Resource Documents: Contracts (49 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.
Author: MidAmerican Energy
Highland Wind Energy, O’Brien County, Iowa
Although Developer is taking commercially reasonable measures to minimize the side-effects of the operation and construction of the Wind Farm’s Generating Units and other related facilities on property near or adjacent to the Wind Farm … and Developer does not expect these side effects to exceed any industry standards regarding sound, shadow flicker, or television interference, Owner understands and acepts that operation of Generating Units may have some impacts on the Wind Farm’s neighbors, including the Owner’s Property. …
1. Grant of Effects, Sound and Shadow Easements. Owner hereby grants and conveys to Developer and exclusive easement on, over, under and across all of the Owner’s Property to permit Generating Units or other wind energy conversion systems on adjacent property or elsewhere to cast shadows or flicker onto the Owner’s Property; impact view or visual effects from the Owner’s Property; and cause or emit noise, vibration, air turbulence, wake, and electromagnetic and frequency interference.
2. Construction Impact. Developer recognizes that Owner due to its location next to construction areas may be inconvenienced by construction noise and activities. Owner acknowledges Developer has informed Owner of the potential impacts of construction and agrees the compensation provided in this Agreement is adequate for the impacts described. …
20. Confidentiality. Owner shall not disclose to others (except Owner’s family, legal counsel, prospective Lenders and Assignees, and financial advisors who recognize and agree to preserve and maintain the confidentiality of such information) the terms of this Agreement. …
A one-time payment of One Thousand dollars ($1,000) upon signing this Agreement; and
If a Generating Unit is installed within one-half mile of a residence existing on the Owner’s Property as of the date of this Agreement, then Owner shall be paid either (initial one of the following options):
______ OPTION 1:
An annual payment of Five Hundred dollars ($500) … Such annual payment shall be adjusted upwards by the greater of two percent (2%) per year on a compunded basis or by the percentage change, if any, in the GDPIPD [gross domestic product implicit price deflator] for the the preceding available four quarters.. …
______ OPTION 2:
A single one-time payment of Nine Thousand dollars ($9,000). …
Author: Moorabol Wind Farm, Westwind Energy
Thank you for meeting with us on Monday to talk about the Moorabool Wind Farm.
We value all feedback received in respect of the project from you, other neighbours to the project and many other members from the broader community. We have reflected on your concerns voiced in the meeting, and have considered how we can best support your intentions to sell your property if the wind farm is built.
As part of this process, we contacted a Ballarat real estate agent to discuss his opinion on the impact of the wind farm on neighbouring property values. The agent we spoke to has 17 years experience selling properties in your area as well as properties around the Waubra wind farm. He is fully aware of the perceived impact the wind farm may have on properties, and he indicated he has no recollection of a wind farm causing a property to be sold below market value. He did indicate that it could potentially take slightly longer for the property to sell depending on the turbine locations relative to the dwellings. We advised the dwelling on the property was greater than one kilometre from a proposed turbine site, and his opinion is there will be little if any impact to the sales process or price. He also indicated rural properties in the Ballan area are in high demand from Melbourne residents looking for a sea change, as well as Geelong and Ballarat residents looking to move closer to Melbourne. We are hopeful that this information can give you some comfort that your property is desirable, in an interesting location, and is likely to be sold at market value. We would be happy to share the agents contact details with you if you would like to discuss this further with him. We also discussed fees associated with the sales and marketing of a rural property, and the services available for consultation to prepare your house for the best possible sales outcome. The agent indicated that $4,000 in marketing fees will register your property on all the major internet sales sites and list advertisements in the local and Melbourne papers. He specified that guidance on improvements required to secure the most lucrative sales price on your house is completed by the real estate agent, and this service is included as part of the 2.2% agency fees. He doesn’t know of any agencies that complete this service in your area and it is standard practice to include this assistance during the consultation process with a real estate agent.
We also discussed in our meeting that a direct financial benefit for wind farm neighbours can be achieved by entry into a voluntary participation agreement. Through this agreement, neighbours, like the host landholders, will receive a direct financial benefit from the wind farm, and in return accept some of the conditions that the host landholders also accept.
In response to your concerns as a neighbour to the wind farm, we are pleased to offer you a participation agreement on the following basic terms.
- A participation payment of $8,000 per year once the wind farm commences, to be made to you (as a neighbour) for the life of the wind farm. These payments will be made annually in advance.
- A once off sign-on payment of $25,000 to help cover the following estimated expenses if you choose to sell your property:
- Removalist fees $10,000
- Contribution to real estate agency fees $10,000
- Marketing fees for property listing $4,000
- Legal fees for participation agreement review $1,000
- Your acceptance of the same amenity standards, which the host landholders for the wind farm have accepted. [See section 4 of the Agreement, below.] The amenity standards agreed with host landholders are in line with the recommendations of the World Health Organisation, and pre-date the planning permit conditions.
- The participation agreement shall be capable of being transferred with the property. It will also be transferred on sale or transfer of ownership of the wind farm. Any transferee will need to be notified and agree to the participation agreement prior to (and as a condition of) sale or transfer. This will ensure that a new owner of the wind farm and any potential buyer of a neighbouring property is informed of the terms of the participation agreement, including the participation payment.
As indicated in the meeting, this agreement does not have ‘gag clauses’ or take away your right to complain about the wind farm. However, you will see in section 4.7 [see below] of the agreement, that the landholder agrees not to object to any development approval or other application or procedure made or initiated by the developer. Given the wind farm already has got a planning permit this clause is probably of little consequence for you. In addition to this clause section 9 [see below] does require the terms of this letter and attached agreement to remain confidential.
4.1(a) The Landholder acknowledges and agrees that the Annual Fee is adequate compensation and consideration for all matters contemplated by this Agreement including (without limitation) any nuisance caused by the construction, use and operation of the Wind Farm.
4.1(b) Without limiting the generality of clause 4.1(a), in consideration of the Annual Fee the Landowner agrees that the Landowner will not:
(i) require the Developer to provide any acoustic suppression or treatment measures in order to minimise any noise impacts resulting from the Wind Farm on the Property or any Dwelling or Permitted Dwelling on the Property (Acoustic Suppression); or
(ii) require the Developer to provide any landscaping treatment to the Property in order to minimise the visual impact of the Wind Farm on the Property or any dwelling on the Property (Landscaping); and
(iii) make any request under the Planning Permit:
(A) for any Acoustic Suppression or attenuation measures; or
(B) for any Landscaping for visual suppression or attenuation measures.
4.3 The Landholder shall not carry out, or allow to be carried out, any development or use of the Property that is likely to unreasonably diminish the security or utility of the Property or the Site for use as part of the Wind Farm. In particular, without the prior written consent of the Developer, the Landholder shall not:
(a) construct any dwelling on the Property additional to the Dwelling and Permitted Dwelling;
(b) erect any device to convert wind energy on the Property, other than a water pumping or other windmill no higher than 25 metres above ground level solely and exclusively for the generation and supply of electricity to the Dwelling, Permitted Dwelling or other buildings and uses on the Property; or
(c) otherwise obstruct or interfere with the potential operation or efficiency of wind turbine generators that form part of the Wind Farm.
4.6 To the extent permitted by law, the Landholder releases the Developer and its Related Persons from any damage, loss, cost, expense or Claim arising from or relating to any impact or effect of the Wind Farm on the Landholder or the Property, including but not limited to impacts or effects created by the construction, use and operation of the Wind Farm.
4.7 The Landholder must not object to any Development Approval or planning or other application or procedure made or initiated by the Developer or any other entity for any use or development of the Site or any neighbouring property that is related to or necessary for the Wind Farm, and must provide all reasonable assistance requested by the Developer for the purposes of obtaining approvals.
9(a) The parties expressly acknowledge that the contents of this agreement (and any documents or information provided by one party to another pursuant to or in connection with this agreement) are confidential and shall not be disclosed to any person except …
Author: “Wind Company”
In consideration of the payment made by Wind Company to Owner, the mutual promises and covenants of the Parties and other valuable consideration, receipt of which is hereby acknowledged, Owner and Wind Company hereby agree as follows.
1. Non-Disturbance and Waiver. Owner shall not engage in any activity that might disturb or cause interference with the construction and/or operation of the Wind Project and waives any and all claims based on nuisance or similar doctrines arising from the Wind Project or any effects of the Wind Project. Owner agrees during the Term not to build any structure more than sixty feet (60′) in height on that portion of the Property within 1,000 feet of any wind turbine on the Wind Property Property existing as of the date of Completion of Construction (hereinafter defined). The term of this Agreement shall commence upon the Effective Date, and shall terminate on the date that the Wind Project is no longer producing and delivering electricity to a third party purchaser of said electricity.
2. Setback from Residences. Wind Company warrants that no wind turbines shall be located within 1,000 feet of any habitable residence, church or school building, io the extent the foregoing exist as of the Effective Date and are in usable condition (provided, however, that the foregoing restrictions shall not apply to seasonally used residences such as hunting shacks or to derelict structures no longer being used by Owner.)
3. Fee. Owner and Wind Company acknowledge that during construction of the Wind Project there may be noise related to construction and other such as traffic inconvenience, dust and dirt on cars and other effects. Tn order to compensate Wind Company [sic] for such construction impacts and the other rights and waivers granted herein, Wind Company shall pay Owner a fee in accordance with the side letter dated of even date herewith (the “Payment”), one-half of which is payable thirty (30) days after the Commencement of Construction and the other half payable thirty (30) days after the Completion of Construction. “Completion of Construction” shall mean the date when all of the generating units and the related equipment for the Wind Project on the Wind Project Property have been installed in their entirety.
4. Default. If Wind Company fails to pay the Payment by the date specified in Section 2 or 3 above, and such failure continues for thirty (30) business days after Wind Company’s receipt of notice thereof from Owner, this Agreement shall terminate, and Wind Company shall have no further rights and remedies hereunder.
5. Mortgages and Assignments. Wind Company may, without need to obtain Owner’s consent or approval, (i) mortgage, collaterally assign, hypothecate, pledge or otherwise encumber and grant security interests in all or any part of its interest in this Agreement; and (ii) assign, transfer or otherwise convey all or part of its interest in this Agreement. Owner may sell, mortgage, assign or convey the Property without consent of Wind Company, but any conveyance shall be subject to the terms of this Agreement. In the event of a transfer of the Property by Owner, Owner shall obtain a covenant from the transferee of such rights that such transferee is subject to the terms and conditions of this Agreement and such transferee is entitled to receive the Payment (provided, however, that if the transfer is of less than all of the Property, the Payment will be divided pro rata among the owners of the Property.)
6. Covenants Running With the Land. The Parties hereby agree that all of the covenants and agreements contained in this Agreement touch and concern the real estate described in this Agreement aod are expressly intended to, and shall, be covenants running with the land and shall be binding and a burden upon the Property and Owner’s heirs, administrators, executors, legal representatives, renters, successors and assigns as holders of an estate or interest in the Property and shall benefit Wind Company [emphasis added] and its respective heirs, administrators, executors, legal representatives, successors and assigns and the Wind Project Property. To the extent any of the provisions of this Agreement are not enforceable as covenants running with !;he land the Parties agree that they shall be enforceable as assignable and alienable casements in gross. …
Side Letter to the Neighbor Agreement CONFIDENTIAL
This letter agreement is to set forth the agreement between [ ] and yourselves (“Grantor”) (each a “Party” and collectively the “Parties”), regarding the compensation for that certain Neighbor Agreement (the “Agreement”) between the Parties, dated of even date herewith, and to be recorded in the Official Public Records of [ ]. All capitalized terms not defined herein shall be given the meaning assigned to such terms in the Agreement.
The Parties hereby agree that the amount of the Payment referenced in the Agreement will be $10,000.00 USD, payable as set forth in the Agreement.
You agree that you shall keep this letter agreement confidential and that you shall not disclose the terms hereof, provided however, that you may disclose the terms of this agreement to your lenders, attorneys, accountants and other personal financial advisors, any prospective purchaser of the Property subject to the Agreement, or where required by law or pursuant to lawful process, subpoena or court order; provided that in making such disclosure you advise the party receiving such information of the confidentiality thereof and obtains [sic] the agreement of said party not to disclose such information. …
Author: Collgar Wind Farm
Collgar plans to construct one or more Wind Turbine Generators on land which is adjacent to the Affected Land. Collgar agrees to pay the Owner the Sum subject to the terms and conditions set out in this Document.
2(b) The Termination Date is the later of:
(1) 30 years from the Supply Date; and
(2) 50 years from the Supply Date, if Collgar provides notice in writing to the Owner prior to the date specified in clause 2(b)(1) that it is extending the Termination Date under this clause 2(b)(2).
3.1 The Owner must not object to:
(a) the Local Planning Scheme Amendments;
(b) any application by Collgar to any Consent Authority in relation to the Project; and
(c) the ongoing operation of the Project.
3.2 The Owner must provide or sign any consents in support of the Project if and when requested by Collgar, including to the Shire of Merredin and the Environmental Protection Authority.
3.3(a)(4) The Owner must … do all things reasonably necessary to facilitate the Project and to enable the registration of the Restrictive Covenant over the Affected Land at the cost and expense of Collgar.
3.4 The Owner must: …
(b) not apply for planning approval to construct a Noise-Sensitive Premises within the Restricted Area, without the prior written approval of Collgar which Collgar may withhold in its absolute discretion;
(c) not construct or permit to be constructe·d a Noise-Sensitive Premises within the Restricted Area, without the prior written approval of Collgar which Collgar may withhold in its absolute discretion;
(d) not construct or install or permit to be constructed or installed any building or structure of a height of more than 5 metres within 200 metres of a Wind Turbine Generator or Wind Monitoring Equipment without the prior written approval of Collgar, which cannot be unreasonably withheld; and
(e) not construct or install or permit to be constructed or Installed any building or structure of a height of more than 1 O metres within 500 metres of a Wind Turbine Generator or Wind Monitoring Equipment without the prior written approval of Collgar, which cannot be unreasonably withheld.
3.6 The Owner must not:
(a) grant or permit to be granted any lease or licence of or deal with any part or the whole of the Affected Land, unless:
(1) Collgar provides its prior written consent, which cannot be unreasonably withheld. For the avoidance of doubt, where the potential lessee or licensee is proposing to use the Affected Land for a purpose which is likely to interfere with the operation of the Wind Energy Facility, then Collgar is entitled to withhold its consent; and
(2) the potential lessee or licensee enters into a deed of covenant with Collgar whereby it agrees to be bound by and observe and perform the Owner’s Covenants in favour of Collgar as if the lessee or licensee was named as the Owner in this Document; or
(b) sell, assign, transfer, mortgage or charge any part or the whole of the Affected Land without obtaining a deed of covenant signed by the Buyer, mortgagee or chargee by which the Buyer, mortgagee or chargee of part or the whole of the Affected Land, as applicable, agrees to be bound by and observe and perform the Owner’s Covenants in favour of Collgar as if the Buyer, mortgagee or chargee was named as the Owner in this Document.
6(b) If the Owner breaches an essential term, Collgar may withhold any payments which are otherwise payable under this Document and/or terminate this Document by giving the Owner 2 Business Days’ notice in writing.
8(a) The Owner must not disclose to any third party without the prior written consent of Collgar:
(1) this Document or any of its provisions; or
(2) any report or other information obtained by the Owner in the course of or as a result of the Owner’s negotiations with Collgar …