9.b Development Agreement USS Solar - 6.18.19
1 of 10
CITY OF SCANDIA, MINNESOTA
DEVELOPER’S AGREEMENT
THIS DEVELOPER’S AGREEMENT (the “Agreement”) is made and entered into this ____
day of June, 2019, 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 USS Solar Sources
LLC (the “Developer”).
WHEREAS, the Developer submitted an application for a Conditional Use Permit (“CUP”)
to the City for a one (1) megawatt Distributed Solar Energy System (the “Project”) to be located on
Parcel ID 30.032.20.23.0001—located at 19xxx Keystone Ave. N and legally described as: The South
Half (S1/2) of the Northwest Quarter (NW1/4) of Section Thirty (30), Township Thirty-two (32),
Range Twenty (20), Washington County, Minnesota (the “Property”).
WHEREAS, the Property is located within the Agricultural Core zoning district. The
proposed use of the Property as a Distributed Solar Energy System is allowed with a CUP.
WHEREAS, the City’s Planning Commission conducted a public hearing on the CUP
application on May 7, 2019, and recommended approval to the City Council of the City, which
approval was granted through Resolution No. 05-21-19-02, adopted on May 21, 2019 (the
“Resolution”).
WHEREAS, as a part of the City’s approval of the Project through the CUP, the City Council
imposed several conditions upon the Project, including the execution of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and conditions in this
Agreement, it is agreed as follows:
1. Interconnection Agreement. The Developer must enter into an interconnection
agreement with the appropriate electrical utility to allow for the transmission of energy from the
Project to be distributed on the power grid. In this case, Xcel Energy Inc. is the appropriate electrical
utility company. The Developer shall provide a fully-executed copy of an interconnection agreement
to the City before the City will issue any building, grading, or land alteration permits for the Project.
The parties acknowledge that the Developer has provided the required interconnection agreement.
2 of 10
2. Fencing, Landscape Screening and Ground Cover. The Developer shall erect a farm-
field style fence with wood posts, not to exceed eight (8) feet in height that shall incorporate a gap at
the bottom for passage of local wildlife which meets recommendations of the Minnesota Department
of Natural Resources. The fence will meet all applicable requirements of the National Electrical Code.
The fence will not include any barbed wire or razor wire. The fence requires an Administrative Permit
from the City before it may be erected.
The Developer shall provide vegetative screening along the full width of the array on the west side,
adjacent to Keystone Avenue North, and a screen along the south side of the array, adjacent to 192nd
Street. The screening shall consist of a mix of plantings that includes fifty percent (50%) evergreens
and fifty percent (50%) deciduous tree and shrub species that are consistent with the City’s rural
character and native to Minnesota. All plant materials must provide the required screening by May
24, 2023. These plantings and screenings shall be described in a Landscape Plan. The parties
acknowledge that the Developer has submitted the required Landscape Plan.
Pursuant to its representation in its CUP application, the Developer shall plant a diverse mix of
pollinator-friendly, low-lying, deep-rooted plants on the ground under the solar panels, and the
Developer will control for noxious weeds throughout the life of the Project. .
3. Landscape and Ground Cover Escrow. To ensure the 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 five percent (5%) of the cost to implement the Landscape
Plan with the City. The purpose of the escrow security is to provide the City with minimal financial
protection in case the screening under the Landscape Plan is not sufficiently established, but it is
acknowledged by the parties hereto that the Developer is responsible for the cost of all original and
replacement plantings under the Landscape Plan, whether or not the cost of such plantings is more or
less than the escrow amount. The escrow security may be in the form of a cash escrow, a 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 later of May
24, 2023, or the date that is two years after the landscape screening is completely installed, in the sole
discretion of the City, which date will be communicated to the Developer. At any time, the City may
draw on the escrow security to reimburse the City for costs of ensuring that the landscape screening
is installed and maintained in living condition.
To ensure the ground cover is sufficiently installed and established, the Developer shall deposit an
escrow security with the City in the amount of One Thousand and No/100 Dollars ($1,000.00) per
acre of ground cover within the Project. The escrow security may be in the form of a cash escrow, a
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
two years after the ground cover is completely installed, in the sole discretion of the City, which date
will be communicated to the Developer. At any time, the City may draw on the escrow security to
reimburse the City for costs of ensuring that the ground cover is installed and maintained in living
condition.
4. Project Decommissioning Costs. As of the date of this Agreement, it is estimated the
3 of 10
cost of decommissioning the Project is $25,000 per MW. The Project involves a 1 MW installation.
Thus, the parties estimate a $25,000 decommissioning cost (the “Decommission Cost”). The
Developer has submitted a detailed decommissioning plan. To adequately protect the City in case the
Project is decommissioned or abandoned, before any building, grading, or land alteration permits are
issued by the City, the Developer shall deposit an escrow security with the City, , in the amount of
one hundred twenty-five percent (125%) of the Decommission Cost, or Thirty One Thousand Two
Hundred Fifty and No/100 Dollars ($31,250.00). The escrow security may be in the form of a cash
escrow, a letter of credit, or a performance bond. Any letter of credit or performance bond must be
reviewed and approved by the City Attorney. The City may draw on the escrow security to reimburse
the City for costs to decommission the Project and rehabilitate the Property. No more frequently than
every ten (10) years, either party to this Agreement may request a reevaluation of the Decommission
Cost. In the event the parties do not agree on a revised Decommission Cost within ninety (90) days
of a written request for reevaluation, The City and the Developer shall seek to agree on a disinterested
third party qualified to advise the parties on the cost of decommissioning. In the event the parties do
not agree on a third-party advisor within thirty (30) days following a written request to do so, or the
parties do not agree on a revised Decommission Cost within sixty (60) days following the parties’
agreement on selection of a third-party advisor, each party shall identify, within thirty (30) days,
separate third parties qualified to advise on the cost of decommissioning. Within thirty (30) days of
the identification of the two separate advisors, those advisors shall select a disinterested engineer with
experience decommissioning solar energy systems similar to the Project, and the opinion of that
disinterested engineer as to a revised Decommission Cost shall be binding on the parties. If the
Decommission Cost is adjusted, said adjustment will be communicated to each party in writing and
no amendment to this Agreement shall be required.
5. Access to Property. Access to the Property shall be from Keystone Avenue North.
The Developer shall be responsible for all costs associated with any work within or affecting
Washington County right-of-way, and shall obtain all required Washington County permit(s), if
required, for the driveway access. 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.
6. 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 Developer must provide evidence that the
Project meets the applicable setback requirements for wetlands, as provided in Development Code
Chapter 5, before the Project may receive any additional building, grading, or land alteration permits
from the City. The parties acknowledge the Developer has submitted the required documentation as
part of the Stormwater and Pollution Prevention Plan.
7. Engineering & Safety. The Developer must comply with the following engineering
and safety requirements:
(a) 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.
(b) The access road to the Project will extend from the existing access point off Keystone
4 of 10
Avenue serving the Property. The access road must be constructed to be at least 20
feet wide to allow for emergency access.
(c) The Developer shall provide a 10- to 12-foot wide area within the Project sufficient
to allow rescue vehicles to turn around. The turnaround must service a 35-foot long
fire truck. The interior of the Project shall always be maintained to provide sufficient
width for emergency access for local law enforcement, fire, and ambulance vehicles.
(d) If necessary following review of the Grading Plan by the City Engineer, the Developer
must submit additional information to the City Engineer and refine the Grading Plan
to ensure that water will not pond on the access road within the Project. The access
road cannot be soft and non-maneuverable for heavy emergency medical vehicles.
(e) The Developer shall comply with all requirements of the Comfort Lake-Forest Lake
Watershed District (including but not limited to erosion control requirements), and
shall provide copies to the City of all permits received from the Watershed District.
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.
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 and shall be fully screened by vegetation.
10. Lighting. The Developer understands and acknowledges 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, 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 affiliate of the Developer
and, in the reasonable discretion 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.
(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.
5 of 10
1. Conditional Use Permit Application, dated April 16, 2019.
2. TKDA staff memorandum to City Council, dated May 13, 2019.
3. Planning Commission official minutes, dated June 4, 2019.
4. Developer plans and specifications, dated April 16, 2019, as may be supplemented
and revised.
5. Resolution No. 05-21-19-02, Approving a Conditional Use Permit for a Distribution
Scale Solar Energy System on Parcel 30.032.20.23.0001, located east of Keystone
Avenue North and a little north of 192nd Street North, adopted by the City Council of
Scandia on May 21, 2019.
13. Administrative and Miscellaneous Expenses. The City acknowledges it has received
from the Developer a sufficient escrow payment to be used to reimburse the City for costs of staff
expenses for review and approval of the Project, 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.
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 or the Project. 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 one million Dollars
($1,000,000) per occurrence and one million Dollars ($1,000,000) 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:
City: City of Scandia, Minnesota
6 of 10
14727 209th Street North
Scandia, Minnesota 55073
Attention: City Clerk
With copy to:
Eckberg Lammers, P.C.
Scandia City Attorney
1809 Northwestern Avenue
Stillwater, Minnesota 55082
Developer: USS Solar Sources LLC
100 N 6th St, Suite 218C
Minneapolis, Minnesota 55403
Attention: Reed Richerson
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
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, and 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 exercise d from time to time as
often and in such order as may be deemed expedient at any time thereafter.
(f) Neither the Developer nor the City will have any liability to the other for special,
7 of 10
indirect, punitive, or consequential damages arising from or relating to this Agreement, regardless
of whether based on a theory of breach of contract, tort, or equity.
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. This license shall expire after
the Project is deemed to be substantially constructed, 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-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 or 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.
[The remainder of this page is intentionally left blank.]
8 of 10
IN WITNESS WHEREOF, the City of Scandia, Minnesota and USS Solar Sources LLC 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
Brenda Eklund
City Clerk
STATE OF MINNESOTA )
) ss.
COUNTY OF WASHINGTON )
On this _____ day of _____________, 2019, before me a Notary Public, within and for said
County personally appeared Christine Maefsky and Brenda Eklund, to me personally known, being
each by me duly sworn did say that they are respectively the Mayor and the City Clerk 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 Clerk acknowledged said instrument to be the free act
and deed of said municipal corporation.
Notary Public
9 of 10
USS SOLAR SOURCES LLC
By:
Its:
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
On this _____ day of ______________ 2018, 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 USS Solar Sources LLC, and acknowledged said
instrument to be the free act and deed of said limited liability company.
Notary Public
10 of 10
CONSENT:
RONALD P. TAYLOR
JANET J. TAYLOR
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
On this _____ day of ______________ 2018, before me a Notary Public, within and for said
County personally appeared Ronald P. Taylor and Janet J. Taylor, husband and wife, to me personally
known, being by me duly sworn did acknowledge said instrument to be their free act and deed.
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
Scandia City Attorney
Eckberg Lammers, P.C.
1809 Northwestern Avenue
Stillwater, Minnesota 55082
(651) 439-2878