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5.3. ERMUSR 06-14-2016 Elk River Municipal Utilities UTILITIES COMMISSION MEETING TO: FROM: Elk River Municipal Utilities Commission Eric Volk—Water Superintendent John Dietz—Chair Al Nadeau—Vice Chair Daryl Thompson—Trustee MEETING DATE: AGENDA ITEM NUMBER: June 14th, 2016 5.3 SUBJECT: Metropolitan Council Notice of Termination of Contract DISCUSSION: In March of 2009 ERMU entered into an agreement with the Metropolitan Council allowing them to install antennas for the Northstar Commuter Train on the Gary Street Water Tower. Metropolitan Council paid ERMU$9,000 for a lease scheduled to terminate on December 31, 2028. In October 2015 the Metropolitan Council approached ERMU with intention to remove their antennas from the Gary Street Water Tower and terminate the lease agreement. The removal of the equipment was completed satisfactorily on November 11, 2015. On May 16, 2016 a letter was written to ERMU requesting a prorated refund for the unused portion of the $9,000 originally paid to ERMU at the beginning of the agreement. According to legal counsel, the $9,000 was a payment made to ERMU for the term of the agreement regardless of length. As the lease agreement does not address proration or a refund of monies, staff will be sending a response to Metropolitan Council denying their request for a refund. ACTION REQUESTED: Staff requests that the Commission receive the letter terminating the contract with Metropolitan Council. ATTACHMENTS: • Metropolitan Council Termination of Contract Letter—May 16, 2016 • Badger State Inspection, LLC. Inspection Letter—November 20, 2015 • Metropolitan Council Site Lease Agreement ER rEllED D 1Page 1 of 1 A URE Reliable Public' Power Provider P OWER ED T O S ERV E 294 Sent via E-mail & US-mail May 16, 2016 Mr. Troy Adams,General Manager Elk River Municipal Utilities P.O. Box 430 Elk River, MN 55330 13069 Orono Parkway Elk River, MN 55330 RE: Site Lease Agreement—18586 Gary Street—Elk River Metropolitan Council Contract#09M006 Termination of Contract Dear Mr.Adams: Elk River Municipal Utilities and the Metropolitan Council entered into an agreement around November 24, 2008,through which the Metropolitan Council would lease property located at 18586 Gary Street, Elk River, Minnesota,with the purpose of installing, removing, replacing, maintaining, modifying, altering, and operating its communication fixtures and related equipment antennas, cables, accessories, and improvements, collectively referred as"Communications Facility". Per Article 3 of the agreement, the term of the lease would be through December 31, 2018; however, per the attached letter from Badger State Inspection, LLC, all the inspection work is now complete and the use of the premises is no longer needed. Therefore, the Metropolitan Council is submitting its notice of termination of the agreement, effective August 15, 2016. Per invoice#017271 (copy attached),the Metropolitan Council paid Elk River Municipal Utilities the sum or$9,000,which is the equivalent of$1,000 per year, for nine years. Since this contract is being cancelled before the nine-year term, the Metropolitan Council would like to be reimbursed for the remaining unused years of the lease, originally paid in February 2010. Please let me know if any further documentation is needed in order to officially terminate the contract, as well as receive the reimbursement requested above. I can be reached at 651-602-1741, or by e-mail at Micky.Gutzmann@metc.state.mn.us. Sincerely, f ( l ( c t 777{7,7 4 (?//Jl? / / ll Mirky C tzenann, CPP9 Director—Procurement'Department MRG/mIr Attachments CC: Anthony Hebert 390 Robert Street North I Saint Paul, MN 55101-1805 P.651.602.1000 I M.651.291.0904 I metrocouncil.org METROPOLITAN An Equal Opportunity Employer COUNCIL BADGER STATE INSPECTION, LLC Water Tower Specialist/Antenna, Evaluations, Inspection P.O.Box 157 Osseo,WI 54758 715-533-8686 November 20, 2015 Josh Alswager By E-Mail only Systems Engineer II 390 North Robert Street St. Paul, MN 55101 RE: Approval Recommendation for the Northstar Commuter Rail Antenna Equipment Removal and Subsequent Weld and Coating Repair on the Gary Street Water Tower for the Elk River Municipal Utilities. BSI Project: WI 1249 Dear Mr. Alswager: Badger State Inspection(BSI)has completed the final inspection of the welding and coating repairs on the roof handrail for the Northstar commuter rail antenna removal. The welding and coating work was acceptably completed by Tom Slack Painting and we recommend you accept this project as complete. If you have any questions, feel free to contact me at 715-533-8686. Sincerely, Kelly C. Mulhern Owner Badger State Inspection,LLC. 715-533-8686 CC: BSI Office File aVccm\BSI\2015Antenna\WII 1249 Northstar Commuter Rail Antenna Removal Approval Recommendation 11-20-2015.doc 1 296 SITE LEASE AGREEMENT ELK RIVER This Site Lease Agreement("Agreement")is made and entered into on the effective date by and between the Elk River Municipal Utilities,a Minnesota municipal utility("LESSOR")whose address is P.O.Box 430,Elk River, Minnesota 55330 and the Metropolitan Council, a public corporation and political subdivision of the state ("LESSEE")whose address is 390 North Robert Street,St.Paul,MN 55102 for the leasing of certain real property pursuant to the following terms: 1. PROPERTY. The property interests hereby leased(collectively,the"Leased Premises")and granted by LESSOR include the following property: The property is located at 18586 Gary Street,Elk River,Minnesota. The property is comprised of the water tower("Structure")exterior space for attachment of non-guyed antennas,space required for cable runs to connect equipment and antennas,non-exclusive easements required to run utility lines/cables,a non-exclusive easement across LESSOR property, (hereinafter defined) for access in or upon the LESSOR's real property("LESSOR's Property"). LESSOR's Property is legally described in Exhibit A attached hereto,and the locations of the equipment and antennas on the Structure are depicted on Exhibit 13 attached hereto. 2. TERM. The initial term of this Agreement shall commence on the effective date and shall terminate on December 31,2028. 3. OPTION TERM. LESSEE may extend the term of the Agreement for an additional twenty(20)years (the"Option Term"). Rent for the Option Term,if exercised,shall be$1,000 per year. All other terms of this Agreement shall remain in full force and effect upon renewal. LESSEE shall give LESSOR written notice of its intention to exercise the option term at least Ninety(90)days prior to the expiration of the initial term. 4. RENT. The LESSEE shall pay LESSOR Nine Thousand Dollars ($9,000) for the use of the Leased Premises for the Term of this Agreement. Payment of said rent shall be made within thirty(30)days from the effective date of this Agreement. 5. USE. LESSEE may use the Leased Premises for the purpose of installing, removing, replacing, maintaining, modifying, altering and operating its communication fixtures and related equipment antennas,cables,accessories and improvements(collectively the"Communications Facility"). LESSEE intends to use the Communications Facility to support the operation of the Northstar Commuter Rail system and Riverdale Station. LESSEE shall not use the Communications Facility for any other use, unless expressly agreed to in writing. The manner in which the Communications Facility may be attached to the Leased Premises shall be documented on Exhibit B and any subsequent documents as needed,and is subject to the prior approval by LESSOR,such approval not to be unreasonably withheld,conditioned, or delayed. Any proposed modifications or alterations to the LESSOR's structure that may affect its structural integrity shall be included in the documentation provided by the LESSEE and shall include plans and drawings signed by a professional structural engineer licensed in the State of Minnesota. LESSOR shall provide LESSEE with supervised twenty-four(24)hour,seven(7)day a week year round r . access to the Leased Premises. LESSEE shall paythe cost of supervision duringnon-business hours. P LESSEE shall pay all personal property taxes(if any)assessed against its Communication Facility. LESSEE will not allow any mechanics liens to be perfected against the Leased Premises as a result of 1 297 its work on the Property. 6. DUE DILIGENCE. LESSEE,its agents and contractors,are hereby granted the right,at its sole cost and expense,to enter upon LESSOR's Property and conduct such studies as LESSEE deems necessary to determine the Leased Premises'suitability for the Communications Facility. These studies may include surveys,soil tests,environmental evaluations,radio wave propagation measurements,field strength tests and such other analyses and studies as LESSEE deems necessary or desirable. 7. UTILITIES. LESSEE shall have the right to use the existing utilities;however,LESSEE shall reimburse LESSOR for all utility costs that exceed$500.00 per year if it can be demonstrated that the utility cost in excess of$500.00 is directly related to LESSEE's use or consumption of the utility. LESSEE may install or improve the existing utilities servicing the Property and may install an electrical grounding system or improve any existing electrical grounding system to provide the greatest possible protection from lightning damage to its Communications Facility subject to LESSOR's review. 8. REMOVAL OF COMMUNICATIONS FACILITY. All personal property, trade fixtures, and improvements installed by LESSEE shall remain LESSEE's property and shall be removed,at no cost to LESSOR,by LESSEE within sixty(60)days of the termination of this Agreement. LESSEE shall restore and repair any damage caused by the removal of LESSEE's property. Should LESSEE fail to restore or repair LESSOR's property as required by this section,LESSOR shall be entitled to take whatever steps may,in LESSOR's sole discretion,be required to restore LESSOR's property and LESSEE agrees that it shall pay to LESSOR all costs incurred by LESSOR in restoring the property. 9. INSURANCE. LESSEE shall self insure against liability forpersonal injury,death or damage to personal property arising out of LESSEE's use of the Leased Premises. 10. CONDITION OF PROPERTY; LESSOR'S RIGHT TO TERMINATE. LESSOR represents that LESSOR's Property is in"as is"condition. If,in LESSOR's judgment,LESSOR's Property or Structure becomes unusable for its intended purpose of portable water storage due to condition or other factors, LESSOR retains the right to cancel the Agreement with One Hundred Twenty(120)Days prior written notice to the LESSEE,notwithstanding any provisions herein to the contrary. 11. LESSEE'S RIGHT TO TERMINATE AGREEMENT. This Agreement may be terminated by LESSEE at any time and in its sole discretion by giving written notice thereof to the LESSOR,which termination shall not constitute a waiver of LESSEE's rights under the Default paragraph of this Agreement. • 12. LIABILITY. Each party agrees that it will be responsible for its own acts and the results thereof,to the extent authorized by the law,and shall not be responsible for the acts of the other party and the results thereof. The LESSEE's liability is governed by the provisions of Minnesota Statutes,Chapter 466. The Council warrants that it is able to comply with the aforementioned requirements through a self-insurance program and has minimum coverage consistent with the liability limits contained in Minnesota Statutes, Chapter 466. Nothing contained in this agreement is intended to waive any statutory immunities or liability limits that may be available to either LESSEE or LESSOR, nor shall this agreement be interpreted to provide for any stacking of liability limits under Minnesota Law. 13. CASUALTY. If any portion of LESSOR's Property or the Communications Facility is damaged by any casualty and such damage adversely affects LESSEE's use of the Leased Premises,this Agreement shall terminate as of the date of the casualty if LESSEE gives written notice of the same within thirty(30)days after LESSEE receives notice of such casualty. 2 298 14. QUIET ENJOYMENT. LESSEE,upon performance of its obligations hereunder,shall peaceably and quietly have, hold and enjoy the Leased Premises. LESSOR shall not cause or permit any use of LESSOR's property that interferes with or impairs(a)the integrity of the Communications Facility and/or the Structure to which it is attached,or(b)the quality of the communication services being rendered by LESSEE from the Leased Premises. LESSEE shall not cause or permit any use of LESSOR's Property that interferes with or impairs(a)the integrity of the LESSOR's Property and/or the Structure to which it is attached,or(b)the use of the Structure for its intended purpose of portable water and property storage. 15. DEFAULT. Except as expressly limited hereby,LESSOR and LESSEE shall each have such remedies for the default of the other party hereto as may be provided at law or equity following written notice of such default and failure to cure the same within thirty(30)days,provided,however,that neither party will be in non-monetary default under this Agreement if it commences curing any such non-monetary default within such 30-day period and thereafter diligently prosecutes the cure to completion. 16. INTERFERENCE. LESSEE's equipment shall be installed and operated in a manner which does not cause interference with LESSOR's equipment or existing equipment of other lessees. Should any such interference occur, LESSEE shall diligently pursue a cure to remove or satisfactorily attenuate such interference. If such interference to the existing equipment cannot be cured or satisfactorily attenuated, LESSEE agrees to immediately stop using its equipment if so demanded in writing by LESSOR. LESSOR agrees to use all reasonable efforts to afford LESSEE protection from interference which may be caused by the operations of subsequent additional users of LESSOR's Property. 17. MAINTENANCE,IMPROVEMENT EXPENSES. After initial installation,LESSEE shall obtain written approval prior to undertaking any modification of its Communications Facility,which approval shall not be unreasonably withheld.Notwithstanding the foregoing,LESSEE shall be allowed to replace and upgrade any of its existing equipment upon fifteen(15)days prior written notice to LESSOR,as long as any such replacement or upgrade equipment does not exceed in size or number LESSEE's then-existing equipment. All modifications to the Leased Premises and all improvements made for LESSEE's benefit shall be at LESSEE's expense and such improvements, including the Communications Facility and equipment,shall be maintained in a good state of repair. In the event LESSOR's reasonable maintenance or repairs of LESSOR's Property affects areas involving the Leased Premises,LESSEE agrees to protect its equipment from such repairs at LESSEE's sole cost and expense. In the event that maintenance or repair activity can not be reasonably completed without the temporary removal of LESSEE'S Communications Facility, LESSEE shall have 60 days to remove its Communications Facility.LESSOR will cooperate with LESSEE to identify an alternate temporary location reasonably acceptable to LESSEE until the maintenance activity is completed. LESSEE shall not be obligated to remove its Communications Facility until a reasonably acceptable temporary location is identified. LESSEE's antennas shall at all times be painted,at LESSEE's expense,the same color as the Structure. Ground located equipment shall be appropriately screened by a combination of earth berms,screening fences and plantings/trees provided by LESSEE and acceptable to LESSOR. 18. HAZARDOUS SUBSTANCES. LESSOR represents that it has no knowledge of any substance, chemical,or waste on the Property that is identified as hazardous,toxic or dangerous in any applicable federal,state or local law or regulation. LESSOR shall not introduce any such substance on the Property in violation of any applicable law. LESSEE shall not bring to, transport across or dispose of any hazardous substances on the Property without LESSOR's prior written approval,except that LESSEE may keep on the Property substances used in backup power units(such as batteries)commonly used in the wireless communications industry. LESSEE's use of any approved substances constituting hazardous 3 299 substances must comply with all applicable laws,ordinances and regulations governing such use.Nothing herein shall impair LESSOR or LESSEE's right of action against responsible parties under any applicable environmental law. 19. Reserved 20. MISCELLANEOUS. A. LESSEE and LESSOR each acknowledge and represent that it is duly organized,validly existing and in good standing and has all rights,power and authority to enter into this Agreement and bind itself hereto through the party set forth as signatory for the party below. LESSEE agrees to provide a signed and notarized Acknowledgment of Authorized Signature as a part of this Agreement, indicating that the person signing the Agreement is an officer of the corporation or is authorized by the corporation to bind the corporation to this Agreement. B. This Agreement supersedes all prior discussions, negotiations, agreements and understandings of the parties with respect to he subject matter of this Agreement between LESSOR and LESSEE. This Agreement may only be amended in writing signed by all parties. Exhibits referenced herein are incorporated into this Agreement by reference. No provision of this Agreement will be deemed waived by either party unless expressly waived in writing by the waiving party. No waiver shall be implied by delay or any other act or omission of either party. No waiver by either party of any provisions of this Agreement shall be deemed a waiver of such provision with respect to any subsequent matter relating to such provision. C. The LESSEE shall comply with all federal, state, and local laws, ordinances, rules, and regulations otherwise governing the placement operation,or maintenance of its equipment.LESSEE will specifically comply with OSHA vertical ladder clearance requirements, and will install RF safety signage in compliance with 47 CFR 1.1307(b)as appropriate for the Site. D The terms and conditions of this Agreement shall run with the land and shall extend to and bind the heirs, personal representatives,successors and assigns of LESSEE;provided,however,that LESSEE may not assign this Agreement without LESSOR's written consent. E. Notices shall be in writing and given by personal service or sent by United States Mail,postage prepaid, certified or registered with return receipt requested or by courier service to the address set forth above. Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained pursuant to the foregoing. F. This Agreement shall be construed in accordance with the laws of the State of Minnesota. G. If any term of this Agreement is found to be void or invalid,such invalidity shall not affect the remaining terms of this Agreement,which shall continue in full force and effect. H. Either party will, at any time upon fifteen (15) days prior written notice from the other, execute, acknowledge and deliver to the other a recordable Memorandum of Lease. Either party may record this memorandum at any time,at its absolute discretion. I. Any provisions of this Agreement which require performance subsequent to the termination or expiration of this Agreement shall also survive such termination or expiration. 4 300 J. If a dispute as to the meaning of the Agreement terms arises,a party may request mediation or arbitration of the other, if so required by law. The right to mediate or arbitrate shall not,however, apply to a party's default of this Agreement unless required by law. IN WITNESS WHEREOF,the parties have caused this agreement to be executed by their duly authorized officers on the dates set forth below. This agreement is effective upon final execution by both parties. LESSOR: LESSEE: Elk River Municipal Utilities Metropolitan Council By /ht 41 By:� It Co m'•sion o rLF By: Its: General Ma _er Approved as to Form By r?„. (,,(1 Office of the General Counsel 5 301 Exhibit A Legal Description Lot 2,Block 1,Civic Campus Addition 6 302 Exhibit B Communications Equipment Locations 7 303 /s | { | |§■d 61 §iY ( Kli.|. . ,..,4.,(1 ! L \ A . .. . \! 13 g r2 !t 2 Ica £ i \_/ ! 9/ I. ` E\5 § /: a t ~ ` l / \\ im k§ / . . \� . § kJ! ----- __ 0 s 144 \ / & o MILD ~ \i/ /\ ■ §f ` ' gd (` L,� \ire ! /_� . :. l \ _ . . . 2 & o % / L.• ƒ _ ;il q J | 12 . . � & --�) i | 2 a! k | ________,, } ) 2 q | » r / _ I § /) 2|| - ,f J a, 2 —E — § Hq E �, m ma r d | 2233 n | 9.} Dt 3 /8E w �. ; § ® _°2 , Oo2 \U; E C 3' 2�• c 2g| d , ( � CO � 2 � ' 304 , - . --- ( = ;y» z , '\ - k%:< \ a. » r_ <: ® © MT-486001 1 %: /\ . \MI e psi 1 . L // §, <« . . ri-/ . \\y \ y ._•• . it - 4::t 1:%;:iC'''f'! \ , ., CONNECTOR SMA PEM-BSOS 632-10 RIGHT ANGLE 14PL. \ \ n n n 7"....__- 14-1 O 0 0 0 e e 0 e e ., e o 0 O e - a • 286 e e 0 0 O 0 ' O e e e O 0 0 L. 286 305 5.8 GHz Subscriber Antenna MTI part No. MT-486001 Type Planar Array Regulatory Compliance ETSI EN 302 085 V1.1.2(2001-02) } Electrical Frequency Range 5.25-5.85 GHz Gain 28 dBi(min) VSWR 1.5:1 (typ) 1.7:1 (max) 3 dB BW 4.5°(typ) Polarization Linear(Vertical or Horizontal) Cross Polarization -28 dB(max) Sidelobe Level ETSI EN 302 085 V1.1.2(2001-02) TS 1-TS5 Range 1 F/B Ratio -40 dB (max) Lightning Protection DC Grounded Mechanical Dimensions(LxWxD) 600 x 600 x 55 mm r k z Weight 5 kgs(max) Connector N-Type Female* Temperature(operating) -45°C to+70°C Wind Load(Survival) 220 km/hr Radial Ice Load 25 mm Mounting Kit MT-120003 (See Mounting Kit section) J 306