This ORIGINAL WIND EASEMENT (this “Easement”) is made and entered into effective as of the Effective Date by and between ____ (“Owner”) and Amshore US Wind, L.L.C., a Texas limited liability company, its successors and assigns (“Grantee”).
“Easement Term” or “Term”: Subject to earlier termination in accord with the terms of this Easement and the Option to Extend Wind Easement Term, set out in Section 24 below, the period commencing on the Effective Date and continuing for thirty (30) years after the Date of Commercial Operation, as extended by the terms of this Easement for purposes of removal of Improvements and completion of Surface Restoration.
“Permitted Use”: (1) Installing, operating, maintaining, removing, replacing and collecting data from meteorological towers, stations and anemometers, conducting avian, archeological and biological assessments, environmental assessments, soil and preconstruction analysis, and other studies and evaluations deemed necessary by Grantee for purposes of evaluating the Wind Resources of the Premises, exercising the rights granted to Grantee hereunder, and developing the Wind Energy Project; (2) Constructing, installing, operating, accessing, maintaining and removing (including, when necessary, replacing) (a) WTGs on WTG Pads on the Premises for the conversion of Wind Resources to electricity, and including replacing WTGs for purposes of repowering for conversion of Wind Resources to electricity on WTG Pads located on the Premises and/or in connection or conjunction with other real property on which the Wind Energy Project is located; and (b) all related Improvements (i) necessary or convenient to Grantee in conjunction with WTGs for the Wind Energy Project (ii) for the use by Grantee in collecting, transmitting or otherwise making electricity from the WTGs on the Wind Energy Project marketable and available for sale; or (iii) for the use by Grantee for access to and from the Improvements or a public right of way to the WTGs for the Wind Energy Project (in each case, whether or not such WTGs are on the Premises), or (3) uses otherwise permitted herein. All references in this Easement to electricity or the production of electricity shall mean and include any forms of energy generated from renewable natural wind resources that might be developed, provided nothing contained herein gives Grantee the right to develop renewable natural resources other than wind without the written agreement of Owner regarding the manner in which such other resources may be developed and considerations due Owner therefore.
“Improvements”: Improvements include, but are not limited to, any of the following: WTG’s, buried electric collection lines, electric collection systems, electric transmission lines and poles, telecommunication towers and lines, buried fiber optic and other telecommunication lines, physical hardware, supporting components, Interconnection Facilities, O&M Building, Utility Substation, Collection Substation, transformers, junction boxes, any other operation and maintenance buildings, communication buildings, meteorological towers, stations, anemometers, electric substations, project access and other roads, staging and laydown areas for the construction and maintenance of such Improvements, gates, fences, and any other improvements, equipment, facilities, or fixtures completed by Grantee in accordance with the terms hereunder that are related to and for the purpose of converting Wind Resources into electrical energy (and transmitting data related thereto).
Development Spacing. From and after the Effective Date of this Easement, Owner agrees that it will not (and will not allow any other person or entity to) construct any improvements whatsoever on the Premises that will interfere with the free and unobstructed natural wind flow over the Premises to a WTG. Owner shall not construct any improvements on a WTG Pad without the prior written consent of Grantee. Owner shall not construct any building or other structure in excess of sixty (60) feet in height in the Wind Flow Zone. Owner shall have the right to construct and maintain normal and customary farm and ranch improvements such as livestock pens, water wells, barns and sheds within the Wind Flow Zone. The construction of such farm and ranch improvements within the Wind Flow Zone and the construction of improvements outside the Wind Flow Zone shall be deemed not to interfere with the free and unobstructed natural wind flow over the Premises to the WTG; provided however, Grantee shall not construct any WTG within one thousand four hundred (1,400) feet of the main residence on the Premises or one thousand (1,000) feet of any other existing, permanent residence or barn, either of which is located immediately adjacent to the main residence, or within one hundred fifty (150) feet from any other existing structures, pump jacks, tank batteries, or other above ground oil and gas facilities located on the Premises as of the Effective Date, without Owner’s prior written consent.
Utility Substation & Collection Substation. At any time during the Term of this Easement, and upon notice by Grantee, Owner agrees to either (i) accept rental payments or (ii) promptly execute a purchase agreement, for an electric substation (“Utility Substation”) and transmission facilities in favor of Grantee, or at Grantee’s option, in favor of any electric transmission utility company providing Grantee access for its electricity to the MISO grid, covering no more than twenty-five (25) acres of land, which land must be other than mineral classified land, the location of which will be selected by Grantee and approved by Owner (which approval will not be unreasonably withheld, conditioned or delayed). … Owner shall also grant appropriate easements or sales … for road and power transmission facilities to permit connection to existing transmission lines.
O&M Building. Grantee shall have the right to construct an operations and maintenance facility on the Premises with storage facilities and parking areas (“O&M Building”) covering no more than ten (10) acres of land, the location of which be selected by Grantee after consultation with Owner.
Construction. … Grantee shall construct and install all electric gathering lines, conduit, fiber optics and cables for the collection of electricity (and related data) from the WTGs of the Wind Energy Project underground, buried to a depth of at least forty (40) inches, to the point of connection with any Utility and/or Collection Substation. Upon Owner request, all ditching or trenching shall be done either by trenching using the double ditching method of trench construction whereby up to eighteen (18) inches of the topsoil will be separated from the balance of the dirt removed in making the ditch or trench, so that any caliche, other rock or shale will be separated from any topsoil so removed, or by the plowing method. In backfilling after any such operation, the topsoil first removed shall be used as cover soil in such a manner as to result in it being returned to the top of the ditch or trench as topsoil unless the existing soils are rocky and cause thermal resistivity issues which require the use of different soil.
New and Improved Road Payments. Grantee agrees to pay Owner for each new road constructed by Grantee for the Easement Term and existing roads improved by Grantee on the Premises a one-time payment based on Eight Thousand and No/100 Dollars ($8,000.00) per mile, with a minimum payment of Eight Thousand and No/100 Dollars ($8,000.00) regardless of the actual distance of any such road. Any such roads shall not exceed thirty-six (36) feet in width (or a temporary width of fifty (50) feet of such roads during construction or certain maintenance/repair activities for the WTG’s and other Improvements) without the consent of Owner, such consent not to be unreasonably withheld. … Payments under this Section 4.13 shall also constitute payment for surface and crop damages for the construction or installation of all underground electric gathering or collection lines and overhead power lines on the Premises that run along the route of or under new roads constructed by Grantee or existing roads improved by Grantee on the Premises, and any payments under this Section 4.13 shall be without duplication of the payments for Compensated Lines under Section 4.12.
Energy Royalty. Grantee shall pay Owner royalties on electricity produced from WTG’s located on the Premises, or on electricity sales from the Wind Energy Project otherwise attributable to the Premises (the “Energy Royalty”) as follows: (I) four percent (4.0%) of the Gross Revenues from the Date of Commercial Operation until the fifth (5th) anniversary of the Date of Commercial Operation; (2) four and one-half percent (4.50%) of the Gross Revenues from the fifth (5th) anniversary to the tenth (I 0th) anniversary of the Date of Commercial tion; (3) five percent (5.00%) from the tenth (10th) anniversary to the fifteenth (15th) anniversary of the Date of Commercial Operation; (4) five and one-half percent (5.50%) from the fifteenth (15th) anniversary to the twentieth (20th) anniversary of the Date of Commercial Operation; (5) six percent (6.00%) from the twentieth (20th) anniversary to the twenty-fifth (25th) anniversary of the Date of Commercial Operation; and (6) six and one-half percent (6.50%) from the twenty-fifth (25th) anniversary of the Date of Commercial Operation until the end ofthe initial Easement Term.
Definition of Gross Revenues. “Gross Revenues” means the total monies received by Grantee from a utility company or other power purchaser (provided, however, that if electricity is sold to a subsidiary or affiliate of Grantee, then, and only then, the gross receipts from the sale of electricity under such contract shall be calculated using a sale of not less than the arithmetical average of the prices quoted by market sources of information, which information may be based upon the price paid by any purchaser or purchasers, including Grantee or any subsidiary or affiliate of Grantee, for electricity produced in the Iowa region of the Midwest Independent System Operator (“MISO”) from operation of wind turbines during the calendar year immediate!y preceding the year in which such electricity production from the Wind Energy Project occurs, taking into account the aggregate terms associated with such transaction) derived from the sale of electric energy and capacity produced and sold from the WTG’s installed on the Premises, net of proportional energy losses associated with the power collection system or utility interconnection. For the avoidance of doubt, Gross Revenues shall (A) exclude monies received from any source other than the sale of electric energy and capacity, including, without limitation, any of the following: (i) any federal, state, county or local tax benefits, grants or credits or allowances related to, derived from, or granted to the Wind Energy Project or Grantee, including, but not limited to, investment or production tax credits, or property or sales tax exemptions, (ii) proceeds from financing activities, sales, assignments, partial assignments, contracts (other than the power purchase agreement) or other dispositions of or related to the Wind Energy Project (such as damages for breach of contract or liquidated damages for delays in project completion or failures in equipment performance), (iii) amounts received as reimbursements or compensation for wheeling costs or other electricity transmission or delivery costs, and (iv) any proceeds received by Grantee as a result of damage or casualty to the Wind Energy Project, or any portion thereof and (B) include any revenues derived from Grantee’s sale of carbon dioxide trading credits, renewable energy credits or certificates, emissions reduction credits, emissions allowances, green tags, tradable renewable credits, or Green-e® products, any of which are allocated to Grantee, if applicable, through its participation in any voluntary registry, association or market-based exchange.
Minimum Royalty. … Grantee shall pay Owner a minimum royalty (the “Minimum Royalty”) equal to the greater of (I) the dollar amount per nameplate rated Megawatt Capacity or (2) the dollar amount per WTG Installed on the Premises based on the minimum dollar amount per year, as set forth in the table below. In the event the Megawatt Capacity per WTG increases during the Easement Term as a result of any repowering effort, the Minimum Royalty shall likewise increase where applicable. The Minimum Royalty shall be prorated for partial years. Grantee shall be allowed to credit against the Minimum Royalty any Energy Royalty accrued during any applicable year and timely paid to Owner as provided in this Easement. In each year that the Energy Royalty timely paid to Owner in accord with this Easement exceeds the Minimum Royalty, then no Minimum Royalty shall be due. I f following Commercial Operation, Grantee terminates this Easement prior to the end of the Easement Term, the full Minimum Royalty for the year of termination will be due and payable unless such Energy Royalty paid during such year exceeds the Minimum Royalty.
|APPLICABLE PERIOD||MINIMUM ROYALTY|
|From the Date of Commercial Operation through the fifth (5th) anniversary of the Date of Commercial Operation||$3,500.00 per Megawatt Capacity or
$7,000.00 per WTG
|From the fifth (5th) anniversary of the Date of Commercial Operation through the tenth (10th) anniversary of the Date of Commercial Operation||$4,000.00 per Megawatt Capacity or
$8,000.00 per WTG
|From the tenth (1Oth) anniversary of the Date of Commercial Operation through the fifteenth (15th) anniversary of the Date of Commercial Operation||$4,500.00 per Megawatt Capacity or
$9,000.00 per WTG
|From the fifteenth (15th) anniversary of the Date of Commercial Operation twentieth (20th) anniversary of Commercial Operation||$5,000.00 per Megawatt Capacity or
$10,000.00 per WTG
Exclusive Use and Owner Access. This Easement grants to Grantee a sole, superior and exclusive right of use, enjoyment or possession of the Premises for the Permitted Use, including without limitation as to (a) each WTG Pad during the period of construction of the WTG located on such WTG Pad, (b) fenced construction staging or storage areas of Grantee, (c) any Utility Substation, (d) the O&M Building and (e) any Collection Substation, where Grantee shall have the exclusive right of use, possession and enjoyment of such facilities, all subject to Owner’s inspection and emergency rights under this Easement.
Standards for Removal of Improvements. … Tower Foundations and Pad Mount Transformer Foundations: All foundations installed on the Premises shall be demolished, cleared and removed from the ground to a depth of at least three (3) feet from the grade of the surface of the land (i.e., below plow depth). Grantee shall ensure that any holes or cavities created in the ground as a result of such removal are filled with topsoil of the same or similar type at the Premises in accord with Surface Restoration. …
Amshore US Wind, Corpus Christi, Texas
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