4. Hogle Farm Developer's Agreementa �
SCDIA
Staff Report
Date of Meeting: December 7, 2016
To: City Council
From: Neil Soltis, Administrator
Re: Solar Development agreement with Donald H. Hogle & Marilyn D. Hogle, Trustees Under the
Donald H. Hogle & Marilyn D. Hogle Trust Agreement, dated January 11, 1990 (Owner) and Novel
Energy Solutions L.L.0 (Developer)
Background: Novel Energy Solutions L.L.0 (the developer) submitted an application for a
Conditional Use Permit (CUP) to the City for a community solar garden to be located on a
74+acre parcel of land located 21509 Lofton Ave. N. The Developer seeks to install a 40
kilowatt (kW) solar garden on approximately one-half (1/2) acre of the property. The Planning
Commission conducted a public hearing on the application on November 1, 2016, and
recommended approval to the City Council. City Council Resolution No. 11-15-16-02, adopted on
November 15, 2016 approved the issuance of the conditional use permit for the project. As a part
of the City's approval of the Project through the CUP, the City imposed 17 conditions upon the
Project, including the execution of a development agreement.
Issue: Should the City approve the development agreement with Donald H. Hogle & Marilyn D.
Hogle, Trustees Under the Donald H. Hogle & Marilyn D. Hogle Trust Agreement, dated January
11, 1990 (Owner) and Novel Energy Solutions L.L.0 (Developer)
Proposal Details: The development agreement, which was prepared by Andy Pratt and has
been reviewed by the applicants, incorporates the provisions of the resolution approving the
condition use permit along with restating key provisions from the submittals to the Planning
Commission. The agreement also establishes a screening escrow and provides for security to
ensure that the project is decommissioned.
Fiscal Impact: Property tax valuation of underlying land will change. All other costs borne by
the City are to be reimbursed under the agreement.
Options:
1. Approve the development agreement as drafted
2. Revise the development agreement
3. Take no action on the development agreement
Recommendation: Option 1 - Approve the development agreement as drafted
CITY OF SCANDIA, MINNESOTA
DEVELOPER'S AGREEMENT
THIS DEVELOPER'S AGREEMENT (the "Agreement") is made and entered into this
day of , 20165 by and among the City of Scandia, Minnesota, a municipal
corporation and political subdivision under the laws of the State of Minnesota (the "City"), Donald
H. Hogle & Marilyn D. Hogle, Trustees Under the Donald H. Hogle & Marilyn D. Hogle Trust
Agreement, dated January 11, 1990 (the "Owner"), and Novel Energy Solutions L.L.C., a
Minnesota limited liability company (the "Developer").
WHEREAS, the Developer submitted an application for a Conditional Use Permit (CUP) to
the City for a community solar garden to be located on a parcel of land known as Hogle Twin Pine
Farm, located at 21509 Lofton Avenue North in the City, and as legally described on Exhibit A
attached hereto (the "Property") (Parcel Identification No. 17.032.20.14.0002). The Developer seeks
to install a solar array on the Property consisting of a 40 kilowatt (kW) solar garden (the "Project").
The Project footprint is approximately one-half (1/2) acre in size.
WHEREAS, the Property is located within the Agricultural Core zoning district. In such
zoning district, the proposed use of the Property as a solar array is allowed with a CUP.
WHEREAS, the City's Planning Commission conducted a public hearing on the CUP
application on November 1, 2016, and recommended approval to the City Council of the City, which
approval was granted pursuant to Resolution No. 11-15-16-02, adopted on November 15, 2016 (the
"Resolution").
WHEREAS, as a part of the City's approval of the Project through the CUP, the City Council
imposed 17 conditions upon the Project, including the execution of this Agreement. The Developer
has deposited sufficient escrow funds with the City to complete this Agreement and oversee the
Project.
NOW, THEREFORE, in consideration of the premises and of the mutual promises and
conditions hereinafter contained, it is agreed as follows:
1. Interconnection Agreement. The Developer must enter into an Interconnection
Agreement with Xcel Energy, allowing for the transmission of solar energy from the Project to be
distributed by the Xcel power grid. An executed Interconnection Agreement must be filed with the
City before the Project may receive any building, grading, or land alteration permits from the City.
The parties hereto acknowledge and understand the Developer intends to connect the various modules
within the Project electrically at one of the central inverters. The inverters will convert the energy,
and an underground cable will lead out of the Project to the "point of interconnection" owned by Xcel
Energy, at which point the system will interconnect to Xcel's existing distribution infrastructure. A
visible external disconnect must be installed if required by Xcel Energy. The Developer must secure
all private easements for these facilities as a part of the execution of the Interconnection Agreement.
2. Fencing. The Developer has proposed a six-foot tall chain-link safety fence to be
erected around the Project. Any fence over six -feet tall in height requires an Administrative Permit
issued by the City. The fence shall not exceed 12 feet in height, and may be placed along a property
line provided no physical damage of any kind results to the abutting property. No fence shall be
constructed on the public right-of-way. The fence shall be "wildlife -friendly," as required by the
City's Community Solar Garden Ordinance.
3. Screening & Landscaping. The parties hereto acknowledge that the Project will not
be visible from Trunk Highway 97, and will not result in glare or other negative impacts to adjacent
properties.
The Project will be visible from Lofton Avenue, and will require the addition of trees to fill
gaps in the existing vegetation along the roadway. This additional screening shall consist of a mixture
of coniferous and deciduous tree and shrub species that are consistent with the City's rural character,
conforms to the list of tree species in Section 3.12(G) of the City's Development Code, and stand at
least six feet in height at the time of planting. Such additional screening shall be memorialized in a
separate Landscape Plan to be completed by the Developer and to be deposited with the City. The
City must approve the Landscape Plan before issuing the building permit for the Project. The Project
must be screened by at least 50 percent in view from Lofton Avenue within two years from the
planting of the additional screening.
The Developer shall work with the City to identify an appropriate seed mix to be used on the
Property, and to complete a final Vegetation and Management Plan. Seeds shall come from a local
seed source, seed tags shall state that the seed mix is noxious weed free and Pure Live Seed Certified,
and the mix shall be one of the seed mixes recommended by the Minnesota Department of Natural
Resources "Prairie Establishment & Maintenance Technical Guidance for Solar Projects."
4. Fencing & Screening Escrow. To ensure the fencing described in Section 2, and the
screening under the Landscape Plan is sufficiently established, the Developer shall deposit an escrow
security in the amount of $13,500 with the City. The escrow security may be in the form of a cash
escrow, letter of credit or a performance bond. Any letter of credit or performance bond must be
reviewed and approved by the City Attorney. The escrow will be maintained with the City until the
date that is the two-year anniversary after the landscape screening is completely installed, in the
discretion of the City, which date will be communicated with the Developer. During this two-year
period, the City may draw on the escrow security to ensure the landscape screening is installed and
maintained in living condition. At the aforementioned two-year date, if, to the satisfaction of the City,
the landscape screening is being maintained in living condition, the City will refund the remaining
escrow amount or release the letter of credit, as the case may be, to the Developer. If the City
determines the escrow security must be replenished during the aforementioned two-year period, the
City will communicate accordingly to the Developer in writing. Any escrow amount remaining will
then be promptly refunded to the Developer.
5. Project Decommissioning Costs. As of the date of this Agreement, it is estimated the
cost of decommissioning the Project is $1,000, assuming a maximum Project capacity of 40 kW (the
"Decommission Cost"). The Developer has submitted a detailed decommissioning plan that meets
City Code requirements. To adequately protect the City and the Owner in case the Project is
decommissioned or abandoned, the Developer shall deposit financial security jointly with the City,
which may be in the form of a cash escrow, letter of credit, or performance bond, in the amount of
One Hundred Twenty -Five Percent (125%) of the Decommission Cost, or $1,250. Any letter of credit
or performance bond must be reviewed and approved by the City Attorney. The City shall have the
right to apply against the financial security all expenses incurred with decommissioning the Project
in case the Developer is in default or otherwise abandons the Project.
6. Access to Property. Access to the Property shall be from the existing driveway that
connects to Lofton Avenue. The parties hereto acknowledge that no additional access requirements
are necessary, and the width of the driveway does not need to be increased. The Developer shall
install a lock -box or similar point of access at the entrance to the Project, to allow for emergency
access at such point.
7. Wetlands. The Project must comply with all requirements of the Washington
Conservation District. Included in these requirements is the obligation that the Project may not
impose within jurisdictional wetlands on the Property. The parties hereto acknowledge and
understand the Washington Conservation District has concluded that no wetland delineation is
required for the Project. Due to the presence of wetlands to the north of the Project, the Developer
must meet with the City's Building Inspector in advance of any construction to verify that the
minimum 75' setback from any wetland boundary.
8. En_in�g. The Developer must comply with the following engineering
requirements:
(i) Before any work commences on the Property, the Developer must obtain grading and
land alteration permits from the City. The parties hereto acknowledge a Grading Plan
has been submitted and is acceptable to the City. The Developer must additionally
submit an Erosion and Sediment Control Plan to the City before a grading and land
alteration permit will be released, if the area of disturbance for construction of the
Project meets the minimum requirement for such permit. All site work must be in
compliance with the rules of the Comfort Lake Forest Lake Watershed District
(CLFLWD) and all permits required by CLFLWD must be obtained, copies of which
shall be deposited with the City.
(ii) Soil piles from the excavation for the Project shall be handled with care. Material
should be hauled off-site immediately or stored in a manner that has perimeter
protection.
(iii) The connection point to the existing electric transmission lines shall be identified on
the Project plans so the area of work may be reviewed by the City Engineer.
9. Signage. The Developer shall place a clearly -visible warning sign concerning voltage
at the base of all pad -mounted transformers and substations within the Project.
10. Supporting Mechanical Equipment. All mechanical equipment supporting the
Project, including any structure for batteries or storage cells, shall be completely enclosed by a
minimum eight -foot high fence with a self-locking gate, which shall be adequately screened.
11. Lighting. The Developer has indicated that no new lighting is proposed for the
Project. If lighting is proposed at a later date it must meet all City Ordinance requirements.
12. Structure Height. The Developer has indicated to the City that the maximum height
of the solar panels will be 10 feet, which is under the 15 -foot maximum height allowable by City
Code, but a utility pole, estimated to be 32 -feet high, will be required for the Project. If the utility
pole exceeds 35 feet in height, a separate Conditional Use Permit (CUP) application will be required
to be submitted by the Developer.
13. Binding Effect; Assignment; Recording.
(a) The terms and provisions of this Agreement shall be binding upon and inure to the
benefit of the heirs, representatives, successors and assigns of the parties hereto and shall be binding
upon all future owners or developers of all or any part of the Property and shall be deemed covenants
running with the land.
(b) Upon written notice to the City, the CUP and this Agreement, including all rights and
obligations therein and herein, may be assigned, in whole or in part, to any subsequent property owner
and any affiliate of the Developer and, in the reasonable judgment of the City, to any parry with
experience owning and operating energy generation or other utility infrastructure facilities.
Assignment to any other party not mentioned in the previous sentence shall require written consent
by the City, such consent not to be unreasonably withheld.
(c) This Agreement shall be recorded within the land records of Washington County so
as to give notice hereof to subsequent purchasers and encumbrances of all or any part of the Property,
and all recording fees shall be paid by the Developer.
14. Related Documentation. Below is a list of the planning reports, resolutions, files and
final documentation related to the Project. These documents maybe relied upon by the parties hereto
throughout the term of this Agreement.
1. Conditional Use Permit Application and building plans, dated September 28, 2016
and revised October 14, 2016.
2. Planning Commission official minutes, dated November 1, 2016.
3. TKDA staff memorandum to City Council, dated November 7, 2016.
4. Resolution No. 11-15-16-02, Approving a Conditional Use Permit for a Community
Solar Garden Located at 21509 Lofton Avenue North, adopted by the City Council of
the City on November 15, 2016.
5. City Ordinance No. 174, including any amendments or supplements.
15. Administrative and Miscellaneous Expenses. The City acknowledges it has received
an administrative escrow payment from the Developer in the amount of $300.00, which is to be and
has been used to reimburse the City for any expended staff expenses, as well as planning consultant
review and legal counsel review. The Developer must continue to pay all fees and escrows associated
with the Project, and may be billed separately by the City for all charges over and above the
aforementioned escrow amount. If the City seeks to impose additional administrative expenses on
the Developer payable through a replenished escrow amount, the Developer shall be given the
opportunity to review and comment on such expenses prior to the application by the City for the
payment of same.
16. Indemnification, Insurance. To the fullest extent permitted by law, the Developer
shall indemnify and hold harmless the City, its agents and employees from and against any and all
claims, damages, losses or expenses, including but not limited to attorney's fees, arising out of the
actions of the Developer in connection with this Agreement. The Developer shall additionally
provide the City with a current general liability certificate of insurance with the City, evidencing
bodily injury and property coverage with limits of at least $1 million per occurrence and $1 million
in the aggregate. The City shall be named as an additional insured on the policy, on a non-
contributory basis. The Developer shall maintain all such insurance coverage as described in this
Section for the entire term of this Agreement.
17. Breach. In the event of breach of the Developer of any or all of the terms hereof,
including but not limited to the failure to complete installation of the Project as specified, the City
will pursue remedies through the CUP first and will not exercise contract remedies at law or equity
(such as drawing on financial securities provided by the Developer hereunder) for a breach of this
Agreement until after 60 days' notice to the Developer, giving the Developer an opportunity to
cure during such 60 -day period (and such longer period if reasonably necessary, and Developer is
pursuing a cure in good faith during such longer period).
18. Notices. Whenever in this Agreement it shall be required or permitted that notice
or demand be given or served by any party to this Agreement to or on another party, such notice
or demand shall be delivered personally or mailed by United States mail to the addresses
hereinafter set forth by certified mail, return receipt requested. Such notice or demand shall be
deemed timely given when delivered personally of when deposited in the mail in accordance with
the above. The addresses of the parties hereto are as follows, until changed by notice given as
above:
CC: City of Scandia, Minnesota
14727 209th Street North
Scandia, Minnesota 55073
Attention: City Administrator
With copy to:
Eckberg Lammers, P.C.
Scandia City Attorney
1809 Northwestern Avenue
Stillwater, Minnesota 55082
Developer: Novel Energy Solutions, L.L.C.
1628 Second Avenue Southeast
Rochester, Minnesota 55907
Attn: Duane Hebert, Director of Community Solar
Owner: Donald H. Hogle and Marilyn D. Hogle Trust Agreement
c/o Gary Hogle
21509 Lofton Avenue North
Scandia, Minnesota 55073
19. Miscellaneous.
(a) Notwithstanding anything in this Agreement to the contrary, to the full extent
permitted by state law, the City may require compliance with any amendments to the City's
comprehensive plan, official controls, state and federal laws and regulations, platting or dedication
requirements enacted prior to the date of this Agreement. The Project shall also always be in
compliance with all applicable local, state and federal regulatory standards, including the current
Uniform Building Code, the National Electric Code, the State Plumbing Code and the Minnesota
Energy Code.
(b) The Developer represents to the City that the Project complies with all City, county,
state and federal laws and regulations, including but not limited to zoning ordinances and
environmental regulations. Development of any subsequent phases of property adjacent to the
Project may not proceed until a separate developer's agreement and an amended CUP for such
phase is approved by the City.
(c) If any portion, section, subsection, sentence, clause, paragraph, or phrase of this
Agreement is for any reason held invalid, such decision will not affect the validity of the remaining
portions of this Agreement.
(d) Any action or inaction of the City in relation to enforcement of this Agreement shall
not constitute a waiver or amendment to the provisions of this Agreement. To be binding,
amendments or waivers shall be in writing, signed by all parties, and approved by resolution of the
City Council of the City. The City's failure to promptly take legal action to enforce this Agreement
shall not constitute a waiver or release.
(e) Each right, power or remedy herein conferred upon the City is cumulative and in
addition to every other right, power or remedy, express or implied, now or hereafter arising,
available to the City at law or in equity, or under any other contract, and each and every right,
power or remedy herein set forth or otherwise so existing may be exercised from time to time as
often and in such order as may be deemed expedient at any time thereafter.
20. License. By this Agreement, the Developer hereby grants to the City, its agents,
employees, officers and contractors a license to enter the Property to perform all work and inspections
deemed appropriate by the City during the installation of the Project. This license shall expire after
the Project is deemed to be substantially constructed and completed, by mutual agreement among all
the parties. The Developer shall be responsible for obtaining all proper permits from the Minnesota
Pollution Control Agency, if necessary. The City makes no representation or guarantee that the
permits will be granted to the Developer.
21. Clean-up. The Developer shall promptly clean up any soil, earth or debris on City -
owned property, any property that is to become City -owned, or any public right-of-way resulting from
construction work on the Project by the Developer, its agents or assigns.
22. Entire Agreement; Governing Law. This Agreement and the documents described
in Section 14 herein represents the entire agreement between the parties concerning the subject
matter hereof, and all oral discussions and prior agreements are merged herein and therein. The
validity, construction, and enforcement of this Agreement shall be determined according to the
laws of the State of Minnesota, applicable to contracts executed and performed entirely within that
state.
(The remainder of this page is intentionally left blank.)
IN WITNESS WHEREOF, the City of Scandia, Minnesota, Donald H. Hogle and Marilyn
D. Hogle, Trustees under the Donald H. Hogle and Marilyn D. Hogle Trust Agreement dated January
11, 1990, and Novel Energy Solutions L.L.C., a Minnesota limited liability company, have caused
this Developer's Agreement to be duly executed on the date and year first above written.
CITY OF SCANDIA, MINNESOTA
Randall Simonson
Mayor
Neil Soltis
City Administrator
STATE OF MINNESOTA )
) ss.
COUNTY OF WASHINGTON )
On this day of , 2016, before me a Notary Public, within and for said
County personally appeared Randall Simonson and Neil Soltis, to me personally known, being each
by me duly sworn did say that they are the Mayor and the City Administrator of the City of Scandia,
Minnesota, the municipal corporation and political subdivision named in the foregoing instrument;
and that said instrument was signed on behalf of said municipal corporation by authority of its City
Council, and said Mayor and City Administrator acknowledged said instrument to be the free act and
deed of said municipal corporation.
Notary Public
STATE OF MINNESOTA
) ss.
COUNTY OF
DONALD H. HOGLE AND MARILYN D. HOGLE,
TRUSTEES UNDER THE DONALD H. HOGLE AND
MARILYN D. HOGLE TRUST AGREEMENT
DATED JANUARY 11, 1990
On this day of , 2016, before me a Notary Public, within and for said
County personally appeared , to me personally known, being by me duly
sworn did say that he/she is the of the Donald H. Hogle and Marilyn D. Hogle
Trust Agreement dated January 11, 1990, the Owner named in the foregoing instrument.
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF )
On this day of
County personally appeared
did say that he/she is the
NOVEL ENERGY SOLUTIONS L.L.C.
Its
2016, before me a Notary Public, within and for said
, to me personally known, being by me duly sworn
of Novel Energy Solutions L.L.C., a Minnesota limited
liability company, and acknowledged said instrument to be the free act and deed of said limited
liability company.
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
Andrew J. Pratt, Scandia City Attorney
Eckberg Lammers, P.C.
1809 Northwestern Avenue
Stillwater, Minnesota 55082
(651) 439-2878
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
The South Half of the Northeast Quarter, except that part lying southwesterly of County
State Aid Highway 1, in Section 17, Township 32 North, Range 20 West