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HomeMy WebLinkAbout6.n. Agreement with Minnesota Energy Resources Corporation for Automated Metering InfrastructureI:\City Clerk\Agenda Items\Approved Items\6.n. Agreement with Minnesota Energy Resources Corporation for Automated Metering Infrastructure.docx EXECUTIVE SUMMARY City Council Meeting: December 17, 2019 AGENDA ITEM: Agreement with Minnesota Energy Resources Corporation for Automated Metering Infrastructure AGENDA SECTION: Consent PREPARED BY: Logan Martin, City Administrator Brian Erickson, PE, Director of Public Works/City Engineer AGENDA NO. 6.n. ATTACHMENTS: Agreement between Minnesota Energy Resources Corporation and the City of Rosemount APPROVED BY: LJM RECOMMENDED ACTION: Motion to approve an agreement between Minnesota Energy Resources Corporation and the City of Rosemount BACKGROUND Minnesota Energy Resources Corporation (MERC) is in the process of upgrading their infrastructure to assist with their natural gas metering. Early this summer, staff met with representatives of MERC to discuss their needs regarding this work. The anticipated equipment is relatively small and easily installed on utility poles. Staff and the City Attorney have reviewed the attached agreement and addressed all concerns between MERC and the City of Rosemount. There is no cost to the city, and MERC is required to pay for any upgrades required due to their equipment. RECOMMENDATION Staff recommends that Council approve this agreement between Minnesota Energy Resources Corporation and the City of Rosemount to allow the installation of Automated Metering Infrastructure on city owned poles. AGREEMENT THIS AGREEMENT is made by and between City of Rosemount, Minnesota, (“Licensor”) and Minnesota Energy Resources, a Minnesota corporation (“Licensee”). WITNESSETH: WHEREAS the Licensee, desires to erect antennaes and equipment and use certain poles owned by the Licensor to which they will attach their antennaes and equipment; and WHEREAS Licensor desires to maintain good relations with the Licensee and make available certain of its poles to the Licensee; and WHEREAS both parties have determined it is in their best interests to allow the use of Licensor’s poles as above described under the conditions described in this Agreement, NOW THEREFORE, the parties agree as follows: ARTICLE I License Granted Licensor grants a license to Licensee, subject to the terms and conditions of this Agreement, to use certain poles of Licensor for the purpose of attaching its equipment thereto. Licensor must approve the location and manner of attachment of Licensee’s equipment before the equipment is installed. The attached Exhibit A, which is part of this Agreement, includes a listing of the approved poles and locations. Licensee agrees that its use of the designated poles is at Licensee’s own risk and at its own cost and must be in conformity with the National Electrical Safety Code (NESC) and any amendments thereto. ARTICLE II Attachments to Poles Before attachments are made by Licensee, Licensor will inspect each pole and rearrange or replace its facilities as it deems is required in order to provide space for the Licensee at the expense (including the net cost of pole replacement) of the Licensee. The Licensee shall pay for all rearrangements and net replacement cost incurred by the Licensor prior to attachment by the Licensee. Licensee will also be liable for costs incurred by other licensees for rearranging their facilities. The costs referred to in this agreement shall be Licensor's fully loaded costs, as derived from their normal accounting and costing procedures. Throughout the Term of this Agreement, Licensor shall not intentionally disturb Licensee’s authorized attachments, except as such disturbance may be necessary in an emergency or natural disaster situation, or other situations as - 2 - deemed necessary for public health or safety, in the sole discretion of Licensor. ARTICLE III Maintenance of Attachments (a) The Licensee, or its agent, agrees to install and maintain all attachments upon said poles in a proper, safe and workmanlike manner and in accordance with requirements of the National Electrical Safety Code (NESC). (b) Whenever a pole to which Licensee has attached facilities is replaced, Licensee shall transfer its facilities at its expense, within 10 days after notice that the pole has been replaced. Whenever such a pole must be of a size larger than that normally required at that location due solely to the requirement of Licensee, Licensee shall pay the incremental cost of such additional pole size, as determined by Licensor, within 10 days of the pole replacement in order to continue to maintain an attachment at that location. Whether or not a pole is replaced is within the sole discretion of Licensor. (c) Any strengthening of poles through the use of guying, required to accommodate the attachments of Licensee, shall be provided by and at the expense of Licensee and subject to the satisfaction of all other occupants of the poles and approval by the Licensor’s engineer or designee ARTICLE IV Right-of-Way for Licensee's Attachments Nothing herein contained shall be construed as a guarantee or permission from owners of private property or other authorities, to the Licensee to use Licensor’s poles or other facilities, and upon notice that objection is made by any owners or authorities to such use, the Licensor may immediately declare this Agreement cancelled, and thereupon the Licensee shall remove all attachments and cease to use any or all poles or other facilities of Licensor. ARTICLE V Hazards to Personnel Licensee knows that Licensor is engaged in transmitting electric current and its employees and its agents shall not touch, move, manipulate or tamper with any attachments of Licensor. Licensee's employees or its agents may access poles to make and maintain attachments, but shall not access the poles where any defective condition is observable until Licensor has been notified and Licensor has made an inspection. Licensee’s employees shall not climb Licensor’s poles. ARTICLE VI Liability and Damages - 3 - (a) Licensee shall indemnify, protect, defend and save harmless the Licensor, its agents, employees and officials from and against any and all claims and damages, including reasonable attorneys’ fees, on account of damage to property, injury to or death to persons, arising either directly or indirectly out of the erection, maintenance, repair, presence, use or removal of Licensee’s attachments to Licensor’s poles. (b) At all times during which this Agreement is in effect, Licensee shall self-insure or carry and keep in effect at its expense, the following types of insurance: Workers' compensation and commercial general liability (CGL) insurance with policy limits acceptable to the Licensor. As applicable, Licensor must be added as an additional insured to Licensee’s CGL policy. Upon request, Licensee can shall submit a statement of self-insurance or certificate of insurance demonstrating the required coverage to the satisfaction of Licensor before Licensee may install any equipment on Licensor’s poles. (c) Limitation on Damages. Unless otherwise expressly provided in this agreement, Licensor shall not be liable to Licensee for consequential, incidental, punitive, exemplary or indirect damages suffered by Licensee or by any subscriber, customer or purchaser of Licensee for lost profits or other business interruption damages, whether by virtue of any statute, in tort or in contract, under any provision of indemnity, or otherwise, regardless of the theory of liability upon which any such claim may be based. ARTICLE VII Existing Rights of Other Parties Nothing in this Agreement shall be construed as affecting the rights or privileges previously conferred by Licensor on others not parties to this Agreement including rights to use any poles or pole space; and Licensor shall have the right to continue and extend such rights or privileges. The license herein granted shall at all times be subject to such contracts and arrangements. ARTICLE VIII Assignment of Rights The rights hereby granted the Licensee are personal to it and cannot be assigned, transferred, or sublet without the consent in writing of the Licensor which shall not be unreasonably withheld. ARTICLE IX Waiver of Terms and Conditions Failure to enforce any of the terms or conditions of this Agreement shall not constitute a waiver of any such terms or conditions. - 4 - ARTICLE X Rights of Licensee (a) No use under this Agreement, however extended, of Licensor's poles shall create or vest in Licensee any ownership or property rights in said poles but Licensee's rights therein shall be and remain a mere license. Nothing herein contained shall be construed to compel Licensor to maintain any of said poles for a period longer than that demanded by its own service. (b) Should Licensee fail to comply with any provision of this Agreement or fail to remove its attachments on the termination of the Agreement or upon request by Licensor as allowed by this Agreement, Licensor shall have the continuing right to immediately remove Licensee's attachments from Licensor's poles and charge Licensee the cost of such removal. Waiver of any default hereunder by the Licensor shall not act to waive or excuse any subsequent default by Licensee. (c) If at any time in the judgment of the Licensor, Licensee's attachments result in an impairment or hazard or any other public health or safety concern, in the sole discretion of Licensor, to Licensor's operation, maintenance or construction activities, Licensor may terminate this Agreement upon 30 days’ written notice. ARTICLE XI Term of Agreement This Agreement, unless otherwise terminated as is herein provided, shall continue in force from the Effective Date (the date approved by the Rosemount City Council) until December 31, 2020 and thereafter from year to year, unless terminated by either party hereto by giving notice of its intention to terminate to the other party at least 60 days prior to the end of any term. ARTICLE XII Applicable Law and Venue This Agreement shall be governed by and construed under the laws of the State of Minnesota without regard to its conflict of laws principles. Any court proceeding regarding enforcement of this Agreement shall be commenced and heard in Dakota County District Court, Minnesota, and the Parties consent and submit to the jurisdiction and venue of that Court. - 5 - IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed by their officers authorized so to do the day and year first above written. WITNESS: City of Rosemount (LICENSOR) By: Title: Date By: Title WITNESS: Date: Minnesota Energy Resources Corporation (LICENSEE) By: Title: Date: - 6 - EXHIBIT "A" Following is a list of poles with authorized attachments in addition to those included in the Agreement: City/Town/Village Pole Rosemount 44.723225, -93.146824 Rosemount 44.738742, -93.140908 See picture and description below for attachment detail: • Equipment 1: Connected Grid Router (CGR) 23 pounds, 11.3 inches x 9.7 inches x 8.5 inches, 20 to 28 watts nominal, maximum power usage 75 watts, 304 KW hours per year • Equipment 2: Antenna, 1 pound, 18 inches x 1 inch See attached map for all pole attachment locations. These attachments are subject to all terms and conditions of the Agreement Rental Charge = $ _______ Date of Approval: _____ City of Rosemount (LICENSOR) By: Title: Minnesota Energy Resources Corporation (LICENSEE) By: Title: