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HomeMy WebLinkAbout6.n. Request by Novel Energy Solutions for an Encroachment Agreement to install Underground Electrical Wires within a Drainage and Utility Easement EXECUTIVE SUMMARY City Council Meeting: August 5, 2019 AGENDA ITEM: Request by Novel Energy Solutions for an Encroachment Agreement to Install Underground Electrical Wires Within a Drainage and Utility Easement. AGENDA SECTION: Consent PREPARED BY: Anthony Nemcek, Planner AGENDA NO. 6.n. ATTACHMENTS: Encroachment Agreement, Site Location, Site Plan. APPROVED BY: LJM RECOMMENDED ACTION: Motion to approve the easement encroachment agreement and authorize the Mayor and City Clerk to enter into the agreement BACKGROUND The Planning Commission reviewed and approved on July 23, 2019, a site plan for a ground-mounted solar array on property owned by the Church of Saint Joseph, located at the intersection of Biscayne Avenue and Bonaire Path. A condition of approval was execution of an encroachment agreement to permit the applicant to install wiring within an eighty foot (80’) drainage and utility easement that bisects the solar array. Novel Energy Solutions will be installing electrical wiring across the easement area to connect two sections of the array. Two 30” public sewer pipes are located approximately thirty-five feet below ground within the easement area. One condition stipulated in the agreement is that the lines be registered with Gopher State One Call to ensure they can be located if the City must conduct work within the easement. RECOMMENDATION The site plan has been reviewed by the City’s engineering staff, and the encroachment agreement has been reviewed by the City Attorney. Staff is recommending approval of the encroachment agreement to install wiring between the two sections of the ground-mounted solar array located on the Church of St. Joseph property. THE SPACE ABOVE THIS LINE IS RESERVED FOR RECORDING PURPOSES. CONSENT AND CROSSING AGREEMENT THIS CONSENT AND CROSSING AGREEMENT (the “Agreement”) is executed as of this ___ day of July, 2019, by and between the City of Rosemount (“Existing Easement Holder”) whose address is 2875 145 St. W, Rosemount, MN. 55068 and Novel Energy Solutions, LLC (“Project Company”) whose address is 2303 Wycliff Street, St. Paul, MN 55114, Attention: Cliff Kaehler (“Solar Power Facility Owner”). Existing Easement Holder and the Project Company are sometimes referred to herein collectively as the “Parties”. RECITALS WHEREAS, Existing Easement Holder is the holder of certain easements recorded in the Records of Dakota County, Minnesota (collectively “Easements”), pursuant to which Existing Easement Holder operates certain infrastructure, including underground sanitary and stormwater pipes, “Easement Facilities”. The Easements and real property encumbered by such Easements (the “Property”) are described in the attached Exhibit A; and, WHEREAS, Project Company is in the process of developing a solar energy facility on and in the vicinity of the Property (the “Project”), and may construct lines, structures, cables, conduits, improvements and other related facilities and equipment (collectively referred to as “Solar Facility Improvements”) on the Property for the purpose of accessing, constructing, operating and maintaining the Solar Project. Project Company has acquired interest in the Property allowing for the foregoing uses (whether in fee, leasehold or easement) pursuant to certain deeds and lease and easement agreements over the property described in the attached Exhibit B, each of which (or a memorandum of each of which) will be recorded in county records (the “Solar Agreements”); and, WHEREAS, Existing Easement Holder is willing to expressly consent to Project Company's construction, maintenance and use of said Solar Facility Improvements on the Property, some of which Solar Facility Improvements may cross the Easement Facilities, subject to certain conditions. 2 AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Consent to Solar Easements and Solar Facility 2. Improvements Existing Easement Holder hereby expressly consents to the Solar Agreements and the construction, operation and maintenance of the Solar Facility Improvements, so long as such Solar Facility Improvements are constructed, operated and maintained in compliance with all legal and regulatory requirements, including applicable electric and electric reliability codes and standards. Project Company has provided Existing Easement Holder with design and construction drawings for each location where the Solar Facility Improvements cross the Easement. The Solar Facility Improvements that cross the Easement Facilities shall only be those as shown in the construction drawings, unless otherwise approved in advance by Existing Easement Holder. 3. As-built Drawings. Upon the completion of construction, Project Company shall provide Existing Easement Holder a copy of the as-built drawings of all Solar Facility Improvements, including any crossing points with the Easement Facilities. 4. Cooperation. Existing Easement Holder will reasonably cooperate with Project Company with respect to the installation of Solar Facility Improvements on the Property. In exercising its rights under this Agreement, Project Company will not unreasonably or materially interfere with Existing Easement Holder’s use, possession, construction, operation, or maintenance of the Easement Facilities and Existing Easement Holder may continue to repair, maintain, operate and construct the Existing Facilities in accordance with the terms of the Easement (collectively, the “Work”), and any damages to the Solar Facility Improvements due to the above activities, will be at the expense of the Project Company. 5. Damages. Project Company agrees to notify Existing Easement Holder immediately in the event any damages are caused by Project Company or a Project Company contractor (or other agent) to the Easement Facilities. Project Company will repair the damage, at its expense, said repairs will be performed under the guidelines of Existing Easement Holder, all regulating entities, and the supervision, and to the satisfaction, of a Existing Easement Holder’s Inspector. In the event it is necessary for Existing Easement Holder to make the emergency repairs due to damage caused by Project Company or a Project Company contractor or other agent, or a failure to comply with Section 1, Project Company will reimburse Existing Easement Holder for its expense immediately upon receipt of Existing Easement Holder's invoice. 6. Notice. All notices given or permitted to be given hereunder shall be writing. Notice is considered given either (i) when delivered in person to the recipient named below, (ii) upon receipt after deposit in the United States mail in a sealed envelope or container, postage and postal charges prepaid, return receipt requested or certified mail, addressed by name and address to the party or person intended, or (iii) twenty-four (24) hours from proper and timely delivery to an overnight courier service addressed by name and address to the party or person intended as follows: 3 Notice to Existing Easement Holder: For construction drawings for approval or damages: City of Rosemount Attn: ___________________________ ___________________________ ___________________________ Notice to Project Company: Novel Energy Solutions L.L.C. Attention: Cliff Kaehler 2303 Wycliff Street, Suite 300 St. Paul, MN 55114 Either party may, by notice given at any time or from time to time, require subsequent notices to be given to another individual person, whether a party or an officer or representative, or to a different address, or both. Notices given before actual receipt or notice of change shall not be invalidated by the change. 7. Indemnification. Except as specified herein, Project Company will indemnify, defend, hold harmless and release Existing Easement Holder and any of its parent companies, subsidiaries and affiliates, and their respective directors, officers, employees and agents from and against any and all complaints, suits, liens, actions, damages, penalties, assessments, fines, losses, liabilities, costs, expenses, fees (including reasonable attorneys’ fees) (collectively “Project Company Liabilities”) in connection with the loss of life, bodily injury or damage to real or personal property, including Easement Facilities, arising from or out of Project Company’s exercise of its rights under this Agreement and the Solar Agreements, except to the extent any Project Company Liabilities are caused by the negligence or intentional misconduct of Existing Easement Holder, its employees, agents and/or contractors. Project Company’s obligations under this paragraph will survive the expiration or termination of this Agreement. Except as specified herein, Existing Easement Holder will indemnify, defend, hold harmless and release Project Company and any of its parent companies, subsidiaries and affiliates, and their respective directors, officers, employees and agents from and against any and all complaints, suits, liens, actions, damages, penalties, assessments, fines, losses, liabilities, costs, expenses, fees (including reasonable attorneys’ fees) (collectively “Existing Easement Holder Liabilities”) in connection with the loss of life, bodily injury or damage to real or personal property, including any Solar Farm Improvements, arising from or out of Existing Easement Holder’s gross negligence or willful misconduct in the exercise of its rights under this Agreement and the Easements, except to the extent any Existing Easement Holder Liabilities are caused by the negligence or intentional misconduct of Project Company, its employees, agents and/or contractors. Notwithstanding the foregoing, Existing Easement Holder will not be liable to Project Company for any special, consequential, indirect or punitive damages. Existing Easement Holder’s obligations under this paragraph will survive the expiration or termination of this Agreement. 4 8. Miscellaneous. This Agreement shall inure to the benefit and be binding on the respective heirs, successors, assigns, agents, contractors, and personal representatives of the Parties to this Agreement, and shall run with and against the Property. Project Company shall be permitted to assign this Agreement without the prior written consent of Existing Easement Holder, provided that the assignee shall assume and be subject to all of the obligations, covenants and conditions applicable to Project Company under this Agreement and provided so forth that Project Company provides notice of such assignment to Existing Easement Holder. Nothing contained herein shall be construed to abrogate or relinquish any rights granted by the original Easements. 9. Counterparts. This Agreement may be executed simultaneously or in counterparts, each of which together shall constitute one and the same Agreement. This Agreement may be recorded by either Party in the Recorder’s Office of any county in which the Property is located. This Agreement and the attached Exhibits shall constitute the entire agreement between the Parties and supersedes all other prior writings and understandings. This Agreement shall not be amended or modified in any way except by an instrument signed by the Parties. The Parties hereto shall at all times hereafter execute any documents and do any further acts which may be reasonably necessary or desirable to carry out the purposes of this Agreement and to give full force and effect to each and all of the provisions hereof. This Agreement shall be governed by and interpreted in accordance with the then existing laws of the State of Minnesota and the county where the Property is located shall be considered the proper forum or jurisdiction for any disputes arising in connection with this Agreement. Whenever in this Agreement the approval or consent of either Party is required or contemplated, unless otherwise specified, such approval or consent shall not be unreasonably withheld or delayed. Counterpart signature pages follow. 5 COUNTERPART SIGNATURE PAGE IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. EXISTING EASEMENT HOLDER: City of Rosemount _____________________________________ __, a ________________________________ By: Printed Name: Title: STATE OF ______________ ) ) ss. COUNTY OF _______________ ) The foregoing instrument was acknowledged before me this ___ day of _____________, 2019, by _________________, as _______________, of ______________________, a __________________. My commission expires: ________________ WITNESS my hand and official seal. ___________________________ Notary Public (SEAL) 6 COUNTERPART SIGNATURE PAGE IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. PROJECT COMPANY: NOVEL ENERGY SOLUTIONS LLC, a Minnesota limited liability company By: ______________________ Printed Name: William Georgia Title: Chief Operating Officer STATE OF MINNESOTA ) ) ss. COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me this ___ day of _____________, 2019, by William Georgia as COO, of Novel Energy Solutions L.L.C., a Minnesota Limited Liability Company. My commission expires: ________________ WITNESS my hand and official seal. ___________________________ Notary Public (SEAL) 7 EXHIBIT A List of Easements Utility and Drainage Easement, Document No. 2047142, 2623816 8 EXHIBIT B Legal Descriptions Property Description: That part of the West Half of the Southwest Quarter of Section 21, Township 115, Range 19, Dakota County, Minnesota, which lies southerly of the following described line: Commencing at the southwest corner of said West Half of the Southwest Quarter; thence North 00 degrees 02 minutes 34 seconds West, assumed bearing, along the west line thereof 1006.13 feet to the point of beginning of the line to be described; thence South 68 degrees 56 minutes 20 seconds East 154.28 feet; thence easterly, along a tangential curve which is concave to the north, having a radius of 882.00 feet, central angle of 44 degrees 04 minutes 24 seconds, 678.46 feet; thence North 66 degrees 59 minutes 14 seconds East 333.02 feet; thence easterly along a tangential curve which is concave to the south, having a radius of 882.00 feet, central angle of 13 degrees 36 minutes 52 seconds, 209.58 feet to the east line of said West Half of the Southwest Quarter and said line there terminating. Prepared by and After Recording Return to: Novel Energy Solutions L.L.C. Attention: Real Estate Dept. 2303 Wycliff Street, Suite 300 St. Paul, MN 55114 30' SETBA C K 30' SETBACK30' SETBACK CONN E M A R A T R AI L 30' PROPOSED UTILITY EASEMENT 50' PROPOSED ACCESS EASEMENT TEMPORARY ACCESS DRIVE 10' ELECTRICAL EQUIPMENT TRENCH Jul 19, 2019 - 1:43pm - User:jweyenberg L:\PROJECTS\21134.36\CAD\Civil\Exhibit\21134.36-EXHBT-ESMT.dwg A EASEMENT EXHIBIT Project Location Date Submittal / RevisionNo. Certification Sheet Title Summary Revision History Sheet No.Revision Project No. By Designed:Drawn: Approved:Book / Page: Phase:Initial Issue: Client NOVEL ENERGY SOLUTIONS 1633 S ROBERT ST., SUITE A WEST ST. PAUL, MN 55118 NOVEL CHURCH OF ST. JOSEPH SOLAR LLC ROSEMOUNT, MN 13900 BISCAYNE AVENUE WEST AJR JMW KMM PRELIMINARY 06/24/2019 21134.36 mm/dd/yy ###30% Issue mm/dd/yy ###60% Issue mm/dd/yy ###90% Issue SCALE IN FEET 0 NORTH 10050 Dakota County, MN Property Information Ju ly 10 , 2019 0 875 1,750437.5 ft 0 270 540135 m 1:9,600 Disclaimer: Map and parcel data are believed to be accurate, but accuracy is not guaranteed. This is not a legal document and should not be substituted for a title search,appraisal, survey, or for zoning verification.