Resource Documents: Contracts (51 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: Upland Prairie c/o Apex Clean Energy
1. Lease. For the term and upon the provisions set forth in that Wind Energy Lease of even date herewith (the “Effective Date”) between Landlord and Tenant (the “Lease”), all of which provisions are specifically made a part hereof as though fully and completely set forth herein, Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord for Wind Energy Purposes, that certain real property (the “Property”) located in Clay County, Iowa, as more particularly described in Exhibit “A” attached hereto, together with all rights of ingress and egress and all other rights appurtenant to the Property, as more particularly described in the Lease. Pursuant to the Lease, Tenant has the sole and exclusive rights to use the Property for Wind Energy Purposes.
2. No Interference. The Lease requires Landlord, during the Term of the Lease, not to cause nor permit any restriction or interference with: (a) the siting, permitting, construction, installation, maintenance, operation, replacement, or removal of Wind Facilities; (b) the flow of wind, wind speed or wind direction over the Property; (c) access over the Property to Wind Facilities; or (d) any other activities of Tenant permitted under the Lease.
3. Term. The term of the Lease shall expire eight (8) years after the Effective Date, if not extended or sooner terminated as provided in this Lease. Tenant may at its sole discretion extend the term of this Lease for an additional thirty (30) year term, with the further option to extend the term for two (2) additional ten (10) year terms.
4. Notice. This Memorandum is prepared for the purpose of giving notice of the Lease and in no way modifies the express provisions of the Lease. In the event of any conflict between the terms and provisions of the Lease and this Memorandum, the Lease shall control. This Memorandum shall continue to constitute notice of the Lease and all amendments thereto, even if the Lease is subsequently amended.
5. Successors and Assigns. The covenants, conditions and restrictions contained in the Lease shall run with the land and be binding on the successors and assigns of both Landlord and Tenant. Tenant and any transferee shall have the right throughout the Term to transfer, convey, sublease or assign this Lease or any interest in this Lease, the Property or the wind facilities to any person or entity without the consent of Landlord.
6. Ownership of Wind Facilities. Tenant shall at all times retain title to the Wind Facilities and shall have the right to remove them from the Property at any time. Landlord shall have no ownership, lien, security or other interest in any Wind Facilities installed on the Property and Landlord expressly waives, relinquishes and quitclaims any lien or security interest in and to the Wind Facilities or any other real or personal property of Tenant, whether arising at law or in equity.
7. No Severance of Wind Energy Rights. Landlord shall not assign or otherwise transfer an interest in the wind energy rights to the Property, or a portion thereof, separate from fee title to such real property, without Tenant’s consent which Tenant may withhold in its sole discretion.
8. Right of Reentry. Upon expiration or termination of the Term, Tenant shall have a license to enter onto the Property for eighteen (18) months following termination to restore the Property and for other activities as set forth in the Lease.
9. Transmission and Access Easement. If a utility requires and/or Tenant requests an easement in perpetuity with respect to one or more of the rights granted to Tenant pursuant to the Transmission and Access Easement, then Landlord shall grant the utility and/or Tenant, as applicable, such perpetual easement which covers the portion of the Property occupied by the utility’s and/or Tenant’s permanent roads, overhead and underground electrical and communications lines, collection and/or transmission equipment, as applicable, upon the terms set forth in the Lease.
As used herein, the term “Transmission and Access Easement” means, collectively, Tenant’s (i) exclusive right to construct, install, lay down, erect, improve, place, replace, remove, relocate and operate permanent roads, overhead and underground electrical and communications lines, collection and transmission equipment on the Property, and (ii) right of access more particularly described in Section 4.3 of the Lease.
Download original document: “Memorandum of lease”
Author: Apex Clean Energy
Owner is the owner of that certain tract of real property located in Van Wert County, Ohio …
1. Setback Waiver.
1.1 To the extent that any applicable law, ordinance, regulation or permit establishes, or has established, minimum setbacks from the exterior boundaries of the Property (or any structures thereon) for Windpower Facilities constructed on Wind Farm Property, Owner hereby waives any and all such setback requirements (the “Setback Waiver”); provided however, Grantee agrees not to construct a Wind Turbine within One Thousand Three Hundred Twenty Feet (1,320’) of any occupied residence located on the Property (as measured from the edge of the base of the Wind Turbine to the exterior of the closest foundation of any occupied residence on the Property as of the date hereof) and not to allow the blade of any Wind Turbine to overhang any boundary of the Property.For the avoidance of doubt, this Agreement does not grant to Grantee the right to construct Windpower Facilities on the Property. …
11. Confidentiality. Owner shall maintain in confidence all information pertaining to the financial terms of or payments under this Agreement, whether disclosed by Grantee or discovered by Owner, unless such information is in the public domain by reason of prior publication through no act or omission of Owner or its employees or agents. Owner shall not publish or otherwise disclose such information to others except to accountants, lawyers, or other professionals who receive such information under an obligation of confidentiality; buyers of the Property; lenders that have a security interest in the Property; or family members who agree to keep such information confidential. The provisions of this Section 11 shall survive the termination or expiration of this Agreement.
12. Wind Energy Lease Agreement. In the event that Owner and Grantee enter into a Wind Energy Lease Agreement or other similar instrument whereby Owner grants Grantee the exclusive right to install Wind Turbines and/or Windpower Facilities on the Property, then this Agreement shall be superseded by such instrument and this Agreement and all payment obligations hereunder shall terminate as of the effective date of such instrument. The foregoing shall not obligate either party to enter into any Wind Energy Lease Agreement or other similar instrument unless it determines in its own best interest to do so.
Grantee shall make the following payments to Owner during the Term:
(1) within thirty (30) days of the Effective Date of this Agreement, a one-time payment of Five Hundred and No/100 Dollars ($500.00); AND
(2) Upon the Commercial Operations Date of the Phase in which the Property is a part (as determined by Grantee in its reasonable discretion), an annual payment equal to one of the following, as applicable:
(B) One Thousand and No/100 Dollars ($1,000.00) if any boundary of the Property is within one thousand one hundred twenty-five feet (1,125’) of the nearest Wind Turbine (measured horizontally from the tip of the turbine’s nearest blade at 90 degrees from the turbine tower to the nearest adjacent property line of the Property) on such date; OR
(C) Five Hundred and No/100 Dollars ($500.00) if neither subsection (A) nor (B) above apply.
The annual payment due hereunder, shall be paid by Grantee within thirty (30) days after the Commercial Operations Date and then annually within thirty (30) days after each anniversary of the Commercial Operations Date until all of the Wind Turbines in the Phase of the Wind Farm of which the Property is a part are decommissioned.
Download original document: “Wind farm participation and support agreement”
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). …
Download original document: “Highland wind farm neighbor easement agreement”
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 …
Download original document: “Participation Agreement – Moorabool Wind Farm”