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Agreement and lease – Kerwood Wind (Florida Power and Light/FPL Energy/Nextera)  

Author:  | Contracts, Economics, Environment, Ontario, Property values

License and Option Agreement

5.3 Confidentiality

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. …

11.5 Support

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.

Schedule “B”

1.1 Lease

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.

Download original document: “Agreement and lease – Kerwood Wind

This article is the work of the author(s) indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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