Resource Documents: Contracts (61 items)
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Author: Browne, Karen; and Hamilton, Carol
The Western Australian Government is committed to achieving net zero emissions by 2050. In doing so, energy companies are under increasing pressure to reduce emissions and adopt low or no carbon technologies. The South West Interconnected System has recently doubled in size and includes the 51 turbine Yandin Wind Farm opened in May 2021. Currently, there are plans underway for installation of a further 42 turbine wind farm in the Shires of Kojonup and Broomehill-Tambellup.
Rural landowners are coming under increasing pressure to facilitate the placement of wind turbines on their or adjoining properties. During construction, wind farms create jobs for local communities and in the long term, provide a cleaner, greener energy system. However, it is the terms of wind farm arrangements that are likely to have long term implications. In this alert Karen Browne and Carol Hamilton provide an overview of some of the issues which can affect landowners when entering into wind farm agreements.
The real purpose of a wind farm agreement
While a contract typically outlines the rights, duties and obligations of the parties, a wind farm agreement will typically focus on the noise and loss of amenity generated by a wind farm and require a landowner to surrender all rights it may have in relation to noise abatement in exchange for the payment of money, which may or may not be indexed to inflation.
The landowner is not paid for use of its land but rather payment is made in recognition of the adverse effects noise may have on the landowner and its farming operations.
How long will the wind farm be in place?
A wind farm agreement is unlikely to specify the duration of the wind farm but is likely to provide that the agreement will end when the turbines are decommissioned or cease to operate. Alternatively, it may provide that it will end once noise ceases to be above a certain level. It means that should the wind farm operator employ new technology which reduces noise to below a specified level, a landowner may no longer be entitled to receive payments even though the wind farm remains in operation and its land or operations remain affected.
Restrictions in the use of the land
A wind farm agreement is also likely to control how a landowner uses its affected land by prohibiting the use or development of land within a certain radius of a turbine, require caveats to be placed on the title or preventing a landowner from entering into dealings over all or part of the land without the operator’s consent. At the same time the operator will likely be unrestricted in its right to assign its interests with little or no consultation with a landowner.
Landowners prohibited from objecting to future operations
A wind farm agreement usually prohibits a landowner from objecting to any future operations, even where a landowner would have a statutory right to object with respect to applications submitted to regulatory authorities. A landowner could be prohibited from objecting to the upgrading of facilities, including the installation of larger or taller turbines.
Given the significant uncertainty with respect to the duration of a wind farm agreement and the long term effects on objecting, landowners should carefully consider the possible impacts on future land uses before entering into a wind farm agreement.
The money to be gained for hosting a wind farm or agreeing to adverse impacts from one placed on adjoining land can be an unexpected windfall for landowners; however, wind farm agreements need to be carefully crafted to compensate landowners whose land and farming operations are affected by the placement of turbines on their properties.
Karen Browne and Carol Hamilton
February 3, 2022, lexology.com
Author: Infinity Power Partners
Download original document: “Easement for Wind Energy Development: Triple H Wind Project”
Author: Invenergy Wind Development
Deuel County, State of South Dakota
Download original document: “Invenergy Wind Lease and Easement Agreement”
Author: Crowned Ridge Wind Energy Center
1. Parties. This Wind Farm Lease and Easement Agreement (“Agreement”) is -made and entered as of the ____ day of ____________, 2013 (“Effective Date”), by and between ____________________, ____________________ (collectively, the “Owner”) and Crowned Ridge Wind Energy Center, LLC, a Delaware limited liability company, (“Operator”) an affiliate of NextEra Energy Resources, LLC, a Delaware limited liability company. …
2. Project. This Agreement relates to the wind-powered electrical power generation and transmission project known as the “Crowned Ridge Wind Energy Center” to be located in Codington County and Deuel County, South Dakota (“Wind Farm”), which may be wholly or partially located on the Owner’s property legally described on the attached Exhibit A-1 to this Agreement (“Owner’s Property”). Upon Operator’s exercise of the Option (as defined below), the Wind Farm shall include (i) the Leases referenced in Section 4 that are located on the Owner’s Property; (ii) the Easements granted in Section 5, and (iii) the Improvements to be constructed on Owner’s Property referenced in Section 8. The Leases, Easements and Improvements are sometimes collectively referred to as the “Operator Property.” …
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, threatened or endangered species 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 11.3; and (iii) installing, maintaining, operating, inspecting and removing one or more wind monitoring devices and all associated activities (including the Met Towers referenced in Section 8.3), and including the performance of all tests and studies associated therewith. Owner shall not permit any other individual or entity except Operator or its affiliates to install a Met Tower on Owner’s Property. …
4.1 Construction Right. (a) Owner grants Operator rights for purposes of constructing, operating, maintaining, repairing, replacing, and removing all or any part or component of the Improvements whether located on or off Owner’s Property. This construction right is referred to as the “Construction Right” and the property subject to the burden of this Construction Right is referred to as the “Construction Property.” Operator may exercise its right to use all or any part of the Construction Property as and when Operator deems it necessary or advisable to do so to perform the activities for which this Construction Right is granted, including, without limitation, constructing, operating, maintaining, repairing, replacing, and removing laydown areas, staging areas, crane pads and parking for Operator’s employees. After each use of the Construction Right, Operator to the extent reasonably possible shall restore the Construction Property to the condition it was in before Operator’s use.
(b) When installing, maintaining or removing the nacelle and rotor from any Turbine, whether located on or off of Owner’s Property, this Construction Right also shall permit Operator to: (1) (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 Construction Property; and (2) drive an erection crane on Owner’s Property and make use of earthmoving equipment for purposes of building suitable access routes for such crane. Operator shall be permitted to maintain a 120 foot by 40 foot crane pad at each Turbine Site Property (hereinafter defined) on Owner’s Property for purposes of constructing and maintaining the Wind Farm.
4.2 Access Right. (a) Owner grants Operator the right of access over the Owner’s Property for unobstructed vehicular, equipment and pedestrian ingress to and egress from the Improvements, the Construction Property, the Turbine Site Property, the Collection Property, the Overhang Property, and the Met Tower Property, whether located on or off Owner’s Property. This right of access is referred to as the “Access Right” and the property subject to the burden of this access right is referred to as the “Access Property.” Operator shall have the right to travel over, across and along the Access Property by means of existing roads and lanes, and by roads Operator or Owner may construct or improve from time to time on, over, and across the Owner’s Property.
(b) Owner reserves the right to use all roads on the Access Property provided, however, that Owner shall not and shall not permit others to obstruct or damage the roads or in any other way interfere with Operator’s rights under this Access Right.
4.3 Turbine Site Lease. Owner grants Operator a lease to construct, operate, replace, relocate, remove, and maintain a Turbine, Collection Facilities, together with associated roads and parking areas on Owner’s Property. This grant is referred to as the “Turbine Site Lease” and each Turbine site so leased is referred to as a “Turbine Site Property.”
4.4 Collection Lease. Owner grants Operator a lease for the construction, operation, maintenance, replacement, relocation or removal of Collection Facilities on and under the Owner’s Property. This grant is referred to as the “Collection Lease” and the property so leased is referred to as the “Collection Property.”
4.5 Telecommunication Facilities Lease. Operator leases Owner’s Property for Operator to construct, operate, maintain, replace, relocate or remove Telecommunication Facilities (hereinafter defined) on, over, across, along and under the Owner’s Property.
4.6 Overhang Right. Owner grants Operator the right and privilege to permit the rotors of Turbines located on adjacent properties to overhang a portion of the Owner’s Property. This right is referred to as the “Overhang Right” and the property subject to the Overhang Right is referred to as the “Overhang Property”. Owner shall not interfere with the operation of Turbine rotors that overhang the Overhang Property.
4.7 Met Tower Lease. Owner grants Operator a lease to construct, operate, replace, relocate, remove, and maintain a Met Tower and Collection Facilities on Owner’s Property. This grant is referred to as the “Met Tower Lease” and each Met Tower site so leased is referred to as a “Met Tower Property.”
5. Easements. Upon the exercise of the Option by Operator, Owner grants to Operator, and Operator accepts from Owner, for the Lease and Easement Term referenced in Section 6.1, the following easements over and across the Owner’s Property in accordance with the terms and conditions of this Agreement. The following easements are for the benefit of Operator and Operator’s agents, contractors and employees, are located on the Owner’s Property and are collectively referred to as the “Easements.”
5.1 Wind Non-Obstruction Easement. (a) Owner grants 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 (“Wind Non- Obstruction Easement”). Along with the Option Notice, Operator shall deliver to Owner the following legal descriptions which shall become Exhibit A-2 of this Agreement: (a) a description of the Wind Non-Obstruction Easement property subject to this Agreement; (b) a description Of the Wind Non-Obstruction Easement in vertical and horizontal angles; and (c) a description of real property benefiting from the Wind Non-Obstruction Easement. Owner shall not engage in any activity on Owner’s Property that might interfere with wind speed or wind direction over any portion of any Turbine or Met Tower Easement Properties, whether located on or off the Owner’s Property; cause a decrease in the output or efficiency of any Turbine or accuracy of any meteorological equipment; or otherwise interfere with Operator’s operation of the Wind Farm or exercise of any rights or the Leases granted in this Agreement (“Interference”). Owner reserves the right to erect structures on Owner’s Property in compliance with all applicable laws and ordinances except as specifically limited in this Agreement. Owner must consult with and obtain Operator’s prior written approval as to the location of all structures greater than forty (40) feet in height located one thousand (1000) feet or less from any Turbine or Met Tower. Approval shall be based on whether, in Operator’s sole judgment, informed by appropriate professional engineering and meteorological opinions; the proposed structures at the proposed location are likely to cause Interference.
(b) This grant of easement of the Wind Non-Obstruction Easement expressly includes the right of Operator to enter on any part of Owner’s Property to enforce Operator’s rights, including the physical removal of trees or structures (except existing trees and structures) causing Interference to the project contemplated by Operator. Operator shall consult with Owner before making any such removals.
5.2 Effects Easement. Owner grants to Operator a non-exclusive easement 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 Farm or activity located on the Owner’s Property or on adjacent properties over and across the Owner’s Property (“Effects Easement”). …
Download original document: “Wind farm lease and easement agreement – Crowned Ridge Wind Energy Center, S. Dak.”