View the PDF version Google Docs PDF Viewer
Lessee Site: 744 Muskegon State Park
Lessee Site ID: 309967 / 5000049627
Draft Date: 1/3/2024
TOWER LEASE AGREEMENT
,~
This Tower Lease Agreement (the "Agreement") is made this lo day ofhltu~fC.,20 '2, '--1
between City of Muskegon, with its principal offices located at 933 Terrace Street, Muskegon, Mithigan
49440 ("LESSOR") and Muskegon Cellular Partnership By: Cellco Partnership d/b/a Verizon Wireless, its
Managing Partner with its principal offices at One Verizon Way, Mail Stop 4AW100, Basking Ridge, New
Jersey 07920 (telephone number 866-862-4404) ("LESSEE"). LESSOR and LESSEE are at times collectively
referred to hereinafter as the "Parties" or individually as the "Party."
WITNESSETH
In consideration of the mutual covenants contained herein and intending to be legally bound
hereby, the Parties hereto agree as follows:
1. GRANT. LESSOR hereby leases LESSEE space in and/or upon that certain tower structure
owned, leased or controlled by LESSOR ("Tower") together with a portion of a parcel of land sufficient for
the installation of LESSEE's equipment building (the "Land Space") to install, maintain, upgrade, replace
and operate communications equipment ("Use") at the property located at 1900 Beach Street, Muskegon,
Michigan 49441 ("Property") which is more particularly described in Exhibit "A" attached hereto and
incorporated hereby. The portions of the Tower occupied by LESSEE is hereinafter referred to as the
Tower Space, which shall consist of all of the area on the Tower between the top and bottom of the
centerline of LESSEE's equipment on the Tower. (For example, if LESSEE's equipment occupies ten (10)
feet space on the Tower, with an equipment centerline of One Hundred Ninety (190) feet, LESSEE would
be entitled to occupy any space on the Tower between the elevations of One Hundred Eighty Four (184)
and One Hundred Ninety Five (195) feet above ground level.) The Tower Space and Land Space are
collectively hereinafter referred to as the "Premises". Notwithstanding anything to the contrary, the
Premises shall also include such additional space necessary for the installation, operation and
maintenance of wires, cables, conduits and pipes running between and among the various portions of the
Premises and to all necessary electrical, telephone, fiber and other similar support services located within
the Property or the nearest public right of way. All new installations of equipment and services by LESSEE
at the Premises shall require prior notice and approval by LESSOR and LESSOR's inspections department
which approvals shall not be unreasonably withheld or delayed. In the event it is necessary, LESSOR
agrees to grant LESSEE the right to install such services on, through, over and/or under the Property,
provided the location of such services shall be approved by LESSOR. The Premises are shown in detail on
Exhibit "B" attached hereto and made a part hereof.
2. INITIAL TERM. This Agreement shall be effective as of the date of execution by both
Parties ("Effective Date"). The initial term of the Agreement shall be for 10 years beginning on the first
day of the month after LESSEE begins installation of LESSEE's communications equipment (the
"Commencement Date"), which Commencement Date shall in no event be later than the date that is 90
days following the full execution of this Agreement. The Commencement Date will be acknowledged by
the Parties in writing, including electronic mail.
3. EXTENSIONS. So long as Lessee is not in default and all rents are current, this Agreement
shall automatically be extended for 4 additional 5-year terms unless LESSEE terminates it at the end of the
then current term by giving LESSOR written notice of the intent to terminate at least 3 months prior to
Lessee Site: 744 Muskegon State Park
Lessee Site ID: 309967 / 5000049627
Draft Date: 1/3/2024
the end of the then current term. If Lessee terminates the Agreement at any time during the first ten (10)
year term, a one-time payment equal to one year's rent at the then current rental rate is due to Lessor,
payable within 90 days of the termination notice. The initial term and all extensions shall be collectively
referred to herein as the "Term".
4. RENTAL.
a. Rental payments shall begin on the Commencement Date and be due at a total
annual rental of Thirty Three Thousand Dollars ($33,000.00), to be paid in equal monthly installments on
the first day of the month, in advance, to LESSOR at 933 Terrace Street, Muskegon, Michigan 49440 or to
such other person, firm, or place as LESSOR may, from time to time, designate in writing at least 30 days
in advance of any rental payment date by notice given in accordance with Paragraph 21 below. Rental
payments shall increase by two percent (2%) per year during the first ten-year term and all extensions of
this Agreement, which initial increase shall begin on the first anniversary of the Commencement Date.
LESSOR and LESSEE acknowledge and agree that the initial rental payment shall not be delivered by LESSEE
until 45 days after the Commencement Date. Upon agreement of the Parties, LESSEE may pay rent by
electronic funds transfer and in such event, LESSOR agrees to provide to LESSEE bank routing information
for such purpose upon request of Lessee.
b. For any party to whom rental payments are to be made, LESSOR or any successor in
interest of LESSOR hereby agrees to provide to LESSEE (i) a completed, current version of Internal Revenue
Service Form W-9, or equivalent; (ii) complete and fully executed state and local withholding forms if
required; (iii) LESSEE's payment direction form, and (iv) other documentation to verify LESSOR's or such
other party's right to receive rental as is reasonably requested by LESSEE. Rental shall accrue in
accordance with this Agreement, but LESSEE shall have no obligation to deliver rental payments until the
requested documentation has been received by LESSEE. Upon receipt of the requested documentation,
LESSEE shall deliver the accrued rental payments as directed by LESSOR.
5. ACCESS; EXISTING WATER MAINS. LESSEE shall have the non-exclusive revocable license
for ingress and egress from a public right-of-way, 7 days a week, 24 hours a day (and agrees to provide
LESSOR with reasonable advance notice of any planned activities, over the Property to and from the
Premises as reasonably necessary for the purpose of installation, operation and maintenance of LESSEE's
communications equipment. LESSEE acknowledges and agrees that LESSEE shall be solely responsible for
preventing access to the Property by unauthorized persons associated with Lessee and for properly
securing the Property while present on the Premises and upon departure at all time during which LESSEE,
LESSEE's employees, contractors, subcontractors, agents, or assigns shall be on the Premises. In no event
shall LESSEE use or access any portion of the Property other than the Premises, as shown on the plans and
Exhibits attached to this Agreement, except for ingress and egress to the Premises or as otherwise allowed
in this Agreement.
LESSEE acknowledges that two separate water mains are located on or near the Property. LESSEE
understands that LESSOR may have to interrupt LESSEE's Use of the Property from time to time to service,
maintain, or repair the water mains. Accordingly, LESSOR reserves the right at all time 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 LESSEE for any temporary interference with LESSEE's Use as a result
of actions necessary to carry out any such activities. Notwithstanding the foregoing, LESSOR agrees to
provide LESSEE with reasonable advance notice of any planned activities, emergencies excepted, and to
2
Lessee Site: 744 Muskegon State Park
Lessee Site ID: 309967 / 5000049627
Draft Date: 1/3/2024
carry out such activities in a manner to minimize interruptions with LESSEE's Use and provide alternate
continuous access.
6. CONDITION OF PROPERTY. LESSOR shall deliver the Premises to LESSEE in a condition
ready for LESSEE's Use and clean and free of debris. To the best of LESSOR's knowledge, LESSOR
represents and warrants to LESSEE that as of the Effective Date, the Tower and Land Space are (a) in good
operating condition; (b) in compliance with all Laws; and (c) in compliance with all EH&S Laws (as defined
in Paragraph 25).
7. ELECTRICAL.
a. If permitted by the local utility company serving the Premises, LESSEE, at LESSEE's sole
cost and expenses, shall furnish and install an electrical meter at the Premises for the measurement of
electrical power used by LESSEE at the Premises and LESSEE shall pay the utility company directly providing
that the City assigns Lessee an independent street address.
b. If an electrical meter is not permitted, then LESSEE, at LESSEE's sole cost and expense,
may furnish and install an electrical sub-meter at the Premises for the measurement of electrical power
used by LESSEE at the Premises and shall pay the utility company directly if permitted by the utility
company and in the alternative shall be invoiced by Lessor to Lessee.
c. In the event a sub-meter is installed and the utility company will not permit LESSEE to
pay the utility company directly, then the LESSOR shall read LESSEE's sub-meter on a monthly basis and
provide LESSEE with an invoice for LESSEE's power consumption on an annual basis. Each invoice shall
reflect charges only for LESSEE's power consumption based on the average kilowatt hour rate actually
paid by LESSOR to the utility, without markup or profit.
d. All invoices for power consumption shall be sent by LESSOR to LESSEE at Verizon
Wireless, M/S 3846, P.O. Box 2375, Spokane, WA 99210-2375, and shall be provided to LESSEE within 90
days following the conclusion of each calendar year. Upon written request from LESSEE, LESSOR shall
provide copies of electricity bills received by LESSOR during any period that LESSOR submits invoices to
LESSEE for reimbursement and for that same period LESSOR shall provide documentation of the sub-
meter readings applicable to such periods. LESSEE shall pay each invoice within 45 calendar days after
receipt of the invoice from LESSOR.
e. LESSEE shall be permitted to install, maintain and/or provide access to and use of, as
necessary (during any power interruption at the Premises), a temporary power source, and all related
equipment and appurtenances within the Premises, or elsewhere on the Property in such locations as
reasonably approved by LESSOR. LESSEE shall have the right to install conduits connecting the temporary
power source and related appurtenances to the Premises.
8. IMPROVEMENTS. The communications equipment upgrades and new installations
including, without limitation, antennas, conduits, and other improvements shall be at LESSEE's expense
and installation shall be at the discretion and option of LESSEE. LESSEE shall have the right to replace,
repair, add to or otherwise modify its communications equipment, antennas, conduits or other
improvements or any portion thereof and the frequencies over which the communications equipment
operates, at no add.itional cost, whether or not any of the communications equipment, antennas, conduits
or other improvements are listed on any exhibit. LESSOR shall respond in writing to any LESSEE consent
request within 60 days of receipt or LESSO R's consent shall be deemed granted, provided, any increase to
3
Lessee Site: 744 Muskegon State Park
Lessee Site ID: 309967 / 5000049627
Draft Date: 1/3/2024
the Premises shall be memorialized by the Parties in writing. LESSOR is not entitled to a rent increase
associated with any LESSEE modification unless it is expanding the Premises area. In such event, any rent
increase shall be proportionate to the additional area included in the Premises description.
9. GOVERNMENT APPROVALS. LESSEE's Use is contingent upon LESSEE obtaining all of the
certificates, permits and other approvals, including, but not limited to, approval in connection with the
Critical Dune Area (CDA) as regulated by the Michigan Department of Environment, Great Lakes, and
Energy (collectively the "Government Approvals") that may be required by any Federal, State or Local
authorities (collectively, the "Government Entities") as well as a satisfactory structural analysis of the
Tower or other structure that will permit LESSEE's Use. LESSOR shall cooperate with LESSEE in its effort
to obtain and maintain any Government Approvals; provided, however, LESSOR assumes no responsibility
for obtaining the required Government Approvals. Further, LESSEE shall be solely responsible for the costs
and expenses incurred in connection with obtaining such Government Approvals and/or any fines or
penalties incurred for the failure to obtain such Government Approvals. Notwithstanding anything
contained herein to the contrary, LESSOR hereby agrees to allow LESSEE to install any RF frequency
signage and/or barricades as are necessary to ensure LESSEE's compliance with Laws. In the event that
any necessary permit or approval is rejected, withdrawn, or terminated by any Government Entities so
that LESSEE shall be unable to lawfully occupy and use the Premises for the intended use, either party
shall have the right to terminate this Agreement on three (3) days' written notice to the other, which
notice shall be sent by certified mail, return receipt requested. Upon the termination of this Agreement
in accordance with this Paragraph 9, this Agreement shall terminate and be of no further force or effect
except that LESSEE shall be required to restore the Premises at its sole cost and expense to the condition
it was in on the Effective Date.
10. TERMINATION. LESSEE may, unless otherwise stated, immediately terminate this
Agreement upon written notice to LESSOR in the event that (i) any applications for such Government
Approvals should be finally rejected; (ii) any Government Approval issued to LESSEE is canceled, expires,
lapses or is otherwise withdrawn or terminated by any Government Entity; (iii) LESSEE determines that
such Government Approvals may not be obtained in a timely manner; (iv) LESSEE determines any
structural analysis is unsatisfactory; (v) LESSEE, in its sole discretion, determines the Use of the Premises
is obsolete or unnecessary; (vi) with 3 months prior notice to LESSOR, upon the annual anniversary of the
Commencement Date; or (vii) at any time before the Commencement Date for any reason or no reason
in LESSEE's sole discretion.
LESSOR has the right to terminate this Agreement upon any of the following events: (i) if LESSOR
determines that LESSEE's Use of the Premises under this Agreement (including LESSEE's operations of its
communications equipment) is interfering with the rights of LESSOR or other tenants currently on the
Property and that the issue cannot be re mediated by LESSEE; (ii) if LESSEE is in default of the terms of this
Agreement and the default has not been cured under Paragraph 23; or (iii) upon 2 years prior written
notice to LESSEE at any time following the initial 10-year term of this Agreement if LESSOR determines
that LESSEE's USE of the Premises is no longer in the LESSO R's best interest, in LESSO R's sole discretion.
11. MAINTENANCE. LESSEE will maintain LESSEE's communications equipment within the
Premises in good condition, reasonable wear and tear and casualty damage excepted. LESSOR shall
maintain, in good operating condition and repair, the Tower and the Property.
12. INDEMNIFICATION. LESSEE agrees to indemnify, defend and hold LESSOR harmless from
and against any and all injury, loss, damage or liability, costs or expenses in connection with a third party
4
Lessee Site: 744 Muskegon State Park
Lessee Site ID: 309967 / 5000049627
Draft Date: 1/3/2024
claim (including reasonable attorneys' fees and court costs) arising directly from the installation, use,
maintenance, repair or removal of the electrical, telephone, fiber and other similar support services and
communications equipment of LESSEE on the Property, or LESSEE, its employees, invitees, agents, or
independent contractors breach of any provision of this Agreement, except to the extent attributable to
the negligent or intentional act or omission of LESSOR, its employees, invitees, agents or independent
contractors.
13. INSURANCE. Tenant agrees to maintain during the term of this Agreement the following
insurance policies on the Premises and the Tower:
a. Commercial general liability in the amount of $2,000,000.00 per occurrence for
bodily injury and property damage and $4,000,000.00 in the annual aggregate. LESSEE shall name
LESSOR as an additional insured on LESSEE'S commercial general liability insurance and shall provide
LESSOR with a certificate of insurance certificate acceptable to LESSOR within five (5) days following the
Effective Date. Tenant shall procure insurance on an occurrence basis from and against all customary
insurable liabilities of LESSEE, its employees and agents arising out of or in connection with LESSEE'S use
of the Property as provided for in this Agreement. LESSEE shall also maintain worker's compensation
insurance as required by applicable state law. All certificates of insurance shall provide that the coverage
may not be canceled, nonrenewable, or otherwise materially changed without thirty {30) days' prior
written notice to LESSOR.
b. "All-Risk" property insurance on a replacement cost basis insuring their
respective property with no coinsurance requirement. Where legally permissible, each party agrees to
waive subrogation against the other party and to ensure said waiver is recognized by the insurance policies
insuring the property.
14. LIMITATION OF LIABILITY. Except for indemnification pursuant to Paragraphs 12 and 25,
a violation of Paragraph 28, or a violation of Laws, neither Party shall be liable to the other, or any of their
respective agents, representatives, employees for any lost revenue, lost profits, loss of technology, rights
or services, incidental, punitive, indirect, special or consequential damages, loss of data, or interruption
or loss of use of service, even if advised of the possibility of such damages, whether under theory of
contract, tort (including negligence), strict liability or otherwise.
15. INTERFERENCE.
a. LESSEE agrees that LESSEE will not cause interference that is measurable in accordance
with industry standards to LESSO R's equipment. LESSOR agrees that LESSOR and other occupants of the
Property will not cause interference that is measurable in accordance with industry standards to the then
existing equipment of LESSEE.
b. Without limiting any other rights or remedies, if interference occurs and continues for
a period in excess of 48 hours following notice to the interfering party via telephone to LESSEE'S Network
Management Center (at {800) 264-6620) or to LESSOR at( _ _ _ _ _ ), the interfering party shall or
shall require any other user to reduce power or cease operations of the interfering equipment until the
interference is cured.
c. The Parties acknowledge that there will not be an adequate remedy at law for
noncompliance with the provisions of this Paragraph and therefore the Parties shall have the right to
equitable remedies such as, without limitation, injunctive relief and specific performance.
5
Lessee Site: 744 Muskegon State Park
Lessee Site ID: 309967 / 5000049627
Draft Date: 1/3/2024
d. LESSEE will not, nor will LESSEE permit its employees, tenants, licensees, invitees,
agents, or independent contractors to interfere in any way with the operations of LESSOR or other tenants
of the Property. All governmental uses, including later installed uses, shall have superior rights. Nothing
in the section shall limit LESSOR or governmental uses. LESSEE shall ensure that neither LESSEE nor
LESSEE'S equipment disturbs or interferes with any LESSOR operations at the Property at any time.
16. REMOVAL AT END OF TERM. Within 90 days of expiration or earlier termination of the
Agreement, LESSEE, at LESSEE'S sole cost and expense, shall remove LESSEE's Communications Equipment
and restore the Premises to its original condition, reasonable wear and tear and casualty damage
excepted. LESSOR agrees and acknowledges that the communications equipment shall remain the
personal property of LESSEE and LESSEE shall have the right to remove the same at any time during the
Term, whether or not said items are considered fixtures and attachments to real property under
applicable laws. If such time for removal causes LESSEE to remain on the Premises after termination of
the Agreement, LESSEE shall pay rent at the then existing monthly rate or on the existing monthly pro-
rata basis if based upon a longer payment term, until the removal of the communications equipment is
completed.
17. RIGHT OF FIRST REFUSAL. If at any time after the Effective Date, LESSOK rel,_ , es an offer
or letter of intent from any person or entity that is in the business of owning, managing or operating
communications facilities or is in the business of acquiring landlord interests in agreements relating to
communications facilities, to purchase fee title, an easement, a lease, a license, or any other interest in
the Premises or any portion thereof or to acquire any interest in this Agreement, or an option for any of
the foregoing, LESSOR shall provide written notice to LESSEE of said offer ("LESSOR's Notice"). LESSOR's
Notice shall include the prospective buyer's name, the purchase price being offered, any other
consideration being offered, the other terms and conditions of the offer, a description of the portion of
and interest in the Premises and/or this Agreement which will be conveyed in the proposed transaction,
and a copy of any letters of intent or form agreements presented to LESSOR by the third party offerer.
LESSEE shall have the right of first refusal to meet any bona fide offer of sale or transfer on the terms and
conditions of such offer or by effectuating a transaction with substantially equivalent financial terms. If
LESSEE fails to provide written notice to LESSOR that LESSEE intends to meet such bona fide offer no later
than 30 days after receipt of LESSO R's Notice or the expiration date of the prospective purchaser's offer,
whichever is earlier, LESSOR may proceed with the proposed transaction in accordance with the terms
and conditions of such third party offer, in which event this Agreement shall continue in full force and
effect and the right offirst refusal described in this paragraph shall survive any such conveyance to a third
party. Further, LESSOR acknowledges and agrees that if LESSEE exercises this right of first refusal, LESSEE
may require a reasonable period of time to conduct due diligence and effectuate the closing of a
transaction on substantially equivalent financia I terms of the third party offer. LESSEE may elect to amend
this Agreement to effectuate the proposed financial terms of the third party offer rathe·r than acquiring
fee simple title or an easement interest in the Premises.
18. RIGHTS UPON SALE. Should LESSOR, at any time during the Term, decide (i) to sell or
otherwise transfer all or any part of the Property, or (ii) to grant to a third party by easement or other
legal instrument an interest in and to any portion of the Premises, such sale, transfer, or grant of an
easement or interest therein shall be under and subject to this Agreement and any such purchaser or
transferee shall recognize LESSEE's rights hereunder. In the event that LESSOR completes any such sale,
transfer, or grant described in this paragraph without executing an assignment of the Agreement whereby
the third party agrees in writing to assume all obligations of LESSOR under this Agreement, then LESSOR
6
Lessee Site: 744 Muskegon State Park
Lessee Site ID: 309967 / 5000049627
Draft Date: 1/3/2024
shall not be released from its obligations to LESSEE under this Agreement, and LESSEE shall have the right
to look to LESSOR and the third party for the full performance of the Agreement.
19. LESSOR'S TITLE. LESSOR covenants that LESSEE, on paying the rent and performing the
covenants herein, shall peaceably and quietly have, hold and enjoy the Premises. LESSOR represents and
warrants to LESSEE as of the Effective Date and covenants during the Term that LESSOR has full authority
to enter into and execute this Agreement and that, to the knowledge of LESSOR, there are no liens,
judgments, covenants, easements, restrictions or other impediments of title that will adversely affect
LESSEE's Use.
20. ASSIGNMENT. This Agreement may not be assigned or subleased without the prior
written consent of LESSOR, which consent may be withheld for any reason or no reason in LESSOR's sole
discretion. Notwithstanding the foregoing, this Agreement may be assigned without LESSOR consent to
an entity that controls, is controlled by, or is under the common control of LESSEE, or to any entity
resulting from any merger or consolidation with LESSEE, or to any partner of LESSEE, provided that LESSEE
shall indemnify and hold LESSOR harmless as provided in Paragraph 12. Notwithstanding anything
contained herein to the contrary, LESSEE 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.
21. NOTICE. Except for notices permitted via telephone in accordance with Paragraph 15 and
notices permitted via electronic mail in accordance with Paragraph 2, all notices hereunder must be in
writing and shall be deemed validly given if sent by certified mail, return receipt requested or by
commercial courier, provided the courier's regular business is delivery service and provided further that
it guarantees delivery to the addressee by the end of the next business day following the courier's receipt
from the sender, addressed as follows (or any other address that the Party to be notified may have
designated to the sender by like notice):
LESSOR: City of Muskegon
933 Terrace Street
Muskegon, Michigan 49440
Attn: Dave Baker
LESSEE: Muskegon Cellular Partnership
By: Cellco Partnership d/b/a Verizon Wireless, its Managing Partner
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Network Real Estate
Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained pursuant to the
foregoing.
22. SUBORDINATION AND NON-DISTURBANCE. This Agreement is subordinate to all deeds of
trust, mortgages, and ground leases now or hereafter encumbering the Premises or Landlord's interest
therein.
7
Lessee Site: 744 Muskegon State Park
Lessee Site ID: 309967 / 5000049627
Draft Date: 1/3/2024
23. DEFAULT. It is a "Default" if (i) either Party fails to comply with this Agreement and does
not remedy the failure within 30 days after written notice by the other Party or, if the failure cannot
reasonably be remedied in such time, if the failing Party does not commence a remedy within the allotted
30 days and diligently pursue the cure to completion within 90 days after the initial written notice, (ii)
LESSOR fails to comply with this Agreement and the failure interferes with LESSEE's Use and LESSOR does
not remedy the failure within 5 days after written notice from LESSEE or, if the failure cannot reasonably
be remedied in such time, if LESSOR does not commence a remedy within the allotted 5 days and diligently
pursue the cure to completion within 15 days after the initial written notice; (iii) LESSEE fails to pay any
rent or other sums due under this Agreement within 10 days of the date the same is due and owing; (iv)
if LESSEE fails to provide any certificate of insurance required under this Agreement within five (5) days of
the date the same is due and owing or to provide an estoppel when due; (v) if LESSEE fails to perform or
observe any agreement or condition of which it is required to perform or observe under this Agreement
(vi) if LESSEE becomes insolvent or if any bankruptcy, insolvency, or reorganization proceeding is
commenced by or against LESSEE; or (vii) if LESSEE ceases operations from the Premises for a period of
two (2) months unless otherwise agreed to between LESSOR or LESSEE or as may otherwise be required
by this Agreement. The cure periods set forth in this Paragraph 23 do not extend the period of time in
which either Party has to cure interference pursuant to Paragraph 15 of this Agreement. In the event of
any default by LESSEE under this Agreement that shall continue beyond any applicable notice and cure
period, LESSOR may, at its option, terminate this Agreement by 30 days' prior written notice to LESSEE.
LESSOR shall have the right to recover all expenses incurred by LESSOR as a result of a LESSEE default,
including reasonable attorneys' fees, regardless of whether a lawsuit is commenced and/or litigated.
24. REMEDIES. In the event of a Default, without limiting the non-defaulting Party in the
exercise of any right or remedy which the non-defaulting Party may have by reason of such default, the
non-defaulting Party may terminate this Agreement and/or pursue any remedy now or hereafter available
to the non-defaulting Party under the Laws or judicial decisions of the state in which the Property is
located.
25. ENVIRONMENTAL. LESSEE shall conduct its business in compliance with all applicable
laws governing the protection of the environment or employee health and safety ("EH&S Laws"). LESSEE
shall indemnify and hold harmless the LESSOR from claims to the extent resulting from LESSEE's violation
of any applicable EH&S Laws or to the extent that LESSEE causes a release of any regulated substance to
the environment. The Parties recognize that LESSEE is only leasing a small portion of LESSOR's property
and that LESSEE shall not be responsible for any environmental condition or issue except to the extent
resulting from LESSEE's specific activities and responsibilities. In the event that LESSEE encounters any
hazardous substances that do not result from its activities, LESSEE may relocate its facilities to avoid such
hazardous substances to a mutually agreeable location.
26. CASUALTY. If a fire or other casualty damages the Property or the Premises and impairs
LESSEE's Use, rent shall abate until LESSEE'S Use is restored. If LESSEE's Use is not restored within 45 days,
LESSEE may terminate this Agreement.
27. CONDEMNATION. If a condemnation of any portion of the Property or Premises impairs
LESSEE's Use, Lessee may terminate this Agreement. LESSEE may on its own behalf make a claim in any
condemnation proceeding involving the Premises for losses related to LESSEE's communications
equipment, relocation costs and, specifically excluding loss of LESSEE's leasehold interest, any other
damages LESSEE may incur as a result of any such condemnation.
8
Lessee Site: 744 Muskegon State Park
Lessee Site ID: 309967 / 5000049627
Draft Date: 1/3/2024
28. APPLICABLE LAWS. During the Term, LESSOR shall maintain the Property in compliance
with all applicable laws, EH&S Laws, rules, regulations, ordinances, directives, covenants, easements,
consent decrees, zoning and land use regulations, and restrictions of record, permits, building codes, and
the requirements of any applicable fire insurance underwriter or rating bureau, now in effect or which
may hereafter come into effect (including, without limitation, the Americans with Disabilities Act and laws
regulating hazardous substances) (collectively "Laws"). LESSEE shall, in respect to the condition of the
Premises and at LESSEE's sole cost and expense, comply with (i) all Laws relating solely to LESSEE's specific
and unique nature of use of the Premises; and (ii) all building codes requiring modifications to the
Premises due to the improvements being made by LESSEE in the Premises. It shall be LESSO R's obligation
to comply with all Laws relating to the Property, without regard to specific use (including, without
limitation, modifications required to enable LESSEE to obtain all necessary building permits).
29. TAXES. If LESSOR is required by law to collect any federal, state, or local tax, fee, or other
governmental imposition (each, a "Tax") from LESSEE with respect to the transactions contemplated by
this Agreement, then LESSOR shall bill such Tax to LESSEE in the manner and for the amount required by
law, LESSEE shall promptly pay such billed amount of Tax to LESSOR, and LESSOR shall remit such Tax to
the appropriate tax authorities as required by law; provided, however, that LESSOR shall not bill to or
otherwise attempt to collect from LESSEE any Tax with respect to which LESSEE has provided LESSOR with
an exemption certificate or other reasonable basis for relieving LESSOR of its responsibility to collect such
tax from LESSEE. Except as provided in this Paragraph 29, LESSOR shall bear the costs of all Taxes that are
assessed against or are otherwise the legal responsibility of LESSOR with respect to itself, its property, and
the transactions contemplated by this Agreement. LESSEE shall be responsible for all Taxes that are
assessed against or are otherwise the legal responsibility of LESSEE with respect to itself, its property, and
the transactions contemplated by this Agreement.
30. NON-DISCLOSURE. The Parties agree that this Agreement and any information exchanged
between the Parties regarding the Agreement are confidential. The Parties agree not to provide copies
of this Agreement or any other confidential information to any third party without the prior written
consent of the other or as required by law. If a disclosure is required by law, prior to disclosure, the Party
shall notify the other Party and cooperate to take lawful steps to resist, narrow, or eliminate the need for
that disclosure.
31. MISCELLANEOUS. This Agreement contains all agreements, promises and understandings
between the LESSOR and the LESSEE regarding this transaction, and no oral agreement, promises or
understandings shall be binding upon either the LESSOR or the LESSEE in any dispute, controversy or
proceeding. This Agreement may not be amended or varied except in a writing signed by all Parties. This
Agreement shall extend to and bind the heirs, personal representatives, successors and assigns hereto.
The failure of either party to insist upon strict performance of any of the terms or conditions of this
Agreement or to exercise any of its rights hereunder shall not waive such rights and such party shall have
the right to enforce such rights at any time. The performance of this Agreement shall be governed,
interpreted, construed and regulated by the laws of the state in which the Premises is located without
reference to its choice of law rules. Except as expressly set forth in this Agreement, nothing in this
Agreement shall grant, suggest or imply any authority for one Party to use the name, trademarks, service
marks or trade names of the other for any purpose whatsoever. LESSOR agrees to execute a
Memorandum of this Agreement, which LESSEE may record with the appropriate recording officer. The
provisions of the Agreement relating to indemnification from one Party to the other Party shall survive
any termination or expiration of this Agreement. This Agreement may be executed in counterparts,
9
Lessee Site: 744 Muskegon State Park
Lessee Site ID: 309967 / 5000049627
Draft Date: 1/3/2024
including written and electronic forms. All executed counterparts shall constitute one Agreement, and
each counterpart shall be deemed an original.
IN WITNESS WHEREOF, this Agreement is entered into by the Parties as of the Effective Date.
LESSOR: City of Muskegon
By: Q~ ~
Name: U-e""-- 3 cL'\..V\.,S 0. {'\.____
Its: _.:...,_
K_~----1'{,--0_&
_ _ _ _ __
Date: ---=-
L---L?_..__
/ ---=l;}_C)J-
_ y,..______
LESSEE: Muskegon Cellular Partnership By:
Cellco Partnership d/b/a Verizon Wireless, its
Its: '£-\J" -)-.e;\,..;::,;,cli ~ \ b""(\ ,
Date: Q- Lo - '2..D'2..\.....\
Lessee Site: 744 Muskegon State Park
Lessee Site ID: 309967 / 5000049627
Draft Date: 1/3/2024
EXHIBIT"A"
PROPERTY DESCRIPTION
11
LEGAL DESCRIPTION OF LEASE PARCEL (Site #7 44A)
(Lessee)
Commencing at the Northeast corner of Lot 17 of Block 2 of "Lake Michigan Park
Subdivision No. 1" recorded in Liber 9 of Plats, Page 40, Muskegon County
Records, Section 33, T1 ON, R17W, City of Muskegon, Muskegon County, Michigan,
thence S 67°29'21" W 252.61 feet along the south right-of-way line of Keaton Court
(20 feet wide) and the extension thereof; thence N 13°48'03" W 120.82 feet; thence
N 71 °33'03" W 206.11 feet; thence S 18°26'57" W 50.10 feet to the POINT OF
BEGINNING:
thence S 67°28'28" W 30.00 feet;
thence N 22°31'32" W 12.00 feet;
thence N 67°28'28" E 30.00 feet;
thence S 22°31 '32" E 12.00 feet to the POINT OF BEGINNING; being part of
Section 33, T1 ON, R17W, City of Muskegon, Muskegon County,
Michigan; containing 360 square feet; together with a 3 foot wide non-
exclusive easement for ice bridge, a 3 foot wide non-exclusive
easement around the equipment for the ground ring and a variable
width non-exclusive easement for utility connections; subject to
easements and restrictions of record, if any;
Together with a variable width easement for ingress and egress, the boundary of
said easement is described as follows:
Commencing at the Northeast corner of Lot 17 of Block 2 of "Lake Michigan Park
Subdivision No. 1" recorded in Liber 9 of Plats, Page 40, Muskegon County
Records, Section 33, T1 ON, R17W, City of Muskegon, Muskegon County, Michigan,
thence S 67°29'21" W 252.61 feet along the south right-of-way line of Keaton Court
(20 feet wide) and the extension thereof; thence N 13°48'03" W 120.82 feet; thence
N 71 °33'03" W 206.11 feet; thence S 18°26'57" W 50.10 feet to the POINT OF
BEGINNING:
thence S 22°31 '32" E 22.50 feet;
thence S 67°28'28" W 100.00 feet;
thence N 22°31'32" W 95.00 feet;
thence N 42°31 '32" W 65.00 feet;
thence N 52°31 '32" W 45.00 feet;
thence N 69°31 '32" W 53.00 feet;
thence N 15°28'28" E 20.08 feet;
thence S 69°31'32" E 57.74 feet;
thence S 52°31'32" E 49.74 feet;
thence S 42°31 '32" E 70.28 feet;
thence S 22°31 '32" E 88.53 feet;
thence N 67°28'28" E 45.00 feet;
thence N 22°31 '32" W 12.50 feet;
thence N 67°28'28" E 35.00 feet to the POINT OF BEGINNING; being part of
Section 33, T1 ON, R17W, City of Muskegon, Muskegon County,
Michigan; except any part taken, deeded or used for public road
purposes; subject to easements and restrictions of record, if any;
Together with a 20 foot wide easement for and public utilities, the boundary of said
easement is described as follows:
Commencing at the Northeast corner of Lot 17 of Block 2 of "Lake Michigan Park
Subdivision No. 1" recorded in Liber 9 of Plats, Page 40, Muskegon County
Records, Section 33, T1 ON, R17W, City of Muskegon, Muskegon County, Michigan,
thence S 67°29'21" W 252.61 feet along the south right-of-way line of Keaton Court
(20 feet wide) and the extension thereof; thence N 13°48'03" W 120.82 feet; thence
N 71 °33'03" W 206.11 feet; thence S 18°26'57" W 50.1 0 feet; thence S 67°28'28" W
30.00 feet; thence N 22°31 '32" W 12.00 feet to the POINT OF BEGINNING:
thence N 51 °01 '32" W 263.98 feet;
thence N 15°58'28" E 21. 73 feet;
thence S 51 °01 '32" E 283.33 feet;
thence S 67°28'28" W 22.76 feet to the POINT OF BEGINNING; being part of
Section 33, T1 ON, R17W, City of Muskegon, Muskegon County,
Michigan; except any part taken, deeded or used for public road
purposes; subject to easements and restrictions of record, if any.
LEGAL DESCRIPTION OF OVERALL PARCEL
(Taken from Survey by Westshore Engineering & Surveying)
Land in the City of Muskegon, Muskegon County, Michigan, described as follows:
Uber 343, Page 243. Commence at the Northeast corner of Block 715 of the
Revised Plat of the City of Muskegon, adopted April 9, 1903; thence West 1554 feet
for the Point of Beginning; thence North 15°11 '30" West 433.10 feet; thence North
72°56'30" West 363 feet; thence South 84°30' West 315 feet more or less to the
East Shore of Lake Michigan; thence Southeasterly along said shore to a point
where a line bearing South 70° West from the Southeast corner of Block 716, of said
Revised Plat, intersects said Shore; thence North 70° East 393 feet, more or less to
the Southeast corner of said Block 716; thence North 199.95 feet to Point of
Beginning. Being a part of Blocks 714, 716 and 731 of said Revised Plat.
Lessee Site: 744 Muskegon State Park
Lessee Site ID: 309967 / 5000049627
Draft Date: 1/3/2024
EXHIBIT 11 B11
PREMISES DESCRIPTION
12
~
•
~
LEGl:NQ_
1
--~· OOST. UTIUTV POU:
--
El.EC. lRANSfOAMER
.! --OH--
---~-__.,
EXIST. OVERHEAD UTILITY LINE
!: ·'>-- 'i'
-----
EXIST. LICHT POL£
EXIST. OLCTRIC LINE
i ;:'-... SCALE: 1. - 30' --,-<>--
EXIST. HYDRANT
EXIST. STORM SEwtR
EXIST. CA TOI BASIN OR lNLET
END S(CTIOH
! 0 :ic 1io
0
'iJ 0
~CN
t ~----=
POST
FENCE
~~ ®
.,_whlll'&llelow.
Calllwtonlyoudtg.
..,.
,!I,
FOUND IRON PIPE
fOONO IRON ROO
CONTROL PT,
LOCATION ,.
"""""' a,
ro~I.Yi~foE ;~: ~~: ~~:;: ~ I~
GROUND ELEV. 0 TOWER BASE ,.. 612.6 ~ ~~ ~~
I •>r~ ..,...,-\
~~\ LEGAL DESCRIPTION OF LEASE PARCEL ~ I~~~
,.i:•
",d•·
I
/,-____s 1n1'07"
i:..----=s 22'31'32" E
w
w DO.to' '' Nt CORNER LOT 17
~LAKE'. MICHIGAH PARK SIJB'o•
{LCHcct) 0 ~~ 1~
12.oo'
L 'iJ or PLA1S, PC. 40, M / it 3§ !;!i
/ a.~:."<.="°....,"'= :~::o;o:~~;~C:~~~1~.r~i;~~g;n~:::~0
Co1m10nclng.tllhcNor1MaGtcomororloll7orB!ock2ol"LllkcM"~ganPark
~ Si;;~ -
--~: ot
,,s• ~o, llGINIINO !ASEWENT ~~~;,t1a,1gan,
/ R)fl:INGftESS~ /
BLOCK 3 LOT
1
~ lhom:o S 67"29"21" W :?52.61 foot along lho south right-0f.w;iy ling ol Kc.iton Court
(20 foot 'Mdo) and Iha e)ltan:slon thaicof, thcnc.c N 13"4tl03"W 12082 fact; thl.tneo
.! LOTJ /
~-----('2-15~
~:;ii(~
N 71"33'03" W 206.11 root; thence S 18"26'57"W 50.10 feel to the POINT OF
BEGINNING:
thence S 67"28'26"' W30.00 loel:;
1honco N 22"31'32" W 12.00 loot; ~ ~
~~'
" "'1. 1,
. < 0
lhcnce N 67"28'28" E 30.00 foci;
DOST. 15' \MOE BIKE PAltt EASEMENT
PER SUR'-0' 8Y WESTSHORE
£NCIN££RINC • SURVEYINC
-o"G~ thcl\Cll S 22"31'32" E 12.00 foci lg lhc POINT OF BEGINNING; being p11rt of
Section 33, T10N, R17W, City of Mu11k,:gon, M111kcgon County, I:!:! Q. :i
vi ~ g
Mlchlg1n, contDlnlng JOO ~llllre leet; togclher with a 3 root wide non•
~·~
LOT 17
i o•dual~o oaaoment for lee brldgO, a 3 fool Wide non,oxclullvo
caaomont arcund the oqulpmont lot tho ground nng and II var1:11blc!
1' LOT HS I- ::,
19
wldthnon-oxclulllvooacomontlcrutthtyconnoctiona:GubJocllo
coacmontlandrclllrlcllonaofrccord,lfany;
z tn 8
~ ~ BLOCK 2 0 :z ;;I::
i Together with a varilblo width caaomont for lngrcu and ogrcn. tho bo\ll'ldary of i=
•::::E gz
lhonc:;o S 67~'ZrW:Z52.61 loot :along tho couth ngh1-0f-w1y Uno of KoatonCourt
(:?Ofcctwldo)ondthoOl!tCn11lonlhorool;thanccNtl•48'03"W120.8:.!fcct;thoncc ~
N 71"33'03"W206.11 foot; thence S 18"26'5rW50.10 foct to tho POINT OF
BEGINNING: :::!: I l:/
0 ,t "'
! thooc:,oS22"31'32" E 22.!0lcKrt,
lhonco S 67"28'28" W 100 00 foot:
thoncoN22"'31'32"W9SOOfoet;
u [ ~
thorw;:e N A2"31'32" W 85.00 fHt: 0
~
·!
LEGAL DESCRIPTION OF OVERALL PARCEL
(fakon from Survey by We:it.horo En11lnee1lng & Survoy!ng)
thoneo N52"31'3TW 45.00toet:
lhQnco N6""31'32"WS3.00foot;
thonoc N 15"28'28" E.20.00loot;
I!! ~
vi "
•
•n Lan4 ln tho City of Mullkogon, Musilogon County, M1ehl111m. deicslbed H follow.:
thengi S 69"'31'3;!" E 57.74 leel;
lheroo S 52"'31'32" E 49.74 lo<:t;
•
'i,
T'
Uber 343, Page 243. Commence at tho NorthoHI comer of Blocit 71$oflho
Rovlaod Plat of tho City of Mu11kogon, adoplod Aptll 8, 1003; thenco WHI 1!5~ r.at
lhonce S42"'31'32" E 70.28 foot;
lhonco S 22"'31'32" E 88.!53 feet;
thunco N 67"28'28" E ,:soo feet
ii; ror Iha Point of BoQ!nnlng; lhance Nonh 15•11'30" Wost 433 10 feet; !hence North lhonec N:22'31'32"W1250fool;
lhonco N 67"28'28. E 35.00 Motto !ho POINT OF BEGINNING: being part of
; ~:~!:.w:,•~3;.3~~;~::~~:.!°C:1~!4~0;~:1~1;~~!•;.!,~.;;:;::~•;:1:
-.;
rt
wh•r• • lln• b.. rlng South 10• Weal from tho SouthHII corner of SIPck 716, of uld
Rovlood Put, lnlou.oaa Nld Shore; lhonc:o North 10• Ea11t 3113 loo!, more or IPu to
Soctlon 33, T10N, R17W, City of Mud(ogon, UoUCQgon CO!llly,
Michigon; c•ccpt any part taken, dcodcd or IJ$0d for publie road
purpoao11; aubjcct to ca110monl1t11nd remictiona ol record, 1f uny; 1
~
~
(.
~
:i;~:::r:: ::i:::~;~~~~h::: ~;;tt'of
0
; 11~
1
::!~:~!o~ :~~.
101
Togolhor wilh 11 20 fool 'MdCI eaaumenl for and public utlhlleo. lhc boundary of sakl
OllMlrncnlladC1M:11bodo11foll.olw::
:f
-
\0,
j-----'
PROPERTY INFORMATION COmmonctn.iatthoNorthontct1rnororLo117ofBlock2ol·ukoMICh!g:mPark
Sobd!vlcJon No. 1" ~corded In Ub!ir9 of Plat•, Page AO, MU11kogon CoWlly
< ~ TAX PARCEi.: #&1-24-20:.-731-0001 -oo Roeordt. Scct!on 33, TION, R17W, City of Mutkogon. Muakcgoo County, M1chlgim.
I) ~ OWNER: CITY OF MUSICEGOM thonco S 67°29'21" W 252.Gt f11ot along tho .at.th 11Qht-of--w•y bno of Keaten Court
j '-!; PO aox :,34 (20footwldo)andlhoo~lonolonlhotvof:lhoncgN13"46'0J"VV120B21eel:lhenco
.,. .C. 1133 TERRACE STRtET N11•J:J'OJ"W206.11toel:lhenecS18"26'5rW!50.10foo1;1hcneoS67'28'28"W
:!: ~ MUSJ([CIJN, MICHIG,t.N 4QU3 30.00loot;thoncoN22"31'3Z-W12.001ootlOU.POINTOFBEGINN!NG: cc&
] 1!;
...
CEU. SITE AOo:::~ STREET
MLJS1