5.1 Revised Draft of New Energy Equity Developer's Agreement (Oldfield Avennue)CITY OF SCANDIA, MINNESOTA
DEVELOPER'S AGREEMENT
THIS DEVELOPER'S AGREEMENT (the "Agreement") is made and entered into this
day of , 20175 by and among the City of Scandia, Minnesota, a municipal
corporation and political subdivision under the laws of the State of Minnesota (the "City") and New
Energy Equity LLC, a Maryland limited liability company (the "Developer").
WHEREAS, the predecessor of the Developer submitted an application for a Conditional
Use Permit (CUP) to the City for a community solar garden to be located on one parcel of land of
39.93 acres, located immediately to the east of Oldfield Avenue North, bordering with 236th Street
North and 237th Street North, and as legally described on Exhibit A attached hereto (the
"Property") (Parcel Identification No. 02.032.20.230001). The Developer seeks to install a solar
array on the Property consisting of up to five one Megawatt (mW) solar gardens (the "Project").
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 March 2, 2016, with additional meetings on April 5, 2016 and June 7, 2016, and
recommended approval to the City Council of the City, which approval was granted pursuant to
Resolution No. 08-16-16-04, adopted on August 16, 2016 (the "Resolution").
WHEREAS, as a part of the City's approval of the Project through the CUP, the City
Council imposed 27 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.
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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 to the "point of interconnection" owned by Xcel
Energy, at which point the system will interconnect to Xcel's existing distribution infrastructure.
This point of interconnection will be approximately located in the center of the Property on the west
side, along Oldfield Avenue and in proximity to the proposed 20 -foot -wide gravel access road. A
visible external disconnect must be installed if required by Xcel Energy. The initial Interconnection
Agreement with Xcel Energy will be for 2.5 to 3 MW (AC) of the total approved capacity of the
Project. The Developer will construct this capacity first, and may subsequently construct all or a
portion of the remainder of the Project only upon submitting additional Interconnection Agreements
to the City with respect to the additional capacity.
2. Fencing and Screening; Landscape Plan; Seed Mix. The Developer has proposed a
perimeter fence around the Project, which must meet all requirements of the City Code, including
the following: (i) the side of the fence considered to be the front shall face the abutting Property; (ii)
no fence shall be constructed on public right-of-way; (iii) if the fence exceeds six feet in height, an
Administrative Permit is required; (iv) the fence shall not exceed 12 feet in height; (v) fences along
a property line and abutting a right-of-way may be up to six feet in height, except as otherwise
approved by Administrative Permit, provided the fence is a wire strand, woven wire, or wood rail
fence; and (vi) a fence may be placed along a property line provided no physical damage results to
abutting property.
The Developer shall provide adequate screening of the Project from Oldfield Avenue,
consistent with the screening depictions found in the Developer's Screening Study Exhibit, dated
May 27, 2016. The purpose of the screening is to prevent, to a reasonable extent, reflective glare
toward any inhabited buildings on adjacent properties and adjacent street rights of way, as it has
been determined that the greatest potential for visibility and glare is likely to be toward the north
and west of the Project, given the topographical nature of the Property. Screening shall consist of a
mix of coniferous and deciduous tree and shrub species that are consistent with the City's rural
character and the Woodland and Tree Preservation section of the City's Development Code, some
of which screening shall be situated on a berm to be constructed at the western edge of the Property
(but outside dedicated Oldfield Avenue North right-of-way), and must (i) stand at least ten feet in
height at the time of planting, for coniferous trees, (ii) consist of a minimum 2.5 -caliper B&B stock,
for deciduous trees, and (iii) shall be a minimum 10 -gallon size, for shrubs. These plantings and
screenings shall be described in a Landscape Plan, which has been amended, supplemented, and
deposited with the City. The City has administratively approved the Landscape Plan. The plantings
and screenings must be maintained at the level provided by the Screening Study Exhibit and the
Landscape Plan for the life of the Project.
The Developer has collaborated with the City to submit a proposed seed mix for the area of
the Property situated under the individual solar arrays. The final seed mix shall be limited to seeds
that are native and come from a local seed source, including pollinator friendly species. The seed
tags shall state that the seed mix is noxious -weed free and Pure Live Seed Certified. The site
management practices covering the Property shall comply with requirements adopted by the
Minnesota Legislature in 2016 that require solar projects to provide native perennial vegetation and
foraging habitat beneficial to gamebirds, songbirds, and pollinators, and reduce storm water runoff
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and erosion at the Property.
3. Fencing and 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 a total amount of [$236,250]. [$62,812.50] of the escrow is allocated to the
building of a berm along the western edge of the Property, upon which the trees and shrubs
mentioned below will be situated. The remaining amount of escrow security of [$173,437.50] is
allocable to the planting of trees and shrubs, and is itemized as follows:
(i) 180 coniferous trees, minimum 10 -feet in height at planting x $450 each =
$81,000
(ii) 62 deciduous trees, minimum 2.5 -caliper B&B stock at planting x $375 each =
$23,250
(iii) 369 deciduous shrubs, minimum 10 -gallon size at planting x $187.50 each =
$69,187.50
Total landscaping cost = $173,437.50
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 good -faith satisfaction of the City, the landscape screening
is being maintained in living condition, the City will refund the 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 at the completion of the aforementioned
two-year period will then be promptly refunded to the Developer.
Once the construction of the berm is complete, in the good -faith determination of the City, the City
will reduce the financial security described in this Section by the lesser of [$62,812.50] or the
amount remaining that has not been previously drawn -down by the City and is allocable to the berm
construction. The amount of the escrow security will also be reduced if, in the good -faith
determination of the City, the Developer (a) has obtained a good faith bid reflecting a lower cost for
completing the landscaping or berm (to reflect such lower amount), and/or (b) has completed the
required landscaping, in which case the financial security shall be set at an amount reasonably
required to cover the cost of replacement trees and shrubs.
4. Access to Property. Access to the Property shall be from Oldfield Avenue North,
which is an existing City street. The access road to the Project will be used for construction and
ongoing maintenance of the Project. The access road shall align with the intersection of 237th
Street North and Oldfield Avenue North, and shall be maintained at a width of 20 feet or greater, to
be suitable to support emergency medical vehicles. Final plans for the access road shall eliminate
any 90 -degree turns and appropriate radii shall be installed to provide access for fire equipment.
The City Engineer and the Fire Chief have the authority to review and approve final access road
plans, and order any changes in the construction and maintenance thereof. 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.
5. 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, as no wetlands have been identified on the Property.
6. Grading and Land Alteration Requirements. Before any work commences on the
Property, the Developer must obtain grading and land alteration permits from the City. The
Developer must submit a Grading Plan and an Erosion and Sediment Control Plan to the City before
a grading permit will be released. All site work must be in compliance with the rules of the
Carnelian -Marine -St. Croix Watershed District (CMSCWD), and all permits required by
CMSCWD must be obtained, copies of which shall be deposited with the City.
7. Engineering. The Developer must comply with the following engineering
requirements:
(i) If necessary upon review of the Grading Plan by the City Engineer, the Developer
must submit additional information to the City Engineer ensuring that water will not
pond on the access roads within the Project. The access roads cannot be soft and
non -maneuverable for heavy emergency medical vehicles. Additionally, the City
Engineer must be able to determine if the driveway apron requires a driveway
culvert to maintain adequate drainage.
(ii) The Developer shall execute a quitclaim deed to the City establishing right-of-way
along the entire western boundary of the Property, consisting of a strip of land 33
feet east of the section line (PID No. 02.032.20.230001).
(iii) The Developer shall be responsible for any damage to public roadways from
construction equipment or hauling trucks. The Developer shall restore the
roadway(s) to their existing condition prior to construction activities.
(iv) The Developer shall schedule a preconstruction meeting with the City prior to the
start of construction work on the Project.
(v) The Developer must stake the required setbacks from Oldfield Avenue North and
other parcel boundaries so the responsible road authorities and the City Building
Inspector may verify the setbacks before construction begins on the Project.
8. 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.
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9. 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.
10. LiLightin . 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.
11. 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. If a third party gains ownership of the Property through a
voluntary transfer that complies with the terms of this Agreement, through foreclosure, or
otherwise, and the Project is abandoned, all solar array equipment must be timely removed from the
Property. By entering into this Agreement, the City does not waive its rights to declare the Property
a public nuisance should circumstances warrant.
(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 affiliate of the
Developer and, in the reasonable judgment of the City, to any party 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.
12. Related Documentation. Below is a list of the planning reports, resolutions, files and
final documentation related to the Project. These documents may be relied upon by the parties
hereto throughout the term of this Agreement.
1. Conditional Use Permit Application and supplemental materials, dated March 21,
2016, May 10, 2016, May 27, 2016, August 9, 2016, and May 16, 2017.
2. Planning Commission official minutes, dated March 2, 2016, April 5, 2016, and
June 7, 2016.
3. TKDA staff memorandum to Scandia City Council, dated August 10, 2016.
4. City Council official minutes, dated August 16, 2016.
5. Resolution No. 08-16-16-04, Approving a Conditional Use Permit for a Community
Solar Garden Located on Parcel Number 02.032.20.2300001 on Oldfield Avenue
North, adopted by the City Council of the City on August 16, 2016.
6. City Ordinance No. 162, including any amendments or supplements.
13. Administrative and Miscellaneous Expenses. The City acknowledges it has received
an administrative escrow payment from the Developer which has been used to reimburse the City
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for any actual expended staff expenses, as well as planning consultant review and legal counsel
review associated with the Project. The Developer must continue to pay all fees and escrows
associated with the Project, subject to the City's production of itemized invoices to Developer for
such costs, 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
associated with the City's administration of the Project 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.
14. 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.
15. 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).
16. 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
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Developer: New Energy Equity LLC
705 Melvin Ave., Ste 100
Annapolis, MD 21401
Attn.: Lindsey Gillis
17. 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.
(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
development is approved by the City. In the event that the full capacity of the Project is not
constructed on the Property, the Developer may seek a subdivision and any required permit for
another use of a portion of the Property.
(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.
18. 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, following
reasonable prior notice when feasible. 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.
19. Clean-up. The Developer shall promptly clean up any soil, earth or debris on City -
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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.
20. Entire Agreement; Governing Law. This Agreement and the documents
described in Section 12 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.
IN WITNESS WHEREOF, the City of Scandia, Minnesota and New Energy Equity LLC
have caused this Developer's Agreement to be duly executed on the date and year first above
written.
CITY OF SCANDIA, MINNESOTA
Christine Maefesky
Mayor
Neil Soltis
City Administrator
STATE OF MINNESOTA )
) ss.
COUNTY OF WASHINGTON )
On this day of , 2017, before me a Notary Public, within and for said
County personally appeared Christine Maefesky 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
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NEW ENERGY EQUITY LLC
By Ian Palmer
Its Chief Executive Officer
STATE OF )
) ss.
COUNTY OF )
On this day of 2017, before me a Notary Public, within and for said
State and County personally appeared , to me personally known, being by me
duly sworn did say that he/she is the of New Energy Equity LLC, and
acknowledged said instrument to be the free act and deed of said limited liability company.
THIS INSTRUMENT WAS DRAFTED BY:
Andrew J. Pratt, Scandia City Attorney
Eckberg Lammers, P.C.
1809 Northwestern Avenue
Stillwater, Minnesota 55082
(651) 439-2878
Notary Public
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
4830-9808-9289, v. 4