Resource Documents: U.S. (149 items)
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Wind Lease and Easement Agreement
Author: Invenergy Wind Development
Deuel County, State of South Dakota
Download original document: “Invenergy Wind Lease and Easement Agreement”
Why “Ground Factor” Matters
Author: Overland, Carol
Minn. R. 7030.0400 is the MPCA’s noise rule, setting standards for industrial noise. It was developed to limit industrial noise, from a noise source on the ground to a “receptor” on the ground. ISO 9613-2 was also developed to measure ground based noise reaching a ground based receptor.
A primary input is the “ground factor” set to address conditions on the ground, the ground effect, between the noise source and the receptor:
7.3 Ground effect (Agr)
7.3.1 General method of calculation
Ground attenuation, Agr, is mainly the result of sound reflected by the ground surface interfering with the sound propagating directly from source to receiver.
While there may be some reflected sound reaching the “receptor” (that is such an obnoxious term for people!), the sound from a wind turbine with a hub height of 300 feet or more! That’s a direct path to the “receptor.” The ground, grasses, corn, trees, buildings, do not get in the way.
The ground factor to be used for wind turbines is ZERO.
Dr. Schomer stated this clearly and thoroughly in the Highland Wind docket in Wisconsin (PSC Docket 2535-CE-100).
Download Schomer Pages from Transcript Vol 4 (see page 572)
The use of a 0.0 ground factor for wind is standard practice, and that a 0.5 ground factor is NOT appropriate for wind because it’s elevated. This was inadvertently confirmed by Applicant’s Mike Hankard in the Badger Hollow solar docket, also in Wisconsin (PSC Docket 9697-CE-100):
The model that we use has been shown to predict conservatively with 0.5. I mean, 0.5 ground factor is used in probably – well, with the exceptiion perhaps of wind turbine projects which are different because the source is elevated. But for projects like a typical power plant, a solar plant where the sources are relatively close the ground, I would say 90 to 99 percent of the studies use 0.5. And when consultants like myself go out ad measure these plants after they’re cpmnstricted tp verify our modeling assumptions, that assumption checks out as being, if anything, overpredicting the levels. So there’s no need to – there would be no justification to use something like a .2 or .3 which would predict yet higher levels because we’re already demonstrating that the model is probably overpredicting. So that would not be justified for those reasons.
Who cares? Well, it’s bad enough that in that WI PSC Highland Wind docket, when the applicants couldn’t comply with the state’s wind noise limit, they redid their noise “study” using the inappropriate ground factor of 0.5 to give them more compliant numbers – they moved the goal posts, garbage in, garbage out. They think they can do that in Minnesota too, and are trying oh so hard in the Freeborn Wind docket (PUC Docket 17-410).
Last September, 2018 that is, Freeborn Wind did a deal with Commerce, admitted to in its “Request for Clarification/Reconsideration” pleading:
Freeborn Wind requests the Commission clarify its Site Permit to adopt Section 7.4, as proposed by Freeborn Wind and agreed to by the Department and MPCA, in place of the current Sections 7.4.1 and 7.4.2, to both ensure consistency with the Order and avoid ambiguity in permit compliance.
Freeborn Wind’s September 19, 2018, Late-Filed proposal for Special Conditions Related to Noise outlines the agreement reached between Freeborn Wind, the Department and the MPCA on this issue.
(fn. citing Late Filed—Proposed Special Conditions Related to Noise (Sept. 19, 2018), eDocket No. 20189-146486-01).
In this deal, they put language in the permit that was a fundamental shift in noise monitoring, one for which there is no justification under the noise modeling standards, whether state or ISO 9613-2 – that of using a 0.5 ground factor.
The language in the proposed special conditions requires Freeborn Wind to submit updated modeling and/or proposed mitigation demonstrating that modeled wind turbine–only noise will not exceed 47 db(A) L50-one hour at receptors. Specific guidance is included regarding the modeling assumptioins to be used. Specifically, proposed Section 6.1 directs Freeborn Wind to follow the NARUC ISO 9613-2 standard with a 0.5 assumed ground factor. As reflected in the special condition language, setting a turbine-only noise limit at 47 dB(A), using the specified model assumptioins, ensures that the Project will not cause or significantly contribute to an exceedance of the MPCA Noise Standards. This limit is supported in this record by expert testimony from Mr. Mike Hankard and the MPCA’s 2015 Noise Guide, both stating the 3 dB(A) is the generally recognized minimum detectable change in environmental noise levels. To illustrate, when nighttime background sound levels are at 50 db(A) L50-one hour, a maximum turbine-only contribution of 47 db(A) L50-one hour would result in a non-significant increase in total sound of less the 3 dB(A).
The day before the Commission’s meeting, they filed for a “Special Condition,” and oh, was it special:
Download 20189-146486-01_LateFiling
At the meeting, they presented a chart with made up numbers on it, not supported by any noise study:
This chart was shown for a few seconds at most, it was not provided in the “Late Filing” above, and there were no copies for parties or the public. Did Commissioners get a copy? Who knows …
The Commission then granted the site permit! There were a few rounds before we got to where we are today, with Xcel Energy acquiring the project, and with a new site plan, bigger turbines, and some specific site permit amendments. In its permit amendment application, Xcel Energy is now the owner of Freeborn Wind, and Xcel wants to use larger Vestas V120 turbines rather than the V116.
From testimony in the original Freeborn Wind hearing, and in an Affidavit submitted by Commerce-EERA’s Davis:
7. It is generally understood that turbine noise output increases with higher blade tip speeds …
(Aff. of Davis, EERA Motion, 20181-139379-01)
In its permit amendment application, Xcel Energy is now the owner of Freeborn Wind, and Xcel wants to use larger turbines. In so doing, they have filed a noise study, Attachment E, utilizing that 0.5 ground factor. Xcel’s claim is that they’re using a 0.5 ground factor because the permit specifies that:
This Xcel filing is the first noise study in the Freeborn Wind record to utilize a 0.5 ground factor.
This Xcel filing is the first noise study in the Freeborn Wind record following the ALJ’s recommendation of denial:
The Administrative Law Judge concludes that Freebron Wind has failed to demonstrate that the proposed Project will meet the requirements of Minn. R. 7030.0040, the applicable Minnesota Noise Standards. Therefore, the Administrative Law Judge respectfully recommends that the Commission either deny Freeborn Wind’s Application for a Site Permit, or in the alternative, provide Freeborn Wind with a period of time to submit a plan demonstrating how it will comply with Minnesotat’s Noise Standards at all times throughout the footprint of the Freeborn Wind Project.
There’s a 3 dB(A) margin of error – even using Hankard’s numbers, look at the yellow lines right up against the homes, and look at the blue 50 dB(A) lines and how many homes are inside of those lines:
Turbine noise at the hub for the V120s can be maximum of 110.5 dB(A), and serrated edges provide an option to reduce noise (which Xcel says it plans on using for some turbines), per the Vestas spec sheet.
Compliance? Modeling with the improper 0.5 ground factor doesn’t come close to demonstrating compliance, instead it demonstrates a high probability of non-compliance. It demonstrates that using the proper ground factor for wind, it won’t do the modeling, likely (assuredly) because the project cannot comply. Freeborn Wind could not demonstrate that it could comply with state noise standards as originally designed with the smaller wind turbines and the proper modeling ground factor, and now Xcel Energy wants to use larger turbines. Larger turbines are noisier … once more with feeling:
7. It is generally understood that turbine noise output increases with higher blade tip speeds …
And now we see, hot off the press, the Plum Creek wind project (PUC Docket WS-18-700), proposed by Geronimo …
Vestas 150 and 162 turbines, 5.6 MW each! The noise for the V150 is a maximum of 104.9 dB(A), and for the V162 is a maximum of 104.9 dB(A), with “sound optimized modes available.” That’s in the brochure.
They have provided a noise study, BUT, much is NOT PUBLIC:
201911-157475-05_Noise_Appendix B
And I wonder why … well, it says that they’re not using a ground factor of 0.0. Look at p. 48 of the sound study above, deep breathe and take a peek:
They’re using a ground factor of 0.7 !
Really …
For this analysis, we utilized a ground factor of G=0.7, which is appropriate for comparing modeled results to the L50 levels.
18 A 2-dB uncertainty factor was added to the turbine sound power per typical manufacturer warranty confidence interval specifications.
18 Generally accepted wind turbine modeling procedure calls for a ground absorption factor of G=0.5, with a 2-dB uncertainty factor added to the manufacturer’s guaranteed levels, to predict a maximum LEQ(1-hr). In this case the state limit utilizes and L50 metric instead of maximum LEQ(1-hr), which means a ground factor of G=0.7 can be used.
FALSE!
They say it again on p. 62, elsewhere too:
How stupid do they think we are?
How stupid do they think Commerce-EERA is? … oh … never mind …
Anyway, here are the sound study maps based on that bogus 0.7 ground factor – look how many homes are affected:
Geronimo gets the gong:
The applicants know exactly what they’re doing.
At least twice in the Freeborn record I have asked whether the Commissioners understand “0.5 ground factor” and “0.0 ground factor” and have been vigorously assured that yes, they do understand. And Commerce-EERA staff? You’re responsible for doing the footwork on these siting applications. Do you understand?
If they do not understand, or misunderstand, they’ve got some learnin’ and edumacation to do. If they DO understand, and are approving site permits knowing that the modeling is off, that ground factor is misused, they’re complicit. They’re knowingly afflicting those who have to live with the noise sound levels that exceed Minnesota state standards.
As we saw in Bent Tree, where the noise standard compliance is in question, it is Commerce’s job to do the noise monitoring and deal with the problem. Once a turbine is up, there aren’t many options other than “shut down the turbines” or “buy out the landowners.” How many landowner buy-outs do you think we need before it’s admitted there’s a problem? Why is it so hard to develop responsible, precautionary, and respectful siting? Why is there resistance? The costs of their failure to do so are … well … we may see exactly what those costs are.
Commissioners and Commerce staff, make sure you know how the state noise standard and ISO 9613-2 was designed, how it is to be used, and what ground factor means.
If you know what it means, and are siting turbines using 0.5 and 0.7, you are responsible.
—Legalectric, November 17th, 2019
Wind farm lease and easement agreement – Crowned Ridge Wind Energy Center, S. Dak.
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.”
Wind energy lease and wind easement agreement – Prevailing Winds, S. Dak.
Author: Prevailing Winds
This WIND ENERGY LEASE AND WIND EASEMENT AGREEMENT (this “Agreement”) is made, dated and effective as of the Effective Date (defined below), by and between Landowner (defined below) and PREVAILING WINDS, LLC, a South Dakota limited liability company (“Lessee”).
1. Basic Provisions. The following terms used in this Agreement have the meanings set forth below:
1.5 “Development Period Payments” – An annual payment equal to One and 25/100 Dollars ($1.25) per one (1) acre of the Property leased by Lessee under this Agreement; provided, however, that if the Property consists of less than 160 acres, the annual Development Period Payment shall be $200.00.
1.6 “Operating Fees” – An annual payment of Four Thousand Dollars ($4,000.00) for each megawatt of installed capacity of wind turbine installed on the Property by Lessee, based on such wind turbine’s name-plate rating (as determined by the wind turbine manufacturer). The Operating Fees shall increase one and one-half percent (1 1/2%) per year in accordance with Section 5.4 below.
1.7 “Installation Fee” – Five Thousand Dollars ($5,000.00) for each wind turbine installed on the Property by Lessee in any particular phase of construction.
1.8 “Extended Term” – The thirty-year period commencing upon the date described in Section 4 of this Agreement.
1.9 Annual Alternative Rent” – An annual payment during the Extended Term equal to Five Dollars ($5.00) per acre of the Property leased by Lessee under this Agreement.
1.10 “Alternative Use Fee” – An annual payment during the Extended Term equal to Twenty Dollars ($20.00) per acre for the Impacted Area of the Property, (i) with a minimum payment equal to Five hundred dollars ($500.00) for an Access Road Easement, and (ii) with a minimum payment equal to Three hundred dollars ($300.00) for a Transmission Easement.
1.11 “Met Tower Development Fee” – An annual payment during the Development Period equal to One Thousand Dollars ($1,000.00) per year for each meteorological tower installed on the Property by Lessee during the Development Period.
1.12 “Met Tower Operating Fee” – An annual payment of Five Thousand Dollars ($5,000.00) for each meteorological tower installed on the Property by Lessee during the Extended Term. The Operating Fees shall increase one and one- half percent (11/2%) per year in accordance with Section 5.2 below.
2. Lease and Confirmation. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Landowner, Landowner hereby leases the Property to Lessee.
3. Purpose of Lease; Permitted Uses.
3.1 Purpose of Lease. The lease created by this Agreement is solely and exclusively for wind energy purposes, and throughout the term of this Agreement, Lessee shall have the sole and exclusive rights to use the Property for wind energy purposes and to convert all of the wind resources of the Property. Lessee shall have no right to use the Property for agricultural, conservation or recreational purposes. For purposes of this Agreement, “wind energy purposes” means: wind resource evaluation; wind energy development; converting wind energy into electrical energy; collecting and transmitting the electrical energy converted from wind energy; and any and all other activities related to the foregoing.
3.2 Permitted Uses of Property by Lessee. The rights granted to Lessee in this Agreement permit Lessee, without limitation, to do the following:
3.2.1 Extract soil samples, perform geotechnical tests, and conduct other tests, studies, inspections and analysis on the Property as Lessee deems necessary, useful or appropriate.
3.2.2 Construct, erect, install, reinstall, replace, relocate and remove from time to time, the following “Windpower Facilities” on the Property, on adjacent property or elsewhere:
(a) meteorological and wind measuring equipment, including but not limited to anemometer towers and all necessary and proper appliances and fixtures for use in connection with said towers, to determine the feasibility of wind energy conversion on the Property, on adjacent property or elsewhere;
(b) wind turbines, steel towers, foundations and concrete pads, support structure, footings, anchors, fences and other fixtures and facilities, maintenance, security, office and/or guest facilities, staging areas for the assembly of equipment, power generation facilities to be operated in conjunction with large wind turbine installations, control buildings, lay down areas, crane pads, and related facilities and equipment;
(c) electrical wires and cables required for the gathering and transmission of electrical energy and/or for communication purposes, which may be placed overhead on appurtenant support structures or underground and one or more substations or interconnection or switching facilities from which Lessee may interconnect to a utility transmission system or the transmission system of another purchaser of electrical energy, together with the appropriate rights of way on, along, in and under the Property; and
(d) any other improvements, including roads, facilities, machinery and equipment that Lessee reasonably determines are necessary, useful or appropriate to accomplish any of the foregoing.
3.2.3 Use, maintain and operate Windpower Facilities on the Property, on adjacent property or elsewhere.
3.3 Ingress and Egress. This Agreement includes the right of ingress of and egress from the Windpower Facilities (whether located on the Property, on adjacent property or elsewhere) over and across the Property by means of any existing roads and lanes thereon, and by such other route or routes as Lessee may construct on the Property from time to time. …
3.5 Grant of Wind Easement. Any obstruction to the free flow of the wind by Landowner or persons other than Lessee or a Tenant or Assignee (as defined in Section 10.1 below) or persons claiming through or under Lessee or a Tenant or Assignee is prohibited throughout the entire area of the Property, which shall consist horizontally three hundred and sixty degrees (360°) from any point where any Windpower Facilities are or may be located at any time or from time to time (each such location referred to as a “Site”) and for a distance from each Site to the boundaries of the Property, together vertically through all space located above the surface of the Property, that is, one hundred eighty degrees (180°) or such greater number or numbers of degrees as may be necessary to extend from each point on and along a line drawn along the surface from each point along the exterior boundary of the Property through each Site to each point and on and along such line to the opposite exterior boundary of the Property. Trees, structures and improvements located on the Property as of the Effective Date of this Agreement shall be allowed to remain and Lessee may not require their removal. Landowner may not place or plant any trees, structures or improvements exceeding 60 feet in height or likely to exceed 60 feet in height on the Property after the date of this Lease which may, in Lessee’s sole judgment, impede or interfere with the flow of wind to any Site or Windpower Facilities, unless Landowner has received approval from Lessee for any such trees, structure or improvement. So long as Landowner is not otherwise in default under this Lease, Lessee agrees not to unreasonably withhold its approval for those structures or improvements Landowner proposes to place or construct on that portion of the Property not occupied by Windpower Facilities. The provisions of this Section 3.5 shall survive the termination of this Agreement for the full term hereof. …
8.7 Crop Damage.
(a) During initial construction, Lessee shall pay Landowner crop damage on a per acre basis (prorated for fractional portions), for any and all portions of the Property that are taken out of commercial crop production during the construction of the Windpower Facilities and any and all crops that are removed or damaged as a direct result of Lessee’s construction of Windpower Facilities on the Property. Portions of the Property shall be deemed to have been taken out of commercial crop production only to the extent Lessee’s construction of Windpower Facilities on the Property materially interferes with Landowner’s ability to farm such portions of the Property in which such construction occurs, assuming that Landowner was actually farming such portions of the Property immediately prior to Lessee’s commencing construction of the Windpower Facilities on the Property. Such crop damage shall be paid one time per growing season in which such construction and crop damage occur.
Crop damage will equal “Amount of damaged acres” multiplied by “Average yield in the County of Property” multiplied by “Price” multiplied by 1.50.
“Amount of damaged acres” shall be based on Landowner’s reasonable estimate as reasonably reviewed and agreed by Lessee’s representative.
“Average yield in the County of Property” shall be based on the average yield for the latest 3 years of corn in the County as published by the National Agricultural Statistical Service through the website (www.nass.usda.gov), or if unavailable, another publicly available information source for average yields in the County.
“Price”, regardless of the actual type of crop, shall be based on the corn future price for December delivery during the year that crop damages occur, and will be the closing price of that year’s December futures quoted on the 15th of the month in which the damages occur as posted by the Chicago Board of Trade, or if unavailable another publicly available information source.
(b) After initial construction is complete, Lessee shall be responsible to pay · for Landowner any losses of income, rent, business opportunities, profits or other losses arising out of the damage by the Lessee of any crops growing on the Property as a result of the existence or operations of the Windpower Facilities to the extent, but only to the extent that such damage occurs outside the boundaries of the access roads and Windpower Facilities installed on the Property pursuant to this Agreement or otherwise outside the graveled area surrounding the base of any Windpower Facilities installed on the Property. It is the intention of the parties that compensation under Sections 5.4 and 5.5 includes a payment for crop damage incidental to such existence and operation. Such crop damage, if any, occurring after initial construction is complete, will equal “Amount of damaged acres” multiplied by “Average yield in the County of Property” multiplied by “Price” multiplied by 1.50. …
9.2 No Interference. Landowner’s activities and any grant of rights Landowner makes to any person or entity, whether located on the Property or elsewhere, shall not, currently or in the future, impede or interfere with: (i) the siting, permitting, construction, installation, maintenance, operation, replacement, or removal of Windpower Facilities, whether located on the Property or elsewhere; (ii) the flow of wind, wind speed or wind direction over the Property; (iii) access over the Property to Windpower Facilities, whether located on the Property or elsewhere; or (iv) the undertaking of any other activities of Lessee permitted under this Agreement. In no event during the term of this Agreement shall Landowner construct, build or locate or allow others to construct, build or locate any wind energy conversion system, wind turbine or similar project on the Property. Notwithstanding the foregoing or Section 3.5, Landowner shall have the right to replace or repair any structures or improvements located on the Property as of the Effective Date, so long as such structures or improvements do not exceed the height of the existing structure, and are replaced or repaired in substantially the same location as the structures or improvements in existence on the Property as of the Effective Date. Further, Landowner shall have the right to construct not more than one (1) Small Turbine (as defined below) on the Property for Landowner’s personal use, so long as such Small Turbine is sited within two hundred fifty (250) feet of Landowner’s existing building site. A “Small Turbine” shall be defined as a wind turbine for residential or farm use by Landowner, with a nameplate capacity of 40 kW or less and a hub height o f sixteen (16) meters or less. …
9.7 Quiet Enjoyment. Landowner covenants and warrants that Lessee shall peacefully hold and enjoy all of the rights granted by this Agreement for its entire term without hindrance or interruption by Landowner or any person lawfully or equitably claiming by, through, under or superior to Landowner subject to the terms of this Agreement. …
13.2 Confidentiality. Landowner shall maintain in the strictest confidence, for the benefit of Lessee, any Assignee or Tenant, all information pertaining to the financial terms of or payments under this Agreement, Lessee’s site or product design, methods of operation, methods of construction, power production or availability of the Windpower Facilities, and the like, whether disclosed by Lessee, any Assignee or Tenant, or discovered by Landowner, unless such information either (i) is in the public domain by reason of prior publication through no act or omission of Landowner or its employees or agents; or (ii) was already known to Landowner at the time of disclosure and which Landowner is free to use or disclose without breach of any obligation to any person or entity. Landowner shall not use such information for its own benefit, publish or otherwise disclose it to others, or permit its use by others for their benefit or to the detriment of Lessee, any Assignee or Tenant. … The provisions of this Section 13.2 shall survive the termination or expiration of this Agreement. …
Download original document: “Wind energy lease and wind easement agreement – Prevailing Winds, S. Dak.”
