely with the entire team. This person
will work with the project consultant to send in quarterly invoices to EGLE
for reimbursement. The applicant signing authority will legally sign off on
all documents on behalf of The City of Muskegon. The proper vetting for
this Loan has been completed and The City of Muskegon is invited to
apply.
The following documents will be required with the application:
• A resolution adopted by the city, verifying that the city is willing to
accept the loan
• A Development / Reimbursement Agreement
STAFF RECOMMENDATION: To approve the resolution for the City of
Muskegon to apply for the EGLE Brownfield Loan application with The
Meadows LLC as the Developer and authorize the Mayor and Clerk to
sign.
7.n EGLE Brownfield Loan Application - Downtown Development
Authority, Parkland Properties of Michigan, 965 W. Western Ave., 920
& 930 Washington Ave. - Economic Development
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The Downtown Development Association (DDA) has been invited to
submit an EGLE Brownfield Loan Application with Parkland Properties of
Michigan as the Developer for 965 W. Western Ave., 920 & 930
Washington Ave (Shaw Walker Project).
Environmental Resource Group (the consultant) submitted a proposal on
behalf of the DDA for a $1M loan. The pre-vetting process for the EGLE
Loan has been completed and the DDA is invited to apply for this project
with Parkland Properties of Michigan as the developer.
There are considerable costs related to the environmental activities for the
former Shaw Walker Furniture property. The developer is seeking
$1,000,000 from the EGLE Brownfield Redevelopment Program ($1M
loan). These funds will offset some of the environmental costs for the
activities that are described below.
Vapor mitigation systems for the existing building
Vapor mitigation system performance monitoring and reporting
Asbestos and hazardous materials abatement
Consultant oversight and reporting
Proposed schedule for eligible activities:
The project is expected to begin in the fall of 2023 with vapor
system pilot testing and the start of asbestos / hazardous materials
abatement.
The project will result in adaptive reuse of nearly 630,000 square feet of
dilapidated former industrial space into a lively mixed-use development.
The project is projected to result in over $120 million in tax capture over
20 years between property taxes and new income taxes.
Staff Comments:
The applicant for the EGLE Brownfield Loan/ Grant is the City of
Muskegon Downtown Development Authority. The applicant project
contact will be Peter Wills. The applicant signing authority will be Jonathan
Seyferth. The project consultant is Jackie Freiberg, Environmental
Resources Group.
The project contact will be responsible for the day to day operations,
working closely with the entire team. This person will work with the project
consultant to send in quarterly invoices to EGLE for reimbursement.
12
The applicant signing authority will legally sign off on all documents on
behalf of the DDA.
The proper vetting for this Loan has been completed and the DDA is
invited to apply. The following documents will be required with the
application:
A resolution adopted by the city, verifying that the city is willing to
accept the loan
A Development Agreement is underway.
STAFF RECOMMENDATION: To approve the resolution for the DDA to
apply for the EGLE Brownfield Loan application with Parkland Properties
of Michigan as the Developer and authorize the Mayor and Clerk to sign.
7.d Approval of contract for Mediation & Restorative Services - Planning
To approve the contract for Mediation & Restorative Services to provide
education, outreach, and prevention services to at risk youth.
At the April Work Session meeting, the Commission heard a proposal from
Mediation & Restorative Services to provide education, outreach, and
prevention services to at risk youth. The Commission decided to proceed
with their services and asked staff to prepare a contract.
Services will include one-on-one accountability sessions, monthly group
accountability panels, educating neighborhood associations, monthly
parent/child discussion groups, discuss youth prevention efforts at local
dispensaries, and coordination with the Muskegon Police Department and
the Coalition for a Drug Free Muskegon County.
STAFF RECOMMENDATION: To approve the contract with Mediation &
Restorative Services and authorize staff to sign.
Action No. 2023-71(d)
Motion by: Vice Mayor German
Second by: Commissioner St.Clair
To approve the contract with Mediation & Restorative Services and
authorize staff to sign.
Ayes: (7): Mayor Johnson, Commissioner Gorman, Commissioner
St.Clair, Commissioner Hood, Vice Mayor German, Commissioner
Ramsey, and Commissioner Emory
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MOTION PASSES (7 to 0)
7.e MEDC RAP 1.0 Grant - Development Services
Staff is requesting approval of the attached resolution and authorization to
accept and distribute a 2022 MEDC RAP 1.0 State Grant of $6,000,000,
awarded on September 7, 2022, to support two real estate rehabilitation
projects – 880 First St LLC & Great Lakes Development Investments, Inc.
The city will enter into Subgrant Agreements to distribute $3,000,000 to
880 First St, LLC and $3,000,000 to Great Lakes Development
Investments, Inc. for projects costs incurred as part of their respective
redevelopment projects.
The city applied for and received a 2022 MEDC Revitalization and
Placemaking (RAP) 1.0 grant in the amount of $6M in the Fall 2022 to
support the 880 First St, LLC & Great Lakes Development Investments,
Inc, real estate rehabilitation projects.
The Revitalization and Placemaking Program (“RAP 1.0 Program”) was an
incentive program that deployed state funding to address the COVID-19
impacts and community revitalization needs in communities to invest in
projects that enable population and tax revenue growth through
rehabilitation of vacant and blighted buildings and historic structures,
rehabilitation and development of vacant properties, and development of
permanent place-based infrastructure associated with social zones and
traditional downtowns, outdoor dining, and place-based public spaces.
The city will enter into Subgrant Agreements to distribute $3,000,000 to
880 First St, LLC and $3,000,000 to Great Lakes Development
Investments, Inc. as they are two projects key to meeting the ongoing
housing needs of our community.
AMOUNT REQUESTED: $6,000,000
AMOUNT BUDGETED: $0
FUND OR ACCOUNT: TBD
STAFF RECOMMENDATION: To approve the resolution of support and
authorize the Clerk to sign.
Action No. 2023-71(e)
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Motion by: Vice Mayor German
Second by: Commissioner St.Clair
To approve the resolution of support for the MEDC RAP (Redevelopment
and Placement) Grant, and authorize the Clerk to sign.
Ayes: (7): Mayor Johnson, Commissioner Gorman, Commissioner
St.Clair, Commissioner Hood, Vice Mayor German, Commissioner
Ramsey, and Commissioner Emory
MOTION PASSES (7 to 0)
7.h Real Estate Purchase Agreement for The Splash Pad - Downtown
Muskegon Development Center No. 2, Association and the City of
Muskegon - Economic Development
A Real Estate Purchase Agreement has been submitted between The
Downtown Muskegon Development Center No. 2, Association (the
“Seller”) and The City of Muskegon (the “Buyer”) for the purchase of Unit
10 (the “Property”) referred to as the Western Avenue Splash Pad.
A survey plan was created by Gower Professional Surveying, P.C. that is
included in the agenda packet. This survey conveys the Downtown
Muskegon Development Center No. 2 boundaries, the Muskegon County
condominium plan No. 162. This area encompasses ten units between
Terrace, Morris, First, and Clay. The Property is commonly known as the
Western Avenue Splash Pad and is 8066 sq. ft.
This purchase agreement was created in order for Unit 10 to be eliminated
from the Downtown Muskegon Development Center No. 2 boundaries,
and to be purchased by the City of Muskegon.
As described in the Purchased Agreement:
The Seller shall convey the Property to the Buyer free and clear of
all liens and encumbrances. Seller is also responsible for all real
estate taxes and assessments that have been billed prior to the
effective date.
Moving forward the Buyer will be held accountable for all
responsibilities, including repairs and maintenance after effective
date.
All fixtures and equipment are included at no additional costs.
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Both parties agree that the property is to be sold as is.
If either party does not perform the terms and conditions of this
agreement within 10 days following receipt of written notice from
either Seller or Buyer, the Seller or Buyer can elect to terminate this
Agreement by written notice and neither party shall have further
obligations under this Agreement.
Closing costs to be paid by Seller include the following: recording
the deed, the premium for the owner’s policy of title insurance, any
inspection fees, closing fees charged by the Title Company, all
other costs and fees, including attorney fees, it incurred in
connection with this transaction including, the preparation of this
Agreement, and any related closing documents.
All parties shall deliver the Warranty Deed and all other documents
that are required by this Agreement
AMOUNT REQUESTED: $1,188.75
AMOUNT BUDGETED: $0
FUND OR ACCOUNT: Planning
STAFF RECOMMENDATION: To approve the Real Estate Purchase
Agreement made between Downtown Muskegon Development Center No.
2, Association and The City of Muskegon for the purchase of Unit 10 (the
“Property”) referred to as the Western Avenue Splash Pad authorizing the
Deputy City Manager to sign.
Action No. 2023-71(h)
Motion by: Commissioner Ramsey
Second by: Commissioner Gorman
To approve the Real Estate Purchase Agreement made between
Downtown Muskegon Development Center No. 2, Association and The
City of Muskegon for the purchase of Unit 10 (the “Property”) referred to
as the Western Avenue Splash Pad authorizing the Deputy City Manager
to sign.
Ayes: (7): Mayor Johnson, Commissioner Gorman, Commissioner
St.Clair, Commissioner Hood, Vice Mayor German, Commissioner
Ramsey, and Commissioner Emory
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MOTION PASSES (7 to 0)
7.k Water and Sewer Systems Debt Service Fee - Public Works
Staff requests authorization to institute a debt service fee for both the
water and sewer systems, to appear monthly on each water bill to cover
the debt payments by each system in the prior fiscal year.
On March 13, 2023 staff presented a synopsis of the water system
finances including that the water system is expected to be in debt to other
City funds by about $2,000,000 at the close of the 22-23 fiscal year. This
is due to increasing costs of treatment and capital-intensive repairs to the
system.
Staff presented different funding options, with consensus settling on a
“debt service fee.” This would institute a fee on each water bill, the total of
which would reimburse the system for the amount of debt paid in the prior
fiscal year (for example, the fee proposed at this time will reimburse the
system for the debt paid in the fiscal year ending June 30, 2022). Each
year, staff will make an accounting of the amount of debt paid be each of
the systems and will present adjustments to the fee for consideration by
the Commission. This will more directly tie the projects the City performs
to the amount of the water bill, and will allow the fee to be reduced as
certain bonds or other debts fall off of the system books.
The fee will be distributed on a meter equivalency basis, meaning a typical
residential account will pay the fee at a rate of “one,” while commercial
and industrial accounts will pay the fee at a potentially higher rate
depending on the size of their water meter. Irrigation accounts will not pay
the fee, assuming they are tied to a domestic water account at the same
address. Attached is a breakdown of the meter equivalency calculations
using factors from the American Water Works Association (AWWA).
The water system paid $1,206,318.45 in debt payments for the fiscal year
ending June 30, 2022, and the sewer system paid $473,493.59 for the
same period. Using the attached chart, we anticipate the fee will be $6.09
per month for a residential account on the water system, and $2.39 per
month for a residential account on the sewer system.
City Code states that the City Commission sets the water and sewer rates
by resolution. The attached resolution will institute the fee and establish it
at the rates described herein. The fee will need to be established by a
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similar resolution each year around this time to adjust the fee for the
actual amount of debt incurred each year as described above.
STAFF RECOMMENDATION: To approve the resolution establishing the
Fiscal Year 2023-24 Debt Service Fees for the water and sewer system.
Action No. 2023-71(k)
Motion by: Commissioner Ramsey
Second by: Vice Mayor German
To approve the resolution establishing the Fiscal Year 2023-24 Debt
Service Fees for the water and sewer system.
Ayes: (7): Mayor Johnson, Commissioner Gorman, Commissioner
St.Clair, Commissioner Hood, Vice Mayor German, Commissioner
Ramsey, and Commissioner Emory
MOTION PASSES (7 to 0)
8. Public Hearings
8.a Brownfield Plan Amendment, 880 1st Street, 216 West Clay Avenue -
Economic Development
880 First Street, LLC has submitted a Brownfield Plan Amendment for the
880 1st Street Rehabilitation & New Construction Project- a mixed- use
redevelopment project located at 880 1st St., and 216 West Clay Ave.
880 1st Street Rehabilitation & New Construction Project is a mixed- use
redevelopment project with a total capital investment of $28.8 million. The
projects eligible property is approximately 0.49 acres that consists of one
parcel and a small portion of another adjacent (880 1st St. and 216 W.
Clay Avenue. The property is considered an eligible facility as defined by
Act 381.
The total number of new jobs is 109, which includes construction and
support staff, managerial and administrative employees. There will be
1,384 rentable square feet commercial business space containing a
retail/service provider, 7,700 rentable square feet multi-purpose/co-
working and event space, and 57 multifamily residential apartments
offering attainable workforce housing (units between 80% and 120% of the
AMI according to current MSHDA affordability guidelines). Vertical
18
construction is scheduled to begin in the Spring 2024 and anticipated to
be completed by Summer 2026. The total estimated plan capture for
eligible activities is for 35 years, 2025-2059.
After the project is completed the total new taxes received by taxing units
is $2,366.873, total captured by the BRA is $6,201,788, and total new
taxes is $8,568,661.
During the 35 years tax capture period, the total tax capture is
$13,481,830 which includes local taxes (to be reimbursed to the developer
for eligible activities) of $5,225,029, state school taxes (to be reimbursed
to the developer for eligible activities) at $6,935,640, State of Michigan
Brownfield Redevelopment Fund (MBRF) (Maximum of 25-Year period for
tax capture) of $274,220, BRA Local Brownfield Revolving Fund of
$872,283, and the Brownfield Redevelopment Authority (BRA)
Administration of $174,658.
Eligible activities will include EGLE eligible activities such as
assessments, due care planning, and due care activities. MSF non-
environment activities eligible activities include demolition, lead/asbestos
activities, infrastructure improvements, and site preparation activities. The
plan includes a 15% contingency for environmental and non-
environmental activities and 5% in interest.
The Brownfield Redevelopment Authority approved the Brownfield Plan on
June 13th, 2023.
STAFF RECOMMENDATION: To close the Public Hearing and approve
the resolution for the Brownfield Plan Amendment for the 880 1st Street
Rehabilitation & New Construction Project authorizing the City Clerk and
City Mayor to sign.
Public Hearing Commenced:
Contessa Alexander, Development Analyst from City of Muskegon
Development Services Division, presented an overview of the proposed
redevelopment project.
Eric Helzer, 880 First Street development team, gave a presentation
regarding the rehabilitation and new construction project at 880 First
Street.
Brianna Scott, 880 First Street development team, addressed the
commission about her excitement about the project which is taking longer
than expected.
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No public comments.
Action No. 2023-72
Motion by: Commissioner Ramsey
Second by: Vice Mayor German
To close the Public Hearing and approve the resolution for the Brownfield
Plan Amendment for the 880 1st Street Rehabilitation & New Construction
Project authorizing the City Clerk and City Mayor to sign.
Ayes: (7): Mayor Johnson, Commissioner Gorman, Commissioner
St.Clair, Commissioner Hood, Vice Mayor German, Commissioner
Ramsey, and Commissioner Emory
MOTION PASSES (7 to 0)
9. Unfinished Business
9.a Transmittal of 2023-24 Proposed Budget - Finance
At this time staff is transmitting to the City Commission the proposed
budget for fiscal year 2023-24 which starts July 1, 2023. Both hardcopy
and electronic versions of the budget have been distributed to
Commissioners. Additionally, the budget is available for inspection on the
City’s website and at the City Clerk’s office. The proposed budget was
reviewed in detail with staff at the June 12, 2023 work session. A public
hearing on the budget was held at the regular Commission meeting on
June 13, 2024. City ordinance requires that the budget be adopted by the
Commission on or before the second Commission meeting in June.
https://muskegon-mi.gov/proposed-budget-for-2023-2024/
STAFF RECOMMENDATION: To approve the proposed budget for fiscal
year 2023-24.
Mayor Johnson invited the public comment on the budget. No public
comments were received.
Action No. 2023-73(a)
Motion by: Commissioner Emory
Second by: Commissioner Ramsey
To approve the proposed budget for fiscal year 2023-24.
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Ayes: (7): Mayor Johnson, Commissioner Gorman, Commissioner
St.Clair, Commissioner Hood, Vice Mayor German, Commissioner
Ramsey, and Commissioner Emory
MOTION PASSES (7 to 0)
10. New Business
10.a Distribution of Master Plan to Notice Group - Planning
The Planning Commission has prepared the proposed master plan update
and is submitting it to the City Commission for distribution to the notice
group for a 63-day review.
The notice group includes the planning commissions of all contiguous
local units of government, the Muskegon County Board of Commissioners,
each public utility company, railroad company, and public transportation
company in the City, and any other governmental entity that has
requested to be notified.
The plan can be viewed at this link.
STAFF RECOMMENDATION: To approve distribution of the proposed
master plan to the notice group for a 63-day review period.
Planning Director, Mike Franzak, provided an overview of the Master Plan
Update. The Master Plan is required to have a 63-day review period
before it can be adopted. The presentation included goals and
recommendations in four major areas. There were 27 public input
sessions over the past few years.
Action No. 2023-74(a)
Motion by: Commissioner St.Clair
Second by: Commissioner Hood
To approve distribution of the proposed master plan to the notice group for
a 63-day review period.
Ayes: (7): Mayor Johnson, Commissioner Gorman, Commissioner
St.Clair, Commissioner Hood, Vice Mayor German, Commissioner
Ramsey, and Commissioner Emory
MOTION PASSES (7 to 0)
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11. Any Other Business
11.a ARPA Committee Update
City Manager Jonathan Seyferth informed the Commission that the ARPA
Community Grant Committee has been meeting and staff is looking for
direction on how and when the City Commission would like to review
recommendations. There seems to be consensus that a special meeting
will be scheduled. The City Manager and Clerk will work with the
Commission to determine a date.
11.b ARPA Community Grant Meetings - selection criteria
Vice Mayor German raised concerns about the application review process
that the committee is using and would like to know what criteria, etc., are
being used to determine how to award the grant money. City Manager
Jonathan Seyferth spoke to the process used by the committee to score
the applications. Vice Mayor German is involved in an organization that
submitted an application.
11.c Citizen's Police Review Board
Vice Mayor German has received questions regarding the redaction of
information from the Citizens Police Review Board and will follow up with
Chief Kozal.
11.d Update on Gift Card
Commissioner Emory requested an update on the gift cards. Finance
Director, Ken Grant, provided the update. A meeting of the Gift Card
Committee will be scheduled to discuss how to move forward.
11.e End of Year Budget Amendment
Mayor Johnson requested and Finance Director Ken Grant provided an
overview of the End of Year Budget Amendments. Highlights are included
in the packet.
11.f Muskegon Museum of Art RAP Grant Letter of Support Request
Mayor Johnson was asked to provide a letter of support from the City for
the Muskegon for the Museum of Art's RAP Grant application. He is
seeking commission consensus as to whether or not to provide a letter of
support. There are several considerations to be made and as discussion
took place it was revealed that there is another entity, Adelaide Pointe,
also seeking a letter of support from the City. This is a competitive grant
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that the city has applied for as well. Commission consensus is that the city
should support the grant applications for both entities that have requested
as all projects benefit the city and it's residents.
11.g Parks and Recreation Advisory Committee
The recently created Parks and Recreation Advisory Committee is
accepting applications for positions until July 27, 2023.
12. Public Comment on Non-Agenda items
Reminder: Individuals who would like to address the City Commission
shall do the following:
Fill out a request to speak form attached to the agenda or located in the
back of the room.
Submit the form to the City Clerk.
Be recognized by the Chair.
Step forward to the microphone.
State name and address.
Limit of 3 minutes to address the Commission
(Speaker representing a group may be allowed 10 minutes if previously
registered with City Clerk.)
Public comments were received.
13. Closed Session
14. Adjournment
The City Commission meeting adjourned at 8:12 p.m.
Motion by: Commissioner Ramsey
To adjourn at 8:12 p.m.
MOTION PASSES
_________________________
Respectfully Submitted,
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Ann Marie Meisch, MMC - City Clerk
24
City of Muskegon
Work Session
Minutes
July 10, 2023, 5:30 pm
Muskegon City Hall
933 Terrace Street, Muskegon, MI 49440
Present: Mayor Ken Johnson
Commissioner Rachel Gorman
Commissioner Rebecca St.Clair
Commissioner Michael Ramsey
Commissioner Teresa Emory
Absent: Commissioner Eric Hood
Vice Mayor Willie German, Jr.
Staff Present: City Manager Jonathan Seyferth
City Clerk Ann Meisch
Deputy City Clerk Kimberly Young
1. Call to Order
2023-76
Mayor Johnson called the worksession meeting to order at 5:30 p.m. on Monday, July
10, 2023.
2. New Business
2.a DWRF & CWSRF Contract Summary - DPW
Staff presented the result of several bids recently received as a part of the FY23
DWRF (Drinking Water Revolving Fund) and CWSRF (Clean Water State Revolving
Fund) program, including the water and sewer debt fee implications and state
aid figures.
1
In June of 2021, DPW staff and Prein & Newhof presented many projects as part
of the Project Plan updates that were submitted to EGLE upon Commission's
resolution of support. After determining which of those projects were most
viable, Commission then authorized design engineering contracts to prepare
plans, bidding documents and other necessary program items in October of
2022. The projects for which plans and other documents were prepared for are:
The replacement of water main, sewer and roadways in the Bluffton
Neighborhood, including Wilcox, Thompson, Edgewater, Cherry, and
Walnut Streets.
The replacement of water main, sewer and roadway in Morton Avenue
from Lincoln to Denmark.
Repairs to the Harbour Towne and Edgewater lift stations (sanitary sewer
pump stations).
The replacement of approximately $4 Million worth of lead service lines
in various locations.
Prein & Newhof completed the design work and bids were received on Thursday,
June 22, 2023 and Tuesday, June 27, 2023. A summary of the prices received as
shown in the table.
Project Award Price
Wilcox-Thompson $4,048,154.05
Morton Avenue $1,732,668.75
Lift Station Repairs $424,495.00
Lead Service Lines $4,467,787.86
Total Construction Cost $10,673,105.66
Grant & Aid Offered (>67%) $7,189,305.05
Cost to the City (Bonded) $3,483,800.61
At this time we also have a good idea of the grant and aid offered by the state to
the City under the programs. The sewer projects are expected to receive 50%
principal forgiveness and the water projects are expected to receive principal
2
forgiveness and grants totaling 75% forgiveness. The remainder of the cost will
be bonded for 20 years at a well-below market rate of 1.875%
With the newly implemented water and sewer debt fees, the cost of these
projects to our customers can be directly estimated at this time. The table shows
the estimated debt fees that each project will require to be charged int he 2025
or 2026 fiscal year once the bond draws have reached their maximum and the
fees have been adjusted to cover the payments.
Project Water Sewer Total
Wilcox-Thompson $0.14 $0.33 $0.47
Morton Avenue $0.08 $0.09 $0.17
Lift Station Repairs N/A $0.07 $0.07
Lead Service Lines $0.34 N/A $0.34
Total Monthly Fee $0.56 $0.49 $1.05
The projects will have other costs that will be included in the bonds and will be
eligible for the same principle forgiveness and grants, such as the construction
engineering approved this past October. Those costs will be included in the bond
sales in the next couple months, and complete projects costs and estimated debt
service fees will be shared at that time once confirmed with the state finance
office and our consultants. We expect the debt service fees will be about 10%
higher than those shown here once all costs are accounted for.
The individual construction contracts are on the agenda for the July 11, 2023
meeting. This information is presented to allow the Commission to get a better
view of the total impact these programs will have on our system in 2024 and on
our customers over the life of the bond.
AMOUNT REQUESTED: N/A
FUND OR ACCOUNT: Water (590), Sewer (591), & Local Streets (203)
Discussion took place regarding the Drinking Water Revolving Fund & Clean
Water State Revolving Fund. Four items related to the contracts will be on the
agenda for consideration July 11, 2023.
3
2.b Muskegon Social Equity Program - Planning
Staff is seeking approval to set this year's allocations for the Muskegon Social
Equity Program (MSEP)
The City received $622,000 from marihuana excise tax payments this year and
agreed to use 30% ($186,600) towards the MSEP. Staff is proposing to keep 40%
($74,640) allocated towards grants and 30% ($55,980) towards education and
outreach.
Staff is proposing to eliminate the funding for expungement clinics this year
(expungements are scheduled through the first quarter of 2024) and allocate the
remaining 30% ($55,980) towards neighborhood association grants created from
the Fair Housing settlement ($10,000) and public infrastructure improvements
($45,980) in the neighborhoods near the marihuana overlay district. These
improvements would include things such as alley paving, tree trimming, street
sign replacement, sidewalk improvements, etc.
Discussion took place regarding the proposed expenditure of the excise tax
payments being used in neighborhoods where there are marihuana businesses.
2.c Update on Short-Term Rentals - City Manager
Staff is providing an update on the issue of Short-term Rentals.
As the growth of short-term rental (STR) companies, such as AirBnB, and VRBO,
becomes more prevalent, many communities across the state are discussing
policies that would manage the popularity of this lodging opportunity. Local
units of government are seeking to establish reasonable rules and regulations
that strike the delicate balance of allowing short-term vacation rentals in ways
that keep all property owners in mind.
Earlier this year, the city received questions and comments from residents and
business owners interested in learning more about short-term rentals and its
impact in our community. A STR Community Workshop was held on May 16,
2023. The city has since created an online Short-Term Rentals link for residents
to remain engaged on this topic. It includes additional information and issue
updates, along with tools for the public to provide important feedback. A more
detailed discussion with the commission is expected later this Fall to assess
implementing new protocols around this issue.
The Community Engagement Division, Inspections Department (SafeBuilt), Public
Safety, and Economic Development all presented information regarding the
4
impact of Short-Term Rentals. Deborah Santiago-Sweet covered the workshops
that were held by the City to inform residents as well as receive feedback from
residents about the current program. The inspections department (SafeBuilt)
provided an overview of the process to register as a Short-Term Rental as well as
how violations are addressed. Public safety reviewed the number of noise and
parking complaint that have been made since 2019 and how many were at STR
properties. Economic Development talked about the impact of Short-Term
rentals and how it relates to the recent housing study and the impact on housing
availability. An on-line portal is available for data collection and to report non-
compliance issues, etc. The non-emergency number to call with concerns is 722-
3524 and email address is [email protected] to report addresses
suspected of short or long term rentals that are not registered.
Discussion took place regarding the appetite for a moratorium. This will be
addressed again at a later date. There is general support for finding a solution to
some short term vs long term or short to long term rental transition, for
amendments to ordinances, etc.
3. Public Comment
Public comment was received.
4. Adjournment
The Work Session meeting adjourned at 8:14 p.m.
_________________________
Respectfully Submitted,
Ann Marie Meisch, MMC - City Clerk
5
City of Muskegon
City Commission Meeting
Minutes
July 11, 2023, 5:30 pm
Muskegon City Hall
933 Terrace Street, Muskegon, MI 49440
Present: Mayor Ken Johnson
Commissioner Rachel Gorman
Commissioner Rebecca St.Clair
Commissioner Eric Hood
Vice Mayor Willie German, Jr.
Commissioner Michael Ramsey
Commissioner Teresa Emory
Staff Present: City Manager Jonathan Seyferth
City Clerk Ann Meisch
City Attorney John Schrier
Deputy City Clerk Kimberly Young
1. Call To Order
Mayor Johnson called the Muskegon City Commission meeting to order at 5:30
p.m.
2. Prayer
Vice Mayor Willie German, Jr. opened the meeting with a prayer.
3. Pledge of Allegiance
The Pledge of Allegiance to the Flag was recited by the Commission and the
public.
4. Roll Call
As recorded above
5. Honors, Awards, and Presentations
5.a Recognition of Clerk
1
City Clerk, Ann Meisch, was recognized for her assistance to the Wings
Over Muskegon Event.
6. Public Comment on Agenda Items
Public comments were received.
7. Consent Agenda
Action No. 2023-77
Motion by: Commissioner Ramsey
Second by: Commissioner Gorman
To accept the consent agenda as presented, minus item 7c, 7d, 7h, 7m, and 7n.
Ayes: (7): Mayor Johnson, Commissioner Gorman, Commissioner St.Clair,
Commissioner Hood, Vice Mayor German, Commissioner Ramsey, and
Commissioner Emory
MOTION PASSES (7 to 0)
7.a Approval of Minutes - City Clerk
To approve the minutes of the June 12, 2023 Worksession and June 13,
2023 Regular meeting.
STAFF RECOMMENDATION: To approve the minutes.
7.b Easement for Electric Facilities at 159 McLaughlin Ave - Planning
Consumers Energy is seeking a thirty (30) foot wide strip of land, being
fifteen (15) feet on each side of the centerline to obtain electricity for the
construction of a residential structure at 159 McLaughlin Ave. which is a
City owned parcel that is being developed.
Consumers Energy has requested an easement for utility pole(s) on each
side of the centerline to obtain electricity for the construction of a
residential structure at 159 McLaughlin Ave. which is a City owned parcel
that is being developed.
STAFF RECOMMENDATION: To grant an easement to Consumers
Energy on the City’s property for 159 McLaughlin Ave. and authorize the
Mayor to sign the easement documents.
7.e Second ARP Amendment for West Urban - Development Services
2
Staff is seeking approval to add 1 lot at 1077 Sophia to the ARP
Agreement for West Urban to construct 3 homes.
In an effort to construct more affordable product and keep our target AMI
statistics on track with the buyer pool, we have worked with West Urban to
design some housing product that can be built and marketed at lower
price points. The lot we are requesting is perfectly shaped to add three
smaller units that can be sold for lower costs, making them attainable for
low/mod income potential buyers in this interest rate environment.
This item does not change the total number of homes we have contracted
for the ARP infill housing program, simply where three of them will be
located. At the end of the program, we may have lots left over on the
exhibit, in which case we will simply terminate the remaining lots from the
agreement to free them up for other infill housing programs in the future.
STAFF RECOMMENDATION: To approve the Second Amendment to the
West Urban Infill Housing Residential Construction Agreement as
presented and to authorize the Mayor and Clerk to sign.
7.f 123.NET Metro Act Permit Extension - DPW
123.NET requests approval of an amendment to their existing Metro Act
permit to access and use the public right-of-way within the city for
telecommunications purposes.
123.Net currently holds a Metro Act permit with the City of Muskegon.
That agreement is set to expire on 02/10/2025. 123.Net desires to extend
the term of the permit 5 years to 03/27/2028. Several telecommunications
companies hold these permits in order to provide services to City
residents and businesses. The permit includes restrictions on how and
where the lines and other equipment can be installed.
STAFF RECOMMENDATION: To approve the Metro Act Permit Extension
requested by 123.NET and authorize the DPW Director to sign.
7.g Lead Service Line Replacements - DPW
Authorize the award of the 2024 Lead Service Line Replacement Contract
to SWT Excavating, and authorize the clerk to sign the attached
resolution.
Our engineering consultant Prein & Newhof solicited bids for lead service
line replacements. This project was introduced to the Commission at the
October 25, 2022 regular meeting when the engineering work was
3
awarded. It was also included in our DWRF and CWSRF Project Plans in
June of 2021. The original locations proposed are Apple Avenue (in
advance of MDOT’s 2026 reconstruction of that street) and the East
Campbell Field area.
The low bidder, SWT Excavating, is currently performing a similar project
for the City of Muskegon Heights, also overseen by Prein & Newhof. Their
lowest bid of $3,462,145.86 is below the engineer’s estimate. Staff
recommends award to Kamminga & Roodvoets on the basis of Prein &
Newhof’s experience with them on their project in Muskegon Heights, and
the similarity between the projects.
SWT’s bid was well below the engineer’s estimate. Prein & Newhof
worked with the state to identify additional lead service lines that could be
added to the contract if the bids came in favorably. This way we do not let
available principal forgiveness go back to the state. So, staff is
simultaneously requesting approval of a change order of $1,005,642 to
SWT’s bid to increase the contract cost to $4,467,787.86 which will allow
us to take advantage of the full amount of bonding and principal
forgiveness being offered to us through the state and replace 120 more
lead service lines in the Oakview neighborhood.
This project is financed through the sale of bonds in partnership with the
State of Michigan Clean Water State Revolving Fund. The State program
offers grants and principal forgiveness for portions of the project. We
anticipate that when bonds are sold later this summer, we will be offered
grants and forgiveness worth 75% of the project cost. For this project that
is estimated at $3,350,840.90 of aid. The remainder of the project will be
financed over 20 years with a 1.875% interest rate.
The portion of the project that will be financed will be added to the water
debt fee. Staff estimates that when fully in effect in FY25, the sewer debt
fee associated with this project will be $0.34 per month on a standard
residential bill.
AMOUNT REQUESTED: $4,467,787.86 (Total) - $1,116,946.96 (Bonded)
FUND OR ACCOUNT: Sewer (590)
STAFF RECOMMENDATION: To approve award of the 2024 Lead
Service Line Replacement Contract to SWT Excavating, contingent upon
successful financial arrangements with the CWSRF program, and
authorize the Clerk to sign the resolution.
4
7.i Wilcox-Thompson Street Reconstruction - DPW
Authorize the award of the Wilcox-Thompson Street Reconstruction
Contract to the low bidder, Kamminga & Roodvoets, and authorize the
clerk to sign the resolution.
Our engineering consultant Prein & Newhof solicited bids for sewer
replacement, water main replacement, lead service line replacement and
street reconstruction in the Bluffton neighborhood. This project was
introduced to the Commission at the October 25, 2022 regular meeting
when the engineering work was awarded. It was also included in our
DWRF and CWSRF Project Plans in June of 2021. A map of the project is
shown at the right.
The low bidder, Kamminga & Roodvoets, has performed similar projects
for the City, including currently working on the Sanford project, and is
highly recommended by staff and by Prein & Newhof. Their low bid of
$4,048,154.05 is below the engineer’s estimate.
This project is financed through the sale of bonds in partnership with the
State of Michigan Clean Water and Drinking Water Revolving Funds. The
State of Michigan programs offer grants and principal forgiveness for
portions of the project. We anticipate that when bonds are sold later this
summer, we will be offered grants and forgiveness worth 75% of the water
system cost, and 50% of the sewer system cost. For this project that is
estimated at a combined $2,497,306.23 of aid. The remainder of the
project will be financed with a 1.875% interest rate.
The portion of the project that will be financed will be added to the water
and sewer debt fees. Staff estimates that when fully in effect in FY25, the
combined debt fees associated with this project will be $0.47 per month on
a standard residential bill.
AMOUNT REQUESTED: $4,048,154.05 (Total) - $1,550,847.82 (Bonded)
FUND OR ACCOUNT: 590 (Sewer) & 591 (Water)
STAFF RECOMMENDATION: To approve award of the Wilcox-Thompson
Streets Reconstruction Project to Kamminga & Roodvoets, contingent
upon successful financial arrangements with the CWSRF and DWRF
programs, and authorize the Clerk to sign the resolution.
7.j Harbour Towne & Edgewater Lift Station Repairs Project - DPW
5
Authorize the award of the Harbour Towne and Edgewater Lift Station
Repairs Contract to Jackson-Merkey, and authorize the clerk to sign the
resolution.
Our engineering consultant Prein & Newhof solicited bids for pump
replacements and other repairs to the Harbour Towne and Edgewater Lift
Stations. This project was introduced to the Commission at the October
25, 2022 regular meeting when the engineering work was awarded. It was
also included in our DWRF and CWSRF Project Plans in June of 2021.
The low bidder, Jackson-Merkey, has performed similar projects for the
City, including having built both of these lift stations at the time of their
original construction. Their low bid of $424,995 is below the engineer’s
estimate and $2,505 below the second lowest bid. The City has had
mixed results with Jackson-Merkey. The second half of the Terrace Street
project was better managed than previous projects, and due to program
requirements the City would be responsible to pay for the “extra” $2,505 if
we were to award to the second lowest bidder. For these reasons, staff
recommends award to Jackson-Merkey.
This project is financed through the sale of bonds in partnership with the
State of Michigan Clean Water State Revolving Fund. The State
programs offer grants and principal forgiveness for portions of the project.
We anticipate that when bonds are sold later this summer, we will be
offered grants and forgiveness worth 50% of the sewer system cost. For
this project that is estimated at $213,750 of aid. The remainder of the
project will be financed with a 1.875% interest rate.
The portion of the project that will be financed will be added to the sewer
debt fee. Staff estimates that when fully in effect in FY25, the sewer debt
fee associated with this project will be $0.07 per month on a standard
residential bill.
AMOUNT REQUESTED: $427,500 (Total) - $213,750 (Bonded)
FUND OR ACCOUNT: Sewer (590)
STAFF RECOMMENDATION: To approve award of the Harbour Towne
and Edgewater Lift Station Repairs Project to Jackson-Merkey, contingent
upon successful financial arrangements with the CWSRF program, and
authorize the Clerk to sign the included resolution.: I move to approve
award of the Harbour Towne and Edgewater Lift Station Repairs Project to
Jackson-Merkey, contingent upon successful financial arrangements with
the CWSRF program, and authorize the Clerk to sign the resolution.
6
7.k Contract Award - Keating Industrial to Port City
Staff is requesting authorization to approve a contact with Asphalt Paving
Inc, in the amount of $201,644.45 for the repaving of Keating Avenue from
Industrial Boulevard to Port City Boulevard.
Bids were solicited for a construction project to mill and resurface Keating
Ave from Industrial to Port City, along with necessary casting adjustments
and maintenance of traffic. Asphalt Paving, Inc. provided the low bid.
AMOUNT REQUESTED: $201,664.45
FUND OR ACCOUNT: 202 (Major Streets)
STAFF RECOMMENDATION: To authorize staff to enter into a contact
with Asphalt Paving, Inc. in the amount of $201,664.45 for the resurfacing
of Keating Avenue from Industrial Boulevard to Port City Boulevard.
7.l Olthoff Drive Extension Project Change Order - DPW
Staff is requesting authorization to approve a contact change order with
Terra Excavators, LLC, in the amount of $193,404.00.
This project has been delayed significantly from when it was awarded at
the April 25, 2023 Commission meeting. Pipe material delays continue to
plague the project, however close coordination with the adjacent property
owner has prevented these delays from impacting the critical parts of the
overall project.
The project, as it was originally designed, required City staff to perform a
large portion of the work on the prison site due to security concerns. As a
part of that coordination with the adjacent property owner, the City’s
consulting engineer and the contract worked to find ways to reduce the
security concerns and the City’s direct responsibilities. By raising the road
and allowing the sewer to connect further west in the existing portion
Olthoff Drive, the need to enter the prison property for construction and for
maintenance was eliminated. This also eliminated an estimated $166,113
in costs the City DPW would have incurred by needing to perform work on
the prison site.
In effect this change order represents approximately an increase of
$27,291 to the project, however since the contractor will now be
performing all of the work, their contract increases by an amount of
$193,404 as shown on the attached spreadsheet. While the original
cnotract of $1,043,104.60 was budgeted in FY24, this change order was
7
not, and a budget reforecast will be included at the next quarter. The
MEDC grant that paid for demolition of the prison and is paying for the
utilities in this project has the funds to pay for this change order, so it will
be a revenue-neutral reforecast.
AMOUNT REQUESTED: $193,404.00 (Additional) - $1,236,508.60 (Total)
FUND OR ACCOUNT: 445 (Public Improvement)
STAFF RECOMMENDATION: To authorize staff to approve the change
order amount of $193,404.00 revising the contract amount for the Olthoff
Extension contract amount with Terra Contractors, LLC to $1,236,508.60.
7.o Lot Sale - 1690 Creston Street - Planning
Staff is seeking authorization to sell the City owned, 1.7-acre lot at 1690
Creston St to Excalibur Company, which operates an industrial business
adjacent to the parcel.
The lot formerly contained the defunct communications tower and two
small equipment sheds. The City usually asks for 30% of the true cash
value for a lot. The true cash value of the lot is $30,000 (75%=$22,500).
Staff received an estimate to remove the tower and sheds at a cost of
$23,500. The purchase agreement was written as to convey the property
to the buyer as long as the tower and sheds were removed from the
property within 60 days. However, the buyer was mistaken when he
signed the purchase agreement and removed the tower from the site on
June 27. After becoming aware, staff instructed the buyer to not remove
the sheds at this time. The property owner intends to construct a building
addition once the property is purchased.
STAFF RECOMMENDATION: To approve the lot sale request and
authorize the Mayor and Clerk to sign the real estate purchase agreement.
7.p Updated EGLE Loan Resolutions for Shaw Walker and Harbor 31 -
Economic Development
EGLE has requested that the EGLE loan resolutions for both Shaw Walker
and Harbor 31 be updated.
EGLE loan applications and supporting documents have been submitted
to EGLE for both the Shaw Walker Project and Harbor 31. Our EGLE
representative has requested that we include in both resolutions that the
local unit of government commits to repaying the loan.
8
The resolutions for both Harbor 31 and Shaw Walker have been approved
at the City Commissions meeting held on June 27, 2023.
STAFF RECOMMENDATION: To approve the attached updated
resolutions for the EGLE Brownfield Loan applications on behalf of the
City of Muskegon and the Downtown Development authorizing the Mayor
and Clerk to sign.
7.q Amendment to Sale of 754 Leonard Ave - Manager's Office
Staff is seeking approval for an amendment to the purchase agreement for
the sale of 754 Leonard Avenue.
Due to delays in construction, the closing date for the sale of this home
has been shifted multiple times which has caused negative impacts on the
mortgage interest rate of the buyer. The amendment changes the amount
of proceeds the city will receive from the sale. The sale price remains at
$220,000, and now the city is agreeing to contribute $8,000 toward the
buyer’s closing costs. The original agreement (approved on November
22, 2022) had no seller’s concession included. Staff recommends
approving the amendment to ensure the buyer can move forward with the
purchase. There is certainly risk that the buyer will walk away from the
sale if the amendment is not approved.
STAFF RECOMMENDATION: To approve the amendment to the
purchase agreement for 754 Leonard Avenue.
7.r Gaming Resolution for Friends of Art - City Clerk
Friends of Art is requesting Recognition as non-profit in the City of
Muskegon for the purpose of obtaining a charitable gaming license.
STAFF RECOMMENDATION: To approve the request from Friends of Art
to be recognized as a non-profit in the City of Muskegon for the purpose of
obtaining a charitable gaming license.
7.c GARE Membership - Manager's Office
Staff is seeking approval to formally apply for membership with the
Government Alliance on Race & Equity.
Staff had participated with Ottawa County where we began work with the
GARE framework. Staff is committed to achieving racial equity through
improvements to our policies, practices, and procedures. We have re-
established the Core Team and expect to complete an audit of our current
9
practices. It is important to us to formally join the GARE community and
benefit from the resources they provide.
Our membership comes with expectations that we will share our
experiences, insights, challenges, and successes with other GARE
members. We are encouraged to share our affiliation with GARE across
our networks, media assets, and the public and to follow GARE’s social
media policy.
Staff propose joining as Core members which means our entire city
government is included, and every employee has access to the resources.
Based on our number of employees, annual dues are $1,000.
STAFF RECOMMENDATION: To approve formal application to join the
Government Alliance on Race & Equity.
Action No. 2023-78(c)
Motion by: Vice Mayor German
Second by: Commissioner St.Clair
To approve formal application to join the Government Alliance on Race &
Equity.
Ayes: (7): Mayor Johnson, Commissioner Gorman, Commissioner
St.Clair, Commissioner Hood, Vice Mayor German, Commissioner
Ramsey, and Commissioner Emory
MOTION PASSES (7 to 0)
7.d Land Bank Lot Purchase - Development Services
Staff is seeking approval to purchase 10 additional residential lots from the
Muskegon County Landbank to add to our existing infill housing programs.
Staff has been working diligently to get more builders and investors
involved in infilling housing for the community in light of the staggering
data in our 5 Year Housing Needs Assessment. This has been successful
and we are seeing an uptick in lot sales both from our inventory as well as
the Land Bank’s intended for new construction. We are still working out
some issues with the lots intended for the PILOT program with West
Urban, and found these lots owned by MCLB are proximal to many of our
other builds and future build sites. We would like to get them under site
control in order to continue that infill program and ensure we have
adequate lots to complete the project successfully.
10
Additionally, there is a higher charge for these lots in particular than we
would typically see from the MCLB due to the fact we intend to add them
to a PILOT agreement, which will cost them money on the back end.
AMOUNT REQUESTED: $35,000
FUND OR ACCOUNT: Public Improvement Fund, 23/24 Budgeted
Property Acquisitions
STAFF RECOMMENDATION: To approve application to Muskegon
County Land Bank for purchase of 10 lots as presented for $35,000, and
to authorize closing.
Action No. 2023-78(d)
Motion by: Commissioner Emory
Second by: Vice Mayor German
To approve application to Muskegon County Land Bank for purchase of 10
lots as presented for $35,000, and to authorize closing.
Ayes: (7): Mayor Johnson, Commissioner Gorman, Commissioner
St.Clair, Commissioner Hood, Vice Mayor German, Commissioner
Ramsey, and Commissioner Emory
MOTION PASSES (7 to 0)
7.h Morton Street Reconstruction - DPW
Authorize the award of the Morton Street Reconstruction Contract to the
low bidder, Jackson-Merkey, and authorize the clerk to sign the resolution.
Our engineering consultant Prein & Newhof solicited bids for sewer
replacement, water main replacement, lead service line replacement and
street reconstruction in Morton Street from Lincoln to Denmark. This
project was introduced to the Commission at the October 25, 2022 regular
meeting when the engineering work was awarded. It was also included in
our DWRF and CWSRF Project Plans in June of 2021.
The low bidder, Jackson-Merkey, has performed similar projects for the
City, including the Terrace Street project. Their low bid of $1,732,668.75
is below the engineer’s estimate and about $275,000 below the second
lowest bid. The City has had mixed results with Jackson-Merkey. The
second half of the Terrace Street project was better managed than
previous projects, and due to program requirements the City would be
11
responsible to pay for the “extra” $275,000 if we were to award to the
second lowest bidder. For these reasons, staff cautiously recommends
award to Jackson-Merkey.
This project is financed through the sale of bonds in partnership with the
State of Michigan Clean Water and Drinking Water Revolving Funds. The
State of Michigan programs offer grants and principal forgiveness for
portions of the project. We anticipate that when bonds are sold later this
summer, we will be offered grants and forgiveness worth 75% of the water
system cost and 50% of the sewer system cost. For this project that is
estimated at a combined $1,128,660.42 of aid. The remainder of the
project will be financed with a 1.875% interest rate.
The portion of the project that will be financed will be added to the water
and sewer debt fees. Staff estimates that when fully in effect in FY25, the
combined debt fees associated with this project will be $0.17 per month on
a standard residential bill.
AMOUNT REQUESTED: $1,732,668.75 (Total) - $604,008.33 (Bonded)
FUND OR ACCOUNT: Water (591), Sewer (591), & Local Streets (203)
STAFF RECOMMENDATION: To approve award of the Morton Street
Reconstruction Project to Jackson-Merkey, contingent upon successful
financial arrangements with the CWSRF and DWRF programs, and
authorize the Clerk to sign the resolution.
Action No. 2023-78(h)
Motion by: Commissioner Emory
Second by: Commissioner St.Clair
To approve award of the Morton Street Reconstruction Project to Jackson-
Merkey, contingent upon successful financial arrangements with the
CWSRF and DWRF programs, and authorize the Clerk to sign the
resolution.
Ayes: (7): Mayor Johnson, Commissioner Gorman, Commissioner
St.Clair, Commissioner Hood, Vice Mayor German, Commissioner
Ramsey, and Commissioner Emory
MOTION PASSES (7 to 0)
7.m Shoreline Drive Pilot Phase II - DPW
12
Authorize staff to spend up to $56,000 for the implementation of the
second phase of the Shoreline Drive Traffic Pilot, including authorizing
staff to enter into contracts with Give ‘Em a Brake Safety and Barry’s
Greenhouses for $20,890 and $14,000 respectively.
At the work session meeting on June 12, 2023, staff presented options for
the implementation of the second phase of the Shoreline Drive Traffic
Pilot. This phase is intended to be longer and more representative of the
summer and event season than the first phase was last fall.
Commission expressed support for the pilot, as well as for some
“imagination stations” that would call to mind what the next version of
Shoreline Drive could look like. As discussed at the meeting, those
stations will include landscaping along the corridor, and could include a
section of parking near the Arena and/or Farmer’s Market, street art at
intersections or elsewhere, and additional stations if community partners
are interested in participating (such as a temporary or faux bus stop).
The traffic control and data collection will be set up as quickly as possible
in order to obtain data in July of 2023 and make more direct comparisons
to our baseline data from July of 2022. The imagination items will be
deployed as soon as they are available. In summary of the costs:
Traffic control contract with Give ‘Em a Brake Safety: $20,890.00
(See Attached)
Landscaping by Barry’s Greenhouses: $14,000 Quote Plus $6,000
Contingency (See Attached)
Supplies and Labor for Street Artwork: $5,000
Miscellaneous Imagination Station Supplies & Labor: $10,000
The total as presented here and discussed at the work session is $56,000
based on the two attached quotes and efforts to assemble the imagination
stations.
AMOUNT REQUESTED: $56,000
FUND OR ACCOUNT: 202 (Major Streets)
STAFF RECOMMENDATION: To authorize staff to spend up to $56,000
for the implementation of the second phase of the Shoreline Drive Traffic
Pilot, including authorizing staff to enter into contracts with Give ‘Em a
Brake Safety and Barry’s Greenhouses for $20,890 and $14,000
respectively.
13
Action No. 2023-78(m)
Motion by: Vice Mayor German
Second by: Commissioner Ramsey
To authorize staff to spend up to $56,000 for the implementation of the
second phase of the Shoreline Drive Traffic Pilot, including authorizing
staff to enter into contracts with Give ‘Em a Brake Safety and Barry’s
Greenhouses for $20,890 and $14,000 respectively.
Ayes: (6): Mayor Johnson, Commissioner Gorman, Commissioner
St.Clair, Commissioner Hood, Commissioner Ramsey, and Commissioner
Emory
Nays: (1): Vice Mayor German
MOTION PASSES (6 to 1)
7.n Splashpad RFQ/RFP - DPW
Staff requests authorization to issue a request for qualifications/proposals
to replace the downtown splash pad.
During the summer of 2022 the downtown splash pad was subject to
frequent breakdowns and disruptions in service. An extensive amount of
resources were put towards the project on numerous occasions to provide
what little operational use the site was able to provide in 2022. Late in
2022 the system failed again and it was determined in the best interest to
close it for the remainder of the year. The Parks irrigation staff have
created a temporary fix to provide this amenity to our residents for the
summer of 2023 to hopefully get us through the season but this is not a
permanent solution.
Staff is requesting approval to issue the attached request for qualifications
to begin the next phase of this project which will start to envision a long
term replacement for the site. Proposals received through the RFQ
process will be reviewed and shortlisted by a team of stakeholders and
then presented to the Commission and Public for additional feedback.
Construction of a new site for use in 2024 is the expectation.
The Michigan Spark Grant has awarded the City of Muskegon $250,000
with an additional donation of $50,000 from Howmet to help with upgrades
to the splash pad and replacement of the “Alcoa Celebration Square” sign.
14
The previous RFP for this project was developed prior to the receiving the
Spark grant. This proposal is being created to fit into the awarded grant
amount.
AMOUNT REQUESTED: N/A
AMOUNT BUDGETED: $290,000
STAFF RECOMMENDATION: Authorize staff to issue a request for
qualifications for the replacement of the downtown splash pad.
Action No. 2023-78(n)
Motion by: Commissioner Ramsey
Second by: Commissioner St.Clair
Authorize staff to issue a request for qualifications for the replacement of
the downtown splash pad.
Ayes: (7): Mayor Johnson, Commissioner Gorman, Commissioner
St.Clair, Commissioner Hood, Vice Mayor German, Commissioner
Ramsey, and Commissioner Emory
MOTION PASSES (7 to 0)
8. Public Hearings
8.a Establishment of a Commercial Redevelopment District - 420 S.
Harvey Rental and Storage LLC - Economic Development
420 S. Harvey Rental & Storage LLC, has requested the establishment of
a Commercial Redevelopment District at 420 S. Harvey. The creation of
the district will allow the building owner to apply for a Commercial
Facilities Exemption Certificate. The Commercial Facilities Exemption Tax
freezes the taxable value of the building and exempts the new investment
from local taxes.
Most recently this property was used by Sons of Norway and built in 1948.
The sq ft of the property is about 10,754. 420 Harvey Holdings LLC (the
company), intends to redevelop this property for retail. The total cost of
rehabilitation will be $3,000,000, with 150 new jobs, 50 retained jobs, and
100 construction jobs.
The owner is seeking a Commercial Facilities Exemption Certificate for
Phase 1 of development which will include a marijuana retailer, marijuana
consumption lounge, restaurant/ bar, and outdoor hospitality venue.
15
STAFF RECOMMENDATION: To close the public hearing and approve
the Establishment of the Commercial Redevelopment District at 420 S.
Harvey authorizing the Mayor and City Clerk to sign the resolution.
Action No. 2023-79(a)
Motion by: Commissioner St.Clair
Second by: Commissioner Ramsey
To close the public hearing and approve the Establishment of the
Commercial Redevelopment District at 420 S. Harvey authorizing the
Mayor and City Clerk to sign the resolution.
PUBLIC HEARING COMMENCED: No public comments received.
Ayes: (7): Mayor Johnson, Commissioner Gorman, Commissioner
St.Clair, Commissioner Hood, Vice Mayor German, Commissioner
Ramsey, and Commissioner Emory
MOTION PASSES (7 to 0)
8.b Request for a Commercial Facilities Exemption Certificate - 420 S.
Harvey Rental and Storage LLC - Economic Development
420 S. Harvey Rental & Storage LLC, has requested a Commercial
Facilities Exemption Certificate 420 S. Harvey.
Contingent to the approval of a Commercial Redevelopment District, 420
S. Harvey Rental & Storage LLC has requested a Commercial Facilities
Exemption Certificate for the property at 420 S. Harvey. The owner plans
to redevelop this property and bring a new cannabis business Cannary.
The total cost of rehabilitation will be $3,000,000, with 150 new jobs, 50
retained jobs, and 100 construction jobs.
The owner is seeking a Commercial Facilities Exemption Certificate for
Phase 1 of development which will include a marijuana retailer, marijuana
consumption lounge, restaurant/ bar, and outdoor hospitality venue. The
Tax Abatement Committee met on July 6, 2023 to score this application
and send along their recommendation to City Commission.
STAFF RECOMMENDATION: To close the public hearing and approve
the Commercial Facilities Exemption Certificate at 420 S. Harvey
authorizing the Mayor and City Clerk to sign the resolution.
Action No. 2023-79(b)
16
Motion by: Commissioner Ramsey
Second by: Commissioner Emory
To close the public hearing and approve the Commercial Facilities
Exemption Certificate, for 8 years, at 420 S. Harvey authorizing the Mayor
and City Clerk to sign the resolution.
PUBLIC HEARING COMMENCED: No public comments received.
Ayes: (7): Mayor Johnson, Commissioner Gorman, Commissioner
St.Clair, Commissioner Hood, Vice Mayor German, Commissioner
Ramsey, and Commissioner Emory
MOTION PASSES (7 to 0)
9. Unfinished Business
10. New Business
10.a Bike Path Relocation at Adelaide Pointe - Manager's Office
Staff is seeking approval of the exchange of property for the relocation of
the Lakeshore Trail bike path within the Adelaide Pointe development.
In cooperation with the development at Adelaide Pointe, staff is requesting
a change in the alignment of the Lakeshore Trail. Exhibits showing the
existing location of the property/trail overlayed with the proposed location
are included for reference. Adelaide Pointe QOZB will deed to the city the
necessary property for the trail realignment, and the city will deed to
Adelaide Pointe QOZB the former trail property. All closing costs will be
borne by the developer. Please note that this property exchange requires
the city to enter into the MDNR conversion process, and staff is
collaborating with the state on this effort.
STAFF RECOMMENDATION: To approve the exchange of property for
the relocation of the Lakeshore Trail within the Adelaide Pointe
development and authorize the City Manager to sign.
Action No. 2023-80(a)
Motion by: Commissioner St.Clair
Second by: Commissioner Ramsey
To approve the exchange of property for the relocation of the Lakeshore
Trail within the Adelaide Pointe development and authorize the Mayor and
City Clerk to sign with the condition that a public easement be place onto
17
the promenade to the Southwest of Building B1 in the Adelaide Pointe
approved Planned Unit Development.
Ayes: (7): Mayor Johnson, Commissioner Gorman, Commissioner
St.Clair, Commissioner Hood, Vice Mayor German, Commissioner
Ramsey, and Commissioner Emory
MOTION PASSES (7 to 0)
10.b District Library Board Appointment - City Clerk
To make an appointment to the District Library Board for a citizen position
with a term expiring June 30, 2027. There are two qualified applicants,
Thomas DeVoogd and Karen Evans. Karen Evans held this appointment
until the term expired on June 30, 2023.
STAFF RECOMMENDATION: To make an appointment to the citizen
position on the District Library Board, term expiring June 30, 2027.
Action No. 2023-80(b)
Motion by: Commissioner Ramsey
Second by: Commissioner Hood
To appoint Karen Evans to the citizen position on the District Library
Board, term expiring June 30, 2027.
Ayes: (7): Mayor Johnson, Commissioner Gorman, Commissioner
St.Clair, Commissioner Hood, Vice Mayor German, Commissioner
Ramsey, and Commissioner Emory
MOTION PASSES (7 to 0)
11. Any Other Business
City Manager Jonathan Seyferth advised that we are still looking for a meeting
date to review recommendations from the ARPA Community Grant Committee.
Commissioner Hood questioned the policy regarding city residents receiving free
beach parking passes.
12. Public Comment on Non-Agenda items
Public comments were received.
13. Closed Session
18
14. Adjournment
The City Commission meeting adjourned at 8:00 p.m.
Motion by: Commissioner Ramsey
Second by: Commissioner Gorman
To adjourn.
MOTION PASSES
_________________________
Respectfully Submitted,
Ann Marie Meisch, MMC - City Clerk
19
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: July 25, 2023 Title: MML Workers' Compensation Fund
Board Ballot
Submitted By: Jonathan Seyferth Department: City Manager
Brief Summary: As a member of the Michigan Municipal League's (MML) Worker's Compensation
Fund, the City of Muskegon votes for the fund's board members. The recommended slate of six
candidates can be found on the page following the memo.
Detailed Summary & Background: As a member of the Michigan Municipal League's (MML)
Worker's Compensation Fund, the City of Muskegon votes for the fund's board members. The
Commission must approve a slate of up to six candidates. The recommended slate of candidates
can be found on the page following the memo include the following individuals.
First Term Recommendations:
- Christine Burns, Manager, Village of Spring Lake
- Juan Ganum, Manager, City of Bridgeman
- Kevin Klynstra, Mayor, City of Zeeland
Re-election to Second Terms Recommendations:
- Devin Olson, Manager, City of Munising
- Adam Smith, Manager, City of Grand Ledge
- David J Toosava, Mayor, City of Hastings
Goal/Focus Area/Action Item Addressed: N/A
Amount Requested: $0 Budgeted Item: N/A
Yes No
Fund(s) or Account(s): N/A Budget Amendment Needed:
Yes No
Recommended Motion: I move to approve the MML Worker’s Compensation Fund Board of
Trustees slate as presented and authorize the City Manager to sign.
Approvals: Guest(s) Invited / Presenting:
Yes
Immediate Division Head
No
Information Technology
Other Division Heads
Communication
Legal Review
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: July 11, 2023 Title: Tax Foreclosure City Property
Acquisition 2023
Submitted By: Jake Eckholm Department: Development Services
Brief Summary: Staff is seeking approval to purchase various vacant lots for infill housing and
homes for rehab prior to their procession to the Tax Foreclosure Auction.
Detailed Summary & Background: We have received the list of properties and structures in the city
limits that are proceeding to the tax auction. Staff has compiled the attached list that we feel are in
the public interest for the City of Muskegon to acquire for the purposes of new construction infill
housing, as well as affordable housing rehabs through CNS. We anticipate that most of these
properties will be built on in calendar 2024 and will be a blend of for-sale and for-rent product.
The lots are requested for purchase as follows:
- 1974 Dowd ($1,216.50)
- 647 Marquette ($520.79)
- 77 Hartford ($726.68)
- 1278 Pine ($508.27)
- 611 Leonard ($655.03)
- 1124 Langeland ($981.66)
Total for Lots: $4,608.93
The house requested for CNS Rehab is 1295 James ($5,610.34)
Goal/Focus Area/Action Item Addressed: Housing for all, Complete Active Economic Development
Projects
Amount Requested: $10,219.27 Budgeted Item:
Yes No
Fund(s) or Account(s): 473-734-801 for HOME Budget Amendment Needed:
Yes No
445 (Public Improvement Fund) for lot
purchases
Recommended Motion: To approve the purchase of the properties on the 2023 Tax Auction List as
presented, and to authorize the city manager or his designee to close on the properties.
Approvals: Guest(s) Invited / Presenting:
Immediate Division Head
Information Technology Yes
Other Division Heads No
Communication
Legal Review
Muskegon
City of Muskegon
Ken Johnson
Ann Marie Meisch
Muskegon
City of Muskegon
Ken Johnson
Ann Marie Meisch
Muskegon
City of Muskegon
Ken Johnson
Ann Marie Meisch
Muskegon
City of Muskegon
Ken Johnson
Ann Marie Meisch
Muskegon
City of Muskegon
Ken Johnson
Ann Marie Meisch
Muskegon
City of Muskegon
Ken Johnson
Ann Marie Meisch
Muskegon
City of Muskegon
Ken Johnson
Ann Marie Meisch
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: July 25, 2023 Title: Deputy City Manager Contract
Submitted By: Jonathan Seyferth Department: City Manager’s Office
Brief Summary: The City Commission had indicated a desire to see the Deputy Manager’s position
memorialized with its own contract. This contract is based largely on the City Manager’s contract
and notes that the DCM position is outside the Civil Service.
Detailed Summary & Background: The contract is based largely on the City Manager’s contract
and includes benefits provided to other department/division heads.
Key Highlights:
- Car allowance
- Educational allowance (with a passing grade)
- Remote work option (structured and reviewed annually)
- Contract would be retroactive to May 1, 2023
Goal/Focus Area/Action Item Addressed:
Amount Requested: $144,000 Budgeted Item:
Yes No
Fund(s) or Account(s):101-172-5100/various Budget Amendment Needed:
Yes No
Recommended Motion: To approve the Deputy City Manager’s contract as presented and
authorize the Mayor and Clerk to sign.
Approvals: Guest(s) Invited / Presenting:
Immediate Division Head
Information Technology Yes
Other Division Heads No
Communication
Legal Review
EMPLOYMENT AGREEMENT
CITY OF MUSKEGON – LEIGHANN MIKESELL
Effective May 1, 2023
This employment agreement is made and entered into by and between the CITY OF
MUSKEGON ("CITY") and LEIGHANN MIKESELL ("MIKESELL").
Recitals
A. The CITY desires to employ MIKESELL as the Deputy City Manager of the City
of Muskegon as provided in the Charter of the City of Muskegon and desires to establish
conditions of employment, provide certain benefits, and set working conditions for said Deputy
City Manager
B. MIKESELL desires to be employed as Deputy City Manager of the City of
Muskegon in accordance with the terms and provisions of the Agreement.
C. This Agreement supersedes all discussions and agreements.
D. All parties acknowledge that the Deputy City Manager position is outside of the
City of Muskegon’s Civil Service structure
Agreement
NOW THEREFORE, THE CITY AND DEPUTY CITY MANAGER AGREE AS
FOLLOWS:
1. EMPLOYMENT. CITY employs MIKESELL as Deputy City Manager/Chief
Operating Officer (DCM/COO) to perform the functions and duties specified in the Deputy City
Manager job description, City Charter, and ordinances and to perform such other legally
permissible and proper duties and functions as the City Manager may, from time to time, assign,
and MIKESELL accepts such employment.
MIKESELL agrees to remain in the employment of the CITY until termination is
effected as hereinafter provided. MIKESELL agrees to devote full time to her duties as Deputy
City Manager and may undertake other incidental employment, subject to the right of the City
Manager to require the Deputy Manager to terminate other incidental employment if it interferes
or conflicts with MIKESELL’S duties as Deputy Manager.
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2. SALARY. Effective May 1, 2023, CITY agrees to pay MIKESELL, as
compensation for services rendered, an annual salary of $144,000. MIKESELL shall be entitled
to cost of living adjustments approved by the City Commission for division heads on the first of
each year, commencing January 1, 2024. Merit adjustments will be considered from time to time
and, if granted by the City Manager, would be effective July 1 of each year, commencing July 1,
2024.
3. FRINGE BENEFITS. In addition to the base salary, CITY shall afford
MIKESELL the fringe benefits provided for as follows:
3.1 Residency Premium: City will pay to MIKESELL a premium for being a
resident consistent with the Muskegon City Residency Program as amended. Presently,
the incentive is 6% of base wages, paid bi-weekly, while MIKESELL resides in the City
of Muskegon city limits. MIKESELL will also be afforded to participate in a match
toward a down payment and a forgivable loan program for primary residence purchased
within the City of Muskegon, subject to certain limitations.
3.2 Health Insurance: City shall provide the same HMO health insurance plan
provided to other division heads. MIKESELL shall contribute toward the health
insurance premium at the same rate as other division heads and follow the same wellness
program required of other division heads. MIKESELL may opt out of health insurance
and receive an annual stipend equal to that offered to other division heads.
3.3 Disability Insurance: City provides short-term and long-term (60% of pre-
disability earnings up to $5,000 per month) disability insurance.
3.4 Life, Vision and Dental Insurance: City provides life insurance (200% of base
salary to a maximum of $200,000), vision insurance, and dental insurance.
3.5 Flexible Spending Account: Employees may contribute pre-tax income to a
flexible spending account for medical and dependent care.
3.6 Health Care Savings Plan: City offers a Health Care Savings Plan. There is a
mandatory 2% employee pre-tax contribution and a 3% City match.
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3.7 Defined Contribution Plan: City provides a defined contribution plan through
the Municipal Employees Retirement System (MERS). There is a mandatory employee
contribution of 3% and a City contribution of 9% of W-2 wages.
3.8 Holidays: City offers the standard 12 recognized holidays.
3.9 Vacation Time: MIKESELL’S existing vacation balance will be maintained as
of the effective date of this agreement and credit 200 hours to MIKESELL’s vacation
bank on the first day of each calendar year, commencing January 1, 2024. 160 hours can
be carried over from one calendar year to the next.
3.10 Personal Leave: City grants 16 hours of personal leave per year, which cannot
be carried over from one year to the next.
3.11 Sick Leave: Sick leave is earned at 3.6923 hours bi-weekly (96 hours per year).
Sick leave may be accumulated to a maximum of 1056 hours. Once an employee has
accumulated 160 hours, an employee may be paid (50%) or deposit into a deferred
compensation plan (100%). There are certain restrictions on the payout.
3.12 Bereavement Leave: In the event of death in the immediate family of an
employee, consisting only of spouse, parent, grandparent, child, brother, sister, mother-
in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law,
grandchild, and grandparent-in-law and the employee attends the funeral service, such
employee shall be granted up to 30 hours leave of absence with full pay. In the event of
death in the step family of an employee, consisting only of step-parent, step-grandparent,
step-child, step-brother, step-sister, step mother-in-law, step father-in-law, step son-in-
law, step daughter-in-law, step brother-in-law, step sister-in-law, step-grandchild, and
step-grandparent-in-law, and the employee attends the funeral service, shall be granted up
to 20 hours leave with pay. In the event of death in the family of such employee other
than above, 10 hours leave is granted with pay, and shall be taken on the day of the
funeral and provided the employee attends the funeral.
3.13 Jury Duty: If an employee is summoned to report for jury duty, the employee
will be paid the difference between normal wages earned on affected days and jury fees
allotted by the courts.
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3.14 Membership Dues: City will pay membership dues to Michigan Municipal
Local Government Management Association (now known as MME), ICMA membership,
one civic organization, and other professional organizations as approved by the City
Manager. City will reimburse expenses to attend the two Michigan Municipal League or
Michigan Association of Planning conferences, the ICMA annual conference, and ICMA
conferences in the state.
3.6 Use of City Vehicle. Deputy Manager shall receive a vehicle allowance of $300
per month and may use a City vehicle, when available, for any travel related to City
business outside of Muskegon County.
In addition to the fringe benefits set forth above, and to the extent that this paragraph
does not duplicate or conflict with the above paragraph which shall prevail, MIKESELL shall
have the same fringe benefits as are available to the highest compensated division head
employed by the CITY from time to time.
4. TERM. It is understood by both CITY and MIKESELL that employment may be
terminated at the will of either party.
5. SEVERANCE PAY UPON TERMINATION BY CITY.
5.1 Termination without “cause”. In the event that the City Manager, on behalf of
the CITY, gives notice of termination without cause, a minimum of thirty (30) days’ notice must
be given. MIKESELL shall continue to be employed by the CITY for that period and shall
receive her salary during those thirty (30) days from the date of the notice of termination; plus,
she shall receive upon departure compensation for 100% of unused vacation and 100% of unused
sick time.
5.2 Termination for cause. If termination is for “cause”, MIKESELL is not entitled
to pay beyond days worked or for unused sick leave or vacation time.
“Cause” is defined as i) conduct involving harm, even nominal, or threats to the City or its
employees, elected officials, customers, residents, or others with an actual or potential
relationship with the City; ii) conduct that materially damages the City’s image; iii) conduct
that reasonably makes it difficult or impossible for City employees, elected officials, customers,
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residents, or others with an actual or potential relationship with the City to deal with the City; iv)
public attacks, physical or verbal, on the City or its employees, elected officials, customers,
residents, or others with an actual or potential relationship with the City; or v) failure to
significantly improve performance after a 120 day written notice of specific and significant
performance deficiency(ies).
6. TERMINATION OF EMPLOYMENT BY DEPUTY MANAGER. MIKESELL
may terminate employment at any time after providing the CITY with a thirty (30) day notice. In
the event that the CITY requests MIKESELL’s services end prior to the end of her thirty (30)
day notice, the CITY shall pay MIKESELL for the balance of the termination period.
7. SEVERANCE PAY UPON TERMINATION BY DEPUTY MANAGER.
In the event the DEPUTY MANAGER terminates her employment she shall
receive fifty percent (50%) of her unused sick leave bank and one hundred percent (100%) of her
unused vacation pay, but no other severance pay or benefit, except as required by law.
8. EDUCATION ASSISTANCE. The CITY will provide reimbursement for 100%
of costs for tuition, fees, and books for the DEPUTY MANAGER’S pursuit of a Master’s
Degree in Public Administration or related field. Reimbursement will be made for all courses for
which the DEPUTY MANAGER receives a passing grade as defined by the criteria of the
program or receives confirmation of satisfactory completion (Pass) for up to 4 courses in a
calendar year. All books will remain the property of the CITY. The CITY will provide up to 8
hours of paid administrative leave time per pay period for the purpose of attending courses and
completing coursework. The administrative leave will not be counted against any earned leave
banks. The City Manager and DEPUTY MANAGER will review projected costs prior to the
start of each semester.
9. REMOTE WORK ALLOWANCE. The DEPUTY MANAGER may work
remotely, including outside the State of Michigan, per the following schedule.
Up to 2 weeks in calendar year 2024
Up to 3 weeks in calendar year 2025 & 2026
Up to 4 weeks in calendar year 2027
Up to 5 weeks in calendar year 2028
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Up to 6 weeks in calendar year 2029 and remaining years of employment with the CITY
Remote work may not be taken without the approval of the City Manager. Each year prior to
start of any extended period of remote work (2 or more weeks) the City Manager and Deputy
City Manager will set in place performance expectations for the remote work period. The City
Manager and Deputy City Manager shall evaluate the remote work’s impact on City operations
at the completion of the remote work period to determine if any adjustments need to be made to
the remote work plan going forward. This may include adjustments in the weeks allowed in the
matrix above.
10. MERGER OF NEGOTIATIONS. This agreement constitutes the entire contract
of employment between CITY and DEPUTY MANAGER. No statement, promise, agreement,
or obligation that conflicts with the terms of this agreement shall modify, enlarge, or invalidate
this agreement or any provisions hereof.
The remainder of this page is left intentionally blank.
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IN WITNESS WHEREOF, the CITY and DEPUTY MANAGER have executed
this agreement this ______ day of _____________, 2022.
CITY OF MUSKEGON
By_________________________________
Ken Johnson, Its Mayor
and_________________________________
Ann Marie Meisch, Its Clerk
DEPUTY MANAGER
____________________________________
LEIGHANN MIKESELL
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Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: July 25, 2023 Title: AT&T Lease Agreement Renewal
Submitted By: Dave Baker Department: DPW
Brief Summary:
Staff requests authorization to renew our cellular lease agreement with AT&T.
Detailed Summary & Background:
AT&T has been working with City staff for the past year to renegotiate the now expired AT&T
cellular lease agreement for the Marshall & Nims Street water towers. AT&T & staff have
tentatively agreed on a new multi-year contract with a 5-year rent guarantee with a net present
value of $488,278.26. Staff has determined that this contract is in line with other local contracts
AT&T has with other municipalities. This contract will lower AT&T’s monthly payments based on
market rates, but extends the term to 5 years for consistent cash flow to the City and reduced
burden on staff to regularly renegotiate.
Goal/Focus Area/Action Item Addressed:
Sustainability in financial practices and infrastructure. (Key Focus Area of Goal 4)
Amount Requested: N/A Budgeted Item: Yes ☒ No ☐
Fund(s) or Account(s): 591-000 Budgeted Amendment Needed: Yes ☐ No ☒
Recommended Motion:
I move to authorize staff to enter into a structured lease agreement between the City and New
Cingular Wireless PCS, LLC, dba AT&T Mobility Corporation, and authorize the Mayor and Clerk
to sign.
Approvals: Legal Review ☒ Guest(s) Invited / Presenting
Immediate Division Head ☒ Information Technology ☐ Yes ☐
Other Division Heads ☐ Communication ☐ No ☒
Market: MI / IN
Cell Site Number: GRANMI5602
Cell Site Name: Muskegon Marshall WT
Fixed Asset Number: 10124756
STRUCTURE LEASE AGREEMENT
THIS STRUCTURE AGREEMENT (“Agreement”), dated as of the latter of the signature dates
below (the “Execution Date”) and effective October 1, 2018 (the “Effective Date”), is entered into by City
of Muskegon, a Michigan municipal corporation, having a mailing address of 933 Terrace Street, Muskegon,
MI 49443 (“Landlord”) and New Cingular Wireless PCS, LLC, a Delaware limited liability company, having
a mailing address of 1025 Lenox Park Blvd NE, 3rd Floor, Atlanta, GA 30319 (“Tenant”).
BACKGROUND
Landlord owns or controls that certain plot, parcel or tract of land, as described on Exhibit 1,
improved with a water tower (the “Water Tower”), together with all rights and privileges arising in
connection therewith, located at 275 Marshall Street, in the County of Muskegon, State of Michigan
(collectively, the “Property”). Landlord desires to grant to Tenant the right to use a portion of the Property
in accordance with this Agreement.
Landlord and Tenant (or their predecessors-in-interest) entered into that certain Site Lease dated
October 1, 1998, as amended by that certain First Amendment to the Site Lease dated January 29, 2009, as
amended by that certain Second Amendment to the Site Lease dated August 17, 2012, as amended by that
certain Third Amendment to the Site Lease dated September 23, 2014, and as further amended by that certain
Fourth Amendment to the Site Lease dated November 10, 2014 (collectively, the “Prior Lease”), for the
Premises defined below and the term of the Prior Lease expired on September 30, 2018. Landlord and Tenant
agree that this Agreement shall be effective as of the Effective Date and as of the Effective Date, the Prior
Lease shall be terminated and of no further force and effect, and this Agreement replaces and supersedes the
Prior Lease.
The parties agree as follows:
1. LEASE OF PREMISES. Landlord hereby leases to Tenant a portion of the Property consisting of:
(a) approximately 100 square feet including the air space above such ground space, as described
on attached Exhibit 1, for the placement of Tenant’s Communication Facility;
(b) space for any structural steel or other improvements to support Tenant’s equipment
(collectively, the space referenced in (a) and (b) is the “Equipment Space”);
(c) that certain space on the Water Tower, as generally depicted on Exhibit 1, including the air
space above same, where Tenant shall have the right to install its antennas and other equipment (collectively,
the “Antenna Space”); and
(d) those certain areas where Tenant’s conduits, wires, cables, cable trays and other necessary
connections are located between the Equipment Space and the Antenna Space, and between the Equipment
Space and the electric power, telephone, and fuel sources for the Property (hereinafter collectively referred to
as the “Connection Space”). Landlord agrees that Tenant shall have the right to install connections between
Tenant’s equipment in the Equipment Space and Antenna Space; and between Tenant’s equipment in the
Equipment Space and the electric power, telephone, and fuel sources for the Property, and any other
improvements and will require written approval before installing a flammable fuel source such as natural gas or
propane, which consent may be withheld in Landlord’s sole discretion. Landlord further agrees that Tenant shall
have the right to install, replace and maintain utility lines, wires, poles, cables, conduits, pipes and other
necessary connections over or along any right-of-way extending from the aforementioned public right-of-way
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to the Premises. All new installations of equipment and services by Tenant at the Premises shall require prior
notice and approval by Landlord and Landlord’s inspections department, such approvals not to be
unreasonably withheld, conditioned or delayed. The Equipment Space, Antenna Space, and Connection
Space, are hereinafter collectively referred to as the “Premises.”
2. PERMITTED USE. Tenant may use the Premises for the transmission and reception of
communications signals and the installation, construction, maintenance, operation, repair, replacement and
upgrade of communications fixtures and related equipment, cables, accessories and improvements, which
may include a suitable support structure, associated antennas, equipment shelters or cabinets and fencing and
any other items necessary to the successful and secure use of the Premises (the “Communication Facility”
or “Communication Facilities”), as well as the right to test, survey and review title on the Property; Tenant
further has the right but not the obligation to add, modify and/or replace equipment in order to be in
compliance with any current or future federal, state or local mandated application, including, but not limited
to, emergency 911 communication services, (collectively, the “Permitted Use”) . Landlord and Tenant agree
that any portion of the Communication Facility that may be conceptually described on Exhibit 1 will not be
deemed to limit Tenant’s Permitted Use. If Exhibit 1 includes drawings of the initial installation of the
Communication Facility, Landlord’s execution of this Agreement will signify Landlord’s approval of Exhibit
1. Tenant at no time can interfere/block access with the day to day operations of the Water Tower main functions and
with the current tenants. Tenant has the right to install and operate transmission cables from the equipment
shelter or cabinet to the antennas, electric lines from the main feed to the equipment shelter or cabinet and
communication lines from the Property’s main entry point to the equipment shelter or cabinet, and to make
other improvements, alterations, upgrades or additions appropriate for Tenant’s Permitted Use, including the
right to construct a fence around the Premises or equipment, which shall not interfere with Landlord’s or other
tenants of the Water Tower or Property, install warning signs to make individuals aware of risks, install
protective barriers, install any other control measures reasonably required by Tenant’s safety procedures or
applicable law, and undertake any other appropriate means to secure the Premises or equipment at Tenant’s
expense. The addition of a generator may be added upon Landlord’s written consent Tenant has the right, to install,
modify, supplement, replace, upgrade, expand the Communication Facility upon prior written notice and a
passing structural analysis (including, for example, increasing the number of antennas or adding microwave
dishes) or relocate the Communication Facility within the Premises at any time during the Term. Tenant will
be allowed to make such alterations to the Property in order to ensure that the Communication Facility
complies with all applicable federal, state or local laws, rules or regulations. A pre inspection report including a
top tip over analysis is required along with a post-inspection report to verify ono no damage has occurred to Landlord's
facilities. All inspections must be completed by an engineering company such as Dixon Engineering. In the event
Tenant desires to modify or upgrade the Communication Facility, in a manner that requires an additional
portion of the Property (the “Additional Premises”) for such modification or upgrade, Landlord agrees to
lease to Tenant the Additional Premises, upon the same terms and conditions set forth herein, except that the
Rent shall increase, in conjunction with the lease of the Additional Premises by the amount equivalent to the
then-current per square foot rental rate charged by Landlord to Tenant times the square footage of the
Additional Premises. Landlord agrees to take such actions and enter into and deliver to Tenant such
documents as Tenant reasonably requests in order to effect and memorialize the lease of the Additional
Premises to Tenant.
3. TERM.
(a) The initial lease term will be ten (10) years (the “Initial Term”), commencing on October 1,
2018. The Initial Term will terminate on the tenth (10th) anniversary of the Initial Term.
(b) This Agreement will automatically renew for five (5) additional five (5) year term(s) (each
additional five (5) year term shall be defined as an “Extension Term”), upon the same terms and conditions
set forth herein unless Tenant notifies Landlord in writing of Tenant’s intention not to renew this Agreement
at least sixty (60) days prior to the expiration of the Initial Term or the then-existing Extension Term.
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(c) Unless (i) Landlord or Tenant notifies the other in writing of its intention to terminate this
Agreement at least six (6) months prior to the expiration of the final Extension Term, or (ii) the Agreement is
terminated as otherwise permitted by this Agreement prior to the end of the final Extension Term, this
Agreement shall continue in force upon the same covenants, terms and conditions for a further term of one
(1) year, and for annual terms thereafter (“Annual Term”) until terminated by either party hereto by giving
to the other party hereto written notice of its intention to so terminate at least six (6) months prior to the end
of any such Annual Term. Monthly Rent during such Annual Terms shall be equal to the Rent paid for the
last month of the final Extension Term. If Tenant remains in possession of the Premises after the termination
of this Agreement, then Tenant will be deemed to be occupying the Premises on a month-to-month basis (the
“Holdover Term”), subject to the terms and conditions of this Agreement.
(d) The Initial Term, any Extension Terms, any Annual Terms and any Holdover Term are
collectively referred to as the “Term.”
4. RENT.
(a) Commencing on October 1, 2022 (the “Rent Commencement Date”), Tenant will pay
Landlord on or before the fifth (5th) day of each calendar month in advance, Four Thousand Five Hundred
Ninety and No/100 Dollars ($4,590.00) (the “Rent”), at the address set forth above. The Rent shall continue
during the Term, subject to adjustment as provided herein: on each anniversary of the Rent Commencement
Date, including throughout any Extension Term exercised, the Rent will increase by two percent (2%) over
the Rent paid during the previous year, and every year thereafter. In any partial month occurring after the
Rent Commencement Date, the Rent will be prorated. The initial Rent payment will be forwarded by Tenant
to Landlord within ninety (90) days after the Rent Commencement Date.
(b) Modification of Tenant’s Obligation to Pay – Rent Guarantee. Notwithstanding Tenant’s obligations to
pay Rent set forth under the Agreement, for a sixty (60) month period commencing October 1, 2022, and ending
September 30, 2027, (“Rent Guarantee Period”), Tenant’s obligation to pay Rent is guaranteed and such obligation
will not be subject to offset or cancellation by Tenant. Notwithstanding the foregoing, if Landlord exercises any of
Landlord’s rights to terminate the Agreement, if any, other than the Landlord’s right to terminate the Agreement due to
the default of Tenant under the terms of the Agreement beyond any applicable grace period, Tenant will be released
from any and all of its obligations to pay Rent during the Rent Guarantee Period as of the effective date of the termination.
In addition, Tenant shall be released from any and all of its obligations to pay Rent during the Rent Guarantee Period if
the following shall occur: (a) Landlord is in breach of the Agreement, including but not limited to any default under the
terms of the Agreement beyond any applicable grace and cure period; (b) there is a foreclosure of the Agreement which
results in a termination of the Agreement; or (c) the Landlord shall require Tenant to relocate Tenant’s equipment and
facilities to a location that is not acceptable to Tenant in its reasonable business judgment if allowed for in the
Agreement.. If the Agreement is further modified in the future with an obligation for Tenant to pay additional Rent, the
payment of Rent guarantee established in this paragraph will not be diminished or limited, but such Rent guarantee will
not extend to that future additional Rent obligation.
(c) All charges payable under this Agreement such as utilities and taxes shall be billed by
Landlord within one (1) year from the end of the calendar year in which the charges were incurred; any
charges beyond such period shall not be billed by Landlord, and shall not be payable by Tenant. The foregoing
shall not apply to monthly Rent which is due and payable without a requirement that it be billed by Landlord.
The provisions of this subsection shall survive the termination or expiration of this Agreement.
5. APPROVALS.
(a) Landlord agrees that Tenant's ability to use the Premises is contingent upon the suitability of
the Premises and Property for Tenant's Permitted Use and Tenant's ability to obtain and maintain all
governmental licenses, permits, approvals or other relief required of or deemed necessary or appropriate by
Tenant for its use of the Premises, including without limitation applications for zoning variances, zoning
ordinances, amendments, special use permits, and construction permits (collectively, the "Government
Approvals"). Landlord authorizes Tenant to prepare, execute and file all required applications to obtain
Government Approvals for Tenant’s Permitted Use under this Agreement and agrees to reasonably assist
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Tenant with such applications and with obtaining and maintaining the Government Approvals. In addition,
Tenant shall have the right to initiate the ordering and/or scheduling of necessary utilities.
(b) Tenant, at Tenant’s sole cost and expense, has the right to obtain a title report or commitment
for a leasehold title policy from a title insurance company of its choice and to have the Property surveyed by
a surveyor of its choice.
(c) Tenant may also perform and obtain, at Tenant’s sole cost and expense, soil borings,
percolation tests, engineering procedures, environmental investigation or other tests or reports on, over, and
under the Property, necessary to determine if Tenant’s use of the Premises will be compatible with Tenant’s
engineering specifications, system, design, operations or Government Approvals.
6. TERMINATION. This Agreement may be terminated, without penalty or further liability, as
follows:
(a) by either party on thirty (30) days prior written notice, if the other party remains in default
under Section 15 of this Agreement after the applicable cure periods;
(b) by Tenant upon written notice to Landlord, if Tenant is unable to obtain, or maintain, any
required approval(s) or the issuance of a license or permit by any agency, board, court or other governmental
authority necessary for the construction or operation of the Communication Facility as now or hereafter
intended by Tenant; or if Tenant determines, in its sole discretion that the cost of or delay in obtaining or
retaining the same is commercially unreasonable;
(c) by Tenant, upon written notice to Landlord, if Tenant determines, in its sole discretion, due
to the title report results or survey results, that the condition of the Premises is unsatisfactory for its intended
uses;
(d) by Tenant upon written notice to Landlord for any reason or no reason, at any time prior to
commencement of construction by Tenant;
(e) by Tenant upon sixty (60) days’ prior written notice to Landlord for any reason or no reason,
so long as Tenant pays Landlord a termination fee equal to six (6) months’ Rent, at the then-current rate,
provided, however, that no such termination fee will be payable on account of the termination of this
Agreement by Tenant under any termination provision contained in any other Section of this Agreement,
including the following: Section 5 Approvals, Section 6(a) Termination, Section 6(b) Termination, Section
6(c) Termination, Section 6(d) Termination, Section 8 Interference, Section 11(d) Environmental, Section 18
Condemnation or Section 19 Casualty; or,
(f) by Landlord upon any of the following events: (i) upon two (2) years prior written notice if
Landlord determines that after the Initial Term of this Agreement, or upon two (2) years prior written notice
before to the conclusion of any renewals of this Agreement, that the Tenant’s Permitted Use of the Premises
under this Agreement is no longer in the Landlord’s best interest, in its sole discretion; (ii) if Landlord
determines that Tenant’s Permitted Use of the Premises under this Agreement (including Tenant’s operation
of its communications equipment) is interfering with the rights of Landlord or other tenants currently on the
Property and that the issue cannot be remediated by Tenant; or (iii) if Tenant is in default of the terms of this
Agreement and the default has not been cured under Section 15.
7. INSURANCE. During the Term, Tenant, at Tenant’s sole cost and expense, will carry and maintain
in effect a commercial general liability insurance per ISO form CG 00 01 or its equivalent, insuring against
bodily injury and property damage. Said policy of commercial general liability insurance will provide a
combined single limit of One Million and No/100 Dollars ($1,000,000.00) per occurrence and in aggregate.
Tenant shall provide Landlord with a certificate of insurance evidencing such coverage which states that the
carrier has insured Tenant for the required insurance policies liabilities under this Lease. Tenant will provide
at least 30 days written notice to Landlord, of cancellation or non-renewal of any required coverage that is
not replaced.. Landlord shall be included to the policy as an additional insured by endorsement as respects
to this Agreement.
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8. INTERFERENCE.
(a) Prior to or concurrent with the execution of this Agreement, Landlord has provided or will
provide Tenant with a list of radio frequency user(s) on the Property as of the Effective Date; provided,
however, it shall be Tenant’s sole responsibility to determine the actual radio frequencies used by such user(s).
Tenant warrants that its use of the Premises will not interfere with those existing radio frequency uses on the
Property, as long as the existing radio frequency user(s) operate and continue to operate within their respective
frequencies and in accordance with all applicable laws and regulations.
(b) Landlord will not grant, after the Effective Date, a lease, license or any other right to any
third party, if the exercise of such grant may in any way adversely affect or interfere with the Communication
Facility, the operations of Tenant or the rights of Tenant under this Agreement.
(c) Landlord will not, nor will Landlord permit its employees, tenants, licensees, invitees, agents
or independent contractors to interfere in any way with the Communication Facility, the operations of Tenant
or the rights of Tenant under this Agreement. Landlord will cause such interference to cease within twenty-
four (24) hours after receipt of notice of interference from Tenant. In the event any such interference does
not cease within the aforementioned cure period, Landlord shall cease all operations which are suspected of
causing interference (except for intermittent testing to determine the cause of such interference) until the
interference has been corrected. Tenant will not, nor will Tenant permit its employees, tenants, licensee,
invitees, agents, or independent contractors to interfere in any way with the operations of Landlord or other
tenants of the Water Tower or Premises, as long as the existing radio frequency user(s) operate and continue
to operate within their respective frequencies and in accordance with all applicable laws and regulations.
(d) For the purposes of this Agreement, “interference” may include, but is not limited to, any use
on the Property that causes electronic or physical obstruction with, or degradation of, the communications
signals from the Communication Facility.
(e) Tenant's installation, operation, and maintenance of its Communication Facilities shall not
damage or interfere with Landlord's Water Tower and/or the Property's operations or related repair and
maintenance activities. Landlord, at all times during this Agreement, reserves the right to take any action it
deems necessary, in its sole discretion, to repair, maintain, alter or improve the Property in connection with
city operations as may be necessary, including leasing parts of the Water Tower and/or Property and
surrounding ground space to others.
(f) Tenant acknowledges and agrees that the primary purpose of the Water Tower is to provide water
storage for Landlord and its customers. Tenant understands that Landlord may have to interrupt Tenant’s use
of the Premises from time to time to service, maintain, or repair the Water Tower. Accordingly, Landlord
reserves the right at all times during this Agreement to take any action it deems necessary in its sole discretion
to repair, maintain, alter, or improve the Property and shall not be liable to Tenant for any temporary
interference with Tenant’s use as a result of actions necessary to carry out any such activities.
Notwithstanding the foregoing, Landlord agrees to provide Tenant with reasonable advance notice of any
planned activities, emergencies excepted, and to carry out such activities in a manner to minimize
interruptions with Tenant’s use.
9. Intentionally deleted.
10. WARRANTIES.
(a) Each of Tenant and Landlord (to the extent not a natural person) each acknowledge and
represent that it is duly organized, validly existing and in good standing and has the right, power, and authority
or capacity, as applicable, to enter into this Agreement and bind itself hereto through the party or individual
set forth as signatory for the party below.
(b) To the extent permitted by state or municipal law, and except as otherwise previously
disclosed by Landlord to Tenant prior to the date of this Agreement, Landlord represents, warrants and agrees
that: (i) Landlord solely owns the Property as a legal lot in fee simple, or controls the Property by lease or
license and solely owns the Water Tower; (ii) the Property is not and will not be encumbered by any liens,
restrictions, mortgages, covenants, conditions, easements, leases, or any other agreements of record or not of
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record, which would adversely affect Tenant’s Permitted Use and enjoyment of the Premises under this
Agreement; (iii) Landlord grants to Tenant sole, actual, quiet and peaceful use, enjoyment and possession of
the Premises in accordance with the terms of this Agreement without hindrance or ejection by any persons
lawfully claiming under Landlord ; (iv) Landlord’s execution and performance of this Agreement will not
violate any laws, ordinances, covenants or the provisions of any mortgage, lease or other agreement binding
on Landlord; and (v) if the Property is or becomes encumbered by a deed to secure a debt, mortgage or other
security interest, then Landlord will provide promptly to Tenant a mutually agreeable subordination, non-
disturbance and attornment agreement executed by Landlord and the holder of such security interest in the
form attached hereto as Exhibit 10(b).
(c) Tenant currently leases a portion of the Property pursuant to the Prior Lease, and Tenant
acknowledges and agrees that Tenant is familiar with the condition of the Premises and agrees to accept the
physical condition of the Premises in “AS IS” condition. Tenant further acknowledges and agrees that Tenant
is relying solely on its own investigation of the Premises and not on any information provided to or to be
provided by Landlord. Tenant agrees to accept the Premises and waive all objections or claims against
Landlord arising from or related to the Premises, except for a breach of any representations, warranties, or
covenants set forth in this Lease.
11. ENVIRONMENTAL.
(a) Notwithstanding the foregoing, Landlord represents that it has no knowledge of the presence
of or contamination by any hazardous substances on the Property in violation of any applicable federal, state,
or local law or regulation. Landlord and Tenant agree that each will be responsible for compliance with any
and all applicable governmental laws, rules, statutes, regulations, codes, ordinances, or principles of common
law regulating or imposing standards of liability or standards of conduct with regard to protection of the
environment or worker health and safety, as may now or at any time hereafter be in effect, to the extent such
apply to that party’s activity conducted in or on the Property.
12. ACCESS. At all times throughout the Term of this Agreement, Tenant and its employees, agents,
and subcontractors, will require twenty-four (24) hour access, for pedestrian and vehicular access (“Access”)
to and over the Property, from an open and improved public road to the Premises, for the installation,
maintenance and operation of the Communication Facility and any utilities serving the Premises. There is a
sign at the access point that will need to be called to, to provide access to enter the Premises in the case of emergencies.
As may be described more fully in Exhibit 1, Landlord grants to Tenant an easement for such Access and
Landlord agrees to provide to Tenant such codes, keys and other instruments necessary for such Access.
Upon Tenant’s request, Landlord will execute a separate recordable easement evidencing this right. Landlord
shall execute a letter granting Tenant Access to the Property substantially in the form attached as Exhibit 12;
upon Tenant’s request, Landlord shall execute additional letters during the Term. If Tenant elects to utilize
an Unmanned Aircraft System (“UAS”) in connection with its installation, construction, monitoring, site
audits, inspections, maintenance, repair, modification, or alteration activities at the Property, Landlord hereby
grants Tenant, or any UAS operator acting on Tenant’s behalf, express permission to fly over the applicable
Property and Premises, and consents to the use of audio and video navigation and recording in connection
with the use of the UAS. Landlord acknowledges that in the event Tenant cannot obtain Access to the
Premises, Tenant shall incur significant damage. If Landlord fails to provide the Access granted by this
Section 12, such failure shall be a default under this Agreement.
13. REMOVAL/RESTORATION. All portions of the Communication Facility brought onto the
Property by Tenant will be and remain Tenant’s personal property and, at Tenant’s option, may be removed
by Tenant at any time during or after the Term. Landlord covenants and agrees that no part of the
Communication Facility constructed, erected or placed on the Premises by Tenant will become, or be
considered as being affixed to or a part of, the Property, it being the specific intention of Landlord that all
improvements of every kind and nature constructed, erected or placed by Tenant on the Premises will be and
remain the property of Tenant and may be removed by Tenant at any time during or after the Term. Tenant
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will repair any damage to the Property resulting from Tenant’s removal activities. Any portions of the
Communication Facility that Tenant does not remove within one hundred twenty (120) days after the later of
the end of the Term and cessation of Tenant’s operations at the Premises shall be deemed abandoned and
owned by Landlord. Notwithstanding the foregoing, Tenant will not be responsible for the replacement of
any trees, shrubs or other vegetation.
14. MAINTENANCE/UTILITIES.
(a) Tenant will keep and maintain the Premises in good condition, reasonable wear and tear and
damage from the elements excepted. Landlord will maintain and repair the Property and access thereto, the
Water Tower, and all areas of the Premises where Tenant does not have exclusive control, in good and
tenantable condition, subject to reasonable wear and tear and damage from the elements. Landlord will be
responsible for maintenance of landscaping on the Property.
(b) Tenant will be responsible for paying on a monthly or quarterly basis all utilities charges for
electricity, telephone service or any other utility used or consumed by Tenant on the Premises. In the event
Tenant cannot secure its own metered electrical supply, Tenant will have the right, at its own cost and expense,
to sub-meter from Landlord. When sub-metering is required under this Agreement, Landlord will read the
meter and provide Tenant with an invoice and usage data on a monthly basis. Tenant shall reimburse Landlord
for such utility usage at the same rate charged to Landlord by the utility service provider. Landlord further
agrees to provide the usage data and invoice on forms provided by Tenant and to send such forms to such
address and/or agent designated by Tenant. Tenant will remit payment within sixty (60) days of receipt of
the usage data and required forms. Landlord shall maintain accurate and detailed records of all utility
expenses, invoices and payments applicable to Tenant’s reimbursement obligations hereunder. Within fifteen
(15) days after a request from Tenant, Landlord shall provide copies of such utility billing records to the
Tenant in the form of copies of invoices, contracts and cancelled checks. If the utility billing records reflect
an overpayment by Tenant, Tenant shall have the right to deduct the amount of such overpayment from any
monies due to Landlord from Tenant.
(c) As noted in Section 4(c) above, any utility fee recovery by Landlord is limited to a twelve
(12) month period. If Tenant sub-meters electricity from Landlord, Landlord agrees to give Tenant at least
twenty-four (24) hours advance notice of any planned interruptions of said electricity. Landlord
acknowledges that Tenant provides a communication service which requires electrical power to operate and
must operate twenty-four (24) hours per day, seven (7) days per week. If the interruption is for an extended
period of time, in Tenant’s reasonable determination, Landlord agrees to allow Tenant the right to bring in a
temporary source of power for the duration of the interruption. Landlord will not be responsible for
interference with, interruption of or failure, beyond the reasonable control of Landlord, of such services to be
furnished or supplied by Landlord.
(d) Tenant will have the right to install utilities, at Tenant’s expense, and to improve present
utilities on the Property and the Premises. Landlord hereby grants to any service company providing utility
or similar services, including electric power and telecommunications, to Tenant an easement over the
Property, from an open and improved public road to the Premises, and upon the Premises, for the purpose of
constructing, operating and maintaining such lines, wires, circuits, and conduits, associated equipment
cabinets and such appurtenances thereto, as such service companies may from time to time require in order
to provide such services to the Premises. Upon Tenant’s or service company’s request, Landlord will execute
a separate recordable easement evidencing this grant, at no cost to Tenant or the service company.
15. DEFAULT AND RIGHT TO CURE.
(a) The following will be deemed a default by Tenant and a breach of this Agreement: (i) non-
payment of Rent if such Rent remains unpaid for more than thirty (30) days after written notice from Landlord
of such failure to pay; or (ii) Tenant’s failure to perform any other term or condition under this Agreement
within forty-five (45) days after written notice from Landlord specifying the failure. Delay in curing a default
will be excused if due to causes beyond the reasonable control of Tenant. If Tenant remains in default beyond
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any applicable cure period, then Landlord will have the right to exercise any and all rights and remedies
available to it under law and equity.
(b) The following will be deemed a default by Landlord and a breach of this Agreement: (i)
Landlord’s failure to provide Access to the Premises as required by Section 12 within twenty-four (24) hours
after written notice of such failure; (ii) Landlord’s failure to cure an interference problem as required by
Section 8 within twenty-four (24) hours after written notice of such failure; or (iii) Landlord’s failure to
perform any term, condition or breach of any warranty or covenant under this Agreement within forty-five
(45) days after written notice from Tenant specifying the failure. Delay in curing a default will be excused if
due to causes beyond the reasonable control of Landlord. If Landlord remains in default beyond any
applicable cure period, Tenant will have: (i) the right to cure Landlord’s default and to deduct the reasonable
costs of such cure from any monies due to Landlord from Tenant, and (ii) any and all other rights available
to it under law and equity.
16. ASSIGNMENT/SUBLEASE. This Agreement may not be assigned or subleased without the prior
written consent of Landlord, which consent may be withheld for any reason or no reason in Landlord’s sole
discretion. Notwithstanding the foregoing, this Agreement may be assigned without Landlord consent to an
entity that controls, is controlled by, or is under the common control of Tenant, or to any entity resulting from
any merger or consolidation with Tenant, or to any partner of Tenant, or to any person or entity that acquires
all of the assets of Tenant as a going concern, provided that Tenant shall indemnify and hold Landlord
harmless. Notwithstanding anything contained herein to the contrary, Tenant acknowledges and agrees that
any permitted assignee or subtenant shall be required to comply with all applicable laws including all licensing
and/or permitting requirements imposed by all governmental entities having jurisdiction over the Premises.
17. NOTICES. All notices, requests and demands hereunder will be given by first class certified or
registered mail, return receipt requested, or by a nationally recognized overnight courier, postage prepaid, to
be effective when properly sent and received, refused or returned undelivered. Notices will be addressed to
the parties hereto as follows:
If to Tenant: New Cingular Wireless PCS, LLC
Attn: Tower Asset Group - Lease Administration
Re: Cell Site #: GRANMI5602; Cell Site Name: Muskegon Marshall WT (MI)
Fixed Asset #: 10124756
1025 Lenox Park Blvd NE
3rd Floor
Atlanta, GA 30319
With a copy to: New Cingular Wireless PCS, LLC
Attn.: Legal Dept – Network Operations
Re: Cell Site #: GRANMI5602; Cell Site Name: Muskegon Marshall WT (MI)
Fixed Asset #: 10124756
208 S. Akard Street
Dallas, TX 75202-4206
The copy sent to the Legal Department is an administrative step which alone does not constitute legal notice.
If to Landlord: City of Muskegon
933 Terrace Street
Muskegon, MI 49443
Attn: Dave Baker
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Either party hereto may change the place for the giving of notice to it by thirty (30) days’ prior written notice
to the other party hereto as provided herein.
18. CONDEMNATION. In the event Landlord receives notification of any condemnation proceedings
affecting the Property, Landlord will provide notice of the proceeding to Tenant within twenty-four (24)
hours. If a condemning authority takes all of the Property, or a portion sufficient, in Tenant’s sole
determination, to render the Premises unsuitable for Tenant, this Agreement will terminate as of the date the
title vests in the condemning authority. The parties will each be entitled to pursue their own separate awards
in the condemnation proceeds, which for Tenant will include, where applicable, the value of its
Communication Facility, moving expenses, prepaid Rent, and business dislocation expenses. Tenant will be
entitled to reimbursement for any prepaid Rent on a pro rata basis.
19. CASUALTY. Landlord will provide notice to Tenant of any casualty or other harm affecting the
Property within twenty-four (24) hours of the casualty or other harm. If any part of the Communication
Facility or the Property is damaged by casualty or other harm as to render the Premises unsuitable, in Tenant’s
sole determination, then Tenant may terminate this Agreement by providing written notice to Landlord, which
termination will be effective as of the date of such casualty or other harm. Upon such termination, Tenant
will be entitled to collect all insurance proceeds payable to Tenant on account thereof and to be reimbursed
for any prepaid Rent on a pro rata basis. Landlord agrees to permit Tenant to place temporary transmission
and reception facilities on the Property, but only until such time as Tenant is able to activate a replacement
transmission facility at another location; notwithstanding the termination of this Agreement, such temporary
facilities will be governed by all of the terms and conditions of this Agreement, including Rent. If Landlord
or Tenant undertakes to rebuild or restore the Premises and/or the Communication Facility, as applicable,
Landlord agrees to permit Tenant to place temporary transmission and reception facilities on the Property
until the reconstruction of the Premises and/or the Communication Facility is completed. If Landlord
determines not to rebuild or restore the Property, Landlord will notify Tenant of such determination within
thirty (30) days after the casualty or other harm. If Landlord does not so notify Tenant and Tenant decides
not to terminate under this Section 19, then Landlord will promptly rebuild or restore any portion of the
Property interfering with or required for Tenant’s Permitted Use of the Premises to substantially the same
condition as existed before the casualty or other harm. Landlord agrees that the Rent shall be abated until the
Property and/or the Premises are rebuilt or restored, unless Tenant places temporary transmission and
reception facilities on the Property.
20. WAIVER OF LANDLORD’S LIENS. Landlord waives any and all lien rights it may have, statutory
or otherwise, concerning the Communication Facility or any portion thereof. The Communication Facility shall
be deemed personal property for purposes of this Agreement, regardless of whether any portion is deemed real
or personal property under applicable law; Landlord consents to Tenant’s right to remove all or any portion of
the Communication Facility from time to time in Tenant’s sole discretion and without Landlord’s consent.
21. TAXES.
(a) Landlord shall be responsible for (i) all taxes and assessments levied upon the lands,
improvements and other property of Landlord including any such taxes that may be calculated by a taxing
authority using any method, including the income method, (ii) all sales, use, license, value added,
documentary, stamp, gross receipts, registration, real estate transfer, conveyance, excise, recording, and other
similar taxes and fees imposed in connection with this Agreement, and (iii) all sales, use, license, value added,
documentary, stamp, gross receipts, registration, real estate transfer, conveyance, excise, recording, and other
similar taxes and fees imposed in connection with a sale of the Property or assignment of Rent payments by
Landlord. Tenant shall be responsible for (x) all property taxes, real or personal, directly attributable to its
occupancy and use of the Property, (y) any taxes and assessments attributable to and levied upon Tenant’s
leasehold improvements on the Premises if and as set forth in this Section 21 and (z) all sales, use, license,
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value added, documentary, stamp, gross receipts, registration, real estate transfer, conveyance, excise,
recording, and other similar taxes and fees imposed in connection with an assignment of this Agreement or
sublease by Tenant. Nothing herein shall require Tenant to pay any inheritance, franchise, income, payroll,
excise, privilege, rent, capital stock, stamp, documentary, estate or profit tax, or any tax of similar nature, that
is or may be imposed upon Landlord.
(b) In the event Landlord receives a notice of assessment with respect to which taxes or assessments
are imposed on Tenant’s leasehold improvements on the Premises, Landlord shall provide Tenant with copies
of each such notice immediately upon receipt, but in no event later than thirty (30) days after the date of such
notice of assessment. If Landlord does not provide such notice or notices to Tenant in a timely manner and
Tenant’s rights with respect to such taxes are prejudiced by the delay, Landlord shall reimburse Tenant for
any increased costs directly resulting from the delay and Landlord shall be responsible for payment of the tax
or assessment set forth in the notice, and Landlord shall not have the right to reimbursement of such amount
from Tenant. If Landlord provides a notice of assessment to Tenant within such time period and requests
reimbursement from Tenant as set forth below, then Tenant shall reimburse Landlord for the tax or
assessments identified on the notice of assessment on Tenant’s leasehold improvements, which has been paid
by Landlord. If Landlord seeks reimbursement from Tenant, Landlord shall, no later than thirty (30) days
after Landlord’s payment of the taxes or assessments for the assessed tax year, provide Tenant with written
notice including evidence that Landlord has timely paid same, and Landlord shall provide to Tenant any other
documentation reasonably requested by Tenant to allow Tenant to evaluate the payment and to reimburse
Landlord.
(c) For any tax amount for which Tenant is responsible under this Agreement, Tenant shall have the
right to contest, in good faith, the validity or the amount thereof using such administrative, appellate or other
proceedings as may be appropriate in the jurisdiction, and may defer payment of such obligations, pay same
under protest, or take such other steps as permitted by law. This right shall include the ability to institute any
legal, regulatory or informal action in the name of Landlord, Tenant, or both, with respect to the valuation of
the Premises. Landlord shall cooperate with respect to the commencement and prosecution of any such
proceedings and will execute any documents required therefor. The expense of any such proceedings shall
be borne by Tenant and any refunds or rebates secured as a result of Tenant’s action shall belong to Tenant,
to the extent the amounts were originally paid by Tenant. In the event Tenant notifies Landlord by the due
date for assessment of Tenant’s intent to contest the assessment, Landlord shall not pay the assessment
pending conclusion of the contest, unless required by applicable law.
(d) Landlord shall not split or cause the tax parcel on which the Premises are located to be split,
bifurcated, separated or divided without the prior written consent of Tenant, which consent shall not be
unreasonably withheld.
(e) Tenant shall have the right but not the obligation to pay any taxes due by Landlord hereunder if
Landlord fails to timely do so, in addition to any other rights or remedies of Tenant. In the event that Tenant
exercises its rights under this Section 21(e) due to such Landlord default, Tenant shall have the right to deduct
such tax amounts paid from any monies due to Landlord from Tenant as provided in Section 15(b), provided
that Tenant may exercise such right without having provided to Landlord notice and the opportunity to cure
per Section 15(b).
(f) Any tax-related notices shall be sent to Tenant in the manner set forth in Section 17. Promptly
after the Effective Date, Landlord shall provide the following address to the taxing authority for the
authority’s use in the event the authority needs to communicate with Tenant. In the event that Tenant’s tax
address changes by notice to Landlord, Landlord shall be required to provide Tenant’s new tax address to the
taxing authority or authorities.
(g) Notwithstanding anything to the contrary contained in this Section 21, Tenant shall have no
obligation to reimburse any tax or assessment for which the Landlord is reimbursed or rebated by a third
party.
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22. SALE OF PROPERTY.
(a) Landlord may sell the Property or a portion thereof to a third party, provided: (i) the sale is
made subject to the terms of this Agreement; and (ii) if the sale does not include the assignment of Landlord’s
full interest in this Agreement, the purchaser must agree to perform, without requiring compensation from
Tenant or any subtenant, any obligation of Landlord under this Agreement, including Landlord’s obligation
to cooperate with Tenant as provided hereunder.
(b) If Landlord, at any time during the Term of this Agreement, decides to rezone or sell,
subdivide or otherwise transfer all or any part of the Premises, or all or any part of the Property, to a purchaser
other than Tenant, Landlord shall promptly notify Tenant in writing, and such rezoning, sale, subdivision or
transfer shall be subject to this Agreement and Tenant’s rights hereunder. In the event of a change in
ownership, transfer or sale of the Property, within ten (10) days of such transfer, Landlord or its successor
shall send the documents listed below in this Section 22(b) to Tenant. Until Tenant receives all such
documents, Tenant’s failure to make payments under this Agreement shall not be an event of default and
Tenant reserves the right to hold payments due under this Agreement.
i. Old deed to Property
ii. New deed to Property
iii. Bill of Sale or Transfer
iv. Copy of current Tax Bill
v. New IRS Form W-9
vi. Completed and Signed Tenant Payment Direction Form
vii. Full contact information for new Landlord including phone number(s)
(c) Landlord agrees not to sell, lease or use any areas of the Property for the installation,
operation or maintenance of other wireless communication facilities if such installation, operation or
maintenance would interfere with Tenant’s Permitted Use or communications equipment as determined by
radio propagation tests performed by Tenant in its sole discretion. If the radio frequency propagation tests
demonstrate levels of interference unacceptable to Tenant, Landlord shall be prohibited from selling, leasing
or using any areas of the Property for purposes of any installation, operation or maintenance of any other
wireless communication facility or equipment.
(d) The provisions of this Section 22 shall in no way limit or impair the obligations of Landlord
under this Agreement, including interference and access obligations.
23. RIGHT OF FIRST REFUSAL. Notwithstanding the provisions contained in Section 22, if at any
time after the Effective Date, Landlord receives a bona fide written offer from a third party seeking any sale,
conveyance, assignment or transfer, whether in whole or in part, of any property interest in or related to the
Premises, including without limitation any offer seeking an assignment or transfer of the Rent payments
associated with this Agreement or an offer to purchase an easement with respect to the Premises (“Offer”),
Landlord shall immediately furnish Tenant with a copy of the Offer. Tenant shall have the right within thirty
(30) days after it receives such copy to match the financial terms of the Offer and agree in writing to match
such terms of the Offer. Such writing shall be in the form of a contract substantially similar to the Offer but
Tenant may assign its rights to a third party. If Tenant chooses not to exercise this right or fails to provide
written notice to Landlord within the thirty (30) day period, Landlord may sell, convey, assign or transfer
such property interest in or related to the Premises pursuant to the Offer, subject to the terms of this
Agreement. If Landlord attempts to sell, convey, assign or transfer such property interest in or related to the
Premises without complying with this Section 23, the sale, conveyance, assignment or transfer shall be void.
Tenant shall not be responsible for any failure to make payments under this Agreement and reserves the right
to hold payments due under this Agreement until Landlord complies with this Section 23. Tenant’s failure to
exercise the right of first refusal shall not be deemed a waiver of the rights contained in this Section 23 with
respect to any future proposed conveyances as described herein.
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24. MISCELLANEOUS.
(a) Amendment/Waiver. This Agreement cannot be amended, modified or revised unless done
in writing and signed by Landlord and Tenant. No provision may be waived except in a writing signed by
both parties. The failure by a party to enforce any provision of this Agreement or to require performance by
the other party will not be construed to be a waiver, or in any way affect the right of either party to enforce
such provision thereafter.
(b) Memorandum/Short Form Lease. Contemporaneously with the execution of this
Agreement, the parties will execute a recordable Memorandum of Lease substantially in the form attached as
Exhibit 24(b). Either party may record this Memorandum of Lease at any time during the Term, in its
absolute discretion. Thereafter during the Term, either party will, at any time upon fifteen (15) business days’
prior written notice from the other, execute, acknowledge and deliver to the other a recordable Memorandum
of Lease.
(c) Limitation of Liability. Except for the indemnity obligations set forth in this Agreement,
and otherwise notwithstanding anything to the contrary in this Agreement, Tenant and Landlord each waives
any claims that each may have against the other with respect to consequential, incidental or special damages,
however caused, based on any theory of liability.
(d) Compliance with Law. Tenant agrees to comply with all federal, state and local laws, orders,
rules and regulations (“Laws”) applicable to Tenant’s use of the Communication Facility on the Property.
Landlord agrees to comply with all Laws relating to Landlord’s ownership and use of the Property and any
improvements on the Property.
(e) Bind and Benefit. The terms and conditions contained in this Agreement will run with the
Property and bind and inure to the benefit of the parties, their respective heirs, executors, administrators,
successors and assigns.
(f) Entire Agreement. This Agreement and the exhibits attached hereto, all being a part hereof,
constitute the entire agreement of the parties hereto and will supersede all prior offers, negotiations and
agreements with respect to the subject matter of this Agreement. Exhibits are numbered to correspond to the
Section wherein they are first referenced. Except as otherwise stated in this Agreement, each party shall bear
its own fees and expenses (including the fees and expenses of its agents, brokers, representatives, attorneys,
and accountants) incurred in connection with the negotiation, drafting, execution and performance of this
Agreement and the transactions it contemplates.
(g) Governing Law. This Agreement will be governed by the laws of the state in which the
Premises are located, without regard to conflicts of law.
(h) Interpretation. Unless otherwise specified, the following rules of construction and
interpretation apply: (i) captions are for convenience and reference only and in no way define or limit the
construction of the terms and conditions hereof; (ii) use of the term “including” will be interpreted to mean
“including but not limited to”; (iii) whenever a party’s consent is required under this Agreement, except as
otherwise stated in the Agreement or as same may be duplicative, such consent will not be unreasonably
withheld, conditioned or delayed; (iv) exhibits are an integral part of this Agreement and are incorporated by
reference into this Agreement; (v) use of the terms “termination” or “expiration” are interchangeable;
(vi) reference to a default will take into consideration any applicable notice, grace and cure periods; (vii) to
the extent there is any issue with respect to any alleged, perceived or actual ambiguity in this Agreement, the
ambiguity shall not be resolved on the basis of who drafted the Agreement; (viii) the singular use of words
includes the plural where appropriate; and (ix) if any provision of this Agreement is held invalid, illegal or
unenforceable, the remaining provisions of this Agreement shall remain in full force if the overall purpose of
the Agreement is not rendered impossible and the original purpose, intent or consideration is not materially
impaired.
(i) Affiliates. All references to “Tenant” shall be deemed to include any Affiliate of New
Cingular Wireless PCS, LLC using the Premises for any Permitted Use or otherwise exercising the rights of
Tenant pursuant to this Agreement. “Affiliate” means with respect to a party to this Agreement, any person
or entity that (directly or indirectly) controls, is controlled by, or under common control with, that party.
“Control” of a person or entity means the power (directly or indirectly) to direct the management or policies
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of that person or entity, whether through the ownership of voting securities, by contract, by agency or
otherwise.
(j) Survival. Any provisions of this Agreement relating to indemnification shall survive the
termination or expiration hereof. In addition, any terms and conditions contained in this Agreement that by
their sense and context are intended to survive the termination or expiration of this Agreement shall so survive.
(k) W-9. As a condition precedent to payment, Landlord agrees to provide Tenant with a
completed IRS Form W-9, or its equivalent, upon execution of this Agreement and at such other times as may
be reasonably requested by Tenant, including any change in Landlord’s name or address. A copy of the IRS
Form 1-9 in its current form is attached hereto as Exhibit 24(k).
(l) Execution/No Option. The submission of this Agreement to any party for examination or
consideration does not constitute an offer, reservation of or option for the Premises based on the terms set
forth herein. This Agreement will become effective as a binding Agreement only upon the handwritten legal
execution, acknowledgment and delivery hereof by Landlord and Tenant. This Agreement may be executed
in two (2) or more counterparts, all of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties. All parties need not sign the
same counterpart.
(m) Attorneys’ Fees. In the event that any dispute between the parties related to this Agreement
should result in litigation, the prevailing party in such litigation shall be entitled to recover from the other
party all reasonable fees and expenses of enforcing any right of the prevailing party, including reasonable
attorneys’ fees and expenses. Prevailing party means the party determined by the court to have most nearly
prevailed even if such party did not prevail in all matters. This provision will not be construed to entitle any
party other than Landlord, Tenant and their respective Affiliates to recover their fees and expenses.
(n) WAIVER OF JURY TRIAL. EACH PARTY, TO THE EXTENT PERMITTED BY LAW,
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING UNDER ANY THEORY OF LIABILITY ARISING OUT OF OR
IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE TRANSACTIONS IT
CONTEMPLATES.
(o) No Additional Fees/Incidental Fees. Unless otherwise specified in this Agreement, all
rights and obligations set forth in the Agreement shall be provided by Landlord and/or Tenant, as the case
may be, at no additional cost. No unilateral fees or additional costs or expenses are to be applied by either
party to the other party, for any task or service including, but not limited to, review of plans, structural
analyses, consents, provision of documents or other communications between the parties.
(p) Further Acts. Upon request, Landlord will cause to be promptly and duly taken, executed,
acknowledged and delivered all such further acts, documents, and assurances as Tenant may request from
time to time in order to effectuate, carry out and perform all of the terms, provisions and conditions of this
Agreement and all transactions and Permitted Use contemplated by this Agreement.
(o) Estoppel. Landlord acknowledges that there are not any owed or outstanding rental
payments or fees due on the part of Tenant.
[SIGNATURES APPEAR ON NEXT PAGE]
13
10471951671,,,07b_Marshall Structure Lease - Final
IN WITNESS WHEREOF, the parties have caused this Agreement to be effective as of the Effective
Date.
“LANDLORD”
City of Muskegon
a Michigan municipal corporation
By:
Print Name:
Its:
Date:
“TENANT”
New Cingular Wireless PCS, LLC,
a Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
By:
Print Name:
Its:
Date:
[ACKNOWLEDGMENTS APPEAR ON NEXT TWO PAGES]
14
10471951671,,,07b_Marshall Structure Lease - Final
TENANT ACKNOWLEDGMENT
STATE OF ________________ )
) SS.
COUNTY OF ______________ )
I certify that I know or have satisfactory evidence that ___________________________________ is
the person who appeared before me, and said person acknowledged that he/she signed this instrument, on
oath stated that he/she was authorized to execute the instrument and acknowledged it as the
____________________________ of AT&T Mobility Corporation, the Manager of New Cingular Wireless
PCS, LLC, a Delaware limited liability company, to be the free and voluntary act of such party for the uses
and purposes mentioned in the instrument.
DATED: _______________________________.
Notary Seal
(Signature of Notary)
(Legibly Print or Stamp Name of Notary)
Notary Public in and for the State of ___________
My appointment expires:
15
10471951671,,,07b_Marshall Structure Lease - Final
LANDLORD ACKNOWLEDGMENT
STATE OF _________________________)
)
COUNTY OF _______________________)
I CERTIFY that on ______________ _____, 202__, _______________________________ [name of
representative] personally came before me and acknowledged under oath that he or she:
(a) is the ____________________ [title] of City of Muskegon, a Michigan municipal corporation,
the corporation named in the attached instrument;
(b) was authorized to execute this instrument on behalf of the corporation; and
(c) executed the instrument as the act of the corporation.
__________________________________________
Notary Public: _____________________________
My Commission Expires:_____________________
Structure Lease Agreement 5.1.2020
EXHIBIT 1
DESCRIPTION OF PROPERTY AND PREMISES
Page of
to the Structure Lease Agreement dated , 202 , by and between City of Muskegon,
a Michigan municipal corporation, as Landlord, and New Cingular Wireless PCS, LLC, a Delaware limited
liability company, as Tenant.
The Property is legally described as follows:
The Premises are described and/or depicted as follows:
Structure Lease Agreement 5.1.2020
Notes:
1. THIS EXHIBIT MAY BE REPLACED BY A LAND SURVEY AND/OR CONSTRUCTION DRAWINGS OF THE PREMISES ONCE
RECEIVED BY TENANT.
2. ANY SETBACK OF THE PREMISES FROM THE PROPERTY’S BOUNDARIES SHALL BE THE DISTANCE REQUIRED BY THE
APPLICABLE GOVERNMENT AUTHORITIES.
3. WIDTH OF ACCESS ROAD SHALL BE THE WIDTH REQUIRED BY THE APPLICABLE GOVERNMENT AUTHORITIES,
INCLUDING POLICE AND FIRE DEPARTMENTS.
4. THE TYPE, NUMBER AND MOUNTING POSITIONS AND LOCATIONS OF ANTENNAS AND TRANSMISSION LINES ARE
ILLUSTRATIVE ONLY. ACTUAL TYPES, NUMBERS AND MOUNTING POSITIONS MAY VARY FROM WHAT IS SHOWN ABOVE.
Structure Lease Agreement 5.1.2020
EXHIBIT 10(b)
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
[FOLLOWS ON NEXT PAGE]
Structure Lease Agreement 5.1.2020
Recording Requested By
& When Recorded Return To:
Prepared by, and
after recording return to:
MD7, LLC
(469) 965-9850
950 W. Bethany Drive, Suite 700
Allen, TX 75013
APN: _______________
(Space Above This Line For Recorder’s Use Only)
Cell Site No.: GRANMI5602
Cell Site Name: Muskegon Marshall WT (MI)
Fixed Asset No.: 10124756
State: Michigan
County: Muskegon
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
(“Agreement”), dated as of the last of the signature dates below (the “Effective Date”), is entered into by and
among City of Muskegon, a Michigan municipal corporation, having a mailing address of 933 Terrace Street,
Muskegon, MI 49443 ("Lender"), _______________, a _______________, having a mailing address of
_______________ ("Landlord"), and New Cingular Wireless PCS, LLC, a Delaware limited liability company,
having a mailing address of 1025 Lenox Park Blvd NE, 3rd Floor, Atlanta, GA 30319 ("Tenant")..
RECITALS:
A. Tenant has entered into a certain Structure Lease Agreement dated , 202 , (the “Lease”)
with Landlord, covering property more fully described in Exhibit 1 attached hereto and made a part hereof
(the “Premises”); and
B. Lender has made a loan to Landlord in the original principal sum of
Dollars ($ ), which loan has been secured by a certain _______________dated _______________,
and recorded on , as Document Number in the Official Records of the
County Recorder of County, California (the “Deed of Trust”), upon that certain real
property located at , in the City of , County of , State of California
__________ [APN: ] ("Property"), a part of which Property contains the Premises; and
C. Tenant desires to be assured of continued occupancy of the Premises under the terms of the Lease and subject
to the terms of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements herein
contained, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally
bound hereby, agree as follows:
10471951671,,,07b_Marshall Structure Lease - Final
1. Lender hereby consents to the Lease to the extent that Lender’s consent is required, if at all,
pursuant to the Deed of Trust or any other agreement(s) pertaining to the Property.
2. So long as this Agreement will remain in full force and effect, the Lease is and will be subject
and subordinate to the lien and effect of the Deed of Trust insofar as it affects the real property and fixtures of
which the Premises forms a part (but not Tenant’s trade fixtures and other personal property), and to all renewals,
modifications, consolidations, replacements and extensions thereof, to the full extent of the principal sum secured
thereby and interest thereon, with the same force and effect as if the Deed of Trust had been executed, delivered,
and duly recorded among the above-mentioned public records, prior to the execution and delivery of the Lease.
3. In the event Lender takes possession of the Premises as mortgagee-in-possession or lender-in-
possession or its substantive equivalent, including but not limited to, by deed in lieu of foreclosure or foreclosure
of the Deed of Trust, Lender agrees not to affect or disturb Tenant’s right to possession of the Premises and any
of Tenant’s other rights under the Lease in the exercise of Lender's rights so long as Tenant is not then in default,
after applicable notice and/or grace periods, under any of the terms, covenants, or conditions of the Lease.
4. In the event that Lender succeeds to the interest of Landlord or other landlord under the Lease
and/or to title to the Premises, Lender and Tenant hereby agree to be bound to one another under all of the terms,
covenants and conditions of the Lease; accordingly, from and after such event, Lender and Tenant will have the
same remedies against one another for the breach of an agreement contained in the Lease as Tenant and Landlord
had before Lender succeeded to the interest of Landlord; provided, however, that Lender will not be:
(a) personally liable for any act or omission of any prior landlord (including
Landlord); or
(b) bound by any rent or additional rent which Tenant might have paid for
more than the payment period as set forth under the Lease (one month,
year etc.) in advance to any prior landlord (including Landlord).
5. In the event that Lender or anyone else acquires title to or the right to possession of the Premises
upon the foreclosure of the Deed of Trust, or upon the sale of the Premises by Lender or its successors or assigns
after foreclosure or acquisition of title in lieu thereof or otherwise, Tenant agrees not to seek to terminate the Lease
by reason thereof, but will remain bound unto the new owner so long as the new owner is bound to Tenant (subject
to paragraph 4 above) under all of the terms, covenants and conditions of the Lease.
6. Lender understands, acknowledges and agrees that notwithstanding anything to the contrary
contained in the Deed of Trust and/or any related financing documents, including, without limitation, any UCC-1
financing statements, Lender will acquire no interest in any furniture, equipment, trade fixtures and/or other
property installed by Tenant on the Property. Lender hereby expressly waives any interest which Lender may
have or acquire with respect to such furniture, equipment, trade fixtures and/or other property of Tenant now, or
hereafter, located on or affixed to the Property or any portion thereof and Lender hereby agrees that same do not
constitute realty regardless of the manner in which same are attached or affixed to the Property.
10471951671,,,07b_Marshall Structure Lease - Final
7. This Agreement will be binding upon and will extend to and benefit the successors and assigns
of the parties hereto and to any assignees or subtenants of Tenant which are permitted under the Lease. The term
"Lender", when used in this Agreement will be deemed to include any person or entity which acquires title to or
the right to possession of the Premises by, through or under Lender and/or the Deed of Trust, whether directly or
indirectly.
8. This Agreement may be executed in two (2) or more counterpart originals, and when the original
counterpart signatures are assembled together, shall constitute one integrated instrument. All parties need not sign
the same counterpart.
9. This Agreement will be governed by the laws of the state in which the Premises are located
without regard to conflicts of law.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed as of the last signature
date below.
"LANDLORD" "TENANT"
City of Muskegon, New Cingular Wireless PCS, LLC,
a Michigan municipal corporation a Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
By: By:
Name: Name:
Its: Its:
Date: , 20__ Date: , 20__
"LENDER"
_______________,
a _______________
By:
Name:
Its:
Date: , 20__
[ACKNOWLEDGMENTS APPEAR ON THE FOLLOWING THREE (3) PAGES]
10471951671,,,07b_Marshall Structure Lease - Final
LANDLORD ACKNOWLEDGMENT
STATE OF _________________________)
)
COUNTY OF _______________________)
I CERTIFY that on ______________ _____, 202__, _______________________________ [name
of representative] personally came before me and acknowledged under oath that he or she:
(a) is the ____________________ [title] of City of Muskegon, a Michigan municipal
corporation, the corporation named in the attached instrument;
(b) was authorized to execute this instrument on behalf of the corporation; and
(c) executed the instrument as the act of the corporation.
__________________________________________
Notary Public: _____________________________
My Commission Expires:_____________________
Structure Lease Agreement 5.1.2020
TENANT ACKNOWLEDGMENT
STATE OF ________________ )
) SS.
COUNTY OF ______________ )
I certify that I know or have satisfactory evidence that ___________________________________
is the person who appeared before me, and said person acknowledged that he/she signed this instrument,
on oath stated that he/she was authorized to execute the instrument and acknowledged it as the
____________________________ of AT&T Mobility Corporation, the Manager of New Cingular
Wireless PCS, LLC, a Delaware limited liability company, to be the free and voluntary act of such party
for the uses and purposes mentioned in the instrument.
DATED: _______________________________.
Notary Seal
(Signature of Notary)
(Legibly Print or Stamp Name of Notary)
Notary Public in and for the State of ___________
My appointment expires:
Structure Lease Agreement 5.1.2020
LENDER ACKNOWLEDGMENT
STATE OF ________________ )
) SS.
COUNTY OF ______________ )
I certify that I know or have satisfactory evidence that ________________________________ is
the person who appeared before me, and said person acknowledged that said person signed this instrument,
on oath stated that said person was authorized to execute the instrument and acknowledged it as the
____________________ of , to be the free and
voluntary act of such party for the uses and purposes mentioned in the instrument.
DATED: _______________________________.
Notary Seal
(Signature of Notary)
(Legibly Print or Stamp Name of Notary)
Notary Public in and for the State of
________________
My appointment expires:
Structure Lease Agreement 5.1.2020
EXHIBIT 1
DESCRIPTION OF PROPERTY AND PREMISES
The Property is legally described as follows:
The Premises is legally described as follows:
[One (1) Page Depiction of the Premises Suitable for Recording in __________ County
Appears on Following Page
Structure Lease Agreement 5.1.2020
EXHIBIT 11
ENVIRONMENTAL DISCLOSURE
Landlord represents and warrants that the Property, as of the Effective Date, is free of hazardous substances
except as follows:
[INSERT AS APPLICABLE]
Structure Lease Agreement 5.1.2020
EXHIBIT 12
STANDARD ACCESS LETTER
[FOLLOWS ON NEXT PAGE]
Structure Lease Agreement 5.1.2020
{This Letter Goes On Landlord's Letterhead}
[Insert Date]
Building Staff / Security Staff
[Landlord, Lessee, Licensee]
[Street Address]
[City, State, Zip]
Re: Authorized Access granted to [ ]
Dear Building and Security Staff,
Please be advised that we have signed a lease with [ ] permitting [ ] to install, operate
and maintain telecommunications equipment at the property. The terms of the lease grant [ ]
and its representatives, employees, agents and subcontractors (“representatives”) 24 hour per day, 7 day per
week access to the leased area.
To avoid impact on telephone service during the day, [ ] representatives may be seeking access
to the property outside of normal business hours. [ ] representatives have been instructed to
keep noise levels at a minimum during their visit.
Please grant the bearer of a copy of this letter access to the property and to leased area. Thank you for your
assistance.
_______________________
Landlord Signature
Structure Lease Agreement 5.1.2020
EXHIBIT 24(b)
MEMORANDUM OF LEASE
[FOLLOWS ON NEXT PAGE]
Structure Lease Agreement 5.1.2020
PARCEL #: 61-24-205-007-0003-00, 61-24-205-005-00001-10
Prepared by, and
after recording return to:
MD7, LLC
(469) 965-9850
950 W. Bethany Drive, Suite 700
Allen, TX 75013
Cell Site No.: GRANMI5602
Cell Site Name: Muskegon Marshall WT (MI)
Fixed Asset No.: 10124756
State: Michigan
County: Muskegon
MEMORANDUM
OF
LEASE
This Memorandum of Lease is entered into on this day of , 202 , by
and between City of Muskegon, a Michigan municipal corporation, having its principal office/residing at 933
Terrace Street, Muskegon, MI 49443 (hereinafter called “Landlord”), and New Cingular Wireless PCS, LLC, a
Delaware limited liability company, having a mailing address of 1025 Lenox Park Blvd NE, 3rd Floor, Atlanta,
GA 30319 (“Tenant”).
1. Landlord and Tenant entered into a certain Structure Lease Agreement (“Agreement”) on the
day of , 202 , for the purpose of installing, operating and maintaining a
communication facility and other improvements. All of the foregoing is set forth in the Agreement.
2. The initial lease term will be ten (10) years commencing on October 1, 2018, with five (5) successive
automatic five (5) year options to renew.
3. The portion of the land being leased to Tenant and associated easements are described in Exhibit 1
annexed hereto.
4. The Agreement gives Tenant a right of first refusal in the event Landlord receives a bona fide written
offer from a third party seeking any sale, conveyance, assignment or transfer, whether in whole or in
part, of any property interest in or related to the Premises, including without limitation any offer
seeking an assignment or transfer of the Rent payments associated with the Agreement or an offer to
purchase an easement with respect to the Premises.
5. This Memorandum of Lease is not intended to amend or modify, and shall not be deemed or construed
as amending or modifying, any of the terms, conditions or provisions of the Agreement, all of which
are hereby ratified and affirmed. In the event of a conflict between the provisions of this
Memorandum of Lease and the provisions of the Agreement, the provisions of the Agreement shall
Structure Lease Agreement 5.1.2020
control. The Agreement shall be binding upon and inure to the benefit of the parties and their
respective heirs, successors, and assigns, subject to the provisions of the Agreement.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year first
above written.
LANDLORD: TENANT:
City of Muskegon, New Cingular Wireless PCS, LLC,
a Michigan municipal corporation a Delaware limited liability company
By: By: AT&T Mobility Corporation
Print Name: Its: Manager
Its:
Date: By:
Print Name:
Its:
Date:
[ACKNOWLEDGMENTS APPEAR ON TWO NEXT PAGES]
10 Structure Lease Agreement 5.1.2020
LANDLORD ACKNOWLEDGMENT
STATE OF _________________________)
)
COUNTY OF _______________________)
I CERTIFY that on ______________ _____, 202__, _______________________________ [name of
representative] personally came before me and acknowledged under oath that he or she:
(a) is the ____________________ [title] of City of Muskegon, a Michigan municipal corporation,
the corporation named in the attached instrument;
(b) was authorized to execute this instrument on behalf of the corporation; and
(c) executed the instrument as the act of the corporation.
__________________________________________
Notary Public: _____________________________
My Commission Expires:_____________________
11
Structure Lease Agreement 5.1.2020
TENANT ACKNOWLEDGMENT
STATE OF ________________ )
) SS.
COUNTY OF ______________ )
I certify that I know or have satisfactory evidence that ___________________________________ is the
person who appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated
that he/she was authorized to execute the instrument and acknowledged it as the
____________________________ of AT&T Mobility Corporation, the Manager of New Cingular Wireless
PCS, LLC, a Delaware limited liability company, to be the free and voluntary act of such party for the uses and
purposes mentioned in the instrument.
DATED: _______________________________.
Notary Seal
(Signature of Notary)
(Legibly Print or Stamp Name of Notary)
Notary Public in and for the State of ___________
My appointment expires:
12
Structure Lease Agreement 5.1.2020
EXHIBIT 1 TO MEMORANDUM OF LEASE
DESCRIPTION OF PROPERTY AND PREMISES
Page of
to the Memorandum of Lease dated ________________, 20___, by and between City of Muskegon, a
Michigan municipal corporation, as Landlord, and New Cingular Wireless PCS, LLC, a Delaware limited liability
company, as Tenant.
The Property is legally described as follows:
The Premises are described and/or depicted as follows:
13
Structure Lease Agreement 5.1.2020
EXHIBIT 24(k)
IRS FORM W-9
Page 1 of 1
[IRS FORM W-9 (REVISED OCTOBER 2018)
APPEAR ON FOLLOWING PAGE]
14
Structure Lease Agreement 5.1.2020
15
Structure Lease Agreement 5.1.2020
Market: MI / IN
Cell Site Number: GRANMI5603
Cell Site Name: Muskegon Nims WT
Fixed Asset Number: 10124755
STRUCTURE LEASE AGREEMENT
THIS STRUCTURE AGREEMENT (“Agreement”), dated as of the latter of the signature dates below
(the “Execution Date”) and effective October 1, 2018 (the “Effective Date”), is entered into by City of
Muskegon, a Michigan municipal corporation, having a mailing address of 933 Terrace Street, Muskegon, MI
49443 (“Landlord”) and New Cingular Wireless PCS, LLC, a Delaware limited liability company, having a
mailing address of 1025 Lenox Park Blvd NE, 3rd Floor, Atlanta, GA 30319 (“Tenant”).
BACKGROUND
Landlord owns or controls that certain plot, parcel or tract of land, as described on Exhibit 1, improved
with a water tower (the “Water Tower”), together with all rights and privileges arising in connection therewith,
located at 719 Nims Street, in the County of Muskegon, State of Michigan (collectively, the “Property”).
Landlord desires to grant to Tenant the right to use a portion of the Property in accordance with this Agreement.
Landlord and Tenant (or their predecessors-in-interest) entered into that certain Site Lease dated October
1, 1998, as amended by that certain First Amendment to the Site Lease dated January 29, 2009, as amended by
that certain Second Amendment to the Site Lease dated August 17, 2012, as amended by that certain Third
Amendment to the Site Lease dated September 23, 2014, and as further amended by that certain Fourth
Amendment to the Site Lease dated November 10, 2014 (collectively, the “Prior Lease”), for the Premises
defined below and the term of the Prior Lease expired on September 30, 2018. Landlord and Tenant agree that
this Agreement shall be effective as of the Effective Date and as of the Effective Date, the Prior Lease shall be
terminated and of no further force and effect and this Agreement replaces and supersedes the Prior Lease.
The parties agree as follows:
1. LEASE OF PREMISES. Landlord hereby leases to Tenant a portion of the Property consisting of:
(a) approximately 100 square feet including the air space above such ground space, as described on
attached Exhibit 1, for the placement of Tenant’s Communication Facility;
(b) space for any structural steel or other improvements to support Tenant’s equipment (collectively,
the space referenced in (a) and (b) is the “Equipment Space”);
(c) that certain space on the Water Tower, as generally depicted on Exhibit 1, including the air
space above same, where Tenant shall have the right to install its antennas and other equipment (collectively, the
“Antenna Space”); and
(d) those certain areas where Tenant’s conduits, wires, cables, cable trays and other necessary
connections are located between the Equipment Space and the Antenna Space, and between the Equipment Space
and the electric power, telephone, and fuel sources for the Property (hereinafter collectively referred to as the
“Connection Space”). Landlord agrees that Tenant shall have the right to install connections between Tenant’s
equipment in the Equipment Space and Antenna Space; and between Tenant’s equipment in the Equipment Space
and the electric power, telephone, and fuel sources for the Property, and any other improvements, and will require
written approval before installing a flammable fuel source such as natural gas or propane., which consent may
be withheld in Landlord’s sole discretion. Landlord further agrees that Tenant shall have the right to install,
replace and maintain utility lines, wires, poles, cables, conduits, pipes and other necessary connections over or
along any right-of-way extending from the aforementioned public right-of-way to the Premises. All new
installations of equipment and services by Tenant at the Premises shall require prior notice and approval by
Landlord and Landlord’s inspections department, such approvals not to be unreasonably withheld, conditioned
10471946663,,,07c_Nims Structure Lease - Final10124755 - Structure Lease Agreement not approved 2 9 23.docx
or delayed. The Equipment Space, Antenna Space, and Connection Space, are hereinafter collectively referred
to as the “Premises.”
2. PERMITTED USE. Tenant may use the Premises for the transmission and reception of
communications signals and the installation, construction, maintenance, operation, repair, replacement and
upgrade of communications fixtures and related equipment, cables, accessories and improvements, which may
include a suitable support structure, associated antennas, equipment shelters or cabinets and fencing and any
other items necessary to the successful and secure use of the Premises (the “Communication Facility” or
“Communication Facilities”), as well as the right to test, survey and review title on the Property; Tenant further
has the right but not the obligation to add, modify and/or replace equipment in order to be in compliance with
any current or future federal, state or local mandated application, including, but not limited to, emergency 911
communication services, (collectively, the “Permitted Use”). Landlord and Tenant agree that any portion of the
Communication Facility that may be conceptually described on Exhibit 1 will not be deemed to limit Tenant’s
Permitted Use. If Exhibit 1 includes drawings of the initial installation of the Communication Facility,
Landlord’s execution of this Agreement will signify Landlord’s approval of Exhibit 1. Tenant at no time can
interfere/block access with the day to day operations of the Water Towers main functions and with the current
tenants. Tenant has the right to install and operate transmission cables from the equipment shelter or cabinet to
the antennas, electric lines from the main feed to the equipment shelter or cabinet and communication lines from
the Property’s main entry point to the equipment shelter or cabinet and to make other improvements, alterations,
upgrades or additions appropriate for Tenant’s Permitted Use, including the right to construct a fence around the
Premises or equipment, which shall not interfere with Landlord’s or other tenants of the Water Tower or Property,
install warning signs to make individuals aware of risks, install protective barriers, install any other control
measures reasonably required by Tenant’s safety procedures or applicable law, and undertake any other
appropriate means to secure the Premises or equipment at Tenant’s expense. The addition of a generator may be
added upon Landlord’s written consent. Tenant has the right, to install, modify, supplement, replace, upgrade,
expand the Communication Facility upon prior written notice and a passing structural analysis (including, for
example, increasing the number of antennas or adding microwave dishes) or relocate the Communication Facility
within the Premises at any time during the Term. Tenant will be allowed to make such alterations to the Property
in order to ensure that the Communication Facility complies with all applicable federal, state or local laws, rules
or regulations. A pre inspection report including a tip over analysis is required along with a post-inspection
report to verify ono no damage has occurred to Landlord's facilities. All inspections must be completed by an
engineering company such as Dixon Engineering. In the event Tenant desires to modify or upgrade the
Communication Facility, in a manner that requires an additional portion of the Property (the “Additional
Premises”) for such modification or upgrade, Landlord agrees to lease to Tenant the Additional Premises, upon
the same terms and conditions set forth herein, except that the Rent shall increase, in conjunction with the lease
of the Additional Premises by the amount equivalent to the then-current per square foot rental rate charged by
Landlord to Tenant times the square footage. of the Additional Premises. Landlord agrees to take such actions
and enter into and deliver to Tenant such documents as Tenant reasonably requests in order to effect and
memorialize the lease of the Additional Premises to Tenant.
3. TERM.
(a) The initial lease term will be ten (10) years (the “Initial Term”), commencing on October 1,
2018. The Initial Term will terminate on the tenth (10th) anniversary of the Initial Term.
(b) This Agreement will automatically renew for five (5) additional five (5) year term(s) (each
additional five (5) year term shall be defined as an “Extension Term”), upon the same terms and conditions set
forth herein unless Tenant notifies Landlord in writing of Tenant’s intention not to renew this Agreement at least
sixty (60) days prior to the expiration of the Initial Term or the then-existing Extension Term.
(c) Unless (i) Landlord or Tenant notifies the other in writing of its intention to terminate this
Agreement at least six (6) months prior to the expiration of the final Extension Term, or (ii) the Agreement is
terminated as otherwise permitted by this Agreement prior to the end of the final Extension Term, this Agreement
shall continue in force upon the same covenants, terms and conditions for a further term of one (1) year, and for
annual terms thereafter (“Annual Term”) until terminated by either party hereto by giving to the other party
2
10471946663,,,07c_Nims Structure Lease - Final10124755 - Structure Lease Agreement not approved 2 9 23.docx
hereto written notice of its intention to so terminate at least six (6) months prior to the end of any such Annual
Term. Monthly Rent during such Annual Terms shall be equal to the Rent paid for the last month of the final
Extension Term. If Tenant remains in possession of the Premises after the termination of this Agreement, then
Tenant will be deemed to be occupying the Premises on a month-to-month basis (the “Holdover Term”), subject
to the terms and conditions of this Agreement.
(d) The Initial Term, any Extension Terms, any Annual Terms and any Holdover Term are
collectively referred to as the “Term.”
4. RENT.
(a) Commencing on October 1, 2022 (the “Rent Commencement Date”), Tenant will pay Landlord
on or before the fifth (5th) day of each calendar month in advance, Four Thousand Five Hundred Ninety and
No/100 Dollars ($4,590.00) (the “Rent”), at the address set forth above. The Rent shall continue during the Term,
subject to adjustment as provided herein: on each anniversary of the Rent Commencement Date, including
throughout any Extension Term exercised, the Rent will increase by two percent (2%) over the Rent paid during
the previous year, and every year thereafter. In any partial month occurring after the Rent Commencement Date,
the Rent will be prorated. The initial Rent payment will be forwarded by Tenant to Landlord within ninety (90)
days after the Rent Commencement Date.
(b) Modification of Tenant’s Obligation to Pay – Rent Guarantee. Notwithstanding Tenant’s
obligations to pay Rent set forth under the Agreement, for a sixty (60) month period commencing October 1,
2022, and ending September 30, 2027, (“Rent Guarantee Period”), Tenant’s obligation to pay Rent is
guaranteed and such obligation will not be subject to offset or cancellation by Tenant. Notwithstanding the
foregoing, if Landlord exercises any of Landlord’s rights to terminate the Agreement, if any, other than the
Landlord’s right to terminate the Agreement due to the default of Tenant under the terms of the Agreement
beyond any applicable grace period, Tenant will be released from any and all of its obligations to pay Rent during
the Rent Guarantee Period as of the effective date of the termination. In addition, Tenant shall be released from
any and all of its obligations to pay Rent during the Rent Guarantee Period if the following shall occur: (a)
Landlord is in breach of the Agreement, including but not limited to any default under the terms of the Agreement
beyond any applicable grace and cure period; (b) there is a foreclosure of the Agreement which results in a
termination of the Agreement; or (c) the Landlord shall require Tenant to relocate Tenant’s equipment and
facilities to a location that is not acceptable to Tenant in its reasonable business judgment if allowed for in the
Agreement.. If the Agreement is further modified in the future with an obligation for Tenant to pay additional
Rent, the payment of Rent guarantee established in this paragraph will not be diminished or limited, but such
Rent guarantee will not extend to that future additional Rent obligation.
(c) All charges payable under this Agreement such as utilities and taxes shall be billed by Landlord
within one (1) year from the end of the calendar year in which the charges were incurred; any charges beyond
such period shall not be billed by Landlord, and shall not be payable by Tenant. The foregoing shall not apply
to monthly Rent which is due and payable without a requirement that it be billed by Landlord. The provisions
of this subsection shall survive the termination or expiration of this Agreement.
5. APPROVALS.
(a) Landlord agrees that Tenant's ability to use the Premises is contingent upon the suitability of the
Premises and Property for Tenant's Permitted Use and Tenant's ability to obtain and maintain all governmental
licenses, permits, approvals or other relief required of or deemed necessary or appropriate by Tenant for its use
of the Premises, including without limitation applications for zoning variances, zoning ordinances, amendments,
special use permits, and construction permits (collectively, the "Government Approvals"). Landlord authorizes
Tenant to prepare, execute and file all required applications to obtain Government Approvals for Tenant’s
Permitted Use under this Agreement and agrees to reasonably assist Tenant with such applications and with
obtaining and maintaining the Government Approvals. In addition, Tenant shall have the right to initiate the
ordering and/or scheduling of necessary utilities.
(b) Tenant, at Tenant’s sole cost and expense, has the right to obtain a title report or commitment
for a leasehold title policy from a title insurance company of its choice and to have the Property surveyed by a
surveyor of its choice.
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(c) Tenant may also perform and obtain, at Tenant’s sole cost and expense, soil borings, percolation
tests, engineering procedures, environmental investigation or other tests or reports on, over, and under the
Property, necessary to determine if Tenant’s use of the Premises will be compatible with Tenant’s engineering
specifications, system, design, operations or Government Approvals.
6. TERMINATION. This Agreement may be terminated, without penalty or further liability, as follows:
(a) by either party on thirty (30) days prior written notice, if the other party remains in default under
Section 15 of this Agreement after the applicable cure periods;
(b) by Tenant upon written notice to Landlord, if Tenant is unable to obtain, or maintain, any
required approval(s) or the issuance of a license or permit by any agency, board, court or other governmental
authority necessary for the construction or operation of the Communication Facility as now or hereafter intended
by Tenant; or if Tenant determines, in its sole discretion that the cost of or delay in obtaining or retaining the
same is commercially unreasonable;
(c) by Tenant, upon written notice to Landlord, if Tenant determines, in its sole discretion, due to
the title report results or survey results, that the condition of the Premises is unsatisfactory for its intended uses;
(d) by Tenant upon written notice to Landlord for any reason or no reason, at any time prior to
commencement of construction by Tenant; or
(e) by Tenant upon sixty (60) days’ prior written notice to Landlord for any reason or no reason, so
long as Tenant pays Landlord a termination fee equal to six (6) months’ Rent, at the then-current rate, provided,
however, that no such termination fee will be payable on account of the termination of this Agreement by Tenant
under any termination provision contained in any other Section of this Agreement, including the following:
Section 5 Approvals, Section 6(a) Termination, Section 6(b) Termination, Section 6(c) Termination, Section 6(d)
Termination, Section 8 Interference, Section 11(d) Environmental, Section 18 Condemnation or Section 19
Casualty; or,
(f) by Landlord upon any of the following events: (i) upon two (2) years prior written notice if
Landlord determines that after the Initial Term of this Agreement, or upon two (2) years prior written notice
before the conclusion of any renewals of this Agreement, that the Tenant’s Permitted Use of the Premises under
this Agreement is no longer in the Landlord’s best interest, in its sole discretion; (ii) if Landlord determines that
Tenant’s Permitted Use of the Premises under this Agreement (including Tenant’s operation of its
communications equipment) is interfering with the rights of Landlord or other tenants currently on the Property
and that the issue cannot be remediated by Tenant; or (iii) if Tenant is in default of the terms of this Agreement
and the default has not been cured under Section 15.
7. INSURANCE. During the Term, Tenant, at Tenant’s sole cost and expense, will carry and maintain in
effect a commercial general liability insurance per ISO form CG 00 01 or its equivalent, insuring against bodily
injury and property damage. Said policy of commercial general liability insurance will provide a combined
single limit of One Million and No/100 Dollars ($1,000,000.00) per occurrence and in aggregate. Tenant shall
provide Landlord with a certificate of insurance evidencing such coverage which states that the carrier has insured
Tenant for the required insurance policies liabilities under this Lease. Tenant will provide at least 30 days written
notice to Landlord, of cancellation or non-renewal of any required coverage that is not replaced. Landlord shall
be included to the policy as an additional insured by endorsement as respects to this Agreement.
8. INTERFERENCE.
(a) Prior to or concurrent with the execution of this Agreement, Landlord has provided or will
provide Tenant with a list of radio frequency user(s) on the Property as of the Effective Date; provided, however,
it shall be Tenant’s sole responsibility to determine the actual radio frequencies used by such user(s). Tenant
warrants that its use of the Premises will not interfere with those existing radio frequency uses on the Property,
as long as the existing radio frequency user(s) operate and continue to operate within their respective frequencies
and in accordance with all applicable laws and regulations.
(b) Landlord will not grant, after the Effective Date, a lease, license or any other right to any third
party, if the exercise of such grant may in any way adversely affect or interfere with the Communication Facility,
the operations of Tenant or the rights of Tenant under this Agreement.
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(c) Landlord will not, nor will Landlord permit its employees, tenants, licensees, invitees, agents or
independent contractors to interfere in any way with the Communication Facility, the operations of Tenant or the
rights of Tenant under this Agreement. Landlord will cause such interference to cease within twenty-four (24)
hours after receipt of notice of interference from Tenant. In the event any such interference does not cease within
the aforementioned cure period, Landlord shall cease all operations which are suspected of causing interference
(except for intermittent testing to determine the cause of such interference) until the interference has been
corrected. Tenant will not, nor will Tenant permit its employees, tenants, licensee, invitees, agents, or
independent contractors to interfere in any way with the operations of Landlord or other tenants of the Water
Tower or Premises, as long as the existing radio frequency user(s) operate and continue to operate within their
respective frequencies and in accordance with all applicable laws and regulations.
(d) For the purposes of this Agreement, “interference” may include, but is not limited to, any use on
the Property that causes electronic or physical obstruction with, or degradation of, the communications signals
from the Communication Facility.
(e) Tenant's installation, operation, and maintenance of its Communication Facilities shall not damage
or interfere with Landlord's Water Tower and/or the Property's operations or related repair and maintenance
activities. Landlord, at all times during this Agreement, reserves the right to take any action it deems necessary,
in its sole discretion, to repair, maintain, alter or improve the Property in connection with city operations as may
be necessary, including leasing parts of the Water Tower and/or Property and surrounding ground space to others.
(f) Tenant acknowledges and agrees that the primary purpose of the Water Tower is to provide water
storage for Landlord and its customers. Tenant understands that Landlord may have to interrupt Tenant’s use of
the Premises from time to time to service, maintain, or repair the Water Tower. Accordingly, Landlord reserves
the right at all times during this Agreement to take any action it deems necessary in its sole discretion to repair,
maintain, alter, or improve the Property and shall not be liable to Tenant for any temporary interference with
Tenant’s use as a result of actions necessary to carry out any such activities. Notwithstanding the foregoing,
Landlord agrees to provide Tenant with reasonable advance notice of any planned activities, emergencies
excepted, and to carry out such activities in a manner to minimize interruptions with Tenant’s use.
9. Intentionally deleted.
10. WARRANTIES.
(a) Each of Tenant and Landlord (to the extent not a natural person) each acknowledge and represent
that it is duly organized, validly existing and in good standing and has the right, power, and authority or capacity,
as applicable, to enter into this Agreement and bind itself hereto through the party or individual set forth as
signatory for the party below.
(b) To the extent permitted by state or municipal law, and except as otherwise previously disclosed
by Landlord to Tenant prior to the date of this Agreement, Landlord represents, warrants and agrees that: (i)
Landlord solely owns the Property as a legal lot in fee simple, or controls the Property by lease or license and
solely owns the Water Tower; (ii) the Property is not and will not be encumbered by any liens, restrictions,
mortgages, covenants, conditions, easements, leases, or any other agreements of record or not of record, which
would adversely affect Tenant’s Permitted Use and enjoyment of the Premises under this Agreement; (iii)
Landlord grants to Tenant sole, actual, quiet and peaceful use, enjoyment and possession of the Premises in
accordance with the terms of this Agreement without hindrance or ejection by any persons lawfully claiming
under Landlord ; (iv) Landlord’s execution and performance of this Agreement will not violate any laws,
ordinances, covenants or the provisions of any mortgage, lease or other agreement binding on Landlord; and (v)
if the Property is or becomes encumbered by a deed to secure a debt, mortgage or other security interest, then
Landlord will provide promptly to Tenant a mutually agreeable subordination, non-disturbance and attornment
agreement executed by Landlord and the holder of such security interest in the form attached hereto as Exhibit
10(b).
(c) Tenant currently leases a portion of the Property pursuant to the Prior Lease, and Tenant
acknowledges and agrees that Tenant is familiar with the condition of the Premises and agrees to accept the
physical condition of the Premises in “AS IS” condition. Tenant further acknowledges and agrees that Tenant is
relying solely on its own investigation of the Premises and not on any information provided to or to be provided
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by Landlord. Tenant agrees to accept the Premises and waive all objections or claims against Landlord arising
from or related to the Premises, except for a breach of any representations, warranties, or covenants set forth in
this Agreement.
11. ENVIRONMENTAL.
(a) . Notwithstanding the foregoing, Landlord represents that it has no knowledge of the presence
of or contamination by any hazardous substances on the Property in violation of any applicable federal, state, or
local law or regulation. Landlord and Tenant agree that each will be responsible for compliance with any and all
applicable governmental laws, rules, statutes, regulations, codes, ordinances, or principles of common law
regulating or imposing standards of liability or standards of conduct with regard to protection of the environment
or worker health and safety, as may now or at any time hereafter be in effect, to the extent such apply to that
party’s activity conducted in or on the Property.
12. ACCESS. At all times throughout the Term of this Agreement, Tenant and its employees, agents, and
subcontractors, will require twenty-four (24) hour access for pedestrian and vehicular access (“Access”) to and
over the Property, from an open and improved public road to the Premises, for the installation, maintenance and
operation of the Communication Facility and any utilities serving the Premises. There is a sign at the access
point that will need to be called to, to provide access to enter the Premises in the case of emergencies. As may
be described more fully in Exhibit 1, Landlord grants to Tenant an easement for such Access and Landlord
agrees to provide to Tenant such codes, keys and other instruments necessary for such Access. Upon Tenant’s
request, Landlord will execute a separate recordable easement evidencing this right. Landlord shall execute a
letter granting Tenant Access to the Property substantially in the form attached as Exhibit 12; upon Tenant’s
request, Landlord shall execute additional letters during the Term. If Tenant elects to utilize an Unmanned
Aircraft System (“UAS”) in connection with its installation, construction, monitoring, site audits, inspections,
maintenance, repair, modification, or alteration activities at the Property, Landlord hereby grants Tenant, or any
UAS operator acting on Tenant’s behalf, express permission to fly over the applicable Property and Premises,
and consents to the use of audio and video navigation and recording in connection with the use of the UAS.
Landlord acknowledges that in the event Tenant cannot obtain Access to the Premises, Tenant shall incur
significant damage. If Landlord fails to provide the Access granted by this Section 12, such failure shall be a
default under this Agreement.
13. REMOVAL/RESTORATION. All portions of the Communication Facility brought onto the Property
by Tenant will be and remain Tenant’s personal property and, at Tenant’s option, may be removed by Tenant at
any time during or after the Term. Landlord covenants and agrees that no part of the Communication Facility
constructed, erected or placed on the Premises by Tenant will become, or be considered as being affixed to or a
part of, the Property, it being the specific intention of Landlord that all improvements of every kind and nature
constructed, erected or placed by Tenant on the Premises will be and remain the property of Tenant and may be
removed by Tenant at any time during or after the Term. Tenant will repair any damage to the Property resulting
from Tenant’s removal activities. Any portions of the Communication Facility that Tenant does not remove
within one hundred twenty (120) days after the later of the end of the Term and cessation of Tenant’s operations
at the Premises shall be deemed abandoned and owned by Landlord. Notwithstanding the foregoing, Tenant
will not be responsible for the replacement of any trees, shrubs or other vegetation.
14. MAINTENANCE/UTILITIES.
(a) Tenant will keep and maintain the Premises in good condition, reasonable wear and tear and
damage from the elements excepted. Landlord will maintain and repair the Property and access thereto, the
Water Tower, and all areas of the Premises where Tenant does not have exclusive control, in good and tenantable
condition, subject to reasonable wear and tear and damage from the elements. Landlord will be responsible for
maintenance of landscaping on the Property.
(b) Tenant will be responsible for paying on a monthly or quarterly basis all utilities charges for
electricity, telephone service or any other utility used or consumed by Tenant on the Premises. In the event
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Tenant cannot secure its own metered electrical supply, Tenant will have the right, at its own cost and expense,
to sub-meter from Landlord. When sub-metering is required under this Agreement, Landlord will read the meter
and provide Tenant with an invoice and usage data on a monthly basis. Tenant shall reimburse Landlord for such
utility usage at the same rate charged to Landlord by the utility service provider. Landlord further agrees to
provide the usage data and invoice on forms provided by Tenant and to send such forms to such address and/or
agent designated by Tenant. Tenant will remit payment within sixty (60) days of receipt of the usage data and
required forms. Landlord shall maintain accurate and detailed records of all utility expenses, invoices and
payments applicable to Tenant’s reimbursement obligations hereunder. Within fifteen (15) days after a request
from Tenant, Landlord shall provide copies of such utility billing records to the Tenant in the form of copies of
invoices, contracts and cancelled checks. If the utility billing records reflect an overpayment by Tenant, Tenant
shall have the right to deduct the amount of such overpayment from any monies due to Landlord from Tenant.
(c) As noted in Section 4(c) above, any utility fee recovery by Landlord is limited to a twelve (12)
month period. If Tenant sub-meters electricity from Landlord, Landlord agrees to give Tenant at least twenty-
four (24) hours advance notice of any planned interruptions of said electricity. Landlord acknowledges that
Tenant provides a communication service which requires electrical power to operate and must operate twenty-
four (24) hours per day, seven (7) days per week. If the interruption is for an extended period of time, in Tenant’s
reasonable determination, Landlord agrees to allow Tenant the right to bring in a temporary source of power for
the duration of the interruption. Landlord will not be responsible for interference with, interruption of or failure,
beyond the reasonable control of Landlord, of such services to be furnished or supplied by Landlord.
(d) Tenant will have the right to install utilities, at Tenant’s expense, and to improve present utilities
on the Property and the Premises. Landlord hereby grants to any service company providing utility or similar
services, including electric power and telecommunications, to Tenant an easement over the Property, from an
open and improved public road to the Premises, and upon the Premises, for the purpose of constructing, operating
and maintaining such lines, wires, circuits, and conduits, associated equipment cabinets and such appurtenances
thereto, as such service companies may from time to time require in order to provide such services to the
Premises. Upon Tenant’s or service company’s request, Landlord will execute a separate recordable easement
evidencing this grant, at no cost to Tenant or the service company.
15. DEFAULT AND RIGHT TO CURE.
(a) The following will be deemed a default by Tenant and a breach of this Agreement: (i) non-
payment of Rent if such Rent remains unpaid for more than thirty (30) days after written notice from Landlord
of such failure to pay; or (ii) Tenant’s failure to perform any other term or condition under this Agreement within
forty-five (45) days after written notice from Landlord specifying the failure. Delay in curing a default will be
excused if due to causes beyond the reasonable control of Tenant. If Tenant remains in default beyond any
applicable cure period, then Landlord will have the right to exercise any and all rights and remedies available to
it under law and equity.
(b) The following will be deemed a default by Landlord and a breach of this Agreement: (i)
Landlord’s failure to provide Access to the Premises as required by Section 12 within twenty-four (24) hours
after written notice of such failure; (ii) Landlord’s failure to cure an interference problem as required by Section
8 within twenty-four (24) hours after written notice of such failure; or (iii) Landlord’s failure to perform any
term, condition or breach of any warranty or covenant under this Agreement within forty-five (45) days after
written notice from Tenant specifying the failure. Delay in curing a default will be excused if due to causes
beyond the reasonable control of Landlord. If Landlord remains in default beyond any applicable cure period,
Tenant will have: (i) the right to cure Landlord’s default and to deduct the reasonable costs of such cure from
any monies due to Landlord from Tenant, and (ii) any and all other rights available to it under law and equity.
16. ASSIGNMENT/SUBLEASE. This Agreement may not be assigned or subleased without the prior
written consent of Landlord, which consent may be withheld for any reason or no reason in Landlord’s sole
discretion. Notwithstanding the foregoing, this Agreement may be assigned without Landlord consent to an
entity that controls, is controlled by, or is under the common control of Tenant, or to any entity resulting from
any merger or consolidation with Tenant, or to any partner of Tenant, or to any person or entity that acquires all
of the assets of Tenant as a going concern, provided that Tenant shall indemnify and hold Landlord harmless.
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Notwithstanding anything contained herein to the contrary, Tenant acknowledges and agrees that any permitted
assignee or subtenant shall be required to comply with all applicable laws including all licensing and/or
permitting requirements imposed by all governmental entities having jurisdiction over the Premises.
17. NOTICES. All notices, requests and demands hereunder will be given by first class certified or
registered mail, return receipt requested, or by a nationally recognized overnight courier, postage prepaid, to be
effective when properly sent and received, refused or returned undelivered. Notices will be addressed to the
parties hereto as follows:
If to Tenant: New Cingular Wireless PCS, LLC
Attn: Tower Asset Group - Lease Administration
Re: Cell Site #: GRANMI5603; Cell Site Name: Muskegon Nims WT (MI)
Fixed Asset #: 10124755
1025 Lenox Park Blvd NE
3rd Floor
Atlanta, GA 30319
With a copy to: New Cingular Wireless PCS, LLC
Attn.: Legal Dept – Network Operations
Re: Cell Site #: GRANMI5603; Cell Site Name: Muskegon Nims WT (MI)
Fixed Asset #: 10124755
208 S. Akard Street
Dallas, TX 75202-4206
The copy sent to the Legal Department is an administrative step which alone does not constitute legal notice.
If to Landlord: City of Muskegon
933 Terrace Street
Muskegon, MI 49443
Attn: Dave Baker
Either party hereto may change the place for the giving of notice to it by thirty (30) days’ prior written notice to
the other party hereto as provided herein.
18. CONDEMNATION. In the event Landlord receives notification of any condemnation proceedings
affecting the Property, Landlord will provide notice of the proceeding to Tenant within twenty-four (24) hours.
If a condemning authority takes all of the Property, or a portion sufficient, in Tenant’s sole determination, to
render the Premises unsuitable for Tenant, this Agreement will terminate as of the date the title vests in the
condemning authority. The parties will each be entitled to pursue their own separate awards in the condemnation
proceeds, which for Tenant will include, where applicable, the value of its Communication Facility, moving
expenses, prepaid Rent, and business dislocation expenses. Tenant will be entitled to reimbursement for any
prepaid Rent on a pro rata basis.
19. CASUALTY. Landlord will provide notice to Tenant of any casualty or other harm affecting the
Property within twenty-four (24) hours of the casualty or other harm. If any part of the Communication Facility
or the Property is damaged by casualty or other harm as to render the Premises unsuitable, in Tenant’s sole
determination, then Tenant may terminate this Agreement by providing written notice to Landlord, which
termination will be effective as of the date of such casualty or other harm. Upon such termination, Tenant will
be entitled to collect all insurance proceeds payable to Tenant on account thereof and to be reimbursed for any
prepaid Rent on a pro rata basis. Landlord agrees to permit Tenant to place temporary transmission and reception
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facilities on the Property, but only until such time as Tenant is able to activate a replacement transmission facility
at another location; notwithstanding the termination of this Agreement, such temporary facilities will be governed
by all of the terms and conditions of this Agreement, including Rent. If Landlord or Tenant undertakes to rebuild
or restore the Premises and/or the Communication Facility, as applicable, Landlord agrees to permit Tenant to
place temporary transmission and reception facilities on the Property until the reconstruction of the Premises
and/or the Communication Facility is completed. If Landlord determines not to rebuild or restore the Property,
Landlord will notify Tenant of such determination within thirty (30) days after the casualty or other harm. If
Landlord does not so notify Tenant and Tenant decides not to terminate under this Section 19, then Landlord will
promptly rebuild or restore any portion of the Property interfering with or required for Tenant’s Permitted Use
of the Premises to substantially the same condition as existed before the casualty or other harm. Landlord agrees
that the Rent shall be abated until the Property and/or the Premises are rebuilt or restored, unless Tenant places
temporary transmission and reception facilities on the Property.
20. WAIVER OF LANDLORD’S LIENS. Landlord waives any and all lien rights it may have, statutory or
otherwise, concerning the Communication Facility or any portion thereof. The Communication Facility shall be
deemed personal property for purposes of this Agreement, regardless of whether any portion is deemed real or
personal property under applicable law; Landlord consents to Tenant’s right to remove all or any portion of the
Communication Facility from time to time in Tenant’s sole discretion and without Landlord’s consent.
21. TAXES.
(a) Landlord shall be responsible for (i) all taxes and assessments levied upon the lands, improvements
and other property of Landlord including any such taxes that may be calculated by a taxing authority using any
method, including the income method, (ii) all sales, use, license, value added, documentary, stamp, gross receipts,
registration, real estate transfer, conveyance, excise, recording, and other similar taxes and fees imposed in
connection with this Agreement, and (iii) all sales, use, license, value added, documentary, stamp, gross receipts,
registration, real estate transfer, conveyance, excise, recording, and other similar taxes and fees imposed in
connection with a sale of the Property or assignment of Rent payments by Landlord. Tenant shall be responsible
for (x) all property taxes, real or personal, directly attributable to its occupancy and use of the Property, (y) any
taxes and assessments attributable to and levied upon Tenant’s leasehold improvements on the Premises if and
as set forth in this Section 21 and (z) all sales, use, license, value added, documentary, stamp, gross receipts,
registration, real estate transfer, conveyance, excise, recording, and other similar taxes and fees imposed in
connection with an assignment of this Agreement or sublease by Tenant. Nothing herein shall require Tenant to
pay any inheritance, franchise, income, payroll, excise, privilege, rent, capital stock, stamp, documentary, estate
or profit tax, or any tax of similar nature, that is or may be imposed upon Landlord.
(b) In the event Landlord receives a notice of assessment with respect to which taxes or assessments are
imposed on Tenant’s leasehold improvements on the Premises, Landlord shall provide Tenant with copies of
each such notice immediately upon receipt, but in no event later than thirty (30) days after the date of such notice
of assessment. If Landlord does not provide such notice or notices to Tenant in a timely manner and Tenant’s
rights with respect to such taxes are prejudiced by the delay, Landlord shall reimburse Tenant for any increased
costs directly resulting from the delay and Landlord shall be responsible for payment of the tax or assessment set
forth in the notice, and Landlord shall not have the right to reimbursement of such amount from Tenant. If
Landlord provides a notice of assessment to Tenant within such time period and requests reimbursement from
Tenant as set forth below, then Tenant shall reimburse Landlord for the tax or assessments identified on the
notice of assessment on Tenant’s leasehold improvements, which has been paid by Landlord. If Landlord seeks
reimbursement from Tenant, Landlord shall, no later than thirty (30) days after Landlord’s payment of the taxes
or assessments for the assessed tax year, provide Tenant with written notice including evidence that Landlord
has timely paid same, and Landlord shall provide to Tenant any other documentation reasonably requested by
Tenant to allow Tenant to evaluate the payment and to reimburse Landlord.
(c) For any tax amount for which Tenant is responsible under this Agreement, Tenant shall have the
right to contest, in good faith, the validity or the amount thereof using such administrative, appellate or other
proceedings as may be appropriate in the jurisdiction, and may defer payment of such obligations, pay same
under protest, or take such other steps as permitted by law. This right shall include the ability to institute any
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legal, regulatory or informal action in the name of Landlord, Tenant, or both, with respect to the valuation of the
Premises. Landlord shall cooperate with respect to the commencement and prosecution of any such proceedings
and will execute any documents required therefor. The expense of any such proceedings shall be borne by Tenant
and any refunds or rebates secured as a result of Tenant’s action shall belong to Tenant, to the extent the amounts
were originally paid by Tenant. In the event Tenant notifies Landlord by the due date for assessment of Tenant’s
intent to contest the assessment, Landlord shall not pay the assessment pending conclusion of the contest, unless
required by applicable law.
(d) Landlord shall not split or cause the tax parcel on which the Premises are located to be split,
bifurcated, separated or divided without the prior written consent of Tenant, which consent shall not be
unreasonably withheld.
(e) Tenant shall have the right but not the obligation to pay any taxes due by Landlord hereunder if
Landlord fails to timely do so, in addition to any other rights or remedies of Tenant. In the event that Tenant
exercises its rights under this Section 21(e) due to such Landlord default, Tenant shall have the right to deduct
such tax amounts paid from any monies due to Landlord from Tenant as provided in Section 15(b), provided that
Tenant may exercise such right without having provided to Landlord notice and the opportunity to cure per
Section 15(b).
(f) Any tax-related notices shall be sent to Tenant in the manner set forth in Section 17. Promptly after
the Effective Date, Landlord shall provide the following address to the taxing authority for the authority’s use in
the event the authority needs to communicate with Tenant. In the event that Tenant’s tax address changes by
notice to Landlord, Landlord shall be required to provide Tenant’s new tax address to the taxing authority or
authorities.
(g) Notwithstanding anything to the contrary contained in this Section 21, Tenant shall have no
obligation to reimburse any tax or assessment for which the Landlord is reimbursed or rebated by a third party.
22. SALE OF PROPERTY.
(a) Landlord may sell the Property or a portion thereof to a third party, provided: (i) the sale is made
subject to the terms of this Agreement; and (ii) if the sale does not include the assignment of Landlord’s full
interest in this Agreement, the purchaser must agree to perform, without requiring compensation from Tenant or
any subtenant, any obligation of Landlord under this Agreement, including Landlord’s obligation to cooperate
with Tenant as provided hereunder.
(b) If Landlord, at any time during the Term of this Agreement, decides to rezone or sell, subdivide
or otherwise transfer all or any part of the Premises, or all or any part of the Property, to a purchaser other than
Tenant, Landlord shall promptly notify Tenant in writing, and such rezoning, sale, subdivision or transfer shall
be subject to this Agreement and Tenant’s rights hereunder. In the event of a change in ownership, transfer or
sale of the Property, within ten (10) days of such transfer, Landlord or its successor shall send the documents
listed below in this Section 22(b) to Tenant. Until Tenant receives all such documents, Tenant’s failure to make
payments under this Agreement shall not be an event of default and Tenant reserves the right to hold payments
due under this Agreement.
i. Old deed to Property
ii. New deed to Property
iii. Bill of Sale or Transfer
iv. Copy of current Tax Bill
v. New IRS Form W-9
vi. Completed and Signed Tenant Payment Direction Form
vii. Full contact information for new Landlord including phone number(s)
(c) Landlord agrees not to sell, lease or use any areas of the Property for the installation, operation
or maintenance of other wireless communication facilities if such installation, operation or maintenance would
interfere with Tenant’s Permitted Use or communications equipment as determined by radio propagation tests
performed by Tenant in its sole discretion. If the radio frequency propagation tests demonstrate levels of
interference unacceptable to Tenant, Landlord shall be prohibited from selling, leasing or using any areas of the
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Property for purposes of any installation, operation or maintenance of any other wireless communication facility
or equipment.
(d) The provisions of this Section 22 shall in no way limit or impair the obligations of Landlord
under this Agreement, including interference and access obligations.
23. RIGHT OF FIRST REFUSAL. Notwithstanding the provisions contained in Section 22, if at any time
after the Effective Date, Landlord receives a bona fide written offer from a third party seeking any sale,
conveyance, assignment or transfer, whether in whole or in part, of any property interest in or related to the
Premises, including without limitation any offer seeking an assignment or transfer of the Rent payments
associated with this Agreement or an offer to purchase an easement with respect to the Premises (“Offer”),
Landlord shall immediately furnish Tenant with a copy of the Offer. Tenant shall have the right within thirty
(30) days after it receives such copy to match the financial terms of the Offer and agree in writing to match such
terms of the Offer. Such writing shall be in the form of a contract substantially similar to the Offer but Tenant
may assign its rights to a third party. If Tenant chooses not to exercise this right or fails to provide written notice
to Landlord within the thirty (30) day period, Landlord may sell, convey, assign or transfer such property interest
in or related to the Premises pursuant to the Offer, subject to the terms of this Agreement. If Landlord attempts
to sell, convey, assign or transfer such property interest in or related to the Premises without complying with this
Section 23, the sale, conveyance, assignment or transfer shall be void. Tenant shall not be responsible for any
failure to make payments under this Agreement and reserves the right to hold payments due under this Agreement
until Landlord complies with this Section 23. Tenant’s failure to exercise the right of first refusal shall not be
deemed a waiver of the rights contained in this Section 23 with respect to any future proposed conveyances as
described herein.
24. MISCELLANEOUS.
(a) Amendment/Waiver. This Agreement cannot be amended, modified or revised unless done in
writing and signed by Landlord and Tenant. No provision may be waived except in a writing signed by both
parties. The failure by a party to enforce any provision of this Agreement or to require performance by the other
party will not be construed to be a waiver, or in any way affect the right of either party to enforce such provision
thereafter.
(b) Memorandum/Short Form Lease. Contemporaneously with the execution of this Agreement,
the parties will execute a recordable Memorandum of Lease substantially in the form attached as Exhibit 24(b).
Either party may record this Memorandum of Lease at any time during the Term, in its absolute discretion.
Thereafter during the Term, either party will, at any time upon fifteen (15) business days’ prior written notice
from the other, execute, acknowledge and deliver to the other a recordable Memorandum of Lease.
(c) Limitation of Liability. Except for the indemnity obligations set forth in this Agreement, and
otherwise notwithstanding anything to the contrary in this Agreement, Tenant and Landlord each waives any
claims that each may have against the other with respect to consequential, incidental or special damages, however
caused, based on any theory of liability.
(d) Compliance with Law. Tenant agrees to comply with all federal, state and local laws, orders,
rules and regulations (“Laws”) applicable to Tenant’s use of the Communication Facility on the Property.
Landlord agrees to comply with all Laws relating to Landlord’s ownership and use of the Property and any
improvements on the Property.
(e) Bind and Benefit. The terms and conditions contained in this Agreement will run with the
Property and bind and inure to the benefit of the parties, their respective heirs, executors, administrators,
successors and assigns.
(f) Entire Agreement. This Agreement and the exhibits attached hereto, all being a part hereof,
constitute the entire agreement of the parties hereto and will supersede all prior offers, negotiations and
agreements with respect to the subject matter of this Agreement. Exhibits are numbered to correspond to the
Section wherein they are first referenced. Except as otherwise stated in this Agreement, each party shall bear its
own fees and expenses (including the fees and expenses of its agents, brokers, representatives, attorneys, and
accountants) incurred in connection with the negotiation, drafting, execution and performance of this Agreement
and the transactions it contemplates.
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(g) Governing Law. This Agreement will be governed by the laws of the state in which the
Premises are located, without regard to conflicts of law.
(h) Interpretation. Unless otherwise specified, the following rules of construction and
interpretation apply: (i) captions are for convenience and reference only and in no way define or limit the
construction of the terms and conditions hereof; (ii) use of the term “including” will be interpreted to mean
“including but not limited to”; (iii) whenever a party’s consent is required under this Agreement, except as
otherwise stated in the Agreement or as same may be duplicative, such consent will not be unreasonably withheld,
conditioned or delayed; (iv) exhibits are an integral part of this Agreement and are incorporated by reference into
this Agreement; (v) use of the terms “termination” or “expiration” are interchangeable; (vi) reference to a default
will take into consideration any applicable notice, grace and cure periods; (vii) to the extent there is any issue
with respect to any alleged, perceived or actual ambiguity in this Agreement, the ambiguity shall not be resolved
on the basis of who drafted the Agreement; (viii) the singular use of words includes the plural where appropriate;
and (ix) if any provision of this Agreement is held invalid, illegal or unenforceable, the remaining provisions of
this Agreement shall remain in full force if the overall purpose of the Agreement is not rendered impossible and
the original purpose, intent or consideration is not materially impaired.
(i) Affiliates. All references to “Tenant” shall be deemed to include any Affiliate of New Cingular
Wireless PCS, LLC using the Premises for any Permitted Use or otherwise exercising the rights of Tenant
pursuant to this Agreement. “Affiliate” means with respect to a party to this Agreement, any person or entity
that (directly or indirectly) controls, is controlled by, or under common control with, that party. “Control” of a
person or entity means the power (directly or indirectly) to direct the management or policies of that person or
entity, whether through the ownership of voting securities, by contract, by agency or otherwise.
(j) Survival. Any provisions of this Agreement relating to indemnification shall survive the
termination or expiration hereof. In addition, any terms and conditions contained in this Agreement that by their
sense and context are intended to survive the termination or expiration of this Agreement shall so survive.
(k) W-9. As a condition precedent to payment, Landlord agrees to provide Tenant with a completed
IRS Form W-9, or its equivalent, upon execution of this Agreement and at such other times as may be reasonably
requested by Tenant, including any change in Landlord’s name or address. A copy of the IRS Form 1-9 in its
current form is attached hereto as Exhibit 24(k).
(l) Execution/No Option. The submission of this Agreement to any party for examination or
consideration does not constitute an offer, reservation of or option for the Premises based on the terms set forth
herein. This Agreement will become effective as a binding Agreement only upon the handwritten legal
execution, acknowledgment and delivery hereof by Landlord and Tenant. This Agreement may be executed in
two (2) or more counterparts, all of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties. All parties need not sign the
same counterpart.
(m) Attorneys’ Fees. In the event that any dispute between the parties related to this Agreement
should result in litigation, the prevailing party in such litigation shall be entitled to recover from the other party
all reasonable fees and expenses of enforcing any right of the prevailing party, including reasonable attorneys’
fees and expenses. Prevailing party means the party determined by the court to have most nearly prevailed even
if such party did not prevail in all matters. This provision will not be construed to entitle any party other than
Landlord, Tenant and their respective Affiliates to recover their fees and expenses.
(n) WAIVER OF JURY TRIAL. EACH PARTY, TO THE EXTENT PERMITTED BY LAW,
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING UNDER ANY THEORY OF LIABILITY ARISING OUT OF OR IN
ANY WAY CONNECTED WITH THIS AGREEMENT OR THE TRANSACTIONS IT CONTEMPLATES.
(o) No Additional Fees/Incidental Fees. Unless otherwise specified in this Agreement, all rights
and obligations set forth in the Agreement shall be provided by Landlord and/or Tenant, as the case may be, at
no additional cost. No unilateral fees or additional costs or expenses are to be applied by either party to the other
party, for any task or service including, but not limited to, review of plans, structural analyses, consents, provision
of documents or other communications between the parties.
(p) Further Acts. Upon request, Landlord will cause to be promptly and duly taken, executed,
acknowledged and delivered all such further acts, documents, and assurances as Tenant may request from time
12
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to time in order to effectuate, carry out and perform all of the terms, provisions and conditions of this Agreement
and all transactions and Permitted Use contemplated by this Agreement.
(o) Estoppel. Landlord acknowledges that there are not any owed or outstanding rental payments
or fees due on the part of Tenant.
[SIGNATURES APPEAR ON NEXT PAGE]
13
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IN WITNESS WHEREOF, the parties have caused this Agreement to be effective as of the Effective Date.
“LANDLORD”
City of Muskegon
a Michigan municipal corporation
By:
Print Name:
Its:
Date:
“TENANT”
New Cingular Wireless PCS, LLC,
a Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
By:
Print Name:
Its:
Date:
[ACKNOWLEDGMENTS APPEAR ON NEXT TWO PAGES]
14
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TENANT ACKNOWLEDGMENT
STATE OF ________________ )
) SS.
COUNTY OF ______________ )
I certify that I know or have satisfactory evidence that ___________________________________ is the
person who appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated
that he/she was authorized to execute the instrument and acknowledged it as the
____________________________ of AT&T Mobility Corporation, the Manager of New Cingular Wireless
PCS, LLC, a Delaware limited liability company, to be the free and voluntary act of such party for the uses
and purposes mentioned in the instrument.
DATED: _______________________________.
Notary Seal
(Signature of Notary)
(Legibly Print or Stamp Name of Notary)
Notary Public in and for the State of ___________
My appointment expires:
15
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LANDLORD ACKNOWLEDGMENT
STATE OF _________________________)
)
COUNTY OF _______________________)
I CERTIFY that on ______________ _____, 202__, _______________________________ [name of
representative] personally came before me and acknowledged under oath that he or she:
(a) is the ____________________ [title] of City of Muskegon, a Michigan municipal corporation,
the corporation named in the attached instrument;
(b) was authorized to execute this instrument on behalf of the corporation; and
(c) executed the instrument as the act of the corporation.
__________________________________________
Notary Public: _____________________________
My Commission Expires:_____________________
Structure Lease Agreement 5.1.2020
EXHIBIT 1
DESCRIPTION OF PROPERTY AND PREMISES
Page of
to the Structure Lease Agreement dated , 202 , by and between City of Muskegon,
a Michigan municipal corporation, as Landlord, and New Cingular Wireless PCS, LLC, a Delaware limited
liability company, as Tenant.
The Property is legally described as follows:
The Premises are described and/or depicted as follows:
Structure Lease Agreement 5.1.2020
Notes:
1. THIS EXHIBIT MAY BE REPLACED BY A LAND SURVEY AND/OR CONSTRUCTION DRAWINGS OF THE PREMISES
ONCE RECEIVED BY TENANT.
2. ANY SETBACK OF THE PREMISES FROM THE PROPERTY’S BOUNDARIES SHALL BE THE DISTANCE REQUIRED BY
THE APPLICABLE GOVERNMENT AUTHORITIES.
3. WIDTH OF ACCESS ROAD SHALL BE THE WIDTH REQUIRED BY THE APPLICABLE GOVERNMENT AUTHORITIES,
INCLUDING POLICE AND FIRE DEPARTMENTS.
4. THE TYPE, NUMBER AND MOUNTING POSITIONS AND LOCATIONS OF ANTENNAS AND TRANSMISSION LINES ARE
ILLUSTRATIVE ONLY. ACTUAL TYPES, NUMBERS AND MOUNTING POSITIONS MAY VARY FROM WHAT IS SHOWN ABOVE.
Structure Lease Agreement 5.1.2020
EXHIBIT 10(b)
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
[FOLLOWS ON NEXT PAGE]
Structure Lease Agreement 5.1.2020
Recording Requested By
& When Recorded Return To:
New Cingular Wireless PCS, LLC
Attn: Tower Asset Group - Lease Administration
1025 Lenox Park Blvd NE, 3rd Floor
Atlanta, GA 30319
APN: _______________
(Space Above This Line For Recorder’s Use Only)
Cell Site No.: GRANMI5603
Cell Site Name: Muskegon Nims WT (MI)
Fixed Asset No.: 10124755
State: Michigan
County: Muskegon
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
(“Agreement”), dated as of the last of the signature dates below (the “Effective Date”), is entered into by and
among City of Muskegon, a Michigan municipal corporation, having a mailing address of 933 Terrace Street,
Muskegon, MI 49443 ("Lender"), _______________, a _______________, having a mailing address of
_______________ ("Landlord"), and New Cingular Wireless PCS, LLC, a Delaware limited liability company,
having a mailing address of 1025 Lenox Park Blvd NE, 3rd Floor, Atlanta, GA 30319 ("Tenant")..
RECITALS:
A. Tenant has entered into a certain Structure Lease Agreement dated , 202 , (the “Lease”)
with Landlord, covering property more fully described in Exhibit 1 attached hereto and made a part hereof
(the “Premises”); and
B. Lender has made a loan to Landlord in the original principal sum of
Dollars ($ ), which loan has been secured by a certain _______________dated _______________,
and recorded on , as Document Number in the Official Records of the
County Recorder of County, California (the “Deed of Trust”), upon that certain real
property located at , in the City of , County of , State of California
__________ [APN: ] ("Property"), a part of which Property contains the Premises; and
C. Tenant desires to be assured of continued occupancy of the Premises under the terms of the Lease and subject
to the terms of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements herein
contained, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Lender hereby consents to the Lease to the extent that Lender’s consent is required, if at all,
pursuant to the Deed of Trust or any other agreement(s) pertaining to the Property.
10471946663,,,07c_Nims Structure Lease - Final10124755 - Structure Lease Agreement not approved 2 9 23.docx
2. So long as this Agreement will remain in full force and effect, the Lease is and will be subject
and subordinate to the lien and effect of the Deed of Trust insofar as it affects the real property and fixtures of
which the Premises forms a part (but not Tenant’s trade fixtures and other personal property), and to all renewals,
modifications, consolidations, replacements and extensions thereof, to the full extent of the principal sum secured
thereby and interest thereon, with the same force and effect as if the Deed of Trust had been executed, delivered,
and duly recorded among the above-mentioned public records, prior to the execution and delivery of the Lease.
3. In the event Lender takes possession of the Premises as mortgagee-in-possession or lender-in-
possession or its substantive equivalent, including but not limited to, by deed in lieu of foreclosure or foreclosure
of the Deed of Trust, Lender agrees not to affect or disturb Tenant’s right to possession of the Premises and any
of Tenant’s other rights under the Lease in the exercise of Lender's rights so long as Tenant is not then in default,
after applicable notice and/or grace periods, under any of the terms, covenants, or conditions of the Lease.
4. In the event that Lender succeeds to the interest of Landlord or other landlord under the Lease
and/or to title to the Premises, Lender and Tenant hereby agree to be bound to one another under all of the terms,
covenants and conditions of the Lease; accordingly, from and after such event, Lender and Tenant will have the
same remedies against one another for the breach of an agreement contained in the Lease as Tenant and Landlord
had before Lender succeeded to the interest of Landlord; provided, however, that Lender will not be:
(a) personally liable for any act or omission of any prior landlord (including
Landlord); or
(b) bound by any rent or additional rent which Tenant might have paid for
more than the payment period as set forth under the Lease (one month,
year etc.) in advance to any prior landlord (including Landlord).
5. In the event that Lender or anyone else acquires title to or the right to possession of the Premises
upon the foreclosure of the Deed of Trust, or upon the sale of the Premises by Lender or its successors or assigns
after foreclosure or acquisition of title in lieu thereof or otherwise, Tenant agrees not to seek to terminate the Lease
by reason thereof, but will remain bound unto the new owner so long as the new owner is bound to Tenant (subject
to paragraph 4 above) under all of the terms, covenants and conditions of the Lease.
6. Lender understands, acknowledges and agrees that notwithstanding anything to the contrary
contained in the Deed of Trust and/or any related financing documents, including, without limitation, any UCC-1
financing statements, Lender will acquire no interest in any furniture, equipment, trade fixtures and/or other
property installed by Tenant on the Property. Lender hereby expressly waives any interest which Lender may
have or acquire with respect to such furniture, equipment, trade fixtures and/or other property of Tenant now, or
hereafter, located on or affixed to the Property or any portion thereof and Lender hereby agrees that same do not
constitute realty regardless of the manner in which same are attached or affixed to the Property.
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7. This Agreement will be binding upon and will extend to and benefit the successors and assigns
of the parties hereto and to any assignees or subtenants of Tenant which are permitted under the Lease. The term
"Lender", when used in this Agreement will be deemed to include any person or entity which acquires title to or
the right to possession of the Premises by, through or under Lender and/or the Deed of Trust, whether directly or
indirectly.
8. This Agreement may be executed in two (2) or more counterpart originals, and when the original
counterpart signatures are assembled together, shall constitute one integrated instrument. All parties need not sign
the same counterpart.
9. This Agreement will be governed by the laws of the state in which the Premises are located
without regard to conflicts of law.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed as of the last signature
date below.
"LANDLORD" "TENANT"
City of Muskegon, New Cingular Wireless PCS, LLC,
a Michigan municipal corporation a Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
By: By:
Name: Name:
Its: Its:
Date: , 20__ Date: , 20__
"LENDER"
_______________,
a _______________
By:
Name:
Its:
Date: , 20__
[ACKNOWLEDGMENTS APPEAR ON THE FOLLOWING THREE (3) PAGES]
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LANDLORD ACKNOWLEDGMENT
STATE OF _________________________)
)
COUNTY OF _______________________)
I CERTIFY that on ______________ _____, 202__, _______________________________ [name
of representative] personally came before me and acknowledged under oath that he or she:
(a) is the ____________________ [title] of City of Muskegon, a Michigan municipal
corporation, the corporation named in the attached instrument;
(b) was authorized to execute this instrument on behalf of the corporation; and
(c) executed the instrument as the act of the corporation.
__________________________________________
Notary Public: _____________________________
My Commission Expires:_____________________
Structure Lease Agreement 5.1.2020
TENANT ACKNOWLEDGMENT
STATE OF ________________ )
) SS.
COUNTY OF ______________ )
I certify that I know or have satisfactory evidence that ___________________________________
is the person who appeared before me, and said person acknowledged that he/she signed this instrument,
on oath stated that he/she was authorized to execute the instrument and acknowledged it as the
____________________________ of AT&T Mobility Corporation, the Manager of New Cingular
Wireless PCS, LLC, a Delaware limited liability company, to be the free and voluntary act of such party
for the uses and purposes mentioned in the instrument.
DATED: _______________________________.
Notary Seal
(Signature of Notary)
(Legibly Print or Stamp Name of Notary)
Notary Public in and for the State of ___________
My appointment expires:
Structure Lease Agreement 5.1.2020
LENDER ACKNOWLEDGMENT
STATE OF ________________ )
) SS.
COUNTY OF ______________ )
I certify that I know or have satisfactory evidence that ________________________________ is
the person who appeared before me, and said person acknowledged that said person signed this instrument,
on oath stated that said person was authorized to execute the instrument and acknowledged it as the
____________________ of , to be the free and
voluntary act of such party for the uses and purposes mentioned in the instrument.
DATED: _______________________________.
Notary Seal
(Signature of Notary)
(Legibly Print or Stamp Name of Notary)
Notary Public in and for the State of
________________
My appointment expires:
Structure Lease Agreement 5.1.2020
EXHIBIT 1
DESCRIPTION OF PROPERTY AND PREMISES
The Property is legally described as follows:
The Premises is legally described as follows:
[One (1) Page Depiction of the Premises Suitable for Recording in __________ County
Appears on Following Page
Structure Lease Agreement 5.1.2020
EXHIBIT 11
ENVIRONMENTAL DISCLOSURE
Landlord represents and warrants that the Property, as of the Effective Date, is free of hazardous substances
except as follows:
[INSERT AS APPLICABLE]
Structure Lease Agreement 5.1.2020
EXHIBIT 12
STANDARD ACCESS LETTER
[FOLLOWS ON NEXT PAGE]
Structure Lease Agreement 5.1.2020
{This Letter Goes On Landlord's Letterhead}
[Insert Date]
Building Staff / Security Staff
[Landlord, Lessee, Licensee]
[Street Address]
[City, State, Zip]
Re: Authorized Access granted to [ ]
Dear Building and Security Staff,
Please be advised that we have signed a lease with [ ] permitting [ ] to install, operate
and maintain telecommunications equipment at the property. The terms of the lease grant [ ]
and its representatives, employees, agents and subcontractors (“representatives”) 24 hour per day, 7 day per
week access to the leased area.
To avoid impact on telephone service during the day, [ ] representatives may be seeking access
to the property outside of normal business hours. [ ] representatives have been instructed to
keep noise levels at a minimum during their visit.
Please grant the bearer of a copy of this letter access to the property and to leased area. Thank you for your
assistance.
_______________________
Landlord Signature
Structure Lease Agreement 5.1.2020
EXHIBIT 24(b)
MEMORANDUM OF LEASE
[FOLLOWS ON NEXT PAGE]
Structure Lease Agreement 5.1.2020
PARCEL #: 24-129-400-0002-00
Prepared by, and
after recording return to:
MD7, LLC
(469) 965-9850
950 W. Bethany Drive, Suite 700
Allen, TX 75013
Cell Site No.: GRANMI5603
Cell Site Name: Muskegon Nims WT (MI)
Fixed Asset No.: 10124755
State: Michigan
County: Muskegon
MEMORANDUM
OF
LEASE
This Memorandum of Lease is entered into on this day of , 202 , by
and between City of Muskegon, a Michigan municipal corporation, having its principal office/residing at 933
Terrace Street, Muskegon, MI 49443 (hereinafter called “Landlord”), and New Cingular Wireless PCS, LLC, a
Delaware limited liability company, having a mailing address of 1025 Lenox Park Blvd NE, 3rd Floor, Atlanta,
GA 30319 (“Tenant”).
1. Landlord and Tenant entered into a certain Structure Lease Agreement (“Agreement”) on the
day of , 20 , for the purpose of installing, operating and maintaining a
communication facility and other improvements. All of the foregoing is set forth in the Agreement.
2. The initial lease term will be ten (10) years commencing on October 1, 2018, with five (5) successive
automatic five (5) year options to renew.
3. The portion of the land being leased to Tenant and associated easements are described in Exhibit 1
annexed hereto.
4. The Agreement gives Tenant a right of first refusal in the event Landlord receives a bona fide written
offer from a third party seeking any sale, conveyance, assignment or transfer, whether in whole or in
part, of any property interest in or related to the Premises, including without limitation any offer
seeking an assignment or transfer of the Rent payments associated with the Agreement or an offer to
purchase an easement with respect to the Premises.
5. This Memorandum of Lease is not intended to amend or modify, and shall not be deemed or construed
as amending or modifying, any of the terms, conditions or provisions of the Agreement, all of which
are hereby ratified and affirmed. In the event of a conflict between the provisions of this
Memorandum of Lease and the provisions of the Agreement, the provisions of the Agreement shall
Structure Lease Agreement 5.1.2020
control. The Agreement shall be binding upon and inure to the benefit of the parties and their
respective heirs, successors, and assigns, subject to the provisions of the Agreement.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year first
above written.
LANDLORD: TENANT:
City of Muskegon, New Cingular Wireless PCS, LLC,
a Michigan municipal corporation a Delaware limited liability company
By: By: AT&T Mobility Corporation
Print Name: Its: Manager
Its:
Date: By:
Print Name:
Its:
Date:
[ACKNOWLEDGMENTS APPEAR ON TWO NEXT PAGES]
10 Structure Lease Agreement 5.1.2020
LANDLORD ACKNOWLEDGMENT
STATE OF _________________________)
)
COUNTY OF _______________________)
I CERTIFY that on ______________ _____, 202__, _______________________________ [name of
representative] personally came before me and acknowledged under oath that he or she:
(a) is the ____________________ [title] of City of Muskegon, a Michigan municipal corporation,
the corporation named in the attached instrument;
(b) was authorized to execute this instrument on behalf of the corporation; and
(c) executed the instrument as the act of the corporation.
__________________________________________
Notary Public: _____________________________
My Commission Expires:_____________________
11
Structure Lease Agreement 5.1.2020
TENANT ACKNOWLEDGMENT
STATE OF ________________ )
) SS.
COUNTY OF ______________ )
I certify that I know or have satisfactory evidence that ___________________________________ is the
person who appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated
that he/she was authorized to execute the instrument and acknowledged it as the
____________________________ of AT&T Mobility Corporation, the Manager of New Cingular Wireless
PCS, LLC, a Delaware limited liability company, to be the free and voluntary act of such party for the uses and
purposes mentioned in the instrument.
DATED: _______________________________.
Notary Seal
(Signature of Notary)
(Legibly Print or Stamp Name of Notary)
Notary Public in and for the State of ___________
My appointment expires:
12
Structure Lease Agreement 5.1.2020
EXHIBIT 1 TO MEMORANDUM OF LEASE
DESCRIPTION OF PROPERTY AND PREMISES
Page of
to the Memorandum of Lease dated ________________, 20___, by and between City of Muskegon, a
Michigan municipal corporation, as Landlord, and New Cingular Wireless PCS, LLC, a Delaware limited liability
company, as Tenant.
The Property is legally described as follows:
The Premises are described and/or depicted as follows:
13
Structure Lease Agreement 5.1.2020
14
Structure Lease Agreement 5.1.2020
EXHIBIT 24(k)
IRS FORM W-9
Page 1 of 1
[IRS FORM W-9 (REVISED OCTOBER 2018)
APPEAR ON FOLLOWING PAGE]
15
Structure Lease Agreement 5.1.2020
16
Structure Lease Agreement 5.1.2020
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: July 25, 2023 Title: Water Supply System Bonds
Submitted By: Kenneth D. Grant Department: Finance
Brief Summary:
Ordinance authorizing the issuance of Water Supply System Junior Lien Revenue Bonds
Detailed Summary & Background:
To authorize the issuance of Water Supply System Bonds in an amount not to exceed $8,865,000.
The Bonds are expected to be sold to the Michigan Finance Authority and payable in 20 annual
principal installments at an interest rate of 1.875%. Scheduled closing is September 20th.
Estimated Principal Forgiveness: These numbers are still being finalized and do not include the
reductions for the ARPA Grant and principal forgiveness, which is 75% of the project cost amount,
leaving the amount of the loan to be repaid of $2,216,250.
Goal/Focus Area/Action Item Addressed: Sustainability in financial practices and infrastructure.
Reduce infrastructure burden on residents.
Amount Requested: (Per Meeting 7/11/23) Budgeted Item: Yes ☒ No ☐
Fund(s) or Account(s): 591 (Water) Budgeted Amendment Needed: Yes ☐ No ☒
Recommended Motion: I move approval of the ordinance authorizing the issuance of Water Supply
System Revenue Bonds.
Approvals: Legal Review ☒ Guest(s) Invited / Presenting
Immediate Division Head ☒ Information Technology ☐ Yes ☐
Other Division Heads ☒ Communication ☒ No ☒
MICHIGAN
Founded in 1852 ILLINOIS
by Sidney Davy Miller NEW YORK
OHIO
WASHINGTON, D.C.
CANADA
CHINA
PATRICK F. MCGOW Miller, Canfield, Paddock and Stone, P.L.C. MEXICO
TEL (313) 496-7684 150 West Jefferson, Suite 2500 POLAND
FAX (313) 496-8450 QATAR
Detroit, Michigan 48226
E-MAIL [email protected]
TEL (313) 963-6420
FAX (313) 496-7500
www.millercanfield.com
July 13, 2023
Mr. Ken Grant
Finance Director
City of Muskegon
933 Terrace Street
Muskegon MI 49443-0536
Re: City of Muskegon
$3,910,000 Sanitary Sewer System Junior Lien Revenue Bonds, Series 2023
(CWSRF Project 5790-01)
$8,865,000 Water Supply System Junior Lien Revenue Bonds, Series 2023
(DWSRF Project 7467-01)
Dear Ken:
I have enclosed an Ordinance authorizing the issuance of the above-captioned Sanitary
Sewer System Revenue Bonds and an Ordinance authorizing the issuance of the above-captioned
Water Supply System Revenue Bonds to be considered for approval by the City Commission at its
meeting on July 25th. The Sewer Bonds and the Water Bonds are to be sold through the Michigan
Finance Authority’s (“MFA”) Quarter 4B Clean Water State Revolving Fund Program and
Drinking Water State Revolving Fund Program, respectively, scheduled to close on September
8th.
Sewer Bonds
The Sewer Bond Ordinance authorizes the issuance of the Bonds in an amount not to
exceed $3,910,000 for the sewer projects. Of that amount, approximately $1,955,000 of the
principal will be forgiven, leaving the amount of the loan to be repaid of $1,955,000. The
Ordinance provides flexibility for the actual size of the Bond issue to be reduced prior to closing
based on the actual construction bids and final approved costs. In addition, the City will receive
principal forgiveness for this project which will reduce the amount that needs to be paid back to
the MFA.
The Sewer Bond Ordinance authorizes the issuance of the Series 2023 Bonds, which are
payable from the Net Revenues of the City’s Sanitary Sewer System. The Bonds are expected to
be sold to the MFA and payable in 20 annual principal installments at an interest rate of 1.875%.
The Bonds are being issued as junior lien bonds which are of equal standing with the Series 2019
MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.
Mr. Ken Grant -2- July 13, 2023
Bonds, Series 2020 Bonds and Series 2022 Bonds previously issued through the SRF for sewer
improvements.
Water Bonds
The Water Bond Ordinance authorizes the issuance of the Bonds in an amount not to
exceed $8,865,000, based on the numbers in the EGLE Project Cost Summary. These numbers
are still being tweaked and do not include the reductions for the ARPA Grant and principal
forgiveness, which is 75% of the project cost amount, leaving the amount of the loan to be repaid
of $2,216,250. But because we don’t have the breakdown between the ARPA Grant and principal
forgiveness yet, we are including the full project amount even though the loan amount, and amount
to be repaid, will be substantially less. Again, the Ordinance provides flexibility for the actual size
of the Bond issue to be reduced prior to closing based on the actual construction bids and final
approved costs. In addition, the City will receive principal forgiveness for these projects which
will reduce the amount that needs to be paid back to the MFA.
The Water Bond Ordinance authorizes the issuance of the Series 2023 Bonds, which are
payable from the Net Revenues of the City’s Water Supply System. The Bonds are expected to
be sold to the MFA and payable in 20 annual principal installments at an interest rate of 1.875%.
The Bonds are being issued as junior lien bonds which are of equal standing with the Series 2004
Bonds, Series 2019 Bonds, Series 2020 Bonds, Series 2022A Bonds and Series 2022B Bonds
previously issued through the DWRF for water improvements.
Both Water and Sewer Bonds
Both Ordinances also authorize various City officials to take the necessary actions to
execute and deliver the Bonds and all related documents, approve the final size of the Bonds and
contains the necessary items required by the Revenue Bond Act, Act 94 of 1933.
Pursuant to the Revenue Bond Act, the Ordinances may be adopted in one reading,
regardless of any contrary provision in the City’s ordinance adoption procedures. Each Ordinance
is required to be published once in full in your local newspaper (Muskegon Chronicle) after its
adoption. There are no restrictions or requirements on the size of the publication, so it can be as
small as possible. Upon adoption by the City Commission, we would appreciate receiving three
(3) certified copies of the Ordinance and three (3) Affidavits of Publication of the Ordinance for
bond transcripts.
The Part III application with the construction bids and tentative contract approval was
submitted last week, with the tentative contract approvals approved at the July 11th City
Commission meeting. There will be a conference call with MFA, EGLE and City officials on July
31st at 1:40 p.m. which we will participate in, to make final arrangements relating to the Bond
terms. At that time, the final bond sizes will be determined, and we will prepare the necessary
documents to be signed by various City officials after that date regarding the sale and delivery of
MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.
Mr. Ken Grant -3- July 13, 2023
the Bonds. The EGLE Order of Approval is expected to be issued on August 29th. The closing
for the Bonds will be September 20th and the City can begin requesting draws on the Bonds after
that date.
If you or anyone copied have any questions, please do not hesitate to contact me.
Very truly yours,
MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.
By:
Patrick F. McGow
Enclosure
cc: Jonathan Seyferth
LeighAnn Mikesell
Dan Vanderheide
Barbara Marczak
Warren Creamer
Stacey Mills
40833809.1/063684.00058
Water
ORDINANCE NO. _____
CITY OF MUSKEGON
AN ORDINANCE TO PROVIDE FOR THE ACQUISITION, CONSTRUCTION,
INSTALLATION, FURNISHING AND EQUIPPING OF ADDITIONS AND
IMPROVEMENTS TO THE WATER SUPPLY SYSTEM OF THE CITY; TO
PROVIDE FOR THE ISSUANCE AND SALE OF JUNIOR LIEN REVENUE
BONDS TO PAY THE COST THEREOF; TO PROVIDE FOR THE
COLLECTION OF REVENUES FROM THE SYSTEM SUFFICIENT FOR THE
PURPOSE OF PAYING THE COSTS OF OPERATION AND MAINTENANCE
OF THE SYSTEM AND TO PAY THE PRINCIPAL OF AND INTEREST ON
THE BONDS AND CERTAIN OUTSTANDING BONDS OF THE SYSTEM; TO
PROVIDE FOR THE SEGREGATION AND DISTRIBUTION OF SYSTEM
REVENUES; TO PROVIDE FOR THE RIGHTS OF THE HOLDERS OF THE
BONDS IN ENFORCEMENT THEREOF; TO PRESCRIBE THE FORM OF THE
BONDS; AND TO PROVIDE FOR OTHER MATTERS RELATING TO THE
BONDS AND THE SYSTEM.
THE CITY OF MUSKEGON ORDAINS:
Section 1. Definitions. Whenever used in this Ordinance, except when otherwise indicated
by the context, the following terms shall have the following meanings:
(a) “Act 94” means Act 94, Public Acts of Michigan, 1933, as amended.
(b) “Adjusted Net Revenues” means for any operating year the excess of
revenues over expenses for the System determined in accordance with generally accepted
accounting principles, to which shall be added depreciation, amortization, interest expense
on Bonds and payments to the City in lieu of taxes, to which may be made the following
adjustments.
(i) Revenues may be augmented by the amount of any rate increases
adopted prior to the issuance of additional Bonds or to be placed into effect before
the time principal or interest on the additional Bonds becomes payable from
Revenues as applied to quantities of service furnished during the operating year or
portion thereof that the increased rates were not in effect.
(ii) Revenues may be augmented by amounts which may be derived
from rates and charges to be paid by new customers of the System.
(c) “Authority” means the Michigan Finance Authority or its successor.
(d) “Authorized Officers” means the Mayor, the City Manager, the City Clerk
and the Finance Director of the City.
(e) “Bonds” or “Senior Lien Bonds” means any bonds or series of bonds so
designated and payable from Net Revenues, which are secured by a statutory first lien on
the Net Revenues established by this Ordinance and which are senior and superior in all
respects with respect to the Net Revenues to any Junior Lien Bonds secured by the statutory
second lien on the Net Revenues, together with any additional Bonds of equal standing
thereafter issued.
(f) “City” or “Issuer” means the City of Muskegon, County of Muskegon, State
of Michigan.
(g) “EGLE” means the means the Michigan Department of Environment, Great
Lakes, and Energy, or its successor.
(h) “Engineers” means Prein & Newhof, registered engineers of Grand Rapids,
Michigan.
(i) “Junior Lien Bonds” means the Series 2023 Bond, the Outstanding Junior
Lien Bonds any additional bonds of equal standing with the Series 2023 Bond and the
Outstanding Junior Lien Bonds which are secured by a statutory second lien on the Net
Revenues and are junior and subordinate to the Senior Lien Bonds.
(j) “Outstanding Junior Lien Bonds” means the Series 2004 Bond, Series 2019
Bond, Series 2020 Bond and Series 2022 Bonds.
(k) “Outstanding Ordinances” means Ordinance Nos. 2117, 2416, 2436 and
2468 of the City.
(l) “Project” means the acquisition, construction, furnishing and equipping of
improvements to the Water Supply System of the City, including distribution system
improvements, replacement of water mains and service lines, pump station and water
filtration plant improvements, together with all related appurtenances and attachments.
(m) “Purchase Contract” means the Purchase Contract to be entered into
between the Authority and the City relating to the purchase by the Authority of a series of
the Series 2023 Bond.
(n) “Revenues” and “Net Revenues” shall mean the revenues and net revenues
of the City derived from the operation of the System and shall be construed as defined in
Section 3 of Act 94, including with respect to “Revenues,” the earnings derived from the
investment of moneys in the various funds and accounts established by the Outstanding
Ordinances and this Ordinance.
(o) “Series 2004 Bond” means the Water Supply System Junior Lien Revenue
Bond (Limited Tax General Obligation), Series 2004, dated March 25, 2004, in the
outstanding principal amount of Two Million Four Hundred Seventy-Five Thousand
Dollars ($2,475,000).
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(p) “Series 2019 Bond” means the Water Supply System Junior Lien Revenue
Bond, Series 2019, dated August 28, 2019, in the outstanding principal amount of One
Million Four Hundred Sixty-Five Thousand Dollars ($1,465,000).
(q) “Series 2020 Bond” means the Water Supply System Junior Lien Revenue
Bond, Series 2020, dated September 30, 2020, in the outstanding principal amount of Three
Million Five Hundred Thirty Thousand Dollars ($3,530,000).
(r) “Series 2022 Bonds” means the Series 2022A Bonds and the Series 2022B
Bonds.
(s) “Series 2022A Bond” means the Water Supply System Junior Lien Revenue
Bond, Series 2023, dated September 20, 2022, in the principal amount of not to exceed
One Million One Hundred Thirty-Eight Thousand One Hundred Thirty Dollars
($1,138,130).
(t) “Series 2022B Bond” means the Water Supply System Junior Lien Revenue
Bond, Series 2023, dated September 20, 2022, in the principal amount of not to exceed
Two Hundred Forty Thousand Dollars ($240,000).
(u) “Series 2023 Bond” means the Water Supply System Junior Lien Revenue
Bond, Series 2023, in the principal amount of not to exceed Eight Million Eight Hundred
Sixty-Five Thousand Dollars ($8,865,000) authorized by this Ordinance.
(v) “Sufficient Government Obligations” means direct obligations of the
United States of America or obligations the principal and interest on which is fully
guaranteed by the United States of America, not redeemable at the option of the issuer, the
principal and interest payments upon which without reinvestment of the interest, come due
at such times and in such amounts as to be fully sufficient to pay the interest as it comes
due on the Bonds or Junior Lien Bonds and the principal and redemption premium, if any,
on the Bonds or Junior Lien Bonds as it comes due whether on the stated maturity date or
upon earlier redemption. Securities representing such obligations shall be placed in trust
with a bank or trust company, and if any of the Bonds or Junior Lien Bonds are to be called
for redemption prior to maturity, irrevocable instructions to call the Bonds for redemption
shall be given to the paying agent.
(w) “Supplemental Agreement” means the supplemental agreement among the
City, the Authority and the EGLE relating to a series of the Series 2023 Bond.
(x) “System” means the Water Supply System of the City, including the Project
and all additions, extensions and improvements hereafter acquired.
Section 2. Necessity; Approval of Plans and Specifications. It is hereby determined to be
a necessary public purpose of the City to acquire and construct the Project in accordance with the
plans and specifications prepared by the Engineers, which plans and specifications are hereby
approved. The Project qualifies for the Drinking Water State Revolving Fund financing program
being administered by the EGLE and the Authority, whereby bonds of the City are sold to the
3
Authority and bear interest at a fixed rate of not to exceed one and seven-eighths percent (1.875%)
per annum.
Section 3. Costs; Useful Life. The cost of the Project is estimated to be an amount not to
exceed Nine Million Two Hundred Five Thousand Dollars ($9,205,000), including the payment
of incidental expenses as specified in Section 4 of this Ordinance, which estimate of cost is hereby
approved and confirmed. The period of usefulness of the Project is estimated to be not less than
twenty-five (25) years.
Section 4. Payment of Cost; Bonds Authorized. To pay part of the cost of acquiring the
Project, legal, engineering, financial and other expenses incident thereto and incident to the
issuance and sale of the Series 2023 Bond, the City shall borrow the sum of not to exceed Eight
Million Eight Hundred Sixty-Five Thousand Dollars ($8,865,000), and issue the Series 2023 Bond
therefor pursuant to the provisions of Act 94. The remaining cost of the Project, if any, shall be
defrayed from grant funds and City funds on hand and legally available for such use.
Except as amended by or expressly provided to the contrary in this Ordinance, all of the
provisions of the Outstanding Ordinances shall apply to the Series 2023 Bond issued pursuant to
this Ordinance, the same as though each of the provisions were repeated in this Ordinance in detail;
the purpose of this Ordinance being to authorize the issuance of additional revenue bonds of junior
and subordinate standing and priority of lien to any Outstanding Senior Lien Bonds and of equal
standing and priority of lien as to the Net Revenues with the Outstanding Junior Lien Bonds to
finance the cost of acquiring additions, extensions and improvements to the System, additional
bonds of junior and subordinate standing and priority of lien as to any Outstanding Senior Lien
Bonds and of equal standing and priority of lien as to the Outstanding Junior Lien Bonds for such
purpose being authorized by the provisions of the Outstanding Ordinances, upon the conditions
therein stated, which conditions have been fully met.
Section 5. Issuance of Series 2023 Bond; Details. The Series 2023 Bond of the City, to be
designated WATER SUPPLY SYSTEM JUNIOR LIEN REVENUE BOND, SERIES 2023 is
authorized to be issued in the aggregate principal sum of not to exceed Eight Million Eight
Hundred Sixty-Five Thousand Dollars ($8,865,000), or such lesser amount as finally determined
by order of the EGLE for the purpose of paying part of the cost of the Project, including the costs
incidental to the issuance, sale and delivery of the Series 2023 Bond. The Series 2023 Bond shall
be Junior Lien Bonds payable out of the Net Revenues, as set forth more fully in Section 8 hereof,
provided that the Series 2023 Bond shall be subordinate to the prior lien with respect to the Net
Revenues in favor of any Senior Lien Bonds hereafter issued.
The Series 2023 Bond shall be in the form of a single fully-registered, nonconvertible bond
of the denomination of the full principal amount thereof, dated as of the date of delivery, payable
in principal installments as finally determined by the order of the EGLE at the time of sale of the
Series 2023 Bond and approved by the Authority and an Authorized Officer. Principal installments
of the Series 2023 Bond shall be payable on October 1 of the years 2025 through 2044, inclusive,
or such other payment dates as hereinafter provided. Interest on the Series 2023 Bond shall be
payable on April 1 and October 1 of each year, commencing April 1, 2024 or on such other interest
payment dates as hereinafter provided. Final determination of the principal amount of and interest
on the Series 2023 Bond and the payment dates and amounts of principal installments of the Series
4
2023 Bond shall be evidenced by execution of the Purchase Contract and each of the Authorized
Officers is authorized and directed to execute and deliver the Purchase Contract when in final form
and to make the determinations set forth above; provided, however, that the first principal
installment shall be due no earlier than April 1, 2024 and the final principal installment shall be
due no later than October 1, 2046 and that the total principal amount shall not exceed $8,865,000.
The Series 2023 Bond shall bear interest at a rate of not to exceed one and seven-eighths
percent (1.875%) per annum on the par value thereof or such other rate as evidenced by execution
of the Purchase Contract, but in any event not to exceed the rate permitted by law, and any
Authorized Officers as shall be appropriate shall deliver the Series 2023 Bond in accordance with
the delivery instructions of the Authority.
The principal amount of the Series 2023 Bond is expected to be drawn down by the City
periodically, and interest on principal amount shall accrue from the date such principal amount is
drawn down by the City.
The Series 2023 Bond shall not be convertible or exchangeable into more than one fully-
registered bond. Principal of and interest on the Series 2023 Bond shall be payable as provided in
the Series 2023 Bond form in this Ordinance.
The Series 2023 Bond shall be subject to optional redemption by the City with the prior
written approval of the Authority and on such terms as may be required by the Authority.
The Treasurer shall record on the registration books payment by the City of each
installment of principal or interest or both when made and the cancelled checks or other records
evidencing such payments shall be returned to and retained by the Treasurer.
Upon payment by the City of all outstanding principal of and interest on the Series 2023
Bond, the Authority shall deliver the Series 2023 Bond to the City for cancellation.
Section 6. Execution of Series 2023 Bond. The Series 2023 Bond shall be signed by the
manual or facsimile signature of the Mayor and countersigned by the manual or facsimile signature
of the City Clerk and shall have the corporate seal of the City or facsimile thereof impressed
thereon. The Series 2023 Bond bearing the manual or facsimile signatures of the Mayor and the
City Clerk sold to the Authority shall require no further authentication.
Section 7. Registration and Transfer. Any Bond or Junior Lien Bond may be transferred
upon the books required to be kept pursuant to this section by the person in whose name it is
registered, in person or by the registered owner’s duly authorized attorney, upon surrender of the
Bond or Junior Lien Bond for cancellation, accompanied by delivery of a duly executed written
instrument of transfer in a form approved by the transfer agent. Whenever any Bond or Junior
Lien Bond shall be surrendered for transfer, the City shall execute and the transfer agent shall
authenticate and deliver a new Bond or Junior Lien Bond, for like aggregate principal amount.
The transfer agent shall require payment by the bondholder requesting the transfer of any tax or
other governmental charge required to be paid with respect to the transfer. The City shall not be
required (i) to issue, register the transfer of or exchange any Bond or Junior Lien Bond during a
period beginning at the opening of business 15 days before the day of the giving of a notice of
redemption of Bonds selected for redemption as described in the form of Series 2023 Bond
5
contained in Section 16 of this Ordinance and ending at the close of business on the day of that
giving of notice, or (ii) to register the transfer of or exchange any Bond or Junior Lien Bond so
selected for redemption in whole or in part, except the unredeemed portion of Bonds or Junior
Lien Bonds being redeemed in part. The City shall give the transfer agent notice of call for
redemption at least 20 days prior to the date notice of redemption is to be given.
The transfer agent shall keep or cause to be kept at its principal office sufficient books for
the registration and transfer of the Bonds or Junior Lien Bond, which shall at all times be open to
inspection by the City; and upon presentation for such purpose the transfer agent shall under such
reasonable regulations as it may prescribe transfer or cause to be transferred on the books Bonds
or Junior Lien Bond as hereinbefore provided.
If any Bond or Junior Lien Bond shall become mutilated, the City, at the expense of the
holder of the Bond, shall execute, and the transfer agent shall authenticate and deliver, a new Bond
or Junior Lien Bond of like tenor in exchange and substitution for the mutilated Bond or Junior
Lien Bond, upon surrender to the transfer agent of the mutilated Bond or Junior Lien Bond. If any
Bond or Junior Lien Bond issued under this Ordinance shall be lost, destroyed or stolen, evidence
of the loss, destruction or theft may be submitted to the transfer agent and, if this evidence is
satisfactory to both and indemnity satisfactory to the transfer agent shall be given, and if all
requirements of any applicable law including Act 354, Public Acts of Michigan, 1972, as amended
(“Act 354”), being sections 129.131 to 129.135, inclusive, of the Michigan Compiled Laws have
been met, the City, at the expense of the owner, shall execute, and the transfer agent shall thereupon
authenticate and deliver, a new Bond or Junior Lien Bond of like tenor and bearing the statement
required by Act 354, or any applicable law hereafter enacted, in lieu of and in substitution for the
Bond or Junior Lien Bond so lost, destroyed or stolen. If any such Bond or Junior Lien Bond shall
have matured or shall be about to mature, instead of issuing a substitute Bond or Junior Lien Bond
the transfer agent may pay the same without surrender thereof.
Section 8. Payment of Series 2023 Bond; Security; Priority of Lien. Principal of and
interest on the Series 2023 Bond shall be payable solely from the Net Revenues, and to secure such
payment, there is hereby recognized the statutory lien upon the whole of the Net Revenues which
shall be a second lien, subject only to the statutory first lien established with respect to the Senior
Lien Bonds, to continue until payment in full of the principal of and interest on all Junior Lien
Bonds payable from the Net Revenues, or, until sufficient cash or Sufficient Government
Obligations have been deposited in trust for payment in full of all Junior Lien Bonds of a series
then outstanding, principal and interest on such Junior Lien Bonds to maturity, or, if called for
redemption, to the date fixed for redemption together with the amount of the redemption premium,
if any. The statutory lien on the Net Revenues created with respect to the Junior Lien Bonds
(including the Series 2023 Bond) shall at all times be and remain subordinate and inferior to the
pledge of Net Revenues and the statutory first lien thereon authorized to be granted to secure any
Senior Lien Bonds hereafter issued.
Upon deposit of cash or Sufficient Government Obligations, as provided in the previous
sentences, the statutory lien shall be terminated with respect to that series of Bonds or Junior Lien
Bonds, the holders of that series shall have no further rights under this Ordinance except for
payment from the deposited funds, and the Bonds or Junior Lien Bonds of that series shall no
longer be considered to be outstanding under the Outstanding Ordinance or this Ordinance.
6
Section 9. Bondholders’ Rights; Receiver. The holder or holders of the Bonds or Junior
Lien Bonds representing in the aggregate not less than twenty percent (20%) of the entire principal
amount thereof then outstanding, may, by suit, action, mandamus or other proceedings, protect
and enforce the statutory lien upon the Net Revenues of the System, and may, by suit, action,
mandamus or other proceedings, enforce and compel performance of all duties of the officers of
the City, including the fixing of sufficient rates, the collection of Revenues, the proper segregation
of the Revenues of the System and the proper application thereof. The statutory lien upon the Net
Revenues, however, shall not be construed as to compel the sale of the System or any part thereof.
If there is a default in the payment of the principal of or interest on the Bonds or the Junior
Lien Bonds, any court having jurisdiction in any proper action may appoint a receiver to administer
and operate the System on behalf of the City and under the direction of the court, and by and with
the approval of the court to perform all of the duties of the officers of the City more particularly
set forth herein and in Act 94.
The holder or holders of the Bonds and the Junior Lien Bonds shall have all other rights
and remedies given by Act 94 and law, for the payment and enforcement of the Bonds and the
Junior Lien Bonds and the security therefor.
Section 10. Management; Fiscal Year. The operation, repair and management of the
System and the acquisition and construction of the Project shall be under the supervision and
control of the City Commission. The City Commission, in accordance with the relevant provisions
of the City Charter, may employ such person or persons in such capacity or capacities as it deems
advisable to carry on the efficient management and operation of the System. The City Commission
may make such rules and regulations as it deems advisable and necessary to assure the efficient
management and operation of the System. The fiscal year of the System shall be the fiscal year of
the City.
Section 11. Rates and Charges. The rates and charges for service furnished by and the use
of the System and the methods of collection and enforcement of the collection of the rates shall be
those in effect on the date of adoption of this Ordinance.
Section 12. No Free Service or Use. No free service or use of the System, or service or
use of the System at less than cost, shall be furnished by the System to any person, firm or
corporation, public or private, or to any public agency or instrumentality, including the City.
Section 13. Fixing and Revising Rates; Rate Covenant. The rates now in effect are
estimated to be sufficient to provide for the payment of the expenses of administration and
operation and such expenses for maintenance of the System as are necessary to preserve the System
in good repair and working order, to provide for the payment of the principal of and interest on the
Bonds and the Junior Lien Bonds as the same become due and payable, and the maintenance of
the reserve therefor and to provide for all other obligations, expenditures and funds for the System
required by law and this Ordinance. In addition, it is agreed that the rates shall be set from time
to time so that there shall be produced each fiscal year Net Revenues in an amount not less than
110% of the principal of and interest on all Bonds coming due in each fiscal year and not less than
100% of the principal of and interest on all Junior Lien Bonds coming due in each fiscal year. The
rates shall be fixed and revised from time to time as may be necessary to produce these amounts,
7
and it is hereby covenanted and agreed to fix and maintain rates for services furnished by the
System at all times sufficient to provide for the foregoing.
Section 14. Funds and Accounts; Flow of Funds. The funds and accounts established by
the Outstanding Ordinances are hereby continued, the flow of funds established by the Outstanding
Ordinances, is hereby continued, and the applicable sections of the Outstanding Ordinances,
relating to funds and accounts and flow of funds are incorporated herein by reference as if fully
set forth.
Section 15. Bond Proceeds. The proceeds of the sale of the Series 2023 Bond shall be
deposited in a bank or banks, designated by the City, qualified to act as depository of the proceeds
of sale under the provisions of Act 94, in an account designated 2023 WATER SUPPLY SYSTEM
PROJECT CONSTRUCTION FUND (the “Construction Fund”). Moneys in the Construction
Fund shall be applied solely in payment of the cost of the Project, including any engineering, legal
and other expenses incident thereto and to the financing thereof.
Section 16. Bond Form. The Series 2023 Bond shall be in substantially the following form
with such changes or completion as necessary or appropriate to give effect to the intent of this
Ordinance and further subject to such modifications which may be required by the Michigan
Attorney General and the Authority and approved by bond counsel:
8
UNITED STATES OF AMERICA
STATE OF MICHIGAN
COUNTY OF MUSKEGON
CITY OF MUSKEGON
WATER SUPPLY SYSTEM JUNIOR LIEN REVENUE BOND, SERIES 2023
REGISTERED OWNER: Michigan Finance Authority
PRINCIPAL AMOUNT: __________________ Dollars ($__________)
DATE OF ORIGINAL ISSUE: September 20, 2023
The CITY OF MUSKEGON, County of Muskegon, State of Michigan (the “City”), for
value received, hereby promises to pay, but only out of the hereinafter described Net Revenues of
the City’s Water Supply System (hereinafter defined), to the Michigan Finance Authority (the
“Authority”), or registered assigns, the Principal Amount shown above, or such portion thereof as
shall have been advanced to the City pursuant to a Purchase Contract between the City and the
Authority and a Supplemental Agreement by and among the City, the Authority and the State of
Michigan acting through the Department of Environment, Great Lakes, and Energy, in lawful
money of the United States of America, unless prepaid or reduced prior thereto as hereinafter
provided.
During the time funds are being drawn down by the City under this Bond, the Authority
will periodically provide the City a statement showing the amount of principal that has been
advanced and the date of each advance, which statement shall constitute prima facie evidence of
the reported information; provided that no failure on the part of the Authority to provide such a
statement or to reflect a disbursement or the correct amount of a disbursement shall relieve the
City of its obligation to repay the outstanding principal amount actually advanced, all accrued
interest thereon, and any other amount payable with respect thereto in accordance with the terms
of this Bond.
The Principal Amount shall be payable on the dates and in the annual principal installment
amounts set forth on Schedule A attached hereto and made a part hereof, as such Schedule may be
adjusted if less than $________ is disbursed to the City or if a portion of the Principal Amount is
prepaid as provided below, with interest on the principal installments from the date each
installment is delivered to the holder hereof until paid at the rate of one and seven-eighths percent
(1.875%) per annum. Interest is first payable April 1, 2024 and semiannually thereafter and
principal is payable on the first day of October commencing October 1, 2025 (as identified in the
Purchase Contract) and annually thereafter.
Principal installments of this bond are subject to prepayment by the City prior to maturity
only with the prior written consent of the Authority and on such terms as may be required by the
Authority.
9
Notwithstanding any other provision of this bond, so long as the Authority is the owner of
this bond, (a) this bond is payable as to principal, premium, if any, and interest at U.S. Bank Trust
Company, National Association or at such other place as shall be designated in writing to the City
by the Authority (the "Authority's Depository"); (b) the City agrees that it will deposit with the
Authority's Depository payments of the principal of, premium, if any, and interest on this bond in
immediately available funds by 12:00 noon at least five business days prior to the date on which
any such payment is due whether by maturity, redemption or otherwise; in the event that the
Authority's Depository has not received the City's deposit by 12:00 noon on the scheduled day, the
City shall immediately pay to the Authority as invoiced by the Authority an amount to recover the
Authority's administrative costs and lost investment earnings attributable to that late payment; and
(c) written notice of any redemption of this bond shall be given by the City and received by the
Authority's Depository at least 40 days prior to the date on which such redemption is to be made.
Additional Interest
In the event of a default in the payment of principal or interest hereon when due, whether
at maturity, by redemption or otherwise, the amount of such default shall bear interest (the
“additional interest”) at a rate equal to the rate of interest which is two percent above the
Authority’s cost of providing funds (as determined by the Authority) to make payment on the
bonds of the Authority issued to provide funds to purchase this bond but in no event in excess of
the maximum rate of interest permitted by law. The additional interest shall continue to accrue
until the Authority has been fully reimbursed for all costs incurred by the Authority (as determined
by the Authority) as a consequence of the City’s default. Such additional interest shall be payable
on the interest payment date following demand of the Authority. In the event that (for reasons
other than the default in the payment of any municipal obligation purchased by the Authority) the
investment of amounts in the reserve account established by the Authority for the bonds of the
Authority issued to provide funds to purchase this bond fails to provide sufficient available funds
(together with any other funds which may be made available for such purpose) to pay the interest
on outstanding bonds of the Authority issued to fund such account, the City shall and hereby agrees
to pay on demand only the City’s pro rata share (as determined by the Authority) of such deficiency
as additional interest on this bond.
For prompt payment of principal and interest on this bond, the City has irrevocably pledged
the revenues of the Water Supply System of the City, including all appurtenances, extensions and
improvements thereto (the “System”), after provision has been made for reasonable and necessary
expenses of operation, maintenance and administration (the “Net Revenues”), and a statutory
second lien thereon is hereby recognized and created, subject to the senior lien of any additional
Bonds of the City hereafter issued by the City, as set forth in the Ordinance (hereinafter defined).
The bonds of this issue are of equal standing and priority of lien as to the Net Revenues with the
City’s Water Supply System Revenue Bonds (Limited Tax General Obligation), Series 2004, the
City’s Water Supply System Junior Lien Revenue Bonds, Series 2019, the City’s Water Supply
System Junior Lien Revenue Bonds, Series 2020, the City’s Water Supply System Junior Lien
Revenue Bonds, Series 2023A and the City’s Water Supply System Junior Lien Revenue Bonds,
Series 2023B (together, the “Outstanding Junior Lien Bonds”) and any additional bonds hereafter
issued by the City of equal standing and priority with the Outstanding Junior Lien Bonds. The
City has reserved the right to issue such additional Bonds which shall be superior and senior in all
10
respects to the bonds of this issue as to the Net Revenues, or of equal standing and priority of lien
as to the Net Revenues.
Purchasers of the bonds of this issue, by their acceptance of the bonds of this issue or a
beneficial ownership interest therein, shall be deemed to have consented to the subordination of
their interest in and lien upon the Net Revenues upon the issuance of senior lien bonds subsequent
to the delivery of the bonds of this issue.
This bond is a single, fully-registered, non-convertible bond in the principal sum indicated
above issued pursuant to Ordinance No. ___, duly adopted by the City Commission of the City
and the prior ordinances authorizing the issuance of the Outstanding Junior Lien Bonds (together,
the “Ordinances”), and under and in full compliance with the Constitution and statutes of the State
of Michigan, including specifically Act 94, Public Acts of Michigan, 1933, as amended, for the
purpose of paying part of the cost of acquiring and constructing additions, extensions and
improvements to the System.
For a complete statement of the revenues from which and the conditions under which this
bond is payable, a statement of the conditions under which additional bonds of superior and equal
standing may hereafter be issued and the general covenants and provisions pursuant to which this
bond is issued, reference is made to the above-described Ordinances.
This bond is a self-liquidating bond, payable, both as to principal and interest, solely and
only from the Net Revenues of the System. The principal of and interest on this bond are secured
by the statutory lien hereinbefore mentioned.
The City has covenanted and agreed, and does hereby covenant and agree, to fix and
maintain at all times while any bonds payable from the Net Revenues of the System shall be
outstanding, such rates for service furnished by the System as shall be sufficient to provide for
payment of the interest upon and the principal of the bonds of this issue, any additional Bonds, and
any additional Junior Lien Bonds, as and when the same shall become due and payable, and to
maintain a bond redemption fund (including a bond reserve account, if any) therefor, to provide
for the payment of expenses of administration and operation and such expenses for maintenance
of the System as are necessary to preserve the same in good repair and working order, and to
provide for such other expenditures and funds for the System as are required by the Ordinances.
This bond is transferable only upon the books of the City by the registered owner in person
or the registered owner’s attorney duly authorized in writing, upon the surrender of this bond
together with a written instrument of transfer satisfactory to the transfer agent, duly executed by
the registered owner or the registered owner’s attorney duly authorized in writing, and thereupon
a new bond or bonds in the same aggregate principal amount and of the same maturity shall be
issued to the transferee in exchange therefor as provided in the Ordinances, and upon payment of
the charges, if any, therein prescribed.
It is hereby certified and recited that all acts, conditions and things required by law to be
done precedent to and in the issuance of this bond have been done and performed in regular and
due time and form as required by law.
11
IN WITNESS WHEREOF, the City of Muskegon, County of Muskegon, State of
Michigan, by its City Commission has caused this bond to be executed with the manual or
facsimile signatures of its Mayor and its City Clerk and the corporate seal of the City to be
impressed or imprinted hereon, all as of the Date of Original Issue.
CITY OF MUSKEGON
By_________________________________
Mayor
(Seal)
Countersigned:
By____________________________
City Clerk
12
EGLE Project Number: 7467-01
EGLE Approved Amt: $__________
SCHEDULE A
Based on the schedule provided below unless revised as provided in this paragraph, repayment of the
principal of the bond shall be made until the full amount advanced to the City is repaid. In the event the Order of
Approval issued by the Department of Environment, Great Lakes and Energy (the “Order”), approves a principal amount
of assistance less than the amount of the bond delivered to the Authority, the Authority shall only disburse principal
up to the amount stated in the Order. In the event (1) that the payment schedule approved by the City and described
below provides for payment of a total principal amount greater than the amount of assistance approved by the Order
or (2) that less than the principal amount of assistance approved by the Order is disbursed to the City by the Authority,
or (3) that any portion of the principal amount of assistance approved by the Order and disbursed to the City is forgiven
pursuant to the Order, the Authority shall prepare a new payment schedule which shall be effective upon receipt by
the City.
Maturity Date Principal Amount
October 1, 2025
October 1, 2026
October 1, 2027
October 1, 2028
October 1, 2029
October 1, 2030
October 1, 2031
October 1, 2032
October 1, 2033
October 1, 2034
October 1, 2035
October 1, 2036
October 1, 2037
October 1, 2038
October 1, 2039
October 1, 2040
October 1, 2041
October 1, 2042
October 1, 2043
October 1, 2044
Interest on the bond shall accrue on that portion of principal disbursed by the Authority to the City which has
not been forgiven pursuant to the Order from the date such portion is disbursed, until paid, at the rate of 1.875% per
annum, payable April 1, 2024, and semi-annually thereafter.
The City agrees that it will deposit with the Authority’s Depository, or such other place as shall be designated
in writing to the City by the Authority payments of the principal of, premium, if any, and interest on this bond in
immediately available funds by 12:00 noon at least five business days prior to the date on which any such payment is
due whether by maturity, redemption or otherwise. In the event that the Authority’s Depository has not received the
City’s deposit by 12:00 noon on the scheduled day, the City shall immediately pay to the Authority as invoiced by the
Authority an amount to recover the Authority’s administrative costs and lost investment earnings attributable to that
late payment.
13
Section 17. Negotiated Sale; Application to EGLE and Authority; Execution of
Documents. The City determines that it is in the best interest of the City to negotiate the sale of
the Series 2023 Bond to the Authority because the Drinking Water State Revolving Fund financing
programs provide significant interest savings to the City compared to competitive sale in the
municipal bond market and principal forgiveness. The Authorized Officers are hereby authorized
to make application to the Authority and to the EGLE for placement of the Series 2023 Bond with
the Authority. The actions taken by the Authorized Officers with respect to the Series 2023 Bond
prior to the adoption of this Ordinance are ratified and confirmed. The Authorized Officers are
authorized to execute and deliver the Purchase Contract, the Supplemental Agreement and the
Issuer’s Certificate. Any Authorized Officer is further authorized to execute and deliver such
contracts, documents and certificates as are necessary or advisable to qualify the Series 2023 Bond
for the Drinking Water State Revolving Fund. Prior to the delivery of the Series 2023 Bond to the
Authority, any Authorized Officer is hereby authorized to make such changes to the form of the
Series 2023 Bond contained in Section 16 of this Ordinance as may be necessary to conform to
the requirements of Act 227, Public Acts of Michigan 1985, as amended (“Act 227”), including,
but not limited to changes in the principal maturity and interest payment dates and references to
additional security required by Act 227.
Section 18. Covenant Regarding Tax Exempt Status of the Bonds. The City shall, to the
extent permitted by law, take all actions within its control necessary to maintain the exemption of
the interest on the Series 2023 Bond from general federal income taxation (as opposed to any
alternative minimum or other indirect taxation) under the Internal Revenue Code of 1986, as
amended (the “Code”), including, but not limited to, actions relating to any required rebate of
arbitrage earnings and the expenditure and investment of Series 2023 Bond proceeds and moneys
deemed to be Bond proceeds.
Section 19. Approval of Bond Counsel. The representation of the City by Miller, Canfield,
Paddock and Stone, P.L.C. (“Miller Canfield”), as bond counsel is hereby approved,
notwithstanding the representation by Miller Canfield of the Authority in connection with its
financing programs and borrowings.
Section 20. Approval of Bond Details. The Authorized Officers are each hereby
authorized to adjust the final bond details set forth herein to the extent necessary or convenient to
complete the transaction authorized herein, and in pursuance of the foregoing is authorized to
exercise the authority and make the determinations authorized pursuant to Section 7a(1)(c) of Act
94, including but not limited to determinations regarding interest rates, prices, discounts,
maturities, principal amounts, denominations, dates of issuance, interest payment dates,
redemption rights, the place of delivery and payment, and other matters, provided that the principal
amount of Series 2023 Bond issued shall not exceed the principal amount authorized in this
Ordinance, the interest rate per annum on the Series 2023 Bond shall not exceed one and seven-
eighths percent (1.875%) per annum, and the Series 2023 Bond shall mature in not more than
twenty (20) annual installments.
Section 21. Savings Clause. All ordinances, resolutions or orders, or part thereof, in
conflict with the provisions of this Ordinance are, to the extent of such conflict, repealed.
14
Section 22. Severability; Paragraph Headings; and Conflict. If any section, paragraph,
clause or provision of this Ordinance shall be held invalid, the invalidity of such section, paragraph,
clause or provision shall not affect any of the other provisions of this Ordinance. The paragraph
headings in this Ordinance are furnished for convenience of reference only and shall not be
considered to be part of this Ordinance.
Section 23. Publication and Recordation. This Ordinance shall be published in full in the
Muskegon Chronicle, a newspaper of general circulation in the City qualified under State law to
publish legal notices, promptly after its adoption, and shall be recorded in the Ordinance Book of
the City and such recording authenticated by the signatures of the Mayor and the City Clerk.
Section 24. Effective Date. This Ordinance shall be effective upon its adoption and
publication.
ADOPTED AND SIGNED THIS 25th day of July, 2023.
Signed____________________________________
Mayor
Signed____________________________________
City Clerk
I HEREBY CERTIFY that the foregoing constitutes a true and complete copy of an Ordinance
duly adopted by the City Commission of the City of Muskegon, County of Muskegon, Michigan,
at a regular meeting held on July 25, 2023, and that the meeting was conducted and public notice
of the meeting was given pursuant to and in full compliance with the Open Meetings Act, being
Act 267, Public Acts of Michigan, 1976, and that the minutes of the meeting were kept and will
be or have been made available as required by the Act.
I further certify that the following Members were present at the meeting:
__________________________________________________________________________ and
that the following Members were absent:
________________________________________________________.
I further certify that Member _________________ moved for adoption of the Ordinance,
and that the motion was supported by Member _________________.
I further certify that the following Members voted for adoption of the Ordinance:
__________________________________________________________________________ and
that the following Members voted against adoption of the Ordinance:
________________________________.
15
I further certify that the Ordinance has been recorded in the Ordinance Book and that such
recording has been authenticated by the signatures of the Mayor and the City Clerk.
____________________________________
City Clerk
40833819.1/063684.00058
16
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: July 25, 2023 Title: Sanitary Sewer Collection System Bonds
Submitted By: Kenneth D. Grant Department: Finance
Brief Summary:
Ordinance authorizing the issuance of Sanitary Sewer Collection System Junior Lien Revenue Bonds
Detailed Summary & Background:
To authorize the issuance of Sanitary Sewer Collection System Bonds in an amount not to exceed
$3,910,000. The Bonds are expected to be sold to the Michigan Finance Authority and payable in
20 annual principal installments at an interest rate of 1.875%. Scheduled closing is September
20th.
Estimated Principal Forgiveness is approximately $1,955,000
Goal/Focus Area/Action Item Addressed: Sustainability in financial practices and infrastructure.
Reduce infrastructure burden on residents.
Amount Requested: (Per Meeting 7/11/23) Budgeted Item: Yes ☒ No ☐
Fund(s) or Account(s): 590 (Sewer) Budgeted Amendment Needed: Yes ☐ No ☒
Recommended Motion: I move approval of the ordinance authorizing the issuance of Sanitary
Sewer Collection System Revenue Bonds.
Approvals: Legal Review ☒ Guest(s) Invited / Presenting
Immediate Division Head ☒ Information Technology ☐ Yes ☐
Other Division Heads ☒ Communication ☒ No ☒
MICHIGAN
Founded in 1852 ILLINOIS
by Sidney Davy Miller NEW YORK
OHIO
WASHINGTON, D.C.
CANADA
CHINA
PATRICK F. MCGOW Miller, Canfield, Paddock and Stone, P.L.C. MEXICO
TEL (313) 496-7684 150 West Jefferson, Suite 2500 POLAND
FAX (313) 496-8450 QATAR
Detroit, Michigan 48226
E-MAIL [email protected]
TEL (313) 963-6420
FAX (313) 496-7500
www.millercanfield.com
July 13, 2023
Mr. Ken Grant
Finance Director
City of Muskegon
933 Terrace Street
Muskegon MI 49443-0536
Re: City of Muskegon
$3,910,000 Sanitary Sewer System Junior Lien Revenue Bonds, Series 2023
(CWSRF Project 5790-01)
$8,865,000 Water Supply System Junior Lien Revenue Bonds, Series 2023
(DWSRF Project 7467-01)
Dear Ken:
I have enclosed an Ordinance authorizing the issuance of the above-captioned Sanitary
Sewer System Revenue Bonds and an Ordinance authorizing the issuance of the above-captioned
Water Supply System Revenue Bonds to be considered for approval by the City Commission at its
meeting on July 25th. The Sewer Bonds and the Water Bonds are to be sold through the Michigan
Finance Authority’s (“MFA”) Quarter 4B Clean Water State Revolving Fund Program and
Drinking Water State Revolving Fund Program, respectively, scheduled to close on September
8th.
Sewer Bonds
The Sewer Bond Ordinance authorizes the issuance of the Bonds in an amount not to
exceed $3,910,000 for the sewer projects. Of that amount, approximately $1,955,000 of the
principal will be forgiven, leaving the amount of the loan to be repaid of $1,955,000. The
Ordinance provides flexibility for the actual size of the Bond issue to be reduced prior to closing
based on the actual construction bids and final approved costs. In addition, the City will receive
principal forgiveness for this project which will reduce the amount that needs to be paid back to
the MFA.
The Sewer Bond Ordinance authorizes the issuance of the Series 2023 Bonds, which are
payable from the Net Revenues of the City’s Sanitary Sewer System. The Bonds are expected to
be sold to the MFA and payable in 20 annual principal installments at an interest rate of 1.875%.
The Bonds are being issued as junior lien bonds which are of equal standing with the Series 2019
MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.
Mr. Ken Grant -2- July 13, 2023
Bonds, Series 2020 Bonds and Series 2022 Bonds previously issued through the SRF for sewer
improvements.
Water Bonds
The Water Bond Ordinance authorizes the issuance of the Bonds in an amount not to
exceed $8,865,000, based on the numbers in the EGLE Project Cost Summary. These numbers
are still being tweaked and do not include the reductions for the ARPA Grant and principal
forgiveness, which is 75% of the project cost amount, leaving the amount of the loan to be repaid
of $2,216,250. But because we don’t have the breakdown between the ARPA Grant and principal
forgiveness yet, we are including the full project amount even though the loan amount, and amount
to be repaid, will be substantially less. Again, the Ordinance provides flexibility for the actual size
of the Bond issue to be reduced prior to closing based on the actual construction bids and final
approved costs. In addition, the City will receive principal forgiveness for these projects which
will reduce the amount that needs to be paid back to the MFA.
The Water Bond Ordinance authorizes the issuance of the Series 2023 Bonds, which are
payable from the Net Revenues of the City’s Water Supply System. The Bonds are expected to
be sold to the MFA and payable in 20 annual principal installments at an interest rate of 1.875%.
The Bonds are being issued as junior lien bonds which are of equal standing with the Series 2004
Bonds, Series 2019 Bonds, Series 2020 Bonds, Series 2022A Bonds and Series 2022B Bonds
previously issued through the DWRF for water improvements.
Both Water and Sewer Bonds
Both Ordinances also authorize various City officials to take the necessary actions to
execute and deliver the Bonds and all related documents, approve the final size of the Bonds and
contains the necessary items required by the Revenue Bond Act, Act 94 of 1933.
Pursuant to the Revenue Bond Act, the Ordinances may be adopted in one reading,
regardless of any contrary provision in the City’s ordinance adoption procedures. Each Ordinance
is required to be published once in full in your local newspaper (Muskegon Chronicle) after its
adoption. There are no restrictions or requirements on the size of the publication, so it can be as
small as possible. Upon adoption by the City Commission, we would appreciate receiving three
(3) certified copies of the Ordinance and three (3) Affidavits of Publication of the Ordinance for
bond transcripts.
The Part III application with the construction bids and tentative contract approval was
submitted last week, with the tentative contract approvals approved at the July 11th City
Commission meeting. There will be a conference call with MFA, EGLE and City officials on July
31st at 1:40 p.m. which we will participate in, to make final arrangements relating to the Bond
terms. At that time, the final bond sizes will be determined, and we will prepare the necessary
documents to be signed by various City officials after that date regarding the sale and delivery of
MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.
Mr. Ken Grant -3- July 13, 2023
the Bonds. The EGLE Order of Approval is expected to be issued on August 29th. The closing
for the Bonds will be September 20th and the City can begin requesting draws on the Bonds after
that date.
If you or anyone copied have any questions, please do not hesitate to contact me.
Very truly yours,
MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.
By:
Patrick F. McGow
Enclosure
cc: Jonathan Seyferth
LeighAnn Mikesell
Dan Vanderheide
Barbara Marczak
Warren Creamer
Stacey Mills
40833809.1/063684.00058
Sewer
ORDINANCE NO. _____
CITY OF MUSKEGON
AN ORDINANCE TO PROVIDE FOR THE ACQUISITION, CONSTRUCTION,
INSTALLATION, FURNISHING AND EQUIPPING OF ADDITIONS AND
IMPROVEMENTS TO THE SANITARY SEWER SYSTEM OF THE CITY; TO
PROVIDE FOR THE ISSUANCE AND SALE OF JUNIOR LIEN REVENUE
BONDS TO PAY THE COST THEREOF; TO PROVIDE FOR THE
COLLECTION OF REVENUES FROM THE SYSTEM SUFFICIENT FOR THE
PURPOSE OF PAYING THE COSTS OF OPERATION AND MAINTENANCE
OF THE SYSTEM AND TO PAY THE PRINCIPAL OF AND INTEREST ON
THE BONDS AND CERTAIN OUTSTANDING BONDS OF THE SYSTEM; TO
PROVIDE FOR THE SEGREGATION AND DISTRIBUTION OF SYSTEM
REVENUES; TO PROVIDE FOR THE RIGHTS OF THE HOLDERS OF THE
BONDS IN ENFORCEMENT THEREOF; TO PRESCRIBE THE FORM OF THE
BONDS; AND TO PROVIDE FOR OTHER MATTERS RELATING TO THE
BONDS AND THE SYSTEM.
THE CITY OF MUSKEGON ORDAINS:
Section 1. Definitions. Whenever used in this Ordinance, except when otherwise indicated
by the context, the following terms shall have the following meanings:
(a) “Act 94” means Act 94, Public Acts of Michigan, 1933, as amended.
(b) “Adjusted Net Revenues” means for any operating year the excess of
revenues over expenses for the System determined in accordance with generally accepted
accounting principles, to which shall be added depreciation, amortization, interest expense
on Bonds and payments to the City in lieu of taxes, to which may be made the following
adjustments.
(i) Revenues may be augmented by the amount of any rate increases
adopted prior to the issuance of additional Bonds or to be placed into effect before
the time principal or interest on the additional Bonds becomes payable from
Revenues as applied to quantities of service furnished during the operating year or
portion thereof that the increased rates were not in effect.
(ii) Revenues may be augmented by amounts which may be derived
from rates and charges to be paid by new customers of the System.
(c) “Authority” means the Michigan Finance Authority or its successor.
(d) “Authorized Officers” means the Mayor, the City Manager, the City Clerk
and the Finance Director of the City.
(e) “Bonds” or “Senior Lien Bonds” means any bonds or series of bonds so
designated and payable from Net Revenues, which are secured by a statutory first lien on
the Net Revenues established by this Ordinance and which are senior and superior in all
respects with respect to the Net Revenues to any Junior Lien Bonds secured by the statutory
second lien on the Net Revenues, together with any additional Bonds of equal standing
thereafter issued.
(f) “City” or “Issuer” means the City of Muskegon, County of Muskegon, State
of Michigan.
(g) “EGLE” means the means the Michigan Department of Environment, Great
Lakes, and Energy, or its successor.
(h) “Engineers” means Prein & Newhof, registered engineers of Grand Rapids,
Michigan.
(i) “Junior Lien Bonds” means Series 2023 Bond, the Outstanding Junior Lien
Bonds and any additional bonds of equal standing with the Series 2023 Bond and the
Outstanding Junior Lien Bonds which are secured by a statutory second lien on the Net
Revenues and are junior and subordinate to the Senior Lien Bonds.
(j) “Outstanding Junior Lien Bonds” means the Series 2019 Bond, the Series
2020 Bond and the Series 2022 Bond.
(k) “Outstanding Ordinances” means Ordinance Nos. 2417, 2437 and 2469 of
the City.
(l) “Project” means the acquisition, construction, furnishing and equipping of
improvements to the Sanitary Sewer System of the City, including sewer system
rehabilitation and replacement of existing sewer lines, together with pump station
improvements and all related appurtenances and attachments.
(m) “Purchase Contract” means the Purchase Contract to be entered into
between the Authority and the City relating to the purchase by the Authority of the Series
2023 Bond.
(n) “Revenues” and “Net Revenues” shall mean the revenues and net revenues
of the City derived from the operation of the System and shall be construed as defined in
Section 3 of Act 94, including with respect to “Revenues,” the earnings derived from the
investment of moneys in the various funds and accounts established by this Ordinance.
(o) “Series 2019 Bond” means the Sanitary Sewer System Junior Lien Revenue
Bond, Series 2019, dated August 28, 2019, in the outstanding principal amount of Two
Million Six Hundred Thirty-Five Thousand Dollars ($2,635,000).
(p) “Series 2020 Bond” means the Sanitary Sewer System Junior Lien Revenue
Bond, Series 2019, dated September 30, 2020, in the outstanding principal amount of Three
Million Four Hundred Sixty Thousand Dollars ($3,465,000).
2
(q) “Series 2022 Bond” means the Sanitary Sewer System Junior Lien Revenue
Bond, Series 2019, dated September 20, 2022, in the outstanding principal amount of Two
Million Eight Hundred Twenty-Eight Thousand Dollars ($2,828,000).
(r) “Series 2023 Bond” means the Sanitary Sewer System Junior Lien Revenue
Bond, Series 2023, of the City in the principal amount of not to exceed Three Million Nine
Hundred Ten Thousand Dollars ($3,910,000) authorized by this Ordinance.
(s) “Sufficient Government Obligations” means direct obligations of the
United States of America or obligations the principal and interest on which is fully
guaranteed by the United States of America, not redeemable at the option of the issuer, the
principal and interest payments upon which without reinvestment of the interest, come due
at such times and in such amounts as to be fully sufficient to pay the interest as it comes
due on the Bonds or Junior Lien Bonds and the principal and redemption premium, if any,
on the Bonds or Junior Lien Bonds as it comes due whether on the stated maturity date or
upon earlier redemption. Securities representing such obligations shall be placed in trust
with a bank or trust company, and if any of the Bonds or Junior Lien Bonds are to be called
for redemption prior to maturity, irrevocable instructions to call the Bonds for redemption
shall be given to the paying agent.
(t) “Supplemental Agreement” means the supplemental agreement among the
City, the Authority and the EGLE relating to the Series 2023 Bond.
(u) “System” means the Sanitary Sewer System of the City, including the
Project and all additions, extensions and improvements hereafter acquired.
Section 2. Necessity; Approval of Plans and Specifications. It is hereby determined to be
a necessary public purpose of the City to acquire and construct the Project in accordance with the
plans and specifications prepared by the Engineers, which plans and specifications are hereby
approved. The Project qualifies for the Clean Water State Revolving Fund financing program
being administered by the EGLE and the Authority, whereby bonds of the City are sold to the
Authority and bear interest at a fixed rate of not to exceed one and seven-eighths percent (1.875%)
per annum.
Section 3. Costs; Useful Life. The cost of the Project is estimated to be an amount not to
exceed Three Million Nine Hundred Ten Thousand Dollars ($3,910,000), including the payment
of incidental expenses as specified in Section 4 of this Ordinance, which estimate of cost is hereby
approved and confirmed. The period of usefulness of the Project is estimated to be not less than
twenty-five (25) years.
Section 4. Payment of Cost; Bonds Authorized. To pay part of the cost of acquiring the
Project, legal, engineering, financial and other expenses incident thereto and incident to the
issuance and sale of the Series 2023 Bond, the City shall borrow the sum of not to exceed Three
Million Nine Hundred Ten Thousand Dollars ($3,910,000), and issue the Series 2023 Bond
therefor pursuant to the provisions of Act 94. The remaining cost of the Project, if any, shall be
defrayed from grant funds and City funds on hand and legally available for such use.
3
Except as amended by or expressly provided to the contrary in this Ordinance, all of the
provisions of the Outstanding Ordinances shall apply to the Series 2023 Bonds issued pursuant to
this Ordinance, the same as though each of the provisions were repeated in this Ordinance in detail;
the purpose of this Ordinance being to authorize the issuance of additional revenue bonds of junior
and subordinate standing and priority of lien to any Outstanding Senior Lien Bonds and of equal
standing and priority of lien as to the Net Revenues with the Outstanding Junior Lien Bonds to
finance the cost of acquiring additions, extensions and improvements to the System, additiona l
bonds of junior and subordinate standing and priority of lien as to the Outstanding Senior Lien
Bonds and of equal standing and priority of lien as to the Outstanding Junior Lien Bonds for such
purpose being authorized by the provisions of the Outstanding Ordinances, upon the conditions
therein stated, which conditions have been fully met.
Section 5. Issuance of Series 2023 Bond; Details. The Series 2023 Bond of the City, to be
designated SANITARY SEWER SYSTEM JUNIOR LIEN REVENUE BOND, SERIES 2023 is
authorized to be issued in the aggregate principal sum of not to exceed Three Million Nine Hundred
Ten Thousand Dollars ($3,910,000) or such lesser amount as finally determined by order of the
EGLE for the purpose of paying part of the cost of the Project, including the costs incidental to the
issuance, sale and delivery of the Series 2023 Bond. The Series 2023 Bond shall be payable out
of the Net Revenues, as set forth more fully in Section 8 hereof.
The Series 2023 Bond shall be in the form of a single fully-registered, nonconvertible bond
of the denomination of the full principal amount thereof, dated as of the date of delivery, payable
in principal installments as finally determined by the order of the EGLE at the time of sale of the
Series 2023 Bond and approved by the Authority and an Authorized Officer. Principal installme nts
of the Series 2023 Bond shall be payable on October 1 of the years 2025 through 2044, inclus ive,
or such other payment dates as hereinafter provided. Interest on the Series 2023 Bond shall be
payable on April 1 and October 1 of each year, commencing April 1, 2024 or on such other interest
payment dates as hereinafter provided. Final determination of the principal amount of and interest
on the Series 2023 Bond and the payment dates and amounts of principal installments of the Series
2023 Bond shall be evidenced by execution of the Purchase Contract and each of the Authorized
Officers is authorized and directed to execute and deliver the Purchase Contract when in final form
and to make the determinations set forth above; provided, however, that the first principa l
installment shall be due no earlier than April 1, 2024 and the final principal installment shall be
due no later than October 1, 2046 and that the total principal amount shall not exceed $3,910,000.
The Series 2023 Bond shall bear interest at a rate of not to exceed one and seven-eighths
percent (1.875%) per annum on the par value thereof or such other rate as evidenced by execution
of the Purchase Contract, but in any event not to exceed the rate permitted by law, and any
Authorized Officers as shall be appropriate shall deliver the Series 2023 Bond in accordance with
the delivery instructions of the Authority.
The principal amount of the Series 2023 Bond is expected to be drawn down by the City
periodically, and interest on principal amount shall accrue from the date such principal amount is
drawn down by the City.
4
The Series 2023 Bond shall not be convertible or exchangeable into more than one fully-
registered bond. Principal of and interest on the Series 2023 Bond shall be payable as provided in
the Series 2023 Bond form in this Ordinance.
The Series 2023 Bond shall be subject to optional redemption by the City with the prior
written approval of the Authority and on such terms as may be required by the Authority.
The Treasurer shall record on the registration books payment by the City of each
installment of principal or interest or both when made and the cancelled checks or other records
evidencing such payments shall be returned to and retained by the Treasurer.
Upon payment by the City of all outstanding principal of and interest on the Series 2023
Bond, the Authority shall deliver the Series 2023 Bond to the City for cancellation.
Section 6. Execution of Series 2023 Bond. The Series 2023 Bond shall be signed by the
manual or facsimile signature of the Mayor and countersigned by the manual or facsimile signature
of the City Clerk and shall have the corporate seal of the City or facsimile thereof impressed
thereon. The Series 2023 Bond bearing the manual or facsimile signatures of the Mayor and the
City Clerk sold to the Authority shall require no further authentication.
Section 7. Registration and Transfer. Any Bond or Junior Lien Bond may be transferred
upon the books required to be kept pursuant to this section by the person in whose name it is
registered, in person or by the registered owner’s duly authorized attorney, upon surrender of the
Bond or Junior Lien Bond for cancellation, accompanied by delivery of a duly executed written
instrument of transfer in a form approved by the transfer agent. Whenever any Bond or Junior
Lien Bond shall be surrendered for transfer, the City shall execute and the transfer agent shall
authenticate and deliver a new Bond or Junior Lien Bond, for like aggregate principal amount.
The transfer agent shall require payment by the bondholder requesting the transfer of any tax or
other governmental charge required to be paid with respect to the transfer. The City shall not be
required (i) to issue, register the transfer of or exchange any Bond or Junior Lien Bond during a
period beginning at the opening of business 15 days before the day of the giving of a notice of
redemption of Bonds selected for redemption as described in the form of Series 2023 Bond
contained in Section 16 of this Ordinance and ending at the close of business on the day of that
giving of notice, or (ii) to register the transfer of or exchange any Bond or Junior Lien Bond so
selected for redemption in whole or in part, except the unredeemed portion of Bonds or Junior
Lien Bonds being redeemed in part. The City shall give the transfer agent notice of call for
redemption at least 20 days prior to the date notice of redemption is to be given.
The transfer agent shall keep or cause to be kept at its principal office sufficient books for
the registration and transfer of the Bonds or Junior Lien Bond, which shall at all times be open to
inspection by the City; and upon presentation for such purpose the transfer agent shall under such
reasonable regulations as it may prescribe transfer or cause to be transferred on the books Bonds
or Junior Lien Bond as hereinbefore provided.
If any Bond or Junior Lien Bond shall become mutilated, the City, at the expense of the
holder of the Bond, shall execute, and the transfer agent shall authenticate and deliver, a new Bond
or Junior Lien Bond of like tenor in exchange and substitution for the mutilated Bond or Junior
5
Lien Bond, upon surrender to the transfer agent of the mutilated Bond or Junior Lien Bond. If any
Bond or Junior Lien Bond issued under this Ordinance shall be lost, destroyed or stolen, evidence
of the loss, destruction or theft may be submitted to the transfer agent and, if this evidence is
satisfactory to both and indemnity satisfactory to the transfer agent shall be given, and if all
requirements of any applicable law including Act 354, Public Acts of Michigan, 1972, as amended
(“Act 354”), being sections 129.131 to 129.135, inclusive, of the Michigan Compiled Laws have
been met, the City, at the expense of the owner, shall execute, and the transfer agent shall thereupon
authenticate and deliver, a new Bond or Junior Lien Bond of like tenor and bearing the statement
required by Act 354, or any applicable law hereafter enacted, in lieu of and in substitution for the
Bond or Junior Lien Bond so lost, destroyed or stolen. If any such Bond or Junior Lien Bond shall
have matured or shall be about to mature, instead of issuing a substitute Bond or Junior Lien Bond
the transfer agent may pay the same without surrender thereof.
Section 8. Payment of Series 2023 Bond; Security; Priority of Lien. Principal of and
interest on the Series 2023 Bond shall be payable solely from the Net Revenues, and to secure such
payment, there is hereby recognized the statutory lien upon the whole of the Net Revenues which
shall be a second lien, subject only to the statutory first lien established with respect to the Senior
Lien Bonds, to continue until payment in full of the principal of and interest on all Junior Lien
Bonds payable from the Net Revenues, or, until sufficient cash or Sufficient Governme nt
Obligations have been deposited in trust for payment in full of all Junior Lien Bonds of a series
then outstanding, principal and interest on such Junior Lien Bonds to maturity, or, if called for
redemption, to the date fixed for redemption together with the amount of the redemption premium,
if any. The statutory lien on the Net Revenues created with respect to the Junior Lien Bonds
(including the Series 2023 Bond) shall at all times be and remain subordinate and inferior to the
pledge of Net Revenues and the statutory first lien thereon authorized to be granted to secure any
Senior Lien Bonds hereafter issued.
Upon deposit of cash or Sufficient Government Obligations, as provided in the previous
sentences, the statutory lien shall be terminated with respect to that series of Bonds or Junior Lien
Bonds, the holders of that series shall have no further rights under this Ordinance except for
payment from the deposited funds, and the Bonds or Junior Lien Bonds of that series shall no
longer be considered to be outstanding under this Ordinance.
Section 9. Bondholders’ Rights; Receiver. The holder or holders of the Bonds or Junior
Lien Bonds representing in the aggregate not less than twenty percent (20%) of the entire principa l
amount thereof then outstanding, may, by suit, action, mandamus or other proceedings, protect
and enforce the statutory lien upon the Net Revenues of the System, and may, by suit, action,
mandamus or other proceedings, enforce and compel performance of all duties of the officers of
the City, including the fixing of sufficient rates, the collection of Revenues, the proper segregation
of the Revenues of the System and the proper application thereof. The statutory lien upon the Net
Revenues, however, shall not be construed as to compel the sale of the System or any part thereof.
If there is a default in the payment of the principal of or interest on the Bonds or the Junior
Lien Bonds, any court having jurisdiction in any proper action may appoint a receiver to adminis ter
and operate the System on behalf of the City and under the direction of the court, and by and with
the approval of the court to perform all of the duties of the officers of the City more particular ly
set forth herein and in Act 94.
6
The holder or holders of the Bonds and the Junior Lien Bonds shall have all other rights
and remedies given by Act 94 and law, for the payment and enforcement of the Bonds and the
Junior Lien Bonds and the security therefor.
Section 10. Management; Fiscal Year. The operation, repair and management of the
System and the acquisition and construction of the Project shall be under the supervision and
control of the City Commission. The City Commission, in accordance with the relevant provisions
of the City Charter, may employ such person or persons in such capacity or capacities as it deems
advisable to carry on the efficient management and operation of the System. The City Commiss io n
may make such rules and regulations as it deems advisable and necessary to assure the effic ie nt
management and operation of the System. The fiscal year of the System shall be the fiscal year of
the City.
Section 11. Rates and Charges. The rates and charges for service furnished by and the use
of the System and the methods of collection and enforcement of the collection of the rates shall be
those in effect on the date of adoption of this Ordinance.
Section 12. No Free Service or Use. No free service or use of the System, or service or
use of the System at less than cost, shall be furnished by the System to any person, firm or
corporation, public or private, or to any public agency or instrumentality, including the City.
Section 13. Fixing and Revising Rates; Rate Covenant. The rates now in effect are
estimated to be sufficient to provide for the payment of the expenses of administration and
operation and such expenses for maintenance of the System as are necessary to preserve the System
in good repair and working order, to provide for the payment of the principal of and interest on the
Bonds and the Junior Lien Bonds as the same become due and payable, and the maintenance of
the reserve therefor and to provide for all other obligations, expenditures and funds for the System
required by law and this Ordinance. In addition, it is agreed that the rates shall be set from time
to time so that there shall be produced each fiscal year Net Revenues in an amount not less than
110% of the principal of and interest on all Bonds coming due in each fiscal year and not less than
100% of the principal of and interest on all Junior Lien Bonds coming due in each fiscal year. The
rates shall be fixed and revised from time to time as may be necessary to produce these amounts,
and it is hereby covenanted and agreed to fix and maintain rates for services furnished by the
System at all times sufficient to provide for the foregoing.
Section 14. Funds and Accounts; Flow of Funds. The funds and accounts established by
the Outstanding Ordinances are hereby continued, the flow of funds established by the Outstanding
Ordinances, is hereby continued, and the applicable sections of the Outstanding Ordinances,
relating to funds and accounts and flow of funds are incorporated herein by reference as if fully
set forth.
Section 15. Bond Proceeds. The proceeds of the sale of the Series 2023 Bond shall be
deposited in a bank or banks, designated by the City, qualified to act as depository of the proceeds
of sale under the provisions of Act 94, in an account designated 2023 SANITARY SEWER
SYSTEM PROJECT CONSTRUCTION FUND (the “Construction Fund”). Moneys in the
Construction Fund shall be applied solely in payment of the cost of the Project, including any
engineering, legal and other expenses incident thereto and to the financing thereof.
7
Section 16. Bond Form. The Series 2023 Bond shall be in substantially the following form
with such changes or completion as necessary or appropriate to give effect to the intent of this
Ordinance and further subject to such modifications which may be required by the Michiga n
Attorney General and the Authority and approved by bond counsel:
8
UNITED STATES OF AMERICA
STATE OF MICHIGAN
COUNTY OF MUSKEGON
CITY OF MUSKEGON
SANITARY SEWER SYSTEM JUNIOR LIEN REVENUE BOND, SERIES 2023
REGISTERED OWNER: Michigan Finance Authority
PRINCIPAL AMOUNT: __________________ Dollars ($__________)
DATE OF ORIGINAL ISSUE: September 20, 2023
The CITY OF MUSKEGON, County of Muskegon, State of Michigan (the “City”), for
value received, hereby promises to pay, but only out of the hereinafter described Net Revenues of
the City’s Sanitary Sewer System (hereinafter defined), to the Michigan Finance Authority (the
“Authority”), or registered assigns, the Principal Amount shown above, or such portion thereof as
shall have been advanced to the City pursuant to a Purchase Contract between the City and the
Authority and a Supplemental Agreement by and among the City, the Authority and the State of
Michigan acting through the Department of Environmental Quality, in lawful money of the United
States of America, unless prepaid or reduced prior thereto as hereinafter provided.
During the time funds are being drawn down by the City under this Bond, the Authority
will periodically provide the City a statement showing the amount of principal that has been
advanced and the date of each advance, which statement shall constitute prima facie evidence of
the reported information; provided that no failure on the part of the Authority to provide such a
statement or to reflect a disbursement or the correct amount of a disbursement shall relieve the
City of its obligation to repay the outstanding principal amount actually advanced, all accrued
interest thereon, and any other amount payable with respect thereto in accordance with the terms
of this Bond.
The Principal Amount shall be payable on the dates and in the annual principal install me nt
amounts set forth on Schedule A attached hereto and made a part hereof, as such Schedule may be
adjusted if less than $________ is disbursed to the City or if a portion of the Principal Amount is
prepaid as provided below, with interest on the principal installments from the date each
installment is delivered to the holder hereof until paid at the rate of one and seven-eighths percent
(1.875%) per annum. Interest is first payable April 1, 2024 and semiannually thereafter and
principal is payable on the first day of October commencing October 1, 2025 (as identified in the
Purchase Contract) and annually thereafter.
Principal installments of this bond are subject to prepayment by the City prior to maturity
only with the prior written consent of the Authority and on such terms as may be required by the
Authority.
9
Notwithstanding any other provision of this bond, so long as the Authority is the owner of
this bond, (a) this bond is payable as to principal, premium, if any, and interest at U.S. Bank Trust
Company, National Association or at such other place as shall be designated in writing to the City
by the Authority (the "Authority's Depository"); (b) the City agrees that it will deposit with the
Authority's Depository payments of the principal of, premium, if any, and interest on this bond in
immediately available funds by 12:00 noon at least five business days prior to the date on which
any such payment is due whether by maturity, redemption or otherwise; in the event that the
Authority's Depository has not received the City's deposit by 12:00 noon on the scheduled day, the
City shall immediately pay to the Authority as invoiced by the Authority an amount to recover the
Authority's administrative costs and lost investment earnings attributable to that late payment; and
(c) written notice of any redemption of this bond shall be given by the City and received by the
Authority's Depository at least 40 days prior to the date on which such redemption is to be made.
Additional Interest
In the event of a default in the payment of principal or interest hereon when due, whether
at maturity, by redemption or otherwise, the amount of such default shall bear interest (the
“additional interest”) at a rate equal to the rate of interest which is two percent above the
Authority’s cost of providing funds (as determined by the Authority) to make payment on the
bonds of the Authority issued to provide funds to purchase this bond but in no event in excess of
the maximum rate of interest permitted by law. The additional interest shall continue to accrue
until the Authority has been fully reimbursed for all costs incurred by the Authority (as determined
by the Authority) as a consequence of the City’s default. Such additional interest shall be payable
on the interest payment date following demand of the Authority. In the event that (for reasons
other than the default in the payment of any municipal obligation purchased by the Authority) the
investment of amounts in the reserve account established by the Authority for the bonds of the
Authority issued to provide funds to purchase this bond fails to provide sufficient available funds
(together with any other funds which may be made available for such purpose) to pay the interest
on outstanding bonds of the Authority issued to fund such account, the City shall and hereby agrees
to pay on demand only the City’s pro rata share (as determined by the Authority) of such deficienc y
as additional interest on this bond.
For prompt payment of principal and interest on this bond, the City has irrevocably pledged
the revenues of the Sanitary Sewer System of the City, including all appurtenances, extensions and
improvements thereto (the “System”), after provision has been made for reasonable and necessary
expenses of operation, maintenance and administration (the “Net Revenues”), and a statutory
second lien thereon is hereby recognized and created, subject to the senior lien of any additiona l
bonds of the City hereafter issued by the City, as set forth in the Ordinance (hereinafter defined).
The bonds of this issue are of equal standing and priority of lien as to the Net Revenues with the
City’s Sanitary Sewer System Junior Lien Revenue Bonds, Series 2019, the City’s Sanitary Sewer
System Junior Lien Revenue Bonds, Series 2020 and the City’s Sanitary Sewer System Junior
Lien Revenue Bonds, Series 2022 (together, the “Outstanding Junior Lien Bonds”) and any
additional bonds hereafter issued by the City of equal standing and priority with the Outstanding
Junior Lien Bonds. The City has reserved the right to issue such additional Bonds which shall be
superior and senior in all respects to the bonds of this issue as to the Net Revenues, or of equal
standing and priority of lien as to the Net Revenues.
10
Purchasers of the bonds of this issue, by their acceptance of the bonds of this issue or a
beneficial ownership interest therein, shall be deemed to have consented to the subordination of
their interest in and lien upon the Net Revenues upon the issuance of senior lien bonds subsequent
to the delivery of the bonds of this issue.
This bond is a single, fully-registered, non-convertible bond in the principal sum indicated
above issued pursuant to Ordinance No. ___ duly adopted by the City Commission of the City,
and the prior ordinances authorizing the issuance of the Outstanding Junior Lien Bonds (together,
the “Ordinances”), and under and in full compliance with the Constitution and statutes of the State
of Michigan, including specifically Act 94, Public Acts of Michigan, 1933, as amended, for the
purpose of paying part of the cost of acquiring and constructing additions, extensions and
improvements to the System.
For a complete statement of the revenues from which and the conditions under which this
bond is payable, a statement of the conditions under which additional bonds of superior and equal
standing may hereafter be issued and the general covenants and provisions pursuant to which this
bond is issued, reference is made to the above-described Ordinance.
This bond is a self-liquidating bond, payable, both as to principal and interest, solely and
only from the Net Revenues of the System. The principal of and interest on this bond are secured
by the statutory lien hereinbefore mentioned.
The City has covenanted and agreed, and does hereby covenant and agree, to fix and
maintain at all times while any bonds payable from the Net Revenues of the System shall be
outstanding, such rates for service furnished by the System as shall be sufficient to provide for
payment of the interest upon and the principal of the bonds of this issue, any additional Bonds, and
any additional Junior Lien Bonds, as and when the same shall become due and payable, and to
maintain a bond redemption fund (including a bond reserve account, if any) therefor, to provide
for the payment of expenses of administration and operation and such expenses for maintena nce
of the System as are necessary to preserve the same in good repair and working order, and to
provide for such other expenditures and funds for the System as are required by the Ordinance.
This bond is transferable only upon the books of the City by the registered owner in person
or the registered owner’s attorney duly authorized in writing, upon the surrender of this bond
together with a written instrument of transfer satisfactory to the transfer agent, duly executed by
the registered owner or the registered owner’s attorney duly authorized in writing, and thereupon
a new bond or bonds in the same aggregate principal amount and of the same maturity shall be
issued to the transferee in exchange therefor as provided in the Ordinance, and upon payment of
the charges, if any, therein prescribed.
It is hereby certified and recited that all acts, conditions and things required by law to be
done precedent to and in the issuance of this bond have been done and performed in regular and
due time and form as required by law.
11
IN WITNESS WHEREOF, the City of Muskegon, County of Muskegon, State of
Michigan, by its City Commission has caused this bond to be executed with the manual or
facsimile signatures of its Mayor and its City Clerk and the corporate seal of the City to be
impressed or imprinted hereon, all as of the Date of Original Issue.
CITY OF MUSKEGON
By_________________________________
Mayor
(Seal)
Countersigned:
By____________________________
City Clerk
12
EGLE Project Number: 5790-01
EGLE Approved Amt: $____________
SCHEDULE A
Based on the schedule provided below unless revised as provided in this paragraph, repayment of the
principal of the bond shall be made until the full amount advanced to the City is repaid. In the event the Order of
Approval issued by the Department of Environment, Great Lakes and Energy (the “Order”), approves a principal amount
of assistance less than the amount of the bond delivered to the Authority, the Authority shall only disburse principal
up to the amount stated in the Order. In the event (1) that the payment schedule approved by the City and described
below provides for payment of a total principal amount greater than the amount of assistance approved by the Order
or (2) that less than the principal amount of assistance approved by the Order is disbursed to the City by the Authority,
or (3) that any portion of the principal amount of assistance approved by the Order and disbursed to the City is forgiven
pursuant to the Order, the Authority shall prepare a new payment schedule which shall be effective upon receipt by
the City.
Maturity Date Principal Amount
October 1, 2025
October 1, 2026
October 1, 2027
October 1, 2028
October 1, 2029
October 1, 2030
October 1, 2031
October 1, 2032
October 1, 2033
October 1, 2034
October 1, 2035
October 1, 2036
October 1, 2037
October 1, 2038
October 1, 2039
October 1, 2040
October 1, 2041
October 1, 2042
October 1, 2043
October 1, 2044
Interest on the bond shall accrue on that portion of principal disbursed by the Authority to the City which has
not been forgiven pursuant to the Order from the date such portion is disbursed, until paid, at the rate of 1.875% per
annum, payable April 1, 2024, and semi-annually thereafter.
The City agrees that it will deposit with the Authority’s Depository, or such other place as shall be designated
in writing to the City by the Authority payments of the principal of, premium, if any, and interest on this bond in
immediately available funds by 12:00 noon at least five business days prior to the date on which any such payment is
due whether by maturity, redemption or otherwise. In the event that the Authority’s Depository has not received the
City’s deposit by 12:00 noon on the scheduled day, the City shall immediately pay to the Authority as invoiced by the
Authority an amount to recover the Authority’s administrative costs and lost investment earnings attributable to that
late payment.
13
Section 17. Negotiated Sale; Application to EGLE and Authority; Execution of
Documents. The City determines that it is in the best interest of the City to negotiate the sale of
the Series 2023 Bond to the Authority because the Clean Water State Revolving Fund financ ing
programs provide significant interest savings to the City compared to competitive sale in the
municipal bond market and principal forgiveness. The Authorized Officers are hereby authorized
to make application to the Authority and to the EGLE for placement of the Series 2023 Bond with
the Authority. The actions taken by the Authorized Officers with respect to the Series 2023 Bond
prior to the adoption of this Ordinance are ratified and confirmed. The Authorized Officers are
authorized to execute and deliver the Purchase Contract, the Supplemental Agreement and the
Issuer’s Certificate. Any Authorized Officer is further authorized to execute and deliver such
contracts, documents and certificates as are necessary or advisable to qualify the Series 2023 Bond
for the Clean Water State Revolving Fund. Prior to the delivery of the Series 2023 Bond to the
Authority, any Authorized Officer is hereby authorized to make such changes to the form of the
Series 2023 Bond contained in Section 16 of this Ordinance as may be necessary to conform to
the requirements of Act 227, Public Acts of Michigan 1985, as amended (“Act 227”), includ ing,
but not limited to changes in the principal maturity and interest payment dates and references to
additional security required by Act 227.
Section 18. Covenant Regarding Tax Exempt Status of the Bonds. The City shall, to the
extent permitted by law, take all actions within its control necessary to maintain the exemption of
the interest on the Series 2023 Bond from general federal income taxation (as opposed to any
alternative minimum or other indirect taxation) under the Internal Revenue Code of 1986, as
amended (the “Code”), including, but not limited to, actions relating to any required rebate of
arbitrage earnings and the expenditure and investment of Series 2023 Bond proceeds and moneys
deemed to be Bond proceeds.
Section 19. Approval of Bond Counsel. The representation of the City by Miller, Canfield,
Paddock and Stone, P.L.C. (“Miller Canfield”), as bond counsel is hereby approved,
notwithstanding the representation by Miller Canfield of the Authority in connection with its
financing programs and borrowings.
Section 20. Approval of Bond Details. The Authorized Officers are each hereby
authorized to adjust the final bond details set forth herein to the extent necessary or convenient to
complete the transaction authorized herein, and in pursuance of the foregoing is authorized to
exercise the authority and make the determinations authorized pursuant to Section 7a(1)(c) of Act
94, including but not limited to determinations regarding interest rates, prices, discounts,
maturities, principal amounts, denominations, dates of issuance, interest payment dates,
redemption rights, the place of delivery and payment, and other matters, provided that the principa l
amount of Series 2023 Bond issued shall not exceed the principal amount authorized in this
Ordinance, the interest rate per annum on the Series 2023 Bond shall not exceed one and seven-
eighths percent (1.875%) per annum, and the Series 2023 Bond shall mature in not more than
twenty (20) annual installments.
Section 21. Savings Clause. All ordinances, resolutions or orders, or part thereof, in
conflict with the provisions of this Ordinance are, to the extent of such conflict, repealed.
14
Section 22. Severability; Paragraph Headings; and Conflict. If any section, paragraph,
clause or provision of this Ordinance shall be held invalid, the invalidity of such section, paragraph,
clause or provision shall not affect any of the other provisions of this Ordinance. The paragraph
headings in this Ordinance are furnished for convenience of reference only and shall not be
considered to be part of this Ordinance.
Section 23. Publication and Recordation. This Ordinance shall be published in full in the
Muskegon Chronicle, a newspaper of general circulation in the City qualified under State law to
publish legal notices, promptly after its adoption, and shall be recorded in the Ordinance Book of
the City and such recording authenticated by the signatures of the Mayor and the City Clerk.
Section 24. Effective Date. This Ordinance shall be effective upon its adoption and
publication.
ADOPTED AND SIGNED THIS 25th day of July, 2023.
Signed____________________________________
Mayor
Signed____________________________________
City Clerk
I HEREBY CERTIFY that the foregoing constitutes a true and complete copy of an Ordinance
duly adopted by the City Commission of the City of Muskegon, County of Muskegon, Michiga n,
at a regular meeting held on July 25, 2023, and that the meeting was conducted and public notice
of the meeting was given pursuant to and in full compliance with the Open Meetings Act, being
Act 267, Public Acts of Michigan, 1976, and that the minutes of the meeting were kept and will
be or have been made available as required by the Act.
I further certify that the following Members were present at the meeting:
__________________________________________________________________________ and
that the following Members were absent:
________________________________________________________.
I further certify that Member _________________ moved for adoption of the Ordinance,
and that the motion was supported by Member _________________.
I further certify that the following Members voted for adoption of the Ordinance:
__________________________________________________________________________ and
that the following Members voted against adoption of the Ordinance:
________________________________.
15
I further certify that the Ordinance has been recorded in the Ordinance Book and that such
recording has been authenticated by the signatures of the Mayor and the City Clerk.
____________________________________
City Clerk
40833828.1/063684.00059
16
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: July 25, 2023 Title: Update to Paid Parking Policy
Submitted By: LeighAnn Mikesell Department: Manager’s Office
Brief Summary: Staff is seeking approval of an amendment to the paid parking policy.
Detailed Summary & Background: The Paid Parking Policy was approved in January 2021. At the
request of the City Manager and Commissioners, the policy has been updated to allow 2 free
passes per city residence. In addition to the property tax database, city utility bills can serve as
proof of residency.
Goal/Focus Area/Action Item Addressed: Improved access to the waterfront
Amount Requested: N/A Budgeted Item:
Yes No N/A
Fund(s) or Account(s): N/A Budget Amendment Needed:
Yes No N/A
Recommended Motion: to approve the amendment to the Paid Parking Policy.
Approvals: Guest(s) Invited / Presenting:
Immediate Division Head
Information Technology Yes
Other Division Heads No
Communication
Legal Review
PAID PARKING POLICY
JANUARY 2021
OVERVIEW:
The City of Muskegon instituted paid parking at all beaches in the summer of 2020 with the goal
to offset intense maintenance costs at these extremely popular parks. Among the parks,
maintenance includes beach and sand grading, pavement repair, trash clean up and removal,
public restroom facilities, playgrounds, boardwalk repair, patrol, equipment costs, snow removal,
and administration. Due to the popularity of the beaches, a large percentage of the overall Parks
Department budget was spent on just five of the city’s 34 parks. Over the years, other city parks
have suffered because funding was inadequate to cover the maintenance, operational, and
capital needs.
The kiosks used to collect payment at the beaches were also installed at the city’s boat launches
to provide a more convenient and accurate process for collecting fees. While the boating season
is typically April through November, and the enforcement of payment at the city’s launches
matches that season, several launch sites and Harbour Towne beach are used heavily by ice
fishers.
The City of Muskegon maintains this policy with the objectives of:
increasing revenue for parks and launches,
providing for improved amenities at parks and launches citywide,
encouraging healthy outdoor activities,
enhancing the city’s image
enhancing our ability to attract visitors, residents and businesses to our community
BEACH PARKING PASSES AND LAUNCH PERMITS:
General
All resident and seasonal beach parking passes and seasonal launch permits will be
stickers which must be affixed to the vehicle’s windshield.
Beach parking passes can be purchased in person at Treasury, Police Records, and Public
Works or by calling Treasury.
Launch permits can be purchased in person at Treasury and Public Works or by calling
Public Works.
Kiosk receipts can be traded for stickers at Treasury, Police Records, Public Works and
participating vendors.
Residents
Two beach parking passes will be allowed per address.
The proof of residency process will be per the direction of the City Manager through an
Administrative Directive to staff.
Non-residents
Daily and seasonal rates will be set in the fee schedule.
Discounted seasonal beach parking passes will be offered to neighboring communities
who agree to purchase a minimum of 100 passes and share the cost of the discount.
Muskegon will discount the beach parking pass price by 12.5% if the neighboring
community further reduces the cost to their residents by another 12.5% resulting in a
25% discount for the neighbor.
ENFORCEMENT:
The city’s goal is to reach compliance with the policy and ordinance. To that end, the following
steps will be taken.
Beaches (except for Harbour Towne Beach)
Kiosks will operate 24 hours per day.
Paid parking will be enforced from 9:00 am to 9:00 pm.
Signage will indicate payment is required only between the hours of 9:00 am and 9:00
pm and will indicate the daily and seasonal rates.
Enforcement dates are May 15 to September 15.
Launches
Kiosks will operate 24 hours per day.
Paid parking will be enforced 24 hours per day.
Signage will indicate the daily and seasonal rates.
Enforcement dates are 365 days per year.
Launch permits are valid until April 30 of the year following the calendar year on the
permit.
Launch permits are needed for any vehicle launching a watercraft and serve as parking
passes for any vehicle at a launch.
Beach parking permits can be used between December 15 and April 30 for parking only.
Seasonal beach parking passes are valid until April 30 of the year following the calendar
year on the pass.
Harbour Towne Beach
Kiosks will operate 24 hours per day.
Paid parking will be enforced from 9:00 am to 9:00 pm.
Signage will indicate payment is required only between the hours of 9:00 am and 9:00
pm and will indicate the daily and seasonal rates.
Enforcement dates are 365 days per year.
Seasonal beach parking passes are valid until April 30 of the year following the calendar
year on the pass.
Launch permits can be used for vehicles parking between December 15 and April 30.
COMMUNICATION:
To ensure the public understands this policy, city staff will undertake the following
communication measures.
Develop a flyer for posting at local establishments
Post on social media pages multiple times prior to and throughout the summer season
Include flyers in water bills for resident communication
Develop press release for Mlive
Request story on WZZM
Add signage at entrances to beaches and launches
Include instructions with stickers
Post messages on NIXLE
Provide educational warnings to violators at the start of each beach and boating season
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: July 25, 2023 Title: Creation of a Redevelopment Area
District
Submitted By: Mike Franzak Department: Planning
Brief Summary: Request to approve the “Redevelopment Area District” pursuant to Public Act 501
of 2006, which will allow the issuance of liquor licenses under certain circumstances within the
proposed “Redevelopment Area District.”
Detailed Summary & Background:
Through Public Act 501 of 2006, the City already allows on-premises liquor license to businesses
within the Downtown Development Authority (DDA) that meet certain criteria. These “DDA
Licenses” are slightly different than the proposed “Redevelopment Area Licenses” proposed here.
The “Redevelopment Area Licenses” do not have as much criteria to meet as the “DDA Licenses,”
most notably the requirement to have invested at least $75,000 in the property within the last five
years.
The City must approve a “Redevelopment Area District,” in which businesses may apply for these
types of liquor licenses. Staff is proposing a district (see map) that is similar to the DDA
boundaries, with only a slight removal of some residential houses at the southeast boundary of the
district.
In order for the district to qualify, the following must be met:
The area must have total investment over the last three years in real and personal property
in the redevelopment area of: » At least $50 million in cities having a population of 50,000
or more, or at least $1 million per 1,000 people in cities of less than 50,000.
The amount of commercial investment in the redevelopment project area shall constitute
not less than 25 percent of the total investment in real and personal property as evidenced
by an affidavit of the city assessor as certified by the city clerk (see enclosed).
In order to qualify for a license, the business must be located in a district and meet the following
requirements:
Be a business engaged in dining, entertainment or recreation;
Be open to the general public at least 10 hours per day, five days per week;
Have a seating capacity of at least 25 people;
The City currently charges $2,500 for the “DDA Licenses” and is proposing to charge the same for
the “Redevelopment Area Licenses.”
Goal/Focus Area/Action Item Addressed: Economic Development, Housing, and Business.
Amount Requested: N/A Budgeted Item:
Yes No N/A
Fund(s) or Account(s): N/A Budget Amendment Needed:
Yes No N/A
Recommended Motion: To approve the “redevelopment area district” pursuant to Public Act 501 of
2006.
Approvals: Guest(s) Invited / Presenting:
Immediate Division Head
Information Technology Yes
Other Division Heads No
Communication
Legal Review
City of Muskegon
Muskegon County, Michigan
Resolution No. __________
A resolution to establish the City of Muskegon Redevelopment Project Area
(“District”) enabling the use of Redevelopment On-premise Liquor Licenses.
The City Commission of the City of Muskegon hereby RESOLVES.
Recitals
1. Whereas, The City of Muskegon seeks opportunities to facilitate the expansion of
the City’s tax base, to retain and create jobs within the City, and to retain Muskegon
businesses and enable their expansion; and
2. Whereas, The City of Muskegon understands and supports the value of small
business development and the inherent need for such businesses to self-invest in order to
grow and thrive; and,
3. Whereas, the Michigan Liquor Control Commission (“MLCC”) has authorized
the licensing of new, on-premises liquor licenses to businesses who are eligible with City
approval under MCL 436.1521a(1)(a) (the “Statute”) through the MLCC;
NOW, THEREFORE, THE CITY COMMISSION RESOLVES:
That in order to enhance the quality of life for the City’s residents and to spur
economic development through business investment, the City of Muskegon may issue
such licenses to businesses who qualify, according to state statute MCL 436.1521a(1)a
and according to the City’s established policy, provided there is verified investment in the
noted DISTRICT as certified by the City Assessor and as required by the noted statute
(these licenses are hereinafter referred to as “RPA District Liquor Licenses”, and that
these RPA District Liquor Licenses shall be located in an area known as the “City
Redevelopment Project Area” (“DISTRICT”) defined by these boundaries and shown by
map on Attachment A.
LET IT FURTHER BE RESOLVED:
That, for each application presented by a qualified business, it is incumbent upon
the City, through its Assessor and as certified by its Clerk, to verify the amount of
investment within the defined DISTRICT area over the previous three years which must
be an amount equal to or greater than $1,000,000 per 1,000 residents in the City, as
verified by the last certified Census; and, that the amount of commercial investment
within that same period is not less than 25% of all investment in real and personal
property within the DISTRICT.
The businesses which seek to apply for such an RPA District Liquor License will
be compliant with all legislative and administrative requirements of the MLCC,
including:
The business shall document and certify that the business has been unable to
secure a readily available quota liquor license or any other license in escrow within
Muskegon County for use at their location;
The licensed business must be engaged in activities related to dining,
entertainment, or recreation and be open to the general public no less than ten (10) hours
per day and five (5) days per week.
The business will be located is the DISTRICT.
Adopted this 25th day of July, 2023.
Ayes: _________________________________________________________________
Nayes: _________________________________________________________________
Absent: _________________________________________________________________
By: ___________________
Ken Johnson
Its Mayor
By: ___________________
Ann Meisch, MMC
Its Clerk
¯ Redevelopment Area District
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EXHIBIT A - CITY OF MUSKEGON
DEVELOPMENT AREA DISTRICT - PUBLIC AND PRIVATE INVESTMENT
Parcel Number Project Address Year Investment
Public Investment Total $ -
Parcel Number Project Address Year Investment
24-205-355-0001-00 GenCap 1021 Jefferson LDH Apartments 1021 Jefferson St 2020-21 $ 11,000,000.00
24-233-000-0024-01 The Leonard Building 292 W Western Ave 2020-22 $ 8,000,000.00
24-205-556-0001-00 Hot Rod Harley 149 Shoreline Dr 2021-22 $ 200,000.00
24-205-177-0001-00 Samaritas 785 Spring St 2021-22 $ 7,350,000.00
24-205-315-0006-00 SociBowl 441 W Western Ave 2021-22 $ 775,000.00
24-205-330-0002-00 165 W Clay LLC 165 W Clay Ave 2022-23 $ 450,000.00
24-205-573-0001-00 Boys and Girls Club 900 W Western Ave 2022-23 $ 6,960,200.00
24-607-000-0016-00 Trilogy @ Harbor 31 40 Viridian Dr 2022-23 $ 19,300,000.00
24-205-315-0006-00 3M Investments 563 W Western Ave 2023- $ 200,000.00
Private Investment Total $ 54,235,200.00
Total Public/Private Investments $ 54,235,200.00
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: July 25, 2023 Title: Issuance of a Redevelopment Area
Liqor License at 350 W Western Ave.
Submitted By: Mike Franzak Department: Planning
Brief Summary: Request to issue a Redevelopment Area Liquor License to 18th Amendment at 350
W Western Ave pursuant to Public Act 501 of 2006.
Detailed Summary & Background:
18th Amendment, located at 150 W Western would like to change their liquor license type from a
distillery to a traditional liquor license. With none available, they have applied for a Redevelopment
Area Liquor License through Public Act 501 of 2006. Please see the statement from the Assessors
Department regarding the qualification of the investment levels in the Redevelopment Area.
Goal/Focus Area/Action Item Addressed: Economic Development, Housing, and Business.
Amount Requested: N/A Budgeted Item:
Yes No N/A
Fund(s) or Account(s): N/A Budget Amendment Needed:
Yes No N/A
Recommended Motion: To approve the Redevelopment Area Liquor License to 18th Amendment at
350 W. Western Avenue.
Approvals: Guest(s) Invited / Presenting:
Immediate Division Head
Information Technology Yes
Other Division Heads No
Communication
Legal Review
City of Muskegon
Muskegon County, Michigan
Resolution No. __________
A resolution concerning the issuance of a Downtown Development Authority
District On-Premise Liquor License pursuant to 436.1521a(1)(a) of the Michigan
Compiled Laws at 350 W Western Ave.
The City Commission of the City of Muskegon hereby RESOLVES.
Recitals
1. 18th Amendment, LLC has applied for a Development District On-Premise Liquor
License for the premises at 350 W Western Ave, Muskegon, Michigan 49440, which is
located within an area established by the City Commission as a redevelopment project
area pursuant to 436.1521a(1)(a) of the Michigan Compiled Laws.
2. It is required that the City Commission approve a specific applicant, at a specific
location “ABOVE ALL OTHERS.”
3. The property is located within the redevelopment area “DISTRICT.”
4. This resolution was approved at the regular meeting of the City Commission on July
25, 2023.
City Commission Findings
The City Commission is satisfied that the licensed business shall be engaged in
dining, entertainment or recreation, that is open to the general public, with a seating
capacity of not less than 25 persons. They will be open to the general public at least 10
hours per day, five days per week.
NOW, THEREFORE, THE CITY COMMISSION RESOLVES:
The City Commission deems it to be in the best interest of the City of Muskegon
to approve the application of 18th Amendment, LLC for a new liquor license issued under
MCL 436.1521a(1)(a) with applicable permits, to be located at 350 W Western Ave,
Muskegon, Michigan 49440, and recommends to the Michigan Liquor Control
Commission the issuance of said requested license to Shoreline Inn, LLC “ABOVE ALL
OTHERS.”
Adopted this 25th day of July, 2023.
Ayes: _________________________________________________________________
Nayes: _________________________________________________________________
Absent: _________________________________________________________________
By: ___________________
Ken Johnson
Its Mayor
By: ___________________
Ann Meisch, MMC
Its Clerk