2. Easements; Covenants.
(a) Noise Easement. Owner grants to HAYS WIND a “Noise Easement” for the right and privilege to generate and maintain audible wind turbine noise levels on and above the Property in excess of forty-five (45) dB(A) at any or all times of the night (“Noise Easement”) and in excess of fifty (50) dB(A) at any or all times of the day. Day hours shall be defined as those from 7:00AM to 11:00PM and night hours shall be defined as those from 11:00PM to 7:00AM. If, twenty percent or more of the time on an annual basis, noise levels emanating from the turbines exceed forty-five (45) dB(A) during the night or fifty (50) dB(A) during the day thirty (30) feet from the outer wall of any presently existing occupied residence on Owner’s Property, as measured by an independent professional as agreed to by both HAYS WIND and Owner and at the expense of HAYS WIND applying commonly accepted measurement instruments and standards, HAYS WIND shall take all commercially reasonable measures to reduce the turbine caused noise level 30 feet from the outer wall of the residence to forty-five (45) dB(A) during the night and fifty (50) dB(A) during the day so that such levels are exceeded less than twenty percent of the time on an annual basis. Reasonable measures to be taken by HAYS WIND may include installing landscaping, insulation or other sound barriers at agreed locations on or off Owner’s Property; installing insulation or sound deadening material in the offending turbine(s); or, changing the operation of the turbine(s) to reduce noise output.
(b) Light and Shadow Easement. Owner grants HAYS WIND a “Light and Shadow Easement” for the right and privilege to cast light from FAA required lighting and shadows of the turbine towers and rotors and Met Towers, wherever located, onto Owner’s Property. If in Owner’s reasonable judgment the light and shadows cast at any presently occupied residence on Owner’s Property substantially interfere with the use and enjoyment of the residence, HAYS WIND shall promptly investigate the nature and extent of the problem and the best and commercially reasonable methods of correcting any problems found to exist. HAYS WIND, at its expense, with agreement of Owner, will then promptly undertake reasonable measures such as tree planting or installation of awnings, draperies or other window treatments necessary to mitigate the effects of the offending light or shadow.
(c) Television Reception. Owner grants to HAYS WIND the right to test television signal strength and reception at any residence on the Property before and at reasonable intervals after HAYS WIND builds the Project. In the event that existence or operation of the Project significantly interferes with or degrades television signal reception at any residence on the Property, HAYS WIND shall at its expense, with the full cooperation of Owner, promptly investigate and within a reasonable time find reasonable ways to correct any significant degradation of television signal reception actually caused by the Project. Reasonable correction measures may include installation of television signal boosters serving the general area of the Wind Farm, installation of antenna or signal booster equipment on the Property, installation of and payment for cable, dish TV or similar devices serving the Property, or repair or replacement of television receivers.
(d) Construction Impact. Despite efforts to control dust and noise during construction of the Project, HAYS WIND recognizes that some neighbors of the Wind Farm due to their location next to roads or construction areas may be inconvenienced by construction noise and dust. Additionally, construction traffic in some areas may inconvenience Owner or require Owner to travel by unaccustomed routes to avoid construction traffic. As stated in HAYS WIND’s application for a Conditional Use Permit with Ellis County, HAYS WIND will make all reasonable efforts to coordinate activities in public roadways with the Ellis County Public Works Department in order to minimize any disruption or inconvenience to the public.
(e) Should Owner experience effects, in addition to what is defined above, that Owner reasonably believes to be in excess of industry standards for such effect, Owner shall promptly notify HAYS WIND of such fact and allow HAYS WIND 90 days thereafter in which to investigate the nature and extent of the problem and the best methods of correcting any problems found to exist in excess of industry standards. HAYS WIND, at its expense and with the agreement of Owner (which shall not be unreasonably withheld), will promptly undertake such measures as are commercially reasonable to mitigate the problematic effects.
(f) Owner hereby acknowledges that HAYS WIND intends to install subject to approval of the Board of Ellis County Commissioners wind turbines located as close as, but no closer than, 2000 feet from an existing occupied residence on Owner’s Property. Owner’s approval of this Agreement further confirms Owner’s consent thereto.
(g) Owner hereby agrees not to engage in any activity on or outside the Property that might cause material interference with the construction, installation, maintenance or operation of the Project.
6. Release. Owner, in consideration of the terms listed in Exhibit B, the sufficiency of which Owner hereby acknowledges, does individually and for each of Owner’s successors and assigns, releases and forever discharges HAYS WIND LLC, and each of its past, present and future attorneys, principals, agents, representatives, insurers, partners, predecessors and successors in interest, assigns and all other persons, firms, corporations, and other entities (hereinafter referred to collectively as “HAYS WIND”), of and from any and all past, present or future claims, demands, obligations, actions or causes of action, at law or in equity, whether arising by statute, common law or otherwise, whether for compensatory or punitive damages, of whatsoever kind or nature (hereinafter referred to collectively as “Claims”), including without limitation, claims which are known and unknown, claims for known and unknown damages, claims for anticipated and unanticipated damages, and claims for anticipated and unanticipated consequences of damages on account of, arising out of or in any other way related to the Project.
8. Covenants Running with the Land. The parties hereby agree that the covenants and agreements contained in this Agreement touch and concern the real estate described in this Agreement and are expressly intended to, and shall, be covenants that run with the land, and accordingly shall be binding upon and inure to the benefit of the parties and the successor owners of the Property and the Project.
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