Resource Documents: Contracts (40 items)
Documents presented here are not the product of nor are they necessarily endorsed by National Wind Watch. These resource documents are provided to assist anyone wishing to research the issue of industrial wind power and the impacts of its development. The information should be evaluated by each reader to come to their own conclusions about the many areas of debate.
Click here to send in ordinances, contracts, research, testimony, presentations, etc.
Author: Morrison, Liz
Leasing your farmland for wind power offers another source of income — one that lets you continue farming the land. But wind agreements create complex legal and financial issues, and affect your property rights far into the future, says Jennifer Jambor-Delgado, a staff attorney at Minnesota-based Farmers’ Legal Action Group.
Because of this complexity — and the enormous sums of money and time involved in a wind project — you need competent legal advice from someone well-versed in wind power agreements, says Shannon Ferrell, an agricultural law professor at Oklahoma State University who specializes in renewable-energy contracts.
Ferrell also urges landowners to form a negotiation group “the moment you hear that someone in your area has been approached about wind power. You’ll strengthen your bargaining power.”
1. How will the lease affect my farming operation?
A commercial wind project needs about 60 acres of land per megawatt (MW). But only 3% of that area — roughly three acres — is occupied by turbines, substations and access roads. The rest is a buffer zone to preserve wind flow. The lease should clearly state your rights to use the land for farming, grazing, development of subsurface minerals, hunting or other uses, Jambor-Delgado says.
Despite a relatively small footprint, a wind project can significantly affect farm operations, efficiency and production, says Dwight Aakre, North Dakota State University Extension farm management specialist.
Turbines and access roads can change field configurations, disrupting row orientation and creating inconvenient end rows or land fragments inaccessible to large equipment.
Field-drainage patterns may be altered. Center-pivot irrigation systems can be blocked. On grazing land, fences, gates and cattle guards may have to be changed.
“Aerial crop spraying is often an issue,” Aakre says. In the north, snow plowing can cause headaches for growers. “Those access roads have to be kept open, and if the snow piles up in the field it can take a long time to melt in the spring, delaying or preventing planting.”
Farmers should raise agricultural-production issues in the initial contract talks, says Dean Retherford of Halderman Farm Management, Lafayette, IN. Retherford has helped negotiate leases for several wind projects in northwest and west-central Indiana, involving 39 wind turbines on farms he manages.
“We learned to request input on the location of roads,” Retherford says. “And the wind companies found that landowners were more of a help than a hindrance” in site decisions, he says.
The lease should clearly state how you will be compensated if land is taken out of production or crops, livestock, soil or other property are damaged during construction or operation. On one of the farms Retherford manages, for instance, a crane crushed half a mile of brand new 12-in. tile.
2. How long will the lease tie up my land?
Wind-power leases often last 50 years. The long lease period is necessary to give the developer time to earn a return on the huge up-front investment needed to build a wind farm.
The initial lease term is usually 25 years — the expected life of a turbine. Wind-power leases also include a renewal provision, extending the contract for another 20 or 25 years. The decision on whether to renew the lease is almost always the tenant’s exclusively, Ferrell says. “Landowners don’t have any say.” However, some leases may allow landowners to renegotiate the commercial terms at renewal time. “This is where collective bargaining is a very helpful tool.”
Wind leases will probably affect your estate plans, too, he adds, so it’s a good idea to include your heirs in the discussions.
3. What are my obligations under the lease?
The lease will prohibit you from doing anything that obstructs the flow of wind over the surface of your property.
This includes restrictions on the height and location of structures such as barns, grain bins, cell towers, even houses and trees. In some cases, Ferrell says, the lease may prevent you from improving your property without permission from the wind company. “If you have improvements planned for the property, get approval for them” before you sign the lease, he says.
That goes for drainage upgrades, too, says Retherford, the Indiana farm manager. Wind farms often include underground power lines. “If you’re thinking of installing pattern tile in the next 10 years or so, do it before the turbines come.” After the project is built, you will need advance permission to maintain or repair tile, he adds.
You must also avoid damaging the wind-power structures. Vehicular accidents, fires or other mishaps can result in big losses, which may not be covered by your personal and farm-liability policies, Aakre says.
You will probably need to buy additional insurance to satisfy your indemnification obligations, Ferrell says. “This is especially important if you lease the property to hunters.” He adds: Increased insurance requirements for the landowner should be factored into compensation negotiations.
Likewise, the developer should indemnify you from damage claims arising from the tenant’s use of your land, Jambor-Delgado says.
Wind-power leases may also affect your obligations under other land agreements, she says. If the property has a mortgage, for example, you may need your lender’s consent to enter into a wind-company lease.
The lease should address the payment of debts secured by the land as well as placement of new liens on the property, she says.
Be wary of lease provisions that require you to personally obtain subordination agreements from your creditors, or that prevent you from using your land to secure future credit, Ferrell says.
A wind lease may also affect your eligibility for government farm programs, Jambor-Delgado says, so don’t sign a lease before checking with the appropriate agencies.
4. How will I be compensated?
Lease payments can be structured in many ways, including:
- fixed payments based on acreage, towers or megawatt capacity;
- royalty payments based on a percent of gross revenue;
- or some combination.
All the wind-lease payments that Dean Retherfordhas negotiated are based on gross revenue per turbine. Each 1.5- or 3-MW turbine earns an annual royalty payment of $5,000 and $8,000, he says. The wind companies pay property taxes on the commercial facility, but not on the leased land.
Most wind-power leases today provide for similar royalties based on revenue, Ferrell says — typically 3-5% of gross earnings. The contract should clearly spell out how your payment will be calculated.
For example, if your royalty is 4% of gross revenue, how will gross revenue be defined? Does it include only the sale of electricity, or does it also include revenue from the sale of tax credits or renewable energy credits? Will your payment be based on revenue from the turbines on your land alone, or on average revenue for the entire wind farm? What can be subtracted from gross revenue? Can the wind-power company deduct for power lost during transmission or for periodic curtailments?
Leases that include a royalty should also set a minimum rent that will be paid whether or not the turbines are generating power for sale, Ferrell says. In addition, many royalty leases now include an “escalator” provision raising the royalty percentage at specified intervals. This arrangement can be a good deal for both the developer and the landowner, he says. During the early years of the project, the company can recover its initial costs faster. In later years, the landowner shares in a greater percentage of profits.
Royalty leases should always include an audit provision, Aakre says, which allows access to the company’s financial records “to verify the revenues produced by the wind farm.”
5. What happens when the project ends?
“A frequent fear of landowners is that the developer will default or dissolve, and the landowner will be left with huge, inoperable machines” littering the property, Ferrell says.
Such fears are not unfounded, Aakre says. “It’s a real risk.” North Dakota’s relatively weak reclamation law, for example, “permits turbines to stand idle so long that the company could be long gone.”
Your lease should provide for the removal of the wind farm structures and roads when the project is finished and restoration of the soils, Aakre says. The lease should outline your rights if the wind company doesn’t fulfill its obligation. Some agreements require a performance bond from the developer to ensure that money is available to pay for decommissioning.
Land reclamation is one of the most difficult parts of a wind-power lease negotiation, Retherford says. Although the towers have significant metal salvage value, they require specialized cranes to dismantle. And the massive foundations are expensive to remove.
“Each turbine has 40 yards of concrete in the foundation. One company wanted to grind the concrete down to 6 ft., but we negotiated removal down to 8 ft. so you could tile over it.” Benton County, IN, where the project is located, requires wind companies to deposit money in an escrow fund to pay for the reclamation, he adds.
How to evaluate the wind-power developer
How do you know if the wind-power developer you’re working with is reputable?
“That’s a separate challenge in itself,” says Dean Retherford, an Indiana farm manager who has been involved in many wind-lease negotiations in the Hoosier State, which has seen a tenfold increase in wind power since 2009.
Landowners should investigate the developer’s history and track record, he says. “Who is the company? Where is their financing coming from? Does the company have experience building turbines? Do they have other projects operating?” These are all questions landowners should ask, he says.
“There are a lot of experienced wind power developers now,” says Shannon Ferrell, an agricultural law professor at Oklahoma State University. You can ask the company for references and talk to landowners where the developer has done other projects.
Other signs that the developer has the know-how and resources to put together a wind farm include an agreement to sell the wind power to a utility company, and an agreement to connect to the electricity grid.
“I encourage landowners to take their time,” says Dwight Aakre, a North Dakota State University farm management specialist. “Don’t rush into an agreement. And don’t let the developer push you around.”
Types of wind-power property agreements
There are several types of legal agreements that give developers access to your land and wind, says Jennifer Jambor-Delgado, a staff attorney at Farmers’ Legal Action Group, which has published a book on wind-power leases (www.flaginc.org). Farmers should keep in mind that “once you have a written agreement with a developer, that agreement controls” the rights and obligations of both parties, she says. “Any verbal agreements can’t be relied on if they are not written into the contract.”
Property agreements used to develop a wind farm include:
- Option: Gives the developer the right to lease the land at an agreed-upon price, subject to agreed-upon terms.
- Access Easement: Allows the developer to travel across your property and construct roads to reach turbine areas.
- Construction Easement: Gives access for construction of turbines and support equipment, as well as temporary “lay-down” areas for equipment and machinery storage.
- Transmission Easement: Allows developer to construct and operate underground and above-ground transmission lines and substations.
- Wind Non-obstruction Easement: You agree not to construct any improvements that could interfere with wind speed or direction.
- Overhang or Encroachment Easement: You agree to allow turbine blades to overhang your property, even if the turbine is not on your land.
- Noise Easement: You agree to allow a certain level of noise from the turbine.
- Covenant:Binds later purchasers of the land to abide by certain restrictions.
- Lease:Creates a landlord-tenant relationship for a set period of time allowing tenant the exclusive right to use the property. If the landowner wants to retain rights to use the land, such rights must be specifically stated.
Sources: Shannon Ferrell, Oklahoma State University; Windustry; Farmers’ Legal Action Group, Inc.
How a wind turbine could affect your farming operation
Construction phase damage: Soil compaction and damage to crops, drainage structures, terraces, fences and other farm property may occur during the construction phase.
Improvement restrictions: Wind power leases usually restrict buildings to protect wind flow. Drainage tile installation and maintenance work may also be restricted due to underground power lines.
Aerial spraying: Wind towers may interfere with crop spraying in the area.
Field configuration: Turbines and access roads can change field configurations, resulting in new end rows, strips inaccessible to large equipment, irrigation disruptions and irregular fields that reduce efficiency of field operations.
Snow removal: Snow piled up on fields due to clearing access roads can delay or even prevent spring fieldwork.
Sources: Dwight Aakre, Dean Retherford, Shannon Ferrell, Farmers Legal Action Group, Windustry
—Liz Morrison, Corn and Soybean Digest, Mar. 1, 2012
Author: Australia House of Representatives
Debate resumed on the motion by Mrs Moylan:
That this House:
(1) recognises the importance of clean energy generation technologies in Australia’s current and future energy mix;
(2) acknowledges the exponential growth of wind power across Australia;
(3) appreciates that prudent planning policies are key to ensuring new infrastructure development does not adversely impact upon the social fabric of communities;
(4) notes that:
(a) the Environment Protection and Heritage Council has decided to cease further development of the National Wind Farm Development Guidelines;
(b) there is significant anecdotal evidence supporting concern about the health and associated social effects of wind farms which remain unresolved; and
(c) the Senate Community Affairs Reference Committee’s report, The Social and Economic Impact of Rural Wind Farms has, as a matter of priority, called for adequately resourced studies into the possible impact that wind farms have on health;
(5) recognises that the National Health and Medical Research Council’s rapid review into Wind Turbines and Health is only a cursory compilation of literature on the topic and not an in depth study and should not be principally relied upon to inform planning guidelines;
(6) calls on the Government to urgently commence full in-depth studies into the potential health effects of wind turbines, especially low-frequency infrasound;
(7) requests that the Government fully investigate international best practice in planning policies regarding wind farms and, in conjunction with State governments, publish comprehensive updated guidelines;
(8) calls on State, Territory and local government authorities to adopt cautious planning policies for wind farms and in the interim provide adequate buffer zones and not locate wind farms near towns, residential zoned areas, farm buildings and workplaces; and
(9) calls for approval processes to require wind farm developers to indemnify against potential health issues arising from infrasound before development approval is granted.
Mrs MOYLAN (Pearce): … Wind farms are decades old; they are not new. But in modern times the magnitude and the proliferation have grown exponentially. A single wind farm can require tens of thousands of hectares of land, housing hundreds of turbines as tall as the Sydney Harbour Bridge. A single project may amount to a billion-dollar investment. Despite the fact that wind power projects are set to quadruple over the next 30 years under the government’s clean energy package, there are no nationally consistent policies or laws governing their development. Planning decisions taken by state governments vary and may involve legislation that uses an arbitrary rule in relation to proximity to dwellings and workplaces. They do not necessarily take into account the geography or the topographical features of a landscape that wind farms will be located in. In Western Australia, for example, there is no legislation enforcing development plans~just guidelines loosely developed with consideration to the rapid review undertaken by the federal government.
In any jurisdiction in the country, stringent planning policies apply to everything from a backyard shed, or indeed a fence, to an airport. Just ask any developer. Yet planning policies for wind farms are approached on an ad hoc basis, informed by cursory investigations into concerns that in some cases are tearing communities apart, particularly rural communities, and causing many people to vacate their homes. The increased size o f turbines and the increased amount of land utilised for the farms are growing to mammoth proportions. Therefore, it seems fundamental that we need proper planning procedure to ensure that the community anxiety is addressed and that the best outcome is achieved for all stakeholders.
I think that we should work on the basis that we should do no harm with this policy. Although wind power is a clean technology, that does not mean that it has no environmental impact. A number of people Jiving near to wind farms have reported a myriad of health issues. The low-frequency noise and infrasound produced by wind turbines has been identified as a potential cause of some of these problems. The science behind infrasound is quite detailed and requires a thorough examination. …
Mr SCHULTZ (Hume): It is a shame that I will not have more time to expose the great fraud on the Australian people that is the wind turbine industry. Communities in proximity to wind turbine complexes are experiencing health and noise impacts that interfere with their lives. They did not experience these issues before the turbines came online. I have received complaints from my constituents that confirm similar experiences at other sites. It appears that noise frequencies occur inside houses, which some people hear and others do not hear. Similarly, it appears from testing that there are low frequencies in houses that are below the threshold of hearing that can generate effects on people, giving rise to headaches and nausea. There is no transparency in relation to noise testing. It is all in-house by the wind operators and nothing is released in the public domain. The wind turbine industry says there are no problems but there are cracks appearing in this position. A number of wind turbine operators are now buying houses when there is proof of a noise issue even when they say there is no problem. There are proposals for hundreds of turbines to be installed and we still do not have the health and noise studies nominated in the Senate inquiry. It is foolish to proceed with more turbines on the problems with the current ones simp1y have not been resolved.
Rural communities believe they are being discriminated against by the provision of wind farms producing excessive noise. They have every reason to believe this when you investigate the conduct of the New South Wales planning department in their lack of due diligence and accountability in the noise compliance assessment process. That the New South Wales Department of Planning is clearly complicit in also hiding the truth from rural communities can be seen from this noise compliance assessment document of the Capital Wind Farm which has had 80 per cent of the data removed prior to the document being released under a freedom of information request. …
Mr MATHESON (Macarthur): … While it is important that we explore and pursue cleaner energy solutions, little research has been conducted into the detrimental health and social effects of wind turbines on nearby populations. People living near wind turbines report a range of symptoms: chronic sleep deprivation, headaches, nausea, increased stress and what Dr Nina Pierpont MD has coined ‘wind turbine syndrome’. Wind turbine syndrome is a recently diagnosed illness mainly because wind turbines are a relatively new technology. This syndrome is believed to be caused by ultra–low frequency noises known as ‘infrasound’ generated by turbines moving through the air. Many within the wind industry construe wind turbine syndrome as a fabricated illness; however, people living near wind turbines all over the world are reporting a uniform set of symptoms.
As the body of evidence supporting the detrimental health effects of wind turbines is still largely anecdotal, the government must as a matter of urgency commence full in-depth studies into the potential health effects of wind turbines, especially low-frequency infrasound. Additionally, the government must fully investigate international best practice in planning policies regarding wind farms, and publish comprehensive updated guidelines. As a nation we are investing billions of dollars in wind energy, which is expected to continue over the coming decades. It is incredibly important that our planning policies ensure that new developments do not adversely impact on the health of our communities. Many of these health concerns have not been investigated. Nor have there been any in-depth studies into the potential health effects of wind turbines, especially low-frequency infrasound. It is poor policy to allow wind farms to be constructed without proper planning guidelines to protect our rural and regional populations.
The Senate Community Affairs References Committee report The Social and Economic Impact of Rural Wind Farms has called for adequately resourced studies into the possible impact wind farms have on health as a matter of priority. The government has failed to implement any of these recommendations. …
PRIVATE MEMBERS’ BUSINESS
Monday, 19 March 2012
BY AUTHORITY OF THE HOUSE OF REPRESENTATIVES
Author: FPL Energy
3.3 Use of Owner’s Property. During the Option Term, Operator and its employees, agents and contractors shall have a non-exclusive right to enter upon the Owner’s Property and the right of ingress and egress over and across the Owner’s Property for the purposes of (i) surveying the Owner’s Property; (ii) performing such other tests and studies as Operator may desire in connection with the Option, including, without limitation, environmental, avian and cultural resource assessments, and geotechnical,foundation and soil tests; provided that such activities do not unreasonably interfere with Owner’s use of the Owner’s Property as set out in Section l0.4.; and (iii) installing, maintaining, operating, inspecting and removing one or more wind monitoring devices and all associated activities (including the Meteorological Towers referenced in Section 7.3), and including the performance of all tests and studies associated therewith.
4.1 Construction Easement. … When installing, maintaining or removing the nacelle and rotor from any Wind Turbine, whether located on or off of Owner’s Property, this Construction Easement also shall permit workers to do the following: (a) (for the purpose of securing tag lines) travel on foot or in a pickup truck, SUV, small forklift or other similar vehicles onto Owner’s Property up to seven hundred (700) feet in any direction from the center of the Access Easement; and (b) drive an erection crane on Owner’s Property.
4.2 Access Easement. Owner grants to Operator an irrevocable, non-exclusive easement for vehicular and pedestrian ingress and egress over, across and along the Owner’s Property (or such portions thereof that may be described in the attached Exhibits “B”), by means of any existing roads or lanes thereon, or otherwise by such route or routes as Operator or Owner may construct from time to time.
4.3 Wind Turbine Easement. Owner grants Operator an irrevocable, exclusive easement to construct, operate and maintain Wind Turbines, Collection Facilities, (as defined in Section 7.2) together with associated roads and parking areas on Owner’s Property …
4.4 Collection Easement. Owner grants to Operator an irrevocable, exclusive easement for the construction, installation, maintenance, use, operation, repair, replacement, relocation and removal of Collection Facilities on, over, across, along and under the Owner’s Property …
4.5 Wind Non-Obstruction Easement. Owner grants to Operator an irrevocable, exclusive easement for the right and privilege to use, maintain and capture the free and unobstructed flow of wind currents over and across the Owner’s Property. Owner shall not interfere, or permit any other party to interfere with the free, unobstructed and natural wind flow, wind speed or wind direction over and across the Owner’s Property by doing the following within 1400 feet of a Wind Turbine or proposed Wind Turbine location: (a) constructing buildings or other structures on the Owner’s Property; (b) planting trees on the Owner’s Property; or (c) engaging in any other activity on the Owner’s Property or elsewhere that might, in the sole opinion of Operator, cause a decrease in the output or efficiency of the Wind Turbines located on the Owner’s Property.
4.7 Noise Easement. Owner grants Operator an irrevocable, non-exclusive easement for the right and privilege to generate and maintain audible noise levels in excess of fifty (50) dbA on and above the Noise Easement Property at any or all times of the day or night (”Noise Easement”). The “Noise Easement Property” shall mean the Owner’s Property except those portions within a 200-foot radius circle (or lesser distance with Owner’s prior written consent) centered on the inside of each presently existing, occupied residence on the Owner’s Property.
10.1 Exclusive Use by Operator. Subject to the limitations in Sections 10.3 and l0.4, Operator shall have the exclusive right (i) to use and possess the Operator Property in connection with the Wind Power Project and other similar wind-powered electrical power generation projects; (ii) to investigate, inspect, survey, and conduct tests of the Owner’s Property, including, but not limited to, meteorological, environmental, archeological and geotechnical tests and studies; (iii) to use and convert all of the wind resources on the Owner’s Property; and (iv) to undertake such other activities on the Owner’s Property that may be related to the Wind Power Project, including, without limitation, the storage of towers, materials and equipment during the installation and construction of the Wind Turbines and other Improvements; development and operation of communications systems; and site tours of the Wind Power Project for visitors and other interested parties.
10.4.2 Ranching and Agricultural Uses. Owner and Operator agree to cooperate with each other in a manner that will allow Owner to continue the current ranching and agricultural uses of the Owner’s Property in a manner that does not unreasonably interfere with Operator’s use of the Operator Property.
10.4.3 Hunting and Other Recreational Uses. Owner and Operator agree to cooperate with each other in a manner that will allow Owner to use the Owner’s Property for hunting and other recreational purposes in a manner that does not unreasonably interfere with Operator’s use of the Operator Property. Before allowing any person to enter upon the Owner’s Property for hunting or other recreational purposes, Owner shall require each such person to execute a Hunter’s Waiver and Release Agreement in substantially the same form as the attached Exhibit “C”. If Owner should fail to obtain such Hunter’s Waiver and Release Agreement, Owner shall be liable to Operator in the same manner as the person who failed to sign the Hunter’s Waiver and Release Agreement would have been liable if such person had signed such Hunter’s Waiver and Release Agreement, and Owner agrees to indemnify and hold Operator harmless from any loss, liability clam or damage resulting from the failure of Owner to obtain such person’s signature on the Hunter’s Waiver and Release Agreement.
10.7 No Interference. During the Tenn of this Agreement, Owner covenants and agrees that neither Owner nor its agents, lessees, invitees, guests, licensees, successors or assigns will (i) interfere with, impair or prohibit the free and complete use and enjoyment by Operator of its rights granted by this Agreement; (ii) take any action which will interfere with or impair the availability, accessibility, flow, frequency, or direction of air and wind over and above the Owner’s Property; (iii) take any action which will in any way interfere with or impair the transmission of electric, electromagnetic or other forms of energy to or from the Owner’s Property; or (iv) take any action which will interfere with or impair Operator’s access to the Owner’s Property and the Operator Property for the purposes specified in this Agreement.
16. Confidentiality. THIS AGREEMENT INCLUDES CONFIDENTIAL AND PROPRIETARY INFORMATION RELATING TO OPERATOR AND THE WIND POWER PROJECT. IN ADDITION, FROM TIME TO TIME OPERATOR MAY DELIVER TO OWNER ADDITIONAL CONFIDENTIAL AND PROPRIETARY INFORMATION RELATING TO THE WIND POWER PROJECT (“ADDITIONAL INFORMATION”). OWNER AGREES NOT TO PROVIDE COPIES OF THE AGREEMENT OR ADDITIONAL INFORMATION OR DISCLOSE THE TERMS OF THE AGREEMENT OR ADDITIONAL INFORMATION TO ANY UNAUTHORIZED PERSON OR ENTITY. OPERATOR AUTHORIZES OWNER TO PROVIDE COPIES OF THE AGREEMENT AND ADDITIONAL INFORMATION AND DISCLOSE THE TERMS THEREOF TO OWNER’S FAMILY, ATTORNEY, ACCOUNTANT, FINANCIAL ADVISOR AND ANY EXISTING OR PROSPECTIVE MORTGAGEE, LESSEE, OR PURCHASER, SO LONG AS THEY LIKEWISE AGREE NOT TO PROVIDE COPIES OF THE AGREEMENT OR ADDITIONAL INFORMATION OR DISCLOSE THE TERMS THEREOF TO ANY UNAUTHORIZED PERSON OR ENTITY.
Author: Kerwood Wind
License and Option Agreement
The Grantor covenants and agrees that: (i) the terms and conditions of this Agreement and any information which is has access to or which comes into its possession relating to the Grantee’s activities … shall be held in the strictest confidence by the Grantor, and that the Grantor shall not disclose any Confidential Information to any third party except as may be required by law …
5.4 Publicity Clause
The Grantor shall not use the Grantee’s name nor that of the Grantee’s affiliates or the names of the Grantee’s employees in any announcements, advertising, promotional material or in any publication without the prior written consent of the Grantee, except as provided in this Agreement. …
The Grantor will support the Grantee’s proposed Wind Power Facilities for the License Lands in any public consultation and communication processes relating to this Agreement.
The Lessor … does hereby lease unto the Lessee and the Lessee leases from the Lessor the Leased Lands to be held by the Lessee as tenant for the term of twenty-one (21) years … for the purposes of wind energy conversion, the production, collection, storage and transmission of electric power (whether generated on or off the Leased Lands) and related activities including, without limitation: …
(b) surveying, laying, constructing, erecting, inspecting, repairing, altering, maintaining, operating, using, relocating and replacing one or more Wind Turbines, overhead and underground electrical transmission, instrument services, utility and communication towers, lines, wires, cables and conduits, electric transformers, energy storage facilities, telecommunications equipment and facilities, power generation equipment and facilities to be operated in conjunction with Wind Turbine installations, electrical substations, converter stations and switching facilities, roads, meteorological towers and wind measurement equipment, control buildings, maintenance yards, and related facilities, structures, equipment and works including foundations, poles, stays, traverse supports and anchors (collectively referred to as the “Wind Power Facilities”) in, on, under, above, along and across the Leased Lands; and:
(c) undertaking any other activities, whether accomplished by the Lessee or a Person authorized by the Lessee, that the Lessee reasonably determines are necessary, useful or appropriate to accomplish any of the foregoing.
The Lessee in its use of the Leased Lands shall be entitled to: (i) construct, use, repair, service, inspect and maintain one or more drainage ditches, trenches and culverts; (ii) cut, trim, remove and destroy in any way and at any time any trees, bushes, branches, shrubs and roots located thereon and to remove from the Leased Lands any objects, construction or structure situated on the Leased Lands; and (iii) prohibit any person from erecting any construction or structure on, above, under, along or across the Leased Lands or to alter the present elevation of the Leased Lands.
3.5 Permanent Crop Damage
If any Wind Power Facilities constructed or installed on the Leased Lands causes permanent physical damage to any crops or timber located outside of the Leased Lands, the Lessee shall compensate the Lessor for such permanent damage … at the rate of Six Hundred Dollars ($600.00) per acre …
6.1 Quiet Enjoyment
The Lessor covenants that the Lessee upon observing and performing in all material respects the covenants and conditions on the Lessee’s part herein contained, shall and may peaceably possess and enjoy the Leased Lands to the extent provided herein and the rights and privileges hereby granted during the Term without any interruption or disturbance from or by the Lessor or any other Person whosoever.
6.3 Restrictive Covenants
(a) The Lessor shall not and will not suffer or permit any person to disturb or interfere with: (i) the construction, installation, maintenance, repair, inspection, use or operation of the Wind Power Facilities, whether located on the Leased Lands or elsewhere; (ii) access over the Lands to the Wind Power Facilities; (iii) any development activities; or (iv) the undertaking of any other activities permitted hereunder. Further, the Lessor agrees that it shall not undertake any action including, without limitation, hunting, blasting, excavation or construction, that may have the effect of constituting a danger to the Wind Power Facilities or increasing the Lessee’s maintenance, repair or operation costs with respect to the Wind Power Facilities. Without limiting the generality of the foregoing, the Lessor shall not interfere with the wind speed or wind direction over the Lands or the Leased Lands, whether by placing Wind Turbines, planting trees or constructing buildings or other structures, or by engaging in any other activity on the Lands or elsewhere that might cause a decrease in the output or efficiency of the Wind Power Facilities. … For greater certainty, the Lessor covenants and agrees that it will not, and will not suffer or permit any Person to, place, construct and erect on the Lands any above ground structure during the Term, without the express written consent of Lessee. …
(b) … The Lessee shall have the exclusive right to collect, convert and transmit all the wind resources on the Lands, and the Lessor agrees that it will not interfere with the Lessee’s operations hereunder or the enjoyment of the rights hereby granted. …
(c) The Lessor acknowledges and agrees that the duration and area within which the restrictions set forth in subsections 6.3(a) and (b) shall apply have been considered by the Lessor and the restraints and restrictions of and on the future activities of the Lessor are reasonable in the circumstances. All defences to the strict enforcement thereof by the Lessee are hereby waived by the Lessor. The Lessor acknowledges that a breach of any of the provisions contained herein would cause the Lessee to suffer loss which could not be adequately compensated for by damages and that the Lessee may, in addition to any other remedy or relief, enforce the performance of the provisions of this Section 6.3 by injunction or specific performance upon application to a court of competent jurisdiction without proof of actual damage.
13.21 Grant of Effects License
Lessor grants and transfers to Lessee a non-exclusive License for audio, visual, view, light, flicker, noise, shadow, vibration, air turbulence, wake, electromagnetic, electrical and radio frequency interference, and any other effects attributable to the Wind Power Facilities or activity located on the Leased Lands or on adjacent properties (“Effects License”). The burden of the Effects License shall run with and bind the Lands and every part thereof and benefit the Lessee’s interest in the Leased Lands and such other lands that the Lessee may have a real property interest in from time to time and which form part of the Project. If requested by the Lessee, the Lessor shall execute and deliver to the Lessee such separate and registerable transfer of easements which reproduce the terms of the Effects License.
13.22 Setback Waiver
To the extent that (a) Lessor now or in the future owns or leases any land adjacent to the Leased Lands; or (b) Lessee leases or holds an easement license or a lease over land adjacent to Leased Lands and has installed or constructed or desires to install or construct any Power Facilities on said land at and/or near the common boundary between the Leased Lands and said land. Lessor hereby waives any and all setbacks and setback requirements, whether imposed by law or by any person or entity, including, without limitation, any setback requirements described in the zoning by-laws of the County and/or Province or in any governmental entitlement or permit heretofore or hereafter issued to Lessee. If so requested by Lessee, Lessor shall promptly, without demanding additional consideration therefore, execute, and if appropriate cause to be acknowledged, any setback waiver, setback elimination or other document or instrument required by any governmental authority or that Lessee deems necessary or convenient to the obtaining of any entitlement or permit.