4.13. SR 06-15-2020
Request for Action
To Item Number
Mayor and City Council 4.13
Agenda Section Meeting Date Prepared by
Consent June 15, 2020 Michael Hecker, Parks and Recreation Director
Item Description Reviewed by
Minnesota Municipal Power Agency (MMPA) Cal Portner, City Administrator
Agreement for Wind Turbine at YAC
Reviewed by
Action Requested
Approve, by motion, the Minnesota Municipal Power Agency (MMPA) Wind Energy Easement
Agreement.
Background/Discussion
The MMPA developed a wind energy project involving the installation of one wind turbine at the city’s
Youth Athletic Complex (YAC). It will be located east of the YAC football field.
The details of the agreement were reviewed and recommended by both ERMU and the Parks and
Recreation Commission. Staff has also reviewed the details of the agreement. Before it is released to be
recorded, MMPA will need to have the driveway location as described in Exhibit A staked so Parks
Maintenance personnel can confirm the located described is correct. Once this is confirmed, Exhibit A can
be attached, and the city will release the easement for recording.
Attorney Peter Beck and the MMPA Attorney reviewed the attached agreement.
Financial Impact
In consideration of the rights granted with this agreement, MMPA will make a payment of $20,000 to the
city. The city shall reimburse ERMU in the amount of $7,757.06 for installation.
Attachments
MMPA Wind Energy Easement Agreement
The Elk River Vision
A welcoming community with revolutionary and spirited resourcefulness, exceptional
service, and community engagement that encourages and inspires prosperity
MMPA HOMETOWN WIND PROJECT
WIND ENERGY EASEMENT AGREEMENT
City of Elk River
This Wind Energy Easement Agreement (“Agreement”) is made effective
June__, 2020, by and between Minnesota Municipal Power Agency (“MMPA”),
and the City of Elk River, Minnesota (“City”). The City and MMPA are sometimes
referred to in this Agreement as a “Party” or collectively “the Parties.”
RECITALS:
WHEREAS, MMPA is a municipal power agency, formed pursuant to
Minn. Stat. § 453.01- 453.62, as amended, and
WHEREAS, the City, through Elk River Municipal Utilities (ERMU), is a
member of MMPA; and
WHEREAS, MMPA is developing a wind energy project, known as the
“MMPA Hometown Wind Project,” involving the installation of one wind turbine in
or near the city limits of each of its twelve member cities; and
WHEREAS, MMPA and the City have selected a location at the City’s
Youth Athletic Complex, a property legally described as Outlot A, Parkview
Addition, Sherburne County, Minnesota (the “Property”) for a wind turbine; and
WHEREAS, the City has agreed to grant to MMPA a Wind Turbine
Easement and an Access and Utility Easement over those portions of the
Property legally described on Exhibit A attached hereto, subject to the following
terms and conditions.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereby agree as follows:
1. Grant of Easements. The City hereby grants and conveys to
MMPA the following easements “(the “Easements”) over and under
the easement areas (“Easement Areas”) described on Exhibit A
attached hereto:
1.1. Wind Turbine Easement: MMPA is granted an easement
(the "Wind Turbine Easement") for the purpose of installing
and operating a single wind turbine (the “Turbine”) upon,
over, under and across that portion of the Property legally
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described on attached Exhibit A as “Turbine Easement Area”
(the “Turbine Easement Area”). In connection with the Wind
Turbine Easement, the City hereby grants to MMPA the
exclusive right to use the Property for Wind Energy
Purposes and to derive all profits therefrom. For purposes of
this Agreement, “Wind Energy Purposes” means capturing
and converting wind energy into electrical energy, and
collecting and transmitting the electrical energy so
converted, together with any and all activities related thereto.
Subject to the reserved rights of the City, MMPA shall have
the right to expose the Turbine to the winds flowing across
the Property. For the purposes of compliance with Minn.
Stat. Section 500.30, the area upon which MMPA may use
the Property for Wind Energy Purposes is the entire area of
the Property vertically above the surface thereof (assuming it
to be a horizontal plane) 90 degrees and horizontally 360
degrees, excluding those areas occupied by those
improvements, structures, trees and other obstructions that
are currently located on the Property or that the City is
permitted to construct, plant or maintain on the Property
pursuant to this Agreement.
1.2. Construction, Maintenance, and Repair: MMPA shall have
the exclusive right to construct, operate, maintain and repair
the Turbine throughout the term of this Agreement and any
extensions thereto. The Turbine will consist of a tubular
galvanized steel tower approximately 120 feet high, including
related foundations, electrical distribution and
interconnection facilities, and related facilities (the “Wind
Energy Facilities”).
1.3. Access and Utility Easement: MMPA is granted a non-
exclusive easement (the “Access and Utility Easement”) for
utilities and for ingress and egress over and across that
portion of the Property legally described on attached
Exhibit A as “Access and Utility Easement” (the "Access and
Utility Easement Area") including the right to move
construction equipment, including cranes and other vehicles,
across the Access and Utility Easement Area as reasonably
necessary to construct, maintain, monitor, repair, and/or
remove the Wind Energy Facilities. The Access and Utility
Easement Area shall be improved by MMPA with a driveway
approved by the City and suitable for these construction,
maintenance and removal activities.
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1.4. Fencing: Unless subsequently approved in writing by the
City, no fence shall be installed around or within the Turbine
Easement Area or the Access and Utility Easement Area.
1.5. Benefits and Term: The Easements granted by the City to
MMPA in this Agreement shall remain in effect for the entire
term of this Agreement and any extensions thereto and shall
run with the land.
1.6. Right to Record: The City and MMPA agree that MMPA has
the ongoing and continuous right to record this Agreement or
a Memorandum of Easement evidencing this Agreement, at
MMPA’s sole discretion, in the public records of Sherburne
County, Minnesota. The City agrees to execute such
documents as may be necessary to accomplish such
recordation.
2. Use of Easement Areas by the City. The Easement Areas are
located within the City’s Youth Athletic Complex (“YAC”) and the
City retains the right to use the Easement Areas for activities
related to the YAC, in accordance with and subject to the following
terms:
2.1. No Interference with Wind Energy Facilities. Such usage
shall not in any way interfere with the Wind Energy Facilities,
or the maintenance, monitoring, operation, or repair of such
facilities.
2.2. No Items Near Turbine. No structures, fences, landscaping
items (other than grass or turf), trees, or other items shall be
built, installed, or planted within the Easement Areas without
the prior written consent of MMPA, which may be granted or
withheld in MMPA’s sole discretion.
2.3. Structure and Tree Limitation. During the term of the
Easements, the City shall not:
(a) Construct, or allow the construction of, any structure
taller than 20 feet within one hundred fifty (150) feet of
the base of the Turbine.
(b) Plant any tree that will have a mature height of 30 feet
or more within one fifty hundred (150) feet of the base
of the Turbine.
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(c) The parties acknowledge that there are 6 existing
trees just outside the eastern edge of the Easement
Areas that are expected to reach or exceed 50 to 70
feet at maturity, and agree that these existing trees
will not have to be removed or relocated by City.
MMPA shall have the right to relocate these trees to a
location approved by City, on condition that MMPA
replace these 6 trees with 8 or 9 Birch or Linden trees
in the location of the existing 6 trees.
2.4. Soil Conditions and Maintenance. The City shall maintain all
grass or other landscaping on the Property, including within
the Easement Areas. MMPA shall have no responsibility
regarding such matters as soil condition, weed control, or
grass maintenance, but shall be responsible for installing
and maintaining an appropriate driveway, as approved by
the City, within the Access and Utility Easement Area.
3. Term. The Term of this Agreement shall commence on the
effective date and continue thereafter for a 30-year period, ending
th
on the thirtieth (30) anniversary of the Effective Date. The
Agreement may be extended by MMPA, at its option, beyond said
Term for up to five additional five year periods. This right to extend
may be exercised by delivery of a written request for such
extension at least ninety days prior to the expiration of this
Agreement or any then existing extension thereof.
4. Payment. In consideration for the rights granted hereunder, MMPA
will make a payment of $20,000 (“Payment”) to the City within 90
days of the Effective Date. The City shall reimburse ERMU in the
amount of $7,757.06 for ERMU costs related to installation and
connection of the wind turbine and the wind turbine distribution
transformers to the ERMU distribution system. The balance
Payment shall go to the City as consideration for the rights granted
in this Agreement.
4.1. Making, Monitoring, and Maintaining Connection. The City,
through ERMU, hereby agrees to accept all responsibility for
making, monitoring, and maintaining the connection between
the wind turbine transformer and the local electrical
distribution system.
4.2. No Other Payments. No other payments or rent will be paid
by MMPA to the City or any other party during the term of
this Agreement.
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5. Ownership of Wind Energy Facilities.
5.1. Ownership Rights of MMPA. MMPA shall have all
ownership rights in the Turbine and all other Wind Energy
Facilities, and shall own and control all electrical power
generated by the Wind Energy Facilities; and be entitled to
all associated products and attributes related to such electric
power including all Renewable Energy Credits.
5.2. No Ownership of Wind Energy Facilities by the City. The
City shall have no ownership or other interest in any Wind
Energy Facilities installed in the Easement Areas and MMPA
may remove any or all Wind Energy Facilities at any time.
MMPA shall provide the City with 60 days written notice
before decommissioning and removing the Wind Energy
Facilities.
5.3. Removal of Wind Energy Facilities. In the event that MMPA
removes the Wind Energy Facilities during the term of this
Agreement, or upon the termination of this Agreement,
MMPA shall, at its own expense, remove all aspects of the
Wind Energy Facilities, including the foundation, and provide
such grading as may be appropriate to return the land to its
approximate condition prior to the installation of the Wind
Energy Facilities.
6. MMPA’s Representations, Warranties, and Covenants. MMPA
hereby represents, warrants, and covenants to the City that:
6.1. Indemnification. MMPA shall indemnify, keep, hold and
defend the City, its officials, employees and agents free and
harmless from any and all liability loss, cost, damage, liability
or expense, including reasonable attorneys’ fees, suffered or
incurred by the City, its officers, employees, or agents,
arising out of MMPA’s acts or omissions or those of its
employees, agents or contractors related to MMPA’s use of
the Property or its operations and activities. The City shall
not be indemnified for losses or claims occasioned through
the City’s own negligence.
6.2. Insurance. In addition, MMPA shall maintain liability
insurance, insuring MMPA and the City if loss caused by
MMPA’s use of the Easements under this Agreement (the
“Policy”). The Policy shall provide for a coverage limit of the
greater of two million dollars ($2,000,000.00) or the City’s
statutory limits under Minn. Stat. ch. 466. Under such a
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Policy, the City will be named as an additional insured by
endorsement with respect to operations or activities of
MMPA but only to the extent that the City is held liable for
damage and injury for which MMPA is liable under this
Agreement. No coverage is provided for liability arising out
of the City’s or its tenants, invitees, or permittees’ own
negligence or misconduct. MMPA shall require each of its
contractors, consultants or agents performing work on behalf
of the MMPA to procure and maintain insurance coverage
pursuant to all requirements of Section 6.2.
6.3. Certificate of Insurance. MMPA agrees to supply the City
with a certificate of insurance that shows insurance coverage
provided under the Policy, as the City may reasonably
request. The City and MMPA each agree that nothing in this
section regarding indemnity or insurance shall be a waiver of
any immunity which either the City or MMPA may have
under Minnesota statutes, except to the extent that valid and
collectible insurance exceeds applicable limits and covers
the claim, as set forth in Minnesota Statute Section 466.06.
6.4. Requirements of Governmental Agencies. MMPA, at its
expense, shall comply in all material respects with valid and
applicable laws, ordinances, statutes, orders and regulations
of any governmental agency in connection with the
installation and operation of the Wind Energy Facilities.
MMPA shall have the right and sole discretion to contest by
appropriate legal proceedings, brought in the name of
MMPA or in the name of both MMPA and the City where
appropriate and required, the validity or applicability to the
Property or Wind Energy Facilities of any law, ordinance,
statute, order, regulation, property assessment or the like,
now or hereafter made or issued by any federal, state,
county, local, or other governmental unit or entity. The City
shall cooperate in every reasonable way in such contest, at
no out-of-pocket expenses to the City. Any contest or
proceeding, including any maintained in the name of the
City, shall be controlled and directed by MMPA.
6.5. Upon completion of any work requiring the opening of the
Property or any damage to the Property, MMPA shall, in all
cases, restore the Property to the same or similar condition
as it was prior to said operation, with the exception of
replacing any trees removed within the Easement Areas.
The work shall be completed as promptly as weather
permits, and if MMPA shall not promptly perform and
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complete the work, remove all dirt, rubbish, equipment and
material, and put the Property in the required condition, the
City shall have, after demand to MMPA to cure and the
passage of a reasonable period of time following the
demand, but not to exceed five (5) days, the right to make
the restoration at the expense of MMPA. MMPA shall
reimburse the City’s cost of restoration within 30 days of
receipt of an invoice for the work. This remedy shall be in
addition to any other remedy available to the City.
7. City’s Representations, Warranties, and Covenants. The City
hereby represents, warrants and covenants as follows:
7.1. The City’s Authority. The City is the sole owner of the
Property and holds fee simple title to the surface estate of
the Property. There are no liens, encumbrances,
mortgages, or leases affecting the Property as of the date
hereof, or, alternatively, the City shall obtain within 30 days
of the effective date hereof subordination agreements from
any existing holder of any lien, encumbrance, mortgage, or
lease affecting the Property. The City has the unrestricted
right and authority and has taken all necessary action to
authorize the City to execute this Agreement and to grant to
MMPA the rights granted hereunder. Each person signing
this Agreement on behalf of the City is authorized to do so.
When signed by the City, this Agreement constitutes a valid
and binding agreement enforceable against the City and the
Property in accordance with its terms.
7.2. Restrictive Covenant – No Interference. MMPA shall have
the quiet use and enjoyment of the Easements in
accordance with the terms of this Agreement. The City
warrants and represents that there are no pending or, to the
City’s knowledge, threatened condemnation or similar
proceedings, lawsuits or other claims which may affect the
Easement Areas.
7.3. Liens and Tenants. Except as disclosed to MMPA in writing,
there are no liens, encumbrances, leases, mortgages, deeds
of trust, mineral or oil and gas rights, options, rights of
refusal, preferential rights to purchase or lease or other
exceptions to the City’s fee title ownership of the Property
which are not recorded in the public records of the County in
which the Property is located.
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7.4. Requirements of Governmental Agencies; Cooperation. The
City shall assist and fully cooperate with MMPA, at no out-of-
pocket expense to the City, in complying with or obtaining
any land use permits and approvals, building permits,
environmental impact reviews, or any other permits or
approvals required for the construction, installation,
relocation, replacement, maintenance, operation or removal
of Wind Energy Facilities on the Easement Areas, including
execution of applications for such permits or approvals if
required. In connection with any applications for such
approvals, the City agrees at MMPA’s request to support
such application (at no out-of-pocket expense to the City) at
any administrative, judicial or legislative level. In the event
that any laws, rules, regulations or ordinances of any
governmental agency provide for setbacks or otherwise
restrict the location of any Wind Energy Facilities to be
installed on the Turbine Easement Area, the City shall
cooperate with MMPA in obtaining waivers of such setbacks
and shall execute any documents reasonably requested by
MMPA to evidence such waiver of such setbacks. The City
provides no guarantees of the approval of any applications
or waivers presented to the City of Elk River.
7.5. Indemnity. Subject to the tort liability limits provided under
Minn. Stat. chapter 466, the City will indemnify MMPA
against liability for physical damage to property and for
physical injuries to any person, to the extent caused by the
operations or activities of the City or the City’s invitees,
employees, tenants, agents or contractors.
7.6. Lateral Support. MMPA shall have and exercise the right of
subjacent and lateral support for Wind Energy Facilities on
the Turbine Easement Area to whatever extent is necessary
for the safe construction, operation and maintenance of
Wind Energy Facilities. The City expressly covenants that
the City shall not excavate so near the sides of or
underneath the Wind Energy Facilities as to undermine or
otherwise adversely affect their stability.
8. Termination.
8.1. MMPA Right to Terminate. MMPA shall have the right to
terminate this Agreement, as to all or any part of the
Property at any time and/or for any reason, effective upon
notice to the City from MMPA.
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8.2. No Terminations by the City. The City shall not have the
right to terminate this Agreement without the consent of
MMPA.
8.3. Termination of Easement Upon Abandonment or Removal of
Wind Energy Facilities. This Agreement shall terminate if
MMPA ceases to use the Wind Energy Facilities to generate
electricity for a period of twelve (12) consecutive months, or
if the Wind Energy Facilities are abandoned or relocated
from the Property for a period of twelve (12) consecutive
months.
8.4. Removal of Wind Energy Facilities. In the event this
Agreement is terminated pursuant to Section 8, MMPA shall
remove the Wind Energy Facilities, including the wind
turbine and all related items, including foundations from the
Property, in accordance with Sections 5.3 and 6.5 of this
Agreement.
9. Arbitration. All disputes which in any manner arise out of or relate
to this Agreement or the subject matter hereof, shall be resolved in
the first instance amicably by meetings among members of
designated representatives of the City and MMPA. If such
meetings are unsuccessful, then such dispute shall be resolved
exclusively by arbitration pursuant to the rules and procedures of
the American Arbitration Association (the “AAA”) conducted in
Minnesota pursuant to the laws of the state of Minnesota.
10. Notices. All notices, requests, demands, waivers, approvals,
consents, and other communications required or permitted by this
Agreement shall be given in writing by personal delivery (confirmed
by courier delivery service), or facsimile, receipt confirmed, or first
class U.S. mail, postage prepaid, return receipt requested, certified,
addressed as follows:
If to the City: If to MMPA:
City Administrator Minnesota Municipal
City of Elk River Power Agency
13065 Orono Parkway c/o Avant Energy Services, Inc.
Elk River, MN 55330 220 South Sixth St., Ste.1 300
Minneapolis, MN 55402
11. City’s Representation, Warranties, and Covenants. The City
hereby represents, warrants and covenants that the City has the
unrestricted right and authority and has taken all necessary action
to authorize the City to execute this Agreement and to grant to
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MMPA the rights granted hereunder. Each person signing this
Agreement on behalf of City is authorized to do so. When signed
by the City, this Agreement constitutes a valid and binding
agreement enforceable against the City in accordance with its
terms.
12. Miscellaneous.
12.1. This Agreement supersedes all prior discussions and
negotiations and contains all agreements and
understandings between the City and MMPA.
12.2. This Agreement may be signed in counterparts by the
parties hereto.
12.3. MMPA may assign this Agreement at any time without the
City’s consent provided that the same shall not release
MMPA from any of the obligations arising under this
Agreement.
12.4. If any term of this Agreement is found to be void or invalid,
such invalidity shall not affect the remaining terms of the
Agreement, which shall continue in full force and effect.
12.5. Headings set forth herein are for convenience, only and are
not to be construed against the content of any paragraphs
herein.
12.6. This Agreement shall be construed in accordance with the
laws of Minnesota, excluding conflict of laws provisions.
12.7. This Agreement may not be modified or changed except by
the written agreement of both Parties.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the day and year first written above.
“
City of Elk River Minnesota Municipal Power Agency
By: By:_______________________________
John J. Dietz, Mayor
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Name:
And:
Tina Allard, City Clerk Title:
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ACKNOWLEDGMENT
STATE OF ____________ )
) ss.
COUNTY OF __________ )
This instrument was acknowledged before me on this ____ day of
______________, 2020, by John J. Dietz Mayor, and Tina Allard, City Clerk, of
the City of Elk River on behalf of said City.
________________________________
Notary Public
Name:
My Commission Expires:
ACKNOWLEDGMENT
STATE OF ____________ )
) ss.
COUNTY OF __________ )
This instrument was acknowledged before me on this ____ day of
______________, 2020, by ________________ ____________________, as the
_________________ of Minnesota Municipal Power Agency, a political subdivision
of the State of Minnesota, on behalf of said Agency.
________________________________
Notary Public
Name:
My Commission Expires:
This Instrument Was Drafted By:
Laurance R. Waldoch, LLC
2597 Parkview Drive
St. Paul, MN 55110
Phone: (612) 371-3211
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EXHIBIT A:
Legal Description and Depiction of Easement Areas
Turbine Easement Area:
Access and Utility Easement Area:
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