Grant of Rights.
Right-of-Way. Subject to all of the terms and conditions set forth in this Agreement, Grantor hereby grants, conveys and assigns an exclusive right-of-way and easement (the “Right-of-Way”) to Grantee, its successors and assigns in, upon, over, across, along, above, through and under the Lands (which Right-of-Way shall run with the Lands), for the following purposes:
2.1.1 Windpower Facilities and Project Operations. …
2.1.2 Other Improvements. …
2.1.3 Access. …
2.1.4 Overhang Rights. …
2.1.5 Wind Non-Obstruction Rights. to use, maintain and capture the free and unobstructed flow of wind currents over and across the Lands, and in order to give effect to this right, the following provisions shall apply to each building or structure [including trees, as specified in 2.3.2] installed, constructed or placed on the Lands by Grantor after the Effective Date:
(a) Grantor shall obtain prior written permission from Grantee for any structure located 300 meters or less from a Generating Unit that is part of the Project;
(b) Grantor shall obtain prior written permission from Grantee for any structure over 40 feet (or 12.19 meters) in height that is located less than 1000 meters from a Generating Unit that is part of the Project;
(c) Grantor shall obtain prior written permission from Grantee for any structure over 50 feet (or 15.24 meters) in height that is located over 1000 meteres from a Generating Unit that is part of the Project;
(d) Grantor shall obtain prior written permission from the Grantee to install or place any single structure, or any cluster of separate structures, on the Lands which, individually or in the aggregate, exceed a total area of 7000 square meters; …
2.1.6. Noise Rights. to generate and maintain audible noise levels on and above the Lands up to sixty-five (65) db(A) in excess of the ambient noise level measured at ground level at a point five hundred (500) meters in an upwind direction from the source of the noise, wherever originating, at any or all times of the day or night; and
2.1.7 Shadow and Flicker Rights. to cast shadows, whether intermittent or constant of the towers and rotors of the Generating Units and/or any and all Other Improvements … onto the Lands. …
Conduct of Operations and Use of Lands.
5.2 Restrictions on Access. During the Term, Grantee shall use commercially reasonable efforts to restrict all private consultants and governmental personnel to areas of the Lands impacted by the proposed Windpower Facilities; …
5.10 Relocation and Replacement of Windpower Facilities. Grantee shall have the right to reconstruct, relocate and replace Generating Units at any location on the Lands and to use the Lands for related activities subject to required governmental approvals, if any; …
5.13 Lot Line Setbacks. To the fullest extent applicable, Grantor hereby waives any and all rights they may have to pursue any remedies under any Applicable Laws related to setback dimensions and requirements applicable to the Generating Units from front, side, and rear lot lines of the Lands and/or any adjacent Lands, and agree not to bring any complaint, suit or action or intervene in any investigation or inquiry by any Person with respect thereto. Grantor agrees to use commercially reasonable efforts to assist, cooperate and participate in any proceeding and petition prepared by Grantee in connection with any modification or variance to an existing setback requirement.
5.14 Signal Reception. To the fullest extent applicable, Grantor hereby waives any and all rights it may have to pursue any remedies related to any potential interference with radio and television signal reception that may be caused by the Windpower Facilities or the Project Operations. …
Indemnification and Exculpation.
… The foregoing indemnity shall not extend to property damage or personal injury or death attributable to risks of known dangers associated with Grantee’s intended activities on the Lands, such as electromagnetic fields or stray voltage, unless caused by the gross negligence or wilful misconduct of Grantee.
Download original document: “Bowark ROW Agreement”
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