5.3. ERMU SR 02-24-2009Elk River
Municipal Utilities
13069 Orono Parkway • P.O. Box 430
Elk River, MN 55330-0430
February 24, 2009
To: Elk River Municipal Utilities Commission
Jerry Takle
Jerry Gumphrey
John Dietz
From: Vance Zehringer
Subject: Met Council Contract
Phone: 763.441.2020
Fax: 763.441.8099
The subject Contract is attached. It is for the express purpose of adding communication
equipment in, and an antenna on the Gary Street Water Tower. This equipment will be
used by North Star Commuter Rail for communication and is similar to equipment in
Anoka, Coon Rapids and Fridley. The attached contract has been altered by Met Council
from the original we provided them. Those changes are outlined in red.
It should be noted that these changes increase our exposure by removing some of the hold
harmless language. It eliminates reference to hazardous materials, and it also provides
them with free electricity for contract duration (20 years). The lease amount, $9,000 over
20 years, or $37.50 per month, is considerably less than other companies pay for similar
space on water towers. Example, Verizon pays the City of Ramsey $2000 per month plus
electricity for using their tower for communication purposes. Our attorney, Ron Black,
recommends that we not sign the contract as is.
However, Jim Toulouse, North Star Commuter Rail, indicated the Fridley contract has
been signed, the Anoka contract has been approved by staff awaiting Council approval,
and the Coon Rapids contract is still under consideration. Further discussions with Mr.
Toulouse revealed that the wording in those contracts was identical to the one attached.
There are probably political ramifications to not signing the attached contract as is, but it
would net be a sound business decision. There is some time left to negotiate better terms,
but that may be construed as an unwillingness to work with them. They are eager to
begin work as soon as possible because their contractor's work load is at a minimum.
My recommendation is to negotiate further until our attorney is satisfied that we are
covered in those areas he cites as inadequate. While electrical consumption is relatively
low at an estimated 1350 kWh/yr, I think Met Council should be charged for the
electricity their equipment uses. Free electricity does not foster innovation or promote
conservation! An estimate of that consumption is attached.
SITE LEASE AGREEMENT
CITY OF
This Site Lease Agreement ("Agreement") is made as of this day of 2009, by and between the City of
_ , a Minnesota municipal corporation ("LESSOR") whose address is ,Minnesota
554 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 properly:
The property is located at .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, anon-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 in Exhibit B attached hereto.
2. TERM. The initial term of this Agreement shall commence on January 1, 2009, and shall terminate on December
31, 2028.
3. OPTION TERM. LESSEE may extend the term of the Agreement for an additional twenty (20)~ear option period.
Rent for the option term, if exercised, shall be $1,000 per month. 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 in writing. The manner in which the
Communications .Facility may be attached to the Leased Premises shall be documented in Exhibits A and 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 access to the Leased Premises.
Deleted references to: Lessee paying cost of supervision during non-business hours, Lessee will pay for
personal property taxes if assessed on their equipment, and Lessee will not allow any mechanics or
materialmens liens to be placed on the leased Premises as a result of their operation.
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. Utilities shall not be separately metered and LESSEE shall have the right to use the existing utilities.
LESSEE may install or improve existing utilities servicing the Properly 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.
Deleted reference to the Lessee paying for metering and electricity used.
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 for personal injury, death or damage to personal property
arising out of LESSEE'S use of the Leased Premises.
Deleted reference to naming ERMU as an additional insured and reduced liability from one
million to five hundred thousand per person, 1.5 million per occurrence per MN Statute Chapter
466 which provides municipality tort liability caps.
10. CONDITION OF PROPERTY. 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 Three Hundred
Sixty (360) Days prior written notice to the LESSEE, notwithstanding any provisions herein to the contrary.
TERMINATION. This Agreement may be terminated by LESSEE at any time in its sole discretion by giving
written notice thereof to 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 an insurance ofself-insurance program and have
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.
Removed an Indemnity clause and substituted a much less restrictive liability clause.
Removed entire Hazardous Substances paragraph. This paragraph protects Lessee from losses
incurred by Lessor associated with chemical or toxic substances and also protects the Lessor from
losses and liability incurred by the Lessee associated with chemical or toxic substances generated.
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.
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
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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 effort 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.
Removed reference to matching paint, screening equipment with fencing or plantings, and removal of
equipment for maintenance purposes.
18. 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.
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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.
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 cf
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.
I1V WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.
LESSOR:
City of
LESSEE:
Metropolitan Council
By: By:
Mayor Its:
By: By:
City Manager Its:
Approved as to Form
By
City Attorney
Exhibit A
Legal Description
Exhibit B
Communications Equipment Locations
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