ITEM 6.3 Water tower #1TY 0MINNESOTA g
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DEPARTMENT INFORMATION
Request for
City Council Action
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ORGINATi G DEPARTMENT;
Legal
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REQUE TOR
City Attorney MacArthur
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MEETING DATE:
October 28,, 2013, 2012
PI E E TE s :
City Attorney MacArthur
REVIEWED BY:
CityAdministrator Johns n
ITEM #:
6.3
AGENDA ITEM DETAILS
RECOMMENDATION:
Council approve notice to Nextera regarding deficlencies in current improvements to Water tower ##1
and request increase in lease payments in accordance with other leases.
ARE YOU SEEKING APPROVAL OF A CONTRACT? [S A PU L IC H EARING REQUIP ED?
No No
ff-043151ce ON, 0i
The City entered into antenna lease with StoneBridge in 2000 for placement of antennas on Water
tower #1. StoneBridge was one of the first companies providing wireless internet access within the City.
The original lease was to ruin for two years and then be extended. There is no record of either the City or
torn Bridge extending the lease in 2002, rather the parties continued with the lease In its original fora
until 2007 when the lease was transferred to Nextera. . toneBridge made all payments when it held the
lease, although there were problems with late payments towards the end of their tern. Nextera has
timely made all lease payments since It acquired the lease.
Recently, the City Engineer reported to the Council regarding items that needed to be corrected within
and on the water tower facility, including problems with i extera's use of the water tower interior and
problems with wiring and equipment. # exte ra has been paring for water tower use at the rate of the
original agreement without change since 2000.
The current lease can be canceled by either party for any reason with six months' notice. The lease also
allows for a sixty day period for the Company to cure any defects prior to cancellation of the lease for
cause.
The City Engineer identified the following items that need correction:
1. The cabinet now located within the water tower needs to be moved to another location. The
current cubic feet used by Nextera. within the grater tower is not in compliance with the lease.
2. The agreement needs to be changed to incorporate current City procedures regarding water
tower access including background checks and reimbursement to the Cityfor cost of City
employee presence during Nextera work on the tower or antennas. The original lease pre -dates
9/11,
3. The lease requires Nextera to :male payment for any electrical costs that it incurs above normal
City ele trical use.
Additionally, the following charges should be required by the City;
1. Increase in monthly antenna costs In accordance with other users. Later antenna users paid
yearly increase in rent.
. Additional payment for lease of any space outside of the grater tower.
. The Agreement should be renegotiated for a specific terra of years. -
City staff is requesting direction from the City Council to initiate steps to achieve compliance plianc Frith terms
f existing lease (which includes sixty day notice of termination if defaults not cured), and to pursue
modification f lease to conform to this memo.
SUPPORTING DOCUMENTS: ATTACHED NONE
Portions of existing lease
Engineer's recommendations
MOTION: (Please word motion as you would like it to appear in the minutes.
Motion to direct City staff to initiate procedures to correct non-compliance with current lease ('including
sixty day notice of termination if defaults not corrected), and to initiate modification of lease to address
issues raised by City staff in this memo.
BUDGET INFORMATION
FUNDING: I BUDGETED: o YES
!A
ACTION TAKEN
ci NO
APPROVED AS REQUESTED DENIED ❑ TABLED ❑ OTHER (List changes)
COMMENTS:
0,
3. CONSTRUCTION
STONEBRIDGE shall be, responsi
design, Purchase, delivery, ble far any and all costs and expenses related to the
construetiion and inst�lation of any and all Equipment
necessary dor STprJE$RJDGE�s use of the CI'�' Site and Tower including iWallation
of telephone service and adaptation ofthe Towet's existing electrical service for
STONEBRLDGE's use undEx the Perms of this agreemen.t. STONEBJ?JDG_E>s
installation shall be constructed i� confarmanee with design specifications approved by
the CITY pursuant to Exhibit B attached hereto., CITY shall cooperate with
STONEBRIDGE and execute all documellts required to permit STONIEBRTJDGE,s
intended use of the Site In compliance with zoning, hand use, and buildingregulations.
4- RENTA.L FLEES
A. The site use fee thorough the t0nn of the Agreement shall be $5a per month.
each antenna attached to the Tower during the first year of the Agreement and
shall be $10 0_per: rnvn�h pEr.eac� tenna attached to the Tower during the
second year of the Agreement. _ . _=
B. 5TONE13RIDGE will initially install 4 antennas and shall have the rig}tt to install
a maximum of 13 antennas to the Tower. STONE13RIDGE prior to the
installation of additional antennas shall, in accordance with Paragraph $(A) of
this Agreement, provide the CITY with a detailed technical plan of tile new
site{s}, which must be approved by the CITY pursuant to Paragraph 8A. such
approval shall not be unreasonably wifteld or delayed. Said technical pian shall
be aitached hereto and incorporated herein as an addition to Exhibit B,
C. i
STONEBRIDGE shall have the right to store equipment necessary to the
Operation of the antennas �n the Tower's equipment shelter.��uc storage
riot exceed Id cubic. feed, �. 1
........
D. The CITE' shall allow STONEBRIi)GE to connect to its existing electrical
service. The CITY shall be responsible for the, payment of all electrical utility
bills except that STOMBPJDGE shall be reimburse the CTrX for flie difference i
-� between the CITY's normal water fewer electrical dill and any increases caused
y '
b�T4I�BRIDGE's use of fihe CIT'Yss electrical service as detemiffied by the
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CITY.
E, The CITY and 5TpIVEBRIDGE may also negotiate charges for other services
and installations, nod set forth in Exhibit B, by an addendum to this Agreement,
F. ,As provided in parngraph E above, the CITY and STONIBBRrDOE may, agree to
and sed forth
the installation of additional equipmenE at separate rates, which when agreed to
i� writing bY the parties shall become an additional payment wnount
made by STONF,13RIDGE to the CITY.
G. Site Use Fees due to CITY shad be paid by STON-EBRTDCjE in advance in four
�
quarterly installments beginning upon execution ofis Agreement by both
parties hereto and thereafter on ffie First (P) business day of each calendar
quarter, i.e., Jars. 1; April I ; July I; and Oct. I - The amount Of the first quarterly
payment shalt be prorated for the number of calendar days remaining in the
calendar quarter at the time of execution of this,A,greement by both parties hereto.
Payments will be paid by check or may be wired directly in the CITY'S b:aok
account in accordance with written wiring instructions provided by CITY to
STON'E]3RMGE. payments
CITY as follows: made by check to the CITY shall be mailed to the
City of Otsego
Attention.: City Administrator
8899 Nashua Avenue N -E
ilk River, MN 55330
5. GOVERNMENTAL APPROVAL CONTINGENCy
STON-EBRLDGE's right to the use of the Site is expressly made contingent upon
STONEBRIDGE,obtaining all necessary certifcates, pe�zn.i
that may be rts, zoning or other appra�ralsrequired by the City, County, Slate, or Federal. governments for use of the
STONE13RLDGE equipment, antennas, utiiifies, etc. CITY agrees to cooperate with
STONEBRIDaH and other governmental. units to obtain all such approvals. In the event
that any certificate, permit, license or other approval required or issued is not approved
oris subsequently cancelled, expires, laps�,s or is otherwise withdrawn or terminated by
any governmental authority, not due to any act or amiss -[on 6y STONEBRIDGE so that
STONEBRIDGE is unable to use the Site for its intended purpose, then
STONEBRIDGB shall contact the City and request termination of this agreeMent, which
may be terminated at the sole disuction of the CITY,
6. USE
A. STONEBRIDGE n ay use the Tower and Site for the sole purpose of
constructing, installing, removing, r�p�acing, maintaining and operating a. ,
corr�mercial wireless
Exhibit B. �ncpmunications transmission facility in accordance with
B. Subject to the provisions of Exhibit C (3iteAccess Proc edures) attached hereto,
CITY shall provide„STONEBRxDGE' "withtwPAyfour,24 hour seven (7}dAy\Tek
Year mond access to the Site_subject to the City's right to limit access to:.
the Tower in cases of emergency or at times when the City is conducting repairs
or maintenance on the Water Tower, The City shaH use xeasonable efforts to
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plans and specifications shall be incorporated herein as Exhibit B.
�. STOhTEBRIDGE shalt not :. make any Material Modifications or changes to.jjs
e �� merit be '-1 so
� . ro ed �n Exhib�� B, on the Site or Tower without
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the prior w�f�en approval ofthe CO,such �Fpro.-val.,nor.to b'e'unre.. asonably
withheld or
ay Material Modifleatiptis..sh�ll._be.defined as an inc-r-ew
the outdoor equipment fo"""'otprint or adding arxy_ attachments to t"" he Tower, or an
increase in the number o£ antennas, ax an increase in""
the antenna wind loading
or an sncrease its total effective radia��d.power, or,cl�anges to operating
frequencies. .
C. All attachments to the Tower shall be made in a professional manner and
subject to approyai Of the City, such approval not to be unreasonably withhold.
No modifications may be made on the Tower, nor shall any Tower bolts be
removed or replaced without the approval of the pity.
D• .All mems of S TON FBRID GE equipment as listed on Exhibit 13 shall be
Provided and paid Bor by STON�BRiBGE. STONEBRIDGE shall be solely
responsible For the installation, maintenance and repair ofSTONEBRIDGE
equipment duping the term of this Agreement and any extensions.
E. STON-EBRID(iE shall maintain the antennae and equipment in. goon condition
at all times, at its sole cost and expense. STONEBRIDGE shad conduct all
repair, replacement and maintenance operations in accordance with applicable
OSHA regulations or such other occupational and safety regulations pertaining
to such operations. every five (S) years ft0m.-the cammelxcemet�t date of this
Agreement
,.> . TO�IEBR... ..
�GE shall have the antennae, related equipment grid
Towei� inspected by a Registered Civil tngineer anti
provi eo c� with a
ropy oftheinspecElon_repart. If STONEi1s to �v so, and such
failure- creates a risk of damage or injury to persons or Prqperty (as determIned
an the reasonable discretion of. the City), the City may take such steps as it
determines to be necessary to pz-aYect persons or property; including removal of
the antennas and related equ�prr�eni.� S'�ONEB j,, y
for anvSL
� CON1�C�a0i] -AJAfl-% n I. cim
p 'sie �iis)ara&TphL.I�ncludin an 'eer's or expert
an�sirat�ve expenses and cosh of restoring the Tower and the kLgpL t
their ori�ir�L�onditi�n. If STO. RZUGE fails to pay the CITY for such
casts within �hiriy 3�) da s of a deinan by the CITY for ent the CITY at
its election may terminate this Agreement and retain the total payment of the
current years rent. these remedies are nonexclusive, and the CITY expressly
reserves its rights to pursue any and all available legal or equitable remedies.
F. All STONE-BRTDGE and a1i CJxy radii cortamunicatians equipment which
naw exists on said Tower or which may be placed at the Site shall be installed,
operated and maintained in accordance with all. applicable rules and regulations
established by Federal Communications Commission (FCC).
G. STONED -RIDGE.. . shall separately meter and ,pay _aJl utility servi.-. .ces that are
'':
associated with use of the Pra�erty.and the,Tower except as provided in
Par.Ph 4(D). The City agrees to cooperate with STONEBR15GE""In its
effarts to connect the antennae and related equipment to existing utility service
at STONEBRiDGE's expense. T13e City makes no representation or warranty
regarding the avaikability of electric or other utility se�v�ce to the Tower.
STONEBRIDGE shall have the, right to iRstall utilities, at STONEBRIDGE's
expense, and to improve the present ut[lities on the Property. The City shall not
be liable, and STONEBRIDUE waves any and all cl_aims, against the CqY dor
any interruption of electrical or..o6 ut ....
li€y services xo the,Propearty, Antennae
or Equipment Shelter. ,
H. STONE13RIDGE shall cooperate with CI'7'Y' and executeall documents
required pursuant to this Agreement or to per -mit ST0MBRDDGH,S intended
use of the Site in compliance with zoning, land use, aid buzlding regulations.
I. STONEBRMGE shall not res_e1I, sublease, broker or otherwise permit use of
Vace ox capacity on the Site or Tower by others except as provided dor in
Paragraph 23 of this Agreement.
J. No advertising of any kind shall be permitted an the Tower or Site,
9. AF EMISSIONS AND 1LARMFUL INTERFERENCE
In a11. cases, govemmenta1 systems shall have the right to operation without being
subJ�cted to �a�nful intetf.erence or interruptions from commercial users at the Side,
STONIEBRIDGF, shall not use, nor shad STONEBRIDGE �erm�t its employees or
contractors #o use site Tower or Site in any way which causes harmful interference or
interruptions to the operation of governmanta[ communications equipment which maybe
installed at the Site,, or results in radio-frequency radiation exposure levels at, or
adjacent to, the Site to be in excess of the limits specified in 47 C.F.R. § x,1310, as
amonded.
STONEBRIDG.E and CITY shall promptly make any necessary adjustrnents or repairs
should their equipment, due to maladjustm.en� defects or failures, cause harmful
interference to other radio communications equiprraent at t.�e Site, or result in radia -
frequency radiation exposure levels at, or adjacent to, the Site to be in excess of the
limits specified in 47 C.F<R. § 1.X310, as amended. Assignment ofresp onsihility for
excessive radiofrequency radiation exposure levels at, or adjacent to, the Sitep or
harmful interference not due, to equipment znatadjustinEnt, defects or :failures shall be in
accordance with the :following:
7
material farm'shed by STONEBRIDGE or a contractor of STONEBRWGE and not the
C=.. Said duty to hold harmless and indemnify CITY includes, but is not lim-ited to,
costs, expert fees, disbursements and attorney's fees.
25. MERGER AND MDDIFICATION
A. It is understood and agreed that the entire Agreement between the parties is
contained herein and that this Agreement ,supersedes all oral agreements and
negotiations between the parties relaying to the subject matter hereof., All items
referred to yin this Agreement are incorporated or, attached and are deemed to be
part of this Agreement.
B. any alterations, variations, modifications, or waivers of provisions of this
Agreement shall only be valid when they have, been reduced to wrifing as an
amendment to this Agreement sighed by the parties hereto.
C. STONEBRIDGE's or the CITY's failure to insist upon strict performance of any
provision or to exercise any right ender this Agreement skull not be deemed a
relinquishment or waiver of the same, or a modification of this Agreement, unless
consented to in writing. Such consent shall not constitute a general waiver or
relinquishment throughput the emirs term of the Agreement, unless specifically
so staffed, consistent with #ems and conditions of this Paragraph.
26. DEFAUL'CAND CANCELLATION
A. If STONEBRfDGE Bails to perform any of the provisions of this Agreement or so
fails to administer the work as to endanger the performance of the Agreement,
this shall constitute a default. Upon written notice by the CITX,
STONEBRIDGE shall have sixty (d0) days to cure said default. Jf such default is
capable of being cured, but net capable of being cured within sixty (60) days, this
Agreement may not be terminated so long as STONEBRIDGE provides the
CITY,, within thirty (3Q) days of the initial CITY notice of said default, a written
response notice detailing the appropriate curative action being diligently pursued
ty STONEBRIDGE. The CITY shall, based on the STONEBRIDGE wiftten
rvspanse, brant a reasonable extension o#'time to complete cure af'said default.
Said extension shall not exceed ninety (90) days from the initial CITYccotiof
.fault. Failure to cure said default may result an immediate terma.nation of.'this
Agreement by the CITY.
B. The CITY may, based on a reasonable determination by the Cthat Tower
and/or Site capacity utilized by STONEBRJDGE is needed dor gnvervrnental
uses, and if ST"C)NEBRIpGE cannot relocate its equipment to an alternate
location approved by the CUY pursuant to Pamgraph 10 of this Agreement,
cancel this Agreement upon serving STONEBRIDGE with six (6) months written
27.
notice afcancel] afion. In the event of su � h cancel lativn, STONEBRID GE shall
remove all Property and equipment, ix�clu1ding the antennae and all personal
property and trade fixtures installed or o"ed by STONEBRIDGE .from ttle
Tower and Site, and STONEBRIDGE sh�1 ftirther remove all debris and restore
any and all damage to the Tower and Situ caused by such removal. In the event of
such cancelIat�o.n, and upon removal of�I STONEBRIDGE equipment from the
Site, STONEBRIDGE s1aa11 be refunded .ro rata any prepaid Site Use Fees. The
CITY shall not be liable for any costs inchrred by STONEBRIDGE to remove its
equipment or to relocate to another site.
B. This Agreementmay be canceled with or without cause by either party upon
rr�onftis written nonce of intent to cancel,
serving the other party with six (6)
Prig to the effective date of cancellation,,unless otherwise agreed to in writing
by the CITY, STONEBRIDGE shalt remove all property and equipment,
including the antennae and all personal p�operty and trade fixtures installed or
owned by STONEBRIDGE from the Tower and Site, and. STONEBRIDGE shall
finther remove all debris and restore any 4nd all damage to the Tower and Site
caused by such removal.. Jn the event o£�uch cancellation, and upon removal of
all STONEBRIDGE equipmen#from the �jte, STONEBRIDGE shall be refunded
pro rata any pry -paid Site Use Fees from the �:#'fective date of cancellation,
C. In the event STONE13RflDGE fails to so r� move v any component of the antsnnae,
related equipment, or both, az to return fi.h' Tower and the Property to their -
original condition, within thirty (30) days of the term ination 4fthisAgreement,
then the City shall, have the right to remove the antennae or related equipment at
STONEBRIDGE's sole cast and expensel If STOXE13RIDG.E fails to reclaim the
antennae or equipment with thirty {30} danotice form the date of removal by
the City, said antennae or equipment shall without further nonce be deemed
abandarzed. No antennae or equipmentvA)" I be released by the City to
STONEBR%DGE until STONE A.RIDGE as reimbursed the City dor allerases
related to removing the antennas and the �quipment and returnir� �� roe .
and the Water Tower to their original conditio . �1�P � '
HAZARDOUS SUBSTANCES
CITY -represents #hat C" has no knowl edge o i any substance chemical, az waste on
CITY'S Site that is identified as hazardous mate ials, asbestos, hazardous substance,
wvaste, toxic or dangerous or defined in any applicable federal, sate or (Deal
enYironmental or safety lay, or regulation, including, but not limited to, CERCLA.
CITY shall fold STONEBRIDGE harmless from and indemnify STdNEBRIbGE
against any dftmage, loss, expense, response cost , or liabi[.it�, including consultant fees
aud attorneys' fees resulting from the presence d1hazardous substances an, under or
around CITY'S Site or resuIting from hazardous substances being generated, stored,
disposed of, or transported to, on, under, or artiuAd CITY'S Site as long as the
FjXHJBff C
Site Access Prucedures
Initial installation of all STON-E.13RIDGE equipment t the, Site M"cluding anten'ha., line
equipment cab' et and utflity connections shall be co8rdinate tbrough the CrT� by
contacting the City Admiiiistrator at (763) 441-4414 At least hvo (2) weeks in a6vance of
initial cotistruction.
S TON-EBM GE shall also notify th e CITY at least fdrty -- ei ght (4 8) hours in �dvancr, of
work commencing and /or ki lo�rp-,
etr:: i1h 61 `d6l'i ' v" -'e``, that may' Mnd- fliltraffic,
parking or other activiti es adjacent to the 8 ite by con4cting the C ity Ad m ini strkor at (763)
441-4414. Notice shall include the type of work to b-01 Conducted, the approximlate time and
duration workers will be on site e number of worke 8 expected and the nameland
telephone number of STONEBRIDGE contact personi
The CITY wifl provide STONEBRIDGE with access a key to the, Tower., T�e kc. y to the
site will be maintained at the Otsego City Hall. Upon resentation of appropriaie
identification and stating his purpose, a key to the To r wiff be given to STOI�PMRJDGE
its authorized representative or contractor,
Upon - 0 ompleti on of any work at the S ite,
.4 STONEBRIbGE or its authorized representative
or contractor shall secure the Site and return the key t �, the Otsego a I
ty Hal L I
Site access or routine operation, maintenance and mandated inspections of the to'wo r and
other related equipment located on the tower compouAd will not req.uire plior 4itten
notification to the CITY.
Any loose material, debris, wire, cable, tools, etc. shall be removed immediately! or at the end
of each day by STONEBRIDGE, its representative or 6ntractor.
TMS PORTION OF PAGE INTUNTIO�qALLY LEFT BLANK
26
1 7rE M 2
-- --- Main offices 35
Hal(arson 3601 Thurston Avenue, Anoka, MIN 55303
'ori: '763/427-5860 Fax: '763/427-052
IIAnderson `.
MEMORANDUM
TO: Public Works Sub-Coninli ee
FROM: Ronald J. Wagner, P.E., City nghleel#
TE: 0c ober 8, 2013
RE: Water Tower #1 Review
Kiat Neidernieier and I atuival y review one or more eater towers. This year our review focused on
Water Tower #1 due to the aniou t of activity by the leasers, Ne tern (formerly Stonebridge and
Sprint have both completed work fairly recently.
As you know, the eaten tower is off lige and eni ty, This environment means very little change i
occurring to the corrosion issue or the interior paint status.
Upon entering the tower, Ne Cera has installed a large cabinet with an attached air conditioning
unit. (see photos) This is plugged into a water tower electrical receptacle and is therefore using City
paid power, Also, the cabinet is located within the base of the tower on two metal saw hof ses. The
conduit for Nextera is connectto the ladder for the 1" section of the climb and includes abandoned
cables.
Sprint also has abandoned cables running the length of the tower and around on the railings at the top.
Sprints work also has issues as most Nvelds have a layer of priiner paint but they too not have the final
gal
coating which should match the existing water tower colon — interior and exterior, Examining the
interior of the wetted area or reservoir area the welds completed at the knee braces to strengthen the
railing to accommodate the new larger antermas has blistered and burnt areas ofile interior. The area
within the railing at the top is cluttered now with knee braces and wiringso thankftilly no additional
knee braces were allowed. The cables from the nian gay to the railing are attached to a niet l bar to
keels them orderly as they cross the surface of the top of the tower. The contractor attempted to
secure this bay to trace braces but the connection does not perforin well and the bar and cables are not
firmly attached to anything between the nian way and the railing. A letter has been sent to Sprint
along with photos showing all of the deficiencies.
Page 2
RECOMMENDATION:
Nextera
We recommend Nextera remove their cabinet from the interior of the water tower and install a free
standing structure. on an easement inuch like the other two leasers. Any time Nextera needs to work
on their cabinet they need to have a City representative present. This " mergeney" additional work
load can create an unneeded burden on the City's work force to complete other daily needed tasks.
The Nextera structure msut have its own power source. We also recommend Nextera. remove their
cables from the ladder and remove any unused cables, f have researched City files for the lease
agreement regarding Stonebridge/Nextera. The lease agreement is 10 yearsold and has not changed
except for the transfer from Stonebridge to Nextera. The lease agr en -tent states the interior storage
space shall not exceed 16 cubic feet. Including the saw horses I would estimate the space used to be
over 250 cubic feet. Also, the way the cabinet sits etirrently is not desirable. Nextera currently pay
$2700 per quarter or $ l o neo thantemia. f checked electrical use on the building and could find no
discernible difference caused y the sniall air conditioning nit on the Nextera a itiet s) but since the
only other electrical use in the building is occasional use of lights and the City SCALA Nve suspect
the majority of the elcetrical use is by Nextera. We recommend reviewing and updating Nexte •a'
lease agreement as Nvell.
Sprint
have attached the letter to Sprit with their punch list items, The intem l reservoir blistering of
Paint caused by the Nvelding at the railing could be handled as a cash equivalent transaction and used
toward when the City repaints the tovverjust prior to re-coniniis sioning.
Additional
We also recommend each leaser identify their anteimas with their name, a phone nuillber and an
antemia number so staff can easily deterinine who owns what on top of the tower.
Hakanson
I■ Anderson