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9.d Argo Navis Developer's AgreementCITY OF SCANDIA, MINNESOTA DEVELOPER’S AGREEMENT THIS DEVELOPER’S AGREEMENT (the “Agreement”) is made and entered into this ____ day of _____________, 2017, by and among the City of Scandia, Minnesota, a municipal corporation and political subdivision under the laws of the State of Minnesota (the “City”), James and Kathleen Zavoral, a married couple (the “Owner”), and Argo Navis Community Solar Gardens LLC, 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 four parcels of land aggregating approximately 87 acres, located at the intersection of Trunk Highway 95 and Trunk Highway 97, more specifically 21205 St. Croix Trail North, and as legally described on Exhibit A attached hereto (the “Property”) (Parcel Identification Nos. 18.032.19.33.0004, 18.032.19.33.0003, 18.032.19.32.0003, and 19.032.19.22.0001). The Developer seeks to install a solar array on the Property consisting of a three Megawatt (MW) solar garden (the “Project”). The Project footprint is approximately 22 acres in size. WHEREAS, the Property was previously subject to a CUP for mining and reclamation activities (the “Tiller Project”), running in favor of Tiller Corporation. Additionally, the Property was subject to an Annual Operating Permit (AOP) for sand and gravel mining activities that expired on March 31, 2017. 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 May 3, 2016, and recommended approval to the City Council of the City, which approval was granted pursuant to Resolution No. 05-17-16-01, adopted on May 17, 2016 (the “Resolution”). WHEREAS, pursuant to the Resolution, the City Council approved two variances in relation to the Project: (i) a location of 150 feet from the St. Croix Riverway boundary, instead of a 600-foot setback, as required by City Code; and (ii) a location of 300 feet from the proposed boundary of the Crystal Springs Scientific and Natural Area (SNA), instead of a 600-foot setback, as required by City Code. 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 shall use the fence design recommended by the Minnesota Department of Natural Resources for like solar garden projects. 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. 3. Screening; Reclamation Plan; Landscaping; Additional Screening. The parties hereto acknowledge the presence of berms and vegetative screens that were created as a part of the Tiller Project, and which are required to be maintained under the Zavoral Property Reclamation Plan, originally dated as of May 3, 2011, and revised October 8, 2012 and April 18, 2013 (the “Reclamation Plan”). The purpose of the screening for the Tiller Project was to provide visual and noise screening of the mining and reclamation activities from nearby vehicle, bike and pedestrian traffic in the area. Likewise, the screening of the Property as a result of the Project will prevent reflective glare from the solar array toward any inhabited buildings on adjacent properties to the west and adjacent street rights of way on Trunk Highways 95 and 97. The berms and screening for the Project shall comply with the conditions of the CUP, as provided by the Resolution. By execution of this Agreement, the Developer covenants that it will assume the screening obligations in the Reclamation Plan, and will work with the City to amend and supplement the Reclamation Plan as necessary to effectively screen and maintain the Project, as the Property transitions from a mining use to a solar array. 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 (to the extent available), seed tags shall state that the seed mix is noxious weed free and Pure Live Seed Certified. The City shall coordinate the seed mix, maintenance and management plan with Tiller Corporation, the Washington Conservation District, and with the provisions of the Reclamation Plan. Any additional screening that is necessary to screen the Project shall consist of a mix of coniferous and deciduous tree and shrub species that are consistent with the City’s rural character, and stand at least six feet in height at the time of planting. Such additional screening shall be memorialized in a separate Landscape Plan completed by the Developer and to be deposited with the City. Additionally, the Owner shall maintain existing wooded areas on the east side of Parcel No. 200.322.0220001 to screen the Project from view from adjacent residential structures, and shall maintain the screening plantings that are completed along the north and west boundaries of the Property for the length of time the Project exists on the Property. The Owner shall maintain the existing vegetation in the following areas: (i) between the Project and the St. Croix River bluffs, to protect the River and the bluffs from views of the Project; (ii) native prairie restoration on the parcel directly to the north of the Project, to protect the proposed Crystal Springs SNA property and to comply with the Reclamation Plan; (iii) on the parcel directly through the south of the Project, to protect adjacent parcels from views of the Project. The Developer shall determine the setback from the Crystal Springs SNA and inform the City accordingly. 4. Fencing & Screening Escrow. To ensure the screening that is assumed under the Reclamation Plan, or supplemental screening under the Landscape Plan is sufficiently established, and as a condition to executing this Agreement, the Developer shall deposit an escrow security, in the amount of $75,000, 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 one-year anniversary after the landscape screening is completely installed, as determined by the City, which date will be communicated with the Developer. During this one-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 one-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 one-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 $25,000 per mW, or up to $75,000 total, assuming a maximum Project capacity of three mW (the “Decommission Cost”). The Developer has submitted a detailed decommissioning plan that meets City Code requirements. To adequately protect the City in case the Project is decommissioned or abandoned, the Developer shall deposit financial security 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 $93,750. Any letter of credit or performance bond must be reviewed and approved by the City Attorney, in his capacity as legal counsel to the City. The City shall have the right to apply against the financial security all expenses incurred with decommissioning and rehabilitating the Property 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 exiting on Trunk Highway 95. The Developer shall obtain any required access easements from the State of Minnesota, through the Minnesota Department of Transportation (MnDOT), if required to access the Property as set up for the Project. The Developer shall be responsible for all costs associated with any work within or affecting MnDOT right-of-way, and shall obtain all required MnDOT permit(s), if required for the driveway access. All access roads within the Property to serve the Project shall be of a minimum 20 feet in width to meet City public safety requirements. The access roads must also support emergency medical vehicles entering and exiting the Property. 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, as no wetlands have been identified on the Property. 8. Engineering. 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 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. (ii) 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. (iii) The Developer must secure right-of-way along the entire western boundary of the Property (PID No. 1803219330004). 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. Lighting will meet all City Ordinance requirements. 12. Construction Activities. The Property is located adjacent to Zavoral Creek/Crystal Springs. Therefore, during construction of the Project, the Developer may use dust control for construction or maintenance activities that is water only (no added suppressants). The Developer also must use erosion control practices to avoid surface runoff discharge. 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 and assumed, in whole or in part, by the Developer to, in the reasonable discretion of the City, 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. 14. 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. Zavoral Property Reclamation Plan, dated May 3, 2011 and revised October 8, 2012 and April 18, 2013. 2. Conditional Use Permit Application, dated April 11, 2016. 3. TKDA staff memorandum to Planning Commission, dated April 25, 2016. 4. Planning Commission official minutes, dated May 3, 2016. 5. Resolution No. 05-19-16-01, Approving a Conditional Use Permit and Variance for a Community Solar Garden Located at 21205 St. Croix Trail North, adopted by the City Council of the City on May 17, 2016. 6. City Ordinance No. 162, 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 $2,500, 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. 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: City: 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: Argo Navis Community Solar Gardens LLC/Geronimo Energy 7650 Edinborough Way, #725 Edina, Minnesota 55435 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. (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 t ime 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 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, James and Kathleen Zavoral, a married couple, and Argo Navis Community Solar Gardens LLC, 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 Christine Maefsky 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 Maefsky 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 OWNERS James Zavoral Kathleen Zavoral STATE OF MINNESOTA ) ) ss. COUNTY OF ________________ ) On this _____ day of _____________, 2017, before me a Notary Public, within and for said County personally appeared James Zavoral and Kathleen Zavoral, to me personally known, being each by me duly sworn did say that they are collectively the Owner named in the foregoing instrument. Notary Public ARGO NAVIS COMMUNITY SOLAR GARDENS LLC By ______________________________________ Its _______________________________________ STATE OF MINNESOTA ) ) ss. COUNTY OF ____________ ) On this _____ day of ______________ 2017, 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 Argo Navis Community Solar Gardens LLC, 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