ERMUSR HANDOUT #3 03-10-2009-~lC~r~:~C.4k~t ,~1C~1
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:
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 properly, (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
B attached hereto.
2. TERM. The initial term of this Agreement shall commence on the effective date and shall terminate on
December 31.2028.
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.OOOZfor 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.
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
access to the Leased Premises. LESSEE shall pay the cost of supervision during non-business hours.
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
its work on the Property.
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. ESSEE 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 directlyrelated 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 ~~a °°~~~~°~~
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 ofthe termination ofthis 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.
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.
1 l . 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 ofthis 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 insurance of
self-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.
l3. CASUALTY. If any portion of LESSOR'S Properly 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. ~L1IE.T E?~i.lOYMENT. LESSEE, upon performance of its obligations hereunder, shall peaceably and
quietly have, hold and enjo}~ the Leased Premises LESSOR- shall not. cause or permit any use of
LESSO[Z`s property that interferes with or impairs (a) the integrity ofthe Communications facility and/or
the Structure to which it is attached, ar (b) the quality of the communication services being rendered by
LESSEE from the Leased Premises. LESSEE shall not cause or permit any use of LF.SSOR'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.
l7. MAINTENANCE, IMPROVEMENT EXPENSES. After initial installation, LESSEE shall obtain
written approval prior to undertaking any modification of its eCommunications €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 (I S) 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
rnaintertance activity is completed: =LESSEE shall not be obligated to remove its Communicatians
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 toLESSOR.
18. I-IAZARDOUS 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 and diesel generators)
commonly used in the wireless communications industry. LESSEE'S use of any approved substances
constituting hazardous 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 taw.
19. ADDITIONAL COSTS. LESSEE shall reimburse LESSOR for specific and identifiable maintenance
costs if the maintenance cost exceeds $SOO~er year and if the required maintenance relates solely to
LESSEE'S use of the Property. LESSEE shall also reimburse LESSOR for reasonable engineering
costs if the en ing Bering costs exceed $500 per year and if the en ing eerin~ is directly related to the
LESSEE'S Communications Facility and the structural integrity of the water tower.
20. MISCELLANEOUS.
A. LESSEE and LE5SOR 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 sagnage 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 bindlthe 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 i:~maining
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.
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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.
IN WITNESS WHEREOF, the parties have caused this agreement to be executed by their duly
authorized offtcers on the dates set forth below. This agreement is effective upon ftnal execution by both
parties.
LESSOR:
Elk River Municipal Utilities
By:
LESSEE:
Metropolitan Council
Its: Commission Chair
By:
Its:
By:
Its: General Manager
Approved as to Form
By
City Attorney
Approved as to Form
By
Office of the General Counsel
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Exhibit A
Legal Description
Lot 2, Block 1, Civic Campus Addition
Exhibit B
Communications Equipment Locations