STATE OF INDIANA
INDIANA UTILITY REGULATORY COMMISSION
IN THE MATTER OF THE PETITION BY ) MEADOW LAKE WIND FARM VI LLC ) FOR CERTAIN DETERMINATIONS BY ) THE COMMISSION WITH RESPECT TO ) CAUSE NO. 45010 ITS JURISDICTION OVER PETITIONER’S ) ACTIVITIES AS A GENERATOR OF ) ELECTRIC POWER )
INDIANA OFFICE OF UTILITY CONSUMER COUNSELOR
TESTIMONY OF
LAUREN M. AGUILAR – PUBLIC’S EXHIBIT NO. 1
JANUARY 11, 2018
Respectfully submitted,
______Jesse James Attorney No. 29971-33 Deputy Consumer Counselor
Public’s Exhibit No. 1 Cause No. 45010 Page 1 of 14
DIRECT TESTIMONY OF LAUREN M. AGUILAR CAUSE NO. 45010 MEADOW LAKE WIND FARM VI LLC
I. INTRODUCTION
1 Q: Please state your name, business address, and employment capacity. 2 A: My name is Lauren M. Aguilar, and my business address is 115 W. Washington
3 St., Suite 1500 South, Indianapolis, IN, 46204. I am employed as a Utility Analyst
4 in the Electric Division for the Indiana Office of Utility Consumer Counselor
5 “OUCC.” A summary of my qualifications can be found in Appendix A.
6 Q: What is the mission of the OUCC? 7 A: To represent all Indiana consumers to ensure quality, reliable utility services at the
8 most reasonable prices possible through dedicated advocacy, consumer education
9 and creative problem solving.
10 Q: Have you testified before the Indiana Utility Regulatory Commission (“IURC” 11 or “Commission”)? 12 A: Yes. I have testified in Cause Nos. 44963, 44978, 44981, and 44998.
13 Q: What have you done to evaluate issues presented in this Cause? 14 A: I read and reviewed all materials presented in this docket, including the Petition
15 initiating this proceeding, Meadow Lake Wind Farm VI, LLC’s (“Meadow Lake
16 VI” or “Petitioner”) pre-filed verified direct testimony (and exhibits), and discovery
17 requests and responses. To better understand wind farm energy development cases
18 presented before the IURC, I reviewed Commission orders in a number of similar
19 wind-produced energy proceedings.1 For potential impacts to endangered species,
1 IURC Cause No. 43068 addressed the declination of jurisdiction for the Benton County Wind Farm project and was decided in a Final Order dated December 6, 2006. IURC Cause No. 43338 addressed the declination Public’s Exhibit No. 1 Cause No. 45010 Page 2 of 14
1 land use and human health and the environment, I read applicable state and federal
2 laws and regulations, including relevant agency guidance information.2 I read the
3 Benton County, Indiana Ordinance for Regulating Energy Generation Using Wind
4 Power.3 Finally, I read the State Utility Forecasting Group’s Indiana Electricity
5 Projections: The 2017 Forecast, to see if any additional electricity generation is
6 needed for Indiana.
7 Q: What is the purpose of your testimony in this proceeding? 8 A: The purpose of my testimony in this Cause is to present the OUCC’s position on
9 Petitioner’s request for the Commission to decline to exercise jurisdiction to (1)
10 require Petitioner to obtain a certificate of public convenience and necessity
11 (“CPCN”) to construct Phase VI of the Meadow Lake Wind Farm and (2) regulate
12 Petitioner’s construction, ownership and operation of, and other activities in
13 connection with, Phase VI. As part of its analysis, the OUCC reviews matters to
14 ensure public interest is served. I review and analyze the construction, ownership,
15 and operation of the proposed wind generated power project presented by Meadow
16 Lake VI.
of jurisdiction for the Fowler Ridge Wind Farm project and was decided in a Final Order dated November 20, 2007. IURC Cause No. 43602 addressed the declination of jurisdiction for the Meadow Lake Wind Farm LLC project, Phase I, and was decided in a Final Order dated February 18, 2009. IURC Cause No. 44044 addressed the declination of jurisdiction for the Wildcat Wind Farm I project and was decided in a Final Order dated September 14, 2011. 2 Clean Water Act – focusing on the National pollutant Discharge elimination system “NPDES” 33 U.S.C 1342, enforced by IDEM under 327 IAC 15-5 explained at http://www.in.gov/idem/stormwater/2331.htm; IC 13-18-22 concerning isolated wetlands and IDEM’s compliance and enforcement explained at http://www.in.gov/idem/wetlands/2343.htm; IC 14-28-3 concerning floodplain and floor way management, enforced by IDNR explained at: http://www.in.gov/dnr/water/2455.htm. 3 Ordinance for Regulating Energy Generation Using Wind Power in Benton County, Indiana, including ordinance amendments, as drafted by the Benton County Advisory Plan Committee and provided as Attachment LMA-1. Public’s Exhibit No. 1 Cause No. 45010 Page 3 of 14
1 First, I identify the Commission’s jurisdiction over Petitioner. Next, I
2 discuss public interest matters that may affect the relief requested. These include
3 potential endangered species impacts, land use and human health and the
4 environmental issues associated with the construction, ownership, and operation of
5 the wind farm facility, and Petitioner’s use of public rights-of-way. I then discuss
6 recommended reporting requirements. Lastly, I present the OUCC’s
7 recommendation the Commission approve Petitioner’s requested relief subject to
8 specific reporting requirements.
II. DECLINATION OF JURISDICTION
9 Q: May the Commission enter an order declining to exercise jurisdiction over 10 Petitioner? 11 A: Yes. Under IC 8-1-2.5-5, “on the request of an energy utility … the commission
12 may enter an order, after notice and hearing, that the public interest requires the
13 Commission to commence an orderly process to decline to exercise, in whole or in
14 part, its jurisdiction over either the energy utility….” Absent a proceeding under IC
15 8-1-2.5-5, Petitioner’s status as a public utility could trigger other regulatory
16 obligations (such as needing a CPCN per IC 8-1-8.5 et seq.). The immediate
17 proceeding is a request for such relief and for the Commission to determine public
18 interest warrants it decline jurisdiction (per IC 8-1-2.5-5(b)).
19 Q: Is Petitioner an “energy utility”? 20 A: Yes it is, based on the information presented in this Cause and my reading of
21 relevant statute and previous Commission decisions. Indiana Code 8-1-2.5-2
22 defines “energy utility,” in part, as a public utility within the meaning of IC 8-1-2- Public’s Exhibit No. 1 Cause No. 45010 Page 4 of 14
1 1. Both the Petition initiating this Cause and Petitioner’s Exhibit 1, the Verified
2 Direct Testimony of Ryan J. Brown, describe Petitioner’s intent to develop, own,
3 and operate a power generating facility in the State. Accordingly, Meadow Lake VI
4 could be considered a “public utility” under the IC 8-1-2-1 definition.4 This
5 determination means Petitioner is an “energy utility” under IC 8-1-2.5-2.
III. PUBLIC INTEREST
6 Q: Does the Meadow Lake VI Wind Farm project have the possibility of affecting 7 any Federal or State listed endangered species? 8 A: Yes. The federal Endangered Species Act of 1973 (“ESA”) provides for the
9 conservation of species if they are endangered or threatened throughout all or a
10 significant portion of their range, and the conservation of the ecosystems on which
11 they depend. To be protected by the ESA, a species must first be listed as
12 endangered or threatened under 50 CFR 17.11 (for animals) and 50 CFR 17.12 (for
13 plants). Enforcement of, and compliance with, the ESA is handled by Federal
14 United States Fish and Wildlife Services (“USFWS”). In Indiana there are twenty-
15 seven (27) species listed under the ESA.5 There are three (3) listed endangered or
16 threatened species within the project site, Benton County, Indiana: the Indiana Bat,
17 the Northern Long Ear Bat, and the Bald Eagle.6 The state of Indiana also maintains
18 a list of endangered species specific to Benton County.7
4 In Cause No. 44044 (Wildcat Wind Farm I), the Commission determined a business engaged in the development of wind farms which generate electricity and sell electricity directly to public utilities is itself a public utility. 5 https://ecos.fws.gov/ecp0/reports/species-listed-by-state-report?state=IN&status=listed 6 https://ecos.fws.gov/ecp0/reports/species-by-current-range-county?fips=18007 7 http://www.in.gov/dnr/naturepreserve/files/np_benton.pdf Public’s Exhibit No. 1 Cause No. 45010 Page 5 of 14
1 Q: Has Petitioner acknowledged the possible presence of federal and state listed 2 endangered species within the Meadow Lake VI project site? 3 A: Yes. Meadow Lake VI confirms the potential presence of some federal and state
4 listed endangered species in Meadow Lake VI’s site evaluation, included as
5 Petitioner’s Attachment RJB-3 (Meadow Lake VI Wind Farm Project Site
6 Characterization Study).
7 Q: Does the presence of federal and state endangered species prohibit the 8 development of Petitioner’s wind farm, as discussed in this case? 9 A: No. Petitioner may work with the USFWS to ensure compliance with the ESA,
10 which may include receiving an incidental take permit under Section 10 of the
11 ESA.8 In response to OUCC discovery requests, Petitioner provided a copy of a
12 Technical Assistance letter sent to them by the USFWS regarding Meadow Lake
13 VI’s impact. In the letter, the USFWS indicates the project is unlikely to cause any
14 issues in regards to endangered species.9 Similarly, Meadow Lake VI indicated it is
15 working with USFWS to ensure compliance regarding bald eagles.10
16 Q: Is the OUCC aware of concerns regarding the potential abandonment of wind 17 turbine structures if a wind farm operator becomes unable to continue 18 operations or remain in business? 19 A: Yes. Some critics of utility-scale wind energy generation facilities have alleged
20 wind turbine towers and generation units could be left to deteriorate and eventually
21 collapse should the operator cease operations for any reason.11
8 https://www.fws.gov/midwest/endangered/permits/hcp/index.html 9 See Attachment LMA-2, Petitioner’s Responses & Objections to OUCC Discovery Request Set No. 1, Question 2, Attachment 1.2. 10 See Attachment LMA-2, Petitioner’s Responses & Objections to OUCC Discovery Request Set No. 1, Question 1. 11 See http://toryaardvark.com/the-united-states-is-littered-with-more-than-14000-abandoned-wind- turbines/ Public’s Exhibit No. 1 Cause No. 45010 Page 6 of 14
1 Q: Is potential abandonment of wind turbine structures an issue with Meadow 2 Lake VI’s project? 3 A: No. Petitioner has developed a Decommissioning Plan as required by the Benton
4 County ordinance.12 Most importantly, the Decommissioning Plan requires
5 Meadow Lake VI to provide a performance or surety bond to cover the cost of
6 removing any structures in the case of abandonment. Meadow Lake VI has received
7 approval for its decommissioning plans from Benton County.13
8 Q: Is the OUCC aware of concerns regarding possible property value impacts due 9 to wind farm development? 10 A: Yes. Local news reports have included stories involving opinions that are critical
11 of utility-scale wind farms. Individuals have alleged properties adjacent to wind
12 farms have seen property values decline once the generating facilities move into an
13 area.14
14 Q: Should such concerns prohibit the Commission from declining jurisdiction? 15 A: No. Potential property interest concerns appear to be handled locally, during the
16 county governing process by three (3) county commissioners (duly-elected by the
17 citizens of the county to represent their interests).15 Benton County has a
18 prescriptive ordinance for regulating wind-generated energy, under which wind
19 energy generators must provide a detailed application and the county
20 commissioners must make written findings in order to approve a project.16 If a
12 Benton County, Indiana ordinance provided as Attachment LMA-1. 13 See Attachment LMA-2, Petitioner’s Responses & Objections to OUCC Discovery Request Set No. 1, Question 4, Attachment 1.4. 14 http://www.heraldbulletin.com/news/local_news/wind-farm-neighbors-concerned-over-property- values/article_8babb900-083d-11e6-9adb-ef75c5218c51.html and http://www.journalreview.com/news/article_9dee4996-4d67-11e7-b605-374126f69ff0.html 15 See IC 36-2-2-2 and IC 36-2-2-3, which establishes county commissioners and the election process. 16 Benton County, Indiana ordinance provided as Attachment LMA-1. Public’s Exhibit No. 1 Cause No. 45010 Page 7 of 14
1 county determined wind generated energy was not in the interest of the county or
2 its residents, then it does not have to approve such projects. This is one of the
3 regulatory layers that IC 8-1-2.5 contemplates.
4 Q: Is the OUCC aware of health concerns for wind farms including “shadow 5 flicker” and exposure to infrasound? 6 A: Yes. Some popular literature relays stories of individuals concerned about, or
7 claiming to be affected by, “shadow flicker.” This effect has been described as
8 infrasound generated as a result of wind turbines obstructing sunlight as the blades
9 turn.17 Some claim shadow flicker can lead to epileptic seizures.18 Others have
10 complained about headaches and other side effects from the whooshing and
11 thumping sounds of the turbines.19
12 Q: Should concerns about “shadow flicker” and exposure to infrasound prohibit 13 the Meadow Lake VI project? 14 A: No. Scientific evidence establishes a “shadow flicker” can only manifest itself in
15 very infrequent circumstances under a specific set of geographic and environmental
16 conditions (e.g., no clouds or fog, wind blowing, sun at perfect angle relative to
17 house). 20 Further, evidence suggests a “shadow flicker” cannot lead to epileptic
18 seizures because turbine blades cannot turn quickly enough to achieve the requisite
17 Contentious wind farm seeks zoning nod, Lafayette Journal & Courier, November 2, 2016; Wind farm foes look for ways to keep them from their neighborhoods, Indianapolis Business Journal, July 20, 2016. 18 https://www.bostonglobe.com/metro/2013/04/04/turbine-flicker-effect-draws- complaints/UKgf7nOwMHm8CWAtZ47V5L/story.html 19 http://abcnews.go.com/Business/story?id=6175772 20 Update of UK Shadow Flicker Evidence Base, UK Department of Energy & Climate Change, March 16, 2011; An Introduction to Shadow Flicker and its Analysis, New England Wind Energy Education Project Webinar #5, February 10, 2011. Public’s Exhibit No. 1 Cause No. 45010 Page 8 of 14
1 frequency.21 Additionally, scientific literature suggests any reported negative
2 impacts from infrasound are primarily a function of preconceived notions of wind
3 power.22
4 Q: What other potential environmental impacts could occur with this type of 5 project? 6 A: Construction and land-disturbing projects like the Meadow Lake VI may:
7 1. Discharge pollutants into water bodies through construction storm water
8 runoff;
9 2. Disrupt federal and state protected wetlands or isolated wetlands if located
10 within the project area; and
11 3. Disrupt flood ways which protect lives and property in the event of floods.
12 Q: Has Meadow Lake VI investigated any potential environmental impacts? 13 A: Yes. Meadow Lake VI stated it engaged numerous environmental studies of the
14 planned construction area to identify any potential for releases of hazardous
15 substances or petroleum products or other environmental impacts.23 The project is
16 planned to minimize any impact to the surrounding environment. The OUCC
17 commends Petitioner for its commitment to minimize construction that may cause
18 a prohibited environmental impact.
21 Update of UK Shadow Flicker Evidence Base, UK Department of Energy & Climate Change, March 16, 2011; An Introduction to Shadow Flicker and its Analysis, New England Wind Energy Education Project Webinar #5, February 10, 2011. 22 The impact of psychological factors on self-reported sleep disturbance among people living in the vicinity of wind turbines, Environmental Research 148 pp.401-410, July 2016. Health effects and wind turbines: A review of the literature, Environmental Health 10:78, 2011; The effect of infrasound and negative expectations to adverse pathological symptoms from wind farms, Journal of Low Frequency, Noise, Vibration and Active Control 35(1) pp.77-90, 2016. 23 Petitioner’s Exhibit 1-Verified Direct Testimony of Ryan J. Brown page 6, Question and Answer 13. Public’s Exhibit No. 1 Cause No. 45010 Page 9 of 14
1 Q. Should potential environmental impacts prohibit the project? 2 A: No. Petitioner must work with the agency responsible for compliance and
3 enforcement and receive proper permits. Petitioner has identified the respective
4 regulatory bodies, noting all potential environmental permits and those needed for
5 this project.24
6 Q: Is there a need for this additional electric generation source? 7 A: Yes. According to the State Utility Forecasting Group, 452 megawatts (“MW”) of
8 additional base load generation will be required by 2021 and 1,637 MW will be
9 needed by 2023.25
10 Q: Does Indiana support the development of clean energy? 11 A: Yes. For example, the Indiana Voluntary Clean Energy Portfolio Standard Program
12 provides incentives to utilities who voluntarily increase the amount of clean energy
13 resources in their electricity portfolios.26
14 Q: Is the Meadow Lake VI in the public interest? 15 A: Yes. Meadow Lake VI would provide a renewable, emission-free power resource.
16 Environmentally, Petitioner’s proposal appears to be designed to site the turbines
17 while preserving the use of the land and minimizing impacts to endangered species,
18 migratory birds, and environmental sensitive areas. The project will not release
19 pollutants such as carbon dioxide (CO2), sulfur dioxide (SO2), nitrous oxide (NOX),
20 or mercury. The project will also add numerous jobs. Petitioner thoroughly outlines
24 Petitioner’s Exhibit 1-Verified Direct Testimony of Ryan J. Brown page 12 through 15, Questions and Answers 24 and 25. 25 Indiana Electricity Projections: The 2017 Forecast, State Utility Forecasting Group, Purdue University, December 2017, Table 3-8. 26 Authorized by IC 8-1-37 and implemented by 170 IAC 17.1. Public’s Exhibit No. 1 Cause No. 45010 Page 10 of 14
1 all these benefits in Petitioner’s Exhibit 1, the Verified Direct Testimony of Ryan
2 J. Brown.27 These benefits are a trend with wind farm projects previously presented
3 before and approved by the Commission.28
IV. PETITIONER’S USE OF PUBLIC RIGHTS-OF-WAY
4 Q: Is Petitioner seeking the right to use public rights-of-way for this Project? 5 A: Yes. Petitioner is seeking the right to use public rights-of-way within the project
6 area, in order to facilitate installation and use of transmission lines.29
7 Q: Do utilities relinquish their rights to use the public rights-of-way when they 8 seek declination of jurisdiction? 9 A: Prior IURC Orders addressing wind farm requests for declination of jurisdiction
10 suggest the Commission determine rights to use the public rights-of-way on a case-
11 by-case basis. As an example, the Commission allowed a limited use of the public
12 rights-of-way in its Order in Cause No. 43338, which states:
13 Petitioner shall not exercise an Indiana public utility’s rights, 14 powers, and privileges of eminent domain and of exemption 15 from local zoning and land use ordinances in the 16 construction and operation of the Facility. Petitioner 17 specifically retains the rights, powers and privileges of a 18 public utility … to use public rights-of-way … for Facility 19 transmission lines.30
20 However, in Cause No. 43068, the Commission ordered an independent power
21 producer “shall not exercise any of the rights, powers, and privileges of an Indiana
27 At page 17 through 19, Questions 31 through 33. 28 See the following examples IURC Cause No. 43068, IURC Cause No. 43338, IURC Cause No. 43602, IURC Cause No. 44044 and IURC Cause No. 44978. 29 Petitioner’s Exhibit 1-Verified Direct Testimony of Ryan J. Brown page 20, Question and Answer 37. 30 Fowler Ridge Wind Farm, LLC, IURC Cause No. 43338, November 27, 2007 Order, Ordering Paragraph 4. Public’s Exhibit No. 1 Cause No. 45010 Page 11 of 14
1 public utility in the construction and operation of the project, e.g., the power of
2 eminent domain, use of public rights-of-way, exemption from zoning, and land use
3 regulation.” 31
4 Q: Does Petitioner need to retain the right to use public rights-of-way for this 5 Project or can private easements be purchased? 6 A: The OUCC sought clarification from Petitioner on this issue through discovery. In
7 response to the OUCC’s discovery, Petitioner indicates that Meadow Lake has not
8 acquired any easements for the transmission line at this time, but has obtained
9 options for the transmission line easements. Further, Petitioner intends to use public
10 rights-of-way for perpendicular road crossings and drainage crossings. Petitioner’s
11 responses to OUCC discovery, which includes additional detail on this issue, are
12 included in Attachment LMA-2.32
13 Q: Does the OUCC agree with Petitioner’s intent to use public rights-of-way for 14 this Project? 15 A: Yes. The OUCC concurs with Petitioner’s request for limited use of public rights-
16 of-way. Petitioner requests use of the rights-of-way to facilitate construction and
17 use of a transmission line, much like Fowler Ridge Wind Farm, LLC, in IURC
18 Cause No. 43338.
V. INTERCONNECTON
19 Q: Does the OUCC have issues with Petitioner’s planned interconnection with 20 PJM?
31 Benton County Wind Farm, LLC, IURC Cause No. 43068, December 6, 2006 Order, Ordering Paragraph 4. 32 See Attachment LMA-2, Petitioner’s Responses & Objections to OUCC Discovery Request Set No. 1, Questions 5 and 6, Attachment 1.5 and 1.6. Public’s Exhibit No. 1 Cause No. 45010 Page 12 of 14
1 A: No. The OUCC does not take issue with the planned interconnection. The OUCC’s
2 review of Petitioner’s efforts show Petitioner made due diligence to ensure there
3 would be no negative effects from the proposed interconnection. Petitioner
4 provided a signed interconnection agreement as part of this proceeding.
VI. REPORTING REQUIREMENTS AND MATERIAL CHANGE
5 Q: Does the OUCC agree with Petitioner’s proposed reporting requirements and 6 additional requirements concerning a material change in Project output or 7 project modification or suspension? 8 A: Yes. In its case-in-chief testimony, Petitioner outlines proposed initial and
9 subsequent reporting requirements, as well as additional requirements concerning
10 material change in project output or project modification or suspension (Petitioner’s
11 Exhibit 1, the Verified Direct Testimony of Ryan J. Brown (at Question 55 and 56,
12 pages 25 through 29)). These requirements are consistent with the OUCC’s
13 recommendations in prior proceedings before the Commission, and with previous
14 IURC Final Orders regarding wind energy and Commission jurisdiction.
VII. CONCLUSION AND RECCOMENDATION
15 Q: If the IURC declines jurisdiction will Petitioner be left unregulated? 16 A: No. As discussed earlier, Petitioner is subject to local, state, and federal governing
17 bodies regardless of whether the Commission exercises or declines jurisdiction in
18 whole or in part. At a minimum, Petitioner will remain subject to regulation from
19 the Benton County governmental bodies, the Indiana Department of Environmental
20 Management, the United States Fish and Wildlife Services, the U.S. Army Corps Public’s Exhibit No. 1 Cause No. 45010 Page 13 of 14
1 of Engineers, the Federal Aviation Administration, the Indiana Department of
2 Transportation, and the Federal Energy Regulatory Commission.
3 Q: Should the Commission decline to exercise its jurisdiction over Petitioner? 4 A: Yes. For the reasons discussed in my testimony, the OUCC’s review shows
5 Petitioner is an “energy utility” and its project does not contravene the public
6 interest; sufficient local, state, and federal regulatory oversight will remain.
7 Therefore, the Commission should decline to exercise its jurisdiction over
8 Petitioner as allowed by Indiana law.
9 Q. What does the OUCC recommend in this proceeding? 10 A. The OUCC recommends the Commission issue an order in this Cause declining to
11 exercise full jurisdiction over Petitioner’s construction, ownership and operation
12 of, and other activities in connection with, Meadow Lake VI. Additionally, the
13 OUCC recommends the Commission require Petitioner to submit reports on the
14 status of the wind farm’s development as proposed by Petitioner. Reporting
15 requirements should include the information as outlined, and within the timeframes
16 provided, by Petitioner in its verified direct testimony.
17 Q. Does this conclude your testimony? 18 A. Yes. Public’s Exhibit No. 1 Cause No. 45010 Page 14 of 14
APPENDIX A
1 Q: Summarize your professional background and experience. 2 A: I graduated from Michigan State University in 2008 with a Bachelor of Science
3 degree in Environmental Science and Management. I graduated from Florida State
4 University College of Law, in May 2011 with a Juris Doctorate and Environmental
5 Law certificate. I spent over 2 years while in law school as a certified legal intern,
6 providing pro bono legal services to poverty level residents of Tallahassee. I
7 worked in the legal department of Depuy Synthes, a Johnson & Johnson Company,
8 where I assisted with patent filings and nondisclosure agreements. Starting in 2013,
9 I worked for the Indiana Department of Environmental Management as a rule
10 writer, I worked extensively with the public at large, special interests groups, and
11 affected regulated entities to understand the rulemaking process and to respond to
12 their comments on ongoing rules. I joined the OUCC in July of 2017.
13 Q: Describe some of your duties at the OUCC. 14 A: I review and analyze utilities’ requests and file recommendations on behalf of
15 consumers in utility proceedings. As applicable to a case, my duties may also
16 include analyzing state and federal regulations, evaluating rate design and tariffs,
17 examining books and records, inspecting facilities, and preparing various studies.
18 The majority of my expertise is in environmental science, environmental state and
19 federal regulation, and state agency administration. Cause No. 45010 OUCC Attachment LMA-1 Page 1 of 16
Ordinance for Regulating Energy Generation Using Wind Power in Benton County, Indiana
Drafted by: The Advisory Plan Commission, Benton County, Indiana
ORDINANCE REGULATING THE SITING OF WIND ENERGY CONVERSION SYSTEMS IN BENTON COUNTY, INDIANA As amended by Ordinances 2006-0307-2, 2006-0307-3 and 2006-0307-4
I. INTRODUCTION
II. DEFINITIONS
III. APPLICABILITY
IV. PROHIBITION
V. APPLICATION REQUIREMENTS
VI. DESIGN AND INSTALLATION
VII. SETBACKS
VIII. USE OF PUBLIC ROADS
IX. OPERATION
X. LIABILITY INSURANCE
XI. DECOMMISSIONING PLAN
I. INTRODUCTION A. Title This Ordinance shall amend the Benton County Zoning Ordinance and be known, cited and referred to as the Benton County Wind Energy Siting Ordinance. B. Purpose This Ordinance is adopted for the following purposes: 1. To assure that any development and production of wind-generated electricity in Benton County is safe and effective; Cause No. 45010 OUCC Attachment LMA-1 Page 2 of 16
2. To facilitate economic opportunities for local residents; 3. To provide a regulatory scheme for the construction and operation of Wind Energy Facilities in the county, subject to reasonable restrictions, this will preserve the public health and safety. II. DEFINITIONS A. “Wind Energy Conversion System” (“WECS”) means all necessary devices that together convert wind energy into electricity and deliver that electricity to a utility’s transmission lines, including but not limited to the rotor, nacelle, generator, WECS Tower, electrical components, WECS foundation, transformer, and electrical cabling from the WECS Tower to the Substation(s), switching stations, meteorological towers, communications facilities, and other required facilities and equipment, as related to the WECS project. B. “Applicant” means the entity or person who submits to the County, pursuant to Section V of this Ordinance, an application for the siting of any WECS or Substation or thereafter operates or owns a WECS. C. “Financial Assurance” means reasonable assurance from a credit-worthy party, examples of which include a surety bond, trust instrument, cash escrow, or irrevocable letter of credit or combinations thereof. D. “Operator” means the entity responsible for the day-to-day operation and maintenance of the WECS, including any third party subcontractors. E. “Owner” means the entity or entities with an equity interest in the WECS(s), including their respective successors and assigns. Owner does not mean (i) the property owner from whom land is leased for locating the WECS (unless the property owner has an equity interest in the WECS); or (ii) any person holding a security interest in the WECS(s) solely to secure an extension of credit, or a person foreclosing on such security interest provided that after foreclosure, such person seeks to sell the WECS(s) within one year of such event. F. “Professional Engineer” means a qualified individual who is licensed as a professional engineer in any state in the United States. G. “Primary Structure” means, for each property, the structure that one or more persons occupy the majority of time on that property for either business or personal reasons. Primary Structure includes structures such as residences, commercial buildings, hospitals, and day care facilities. Primary Structure excludes structures such as hunting sheds, storage sheds, pool houses, unattached garages and barns. H. “Substation” means the apparatus that connects the electrical collection system of the WECS(s) and increases the voltage for connection with the utility’s transmission lines. I. “Switching Station” shall be an apparatus/structure in the system similar to a
2 Cause No. 45010 OUCC Attachment LMA-1 Page 3 of 16
substation but not necessarily increasing voltage into the grid. J. “WECS Project” means the collection of WECSs and Substations as specified in the siting approval application pursuant to Section V of this Ordinance. K. “WECS Tower” means the support structure to which the nacelle and rotor are attached, free standing or guyed structure that supports a wind turbine generator. L. “WECS Tower Height” means the distance from the rotor blade at its highest point to the top surface of the WECS foundation. M. “BOCA” refers to the Building Officials and Code Administrators International.
III. APPLICABILITY This Ordinance governs the siting of WECSs and Substations that generate electricity to be sold to wholesale or retail markets, except that owners of WECSs with an aggregate generating capacity of 3MW or less who locate the WECS(s) on their own property must obtain a variance to this Ordinance. WECS may be sited and operated in all Benton County townships including Bolivar Township.
IV. PROHIBITION No entity shall construct or operate a wind energy conversion system (WECS) without having fully complied with the provisions of this Ordinance.
V. APPLICATION REQUIREMENTS Prior to the construction of a WECS, the Applicant shall obtain approval for the following: (1) an Application for a Conditional Use from the Benton County Board of Zoning Appeals (“BZA”) to permit a WECS in any zone other than R-1, R-2, R-3 or R-4 (Residential) zoned land, as described below and in § 8-10( C ) of the Benton County Zoning Code (the “Code”), (2) a Request for Variance for any variances anticipated on the WECS Project, as described below and in § 8-22 of the Code, and (3) an Improvement Location Permit from the Benton County Building Commissioner, as described below and in § 8-18(B) of the Code. A. The Application for a Conditional Use 1. The application shall be filed with the BZA and include the following items: a. A WECS Project summary, including, to the extent available: (1) a general description of the project, including its approximate name plate generating capacity; the potential equipment manufacturer(s), type(s) of WECS(s), number of WECS(s), and name plate generating capacity of each WECS; the maximum height of the WECS Tower(s) and maximum diameter of the WECS(s) rotor(s);
3 Cause No. 45010 OUCC Attachment LMA-1 Page 4 of 16
the general location of the project; and (2) a description of the Applicant, Owner, and Operator, including their respective business structures. b. The name(s), address(es), and phone number(s) of the Applicant(s), Owner and Operator, and all property owner(s) with WECS on their properties, if known. c. A topographic map of the project site and the surrounding area which shall encompass an area at least a quarter mile radius from the proposed project site with contours of not more than five foot intervals. d. A site plan at an appropriate scale showing (standard sheet of 36 inches by 24 inches and individual tower site not greater than 1 inch equals 20 feet): the proposed location of the wind energy facility (including planned locations of each WECS Tower, guy lines and anchor bases (if any); WECS access roads; Substations; electrical cabling; and ancillary equipment). In addition, the site plan shall show: Primary Structures within one quarter of one mile of any WECS; property lines, including identification of adjoining properties; setback lines; public roads; location of all above-ground utility lines within a distance of two (2) time the WECS Tower Height of any WECS Tower; recognized historic or heritage sites as noted by the Division of Historic Preservation and Archeology of the Indiana Department of Natural Resources; and any wetlands based upon a delineation prepared in accordance with the applicable U. S. Army Corps of Engineer requirements and guidelines. e. Location of all existing underground utility lines associated with the WECS site. 2. In determining whether to approve the Application for Conditional Use, the BZA shall determine whether the Application satisfies each of the six (6) criteria set forth in § 8-10(D) of the Code, and make written findings thereof. 3. The Conditional Use granted by the BZA for a WECS Project shall be valid for a period of one (1) year, after which the Conditional Use shall terminate and be of no further force or effect if construction in earnest of the approved WECS has not commenced. The Applicant shall be granted a one (1) year extension to two (2) years from the date of the BZA approval if the Applicant presents its request for an extension to the BZA and provides a report to the BZA which shows the progress made on the WECS Project. Thereafter, an additional extension shall be at the BZA’s discretion.
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4. The fee for the Application for a Conditional Use shall be payable at the time of submission of the Application. The fee shall be $20,000.00, of which 50% shall be applied toward fees for Improvement Location Permits. In the event that the Improvement Location Permit fees are less than $10,000.00, the County shall retain the unused Improvement Location Permit fees. The Application fee shall be used to defray the costs associated with the Application for a Conditional Use, including professional fees and expenses. B. The Application for Variance 1. Contemporaneously with the Application for a Conditional Use, the Applicant shall submit an Application for Variance for any variances sought as part of the WECS Project. A single Application for Variance may be submitted for all variances sought. 2. In determining whether to approve the Application for Variance, the BZA shall determine whether the Application satisfies each of the five (5) criteria set forth in §8-22(A) of the Code, and make written findings thereof. 3. The fee for any variances is included in the Application fee. C. The Application for Improvement Location Permit 1. The Applicant shall apply to the Building Commissioner for an Improvement Location Permit, as described in §8-22(A) of the Code. In addition to the information required on the Improvement Location Permit Application, the Applicant shall provide the following information to the Building Commissioner prior to the issuance of an Improvement Location Permit: a. Location of all above-ground utility lines within a radius equal to two (2) times the height of the proposed WECS. b. Location of all underground utility lines associated with the WECS site. c. Dimensional representation of the structural components of the tower construction including the base and footings. d. Schematic of electrical systems associated with the WECS including all existing and proposed electrical connections. e. Manufacturer’s specifications and installation and operation instructions or specific WECS design information. f. Certification by a registered professional engineer that the tower design is sufficient to withstand wind load requirements for structure as defined by BOCA. g. All turbines shall be new equipment commercially available. 5 Cause No. 45010 OUCC Attachment LMA-1 Page 6 of 16
Used, experimental or proto-type equipment still in testing shall be approved by the BZA as per the normal special exception process. h. Necessary recorded access easements and necessary recorded utility easements, copies of which shall be submitted to the Benton County Building Commissioner. i. No appurtenances other than those associated with the wind turbine operations shall be connected to any wind tower except with express, written permission by the BZA. j. A transportation plan showing how vehicles would access the site and describing the impacts of the proposed energy project on the local and regional road system during construction and operation. k. A revegetation plan for restoring areas temporarily disturbed during construction. l. A fire protection plan for construction and operation of the facility. m. Any other item reasonably requested by the BZA. n. A drainage plan for construction and operation must be developed and approved by the Benton County Drainage Board. o. An erosion control plan must be developed in consultation with the Benton County Soil and Water Conservation District. 2. Each WECS Tower shall require an Improvement Location Permit. The fee for each improvement Location Permit shall be $2,500.00, which shall be used to defray the costs of professional services, as well as other expenses associated with the issuance of Improvement Location Permits.
VI. DESIGN AND INSTALLATION
A. Design Safety Certification
1. WECSs shall conform to applicable industry standards. Applicant shall submit certificate(s) of design compliance that wind turbine manufacturers have obtained from Underwriters Laboratories, Det Norske Veritas, Germanishcher Lloyd Wind Energie, or an equivalent third party.
2. Following the granting of siting approval under this Ordinance, a Professional Engineer shall certify, as part of the building permit application that the foundation and tower design of the WECS is within accepted professional standards, given local soil and climate conditions.
B. Controls and Brakes
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All WECS shall be equipped with a redundant braking system. This includes both aerodynamic over speed controls (including variable pitch, tip, and other similar systems) and mechanical brakes. Mechanical brakes shall be operated in a fail- safe mode. Stall regulation shall not be considered a sufficient braking system for over speed protection.
C. Electrical Components
1. All electrical components of the WECS shall conform to applicable local, state, and national codes, and relevant national and international standards.
2. Electrical Collection Cables
All WECS electrical collection cables between each WECS shall be located underground unless they are located on public or utility rights-of- way or with prior County approval. All transmission lines that are buried should be at a depth consistent with or greater than local utility and telecommunication underground lines standards or as negotiated with the land owner or the land owner’s designate until the same reach the property line or a substation adjacent to the property line.
D. Color
1. Towers and blades shall be painted white or gray or another non-reflective, unobtrusive color.
2. The Applicant for the WECS shall comply with all applicable FAA requirements.
E. Warnings
1. A reasonably visible warning sign concerning voltage must be placed at the base of all pad-mounted transformers and Substations.
2. Visible, reflective, colored objects, such as flags, reflectors, or tape shall be placed on the anchor points of guy wires and along the guy wires up to a height of not less than 15 feet from the ground.
F. Climb Prevention
All WECS Tower designs must include features to deter climbing or be protected by anti-climbing devices such as:
1. Fences with locking portals at least six feet high; or
2. Anti-climbing devices 15 feet vertically from the base of the WECS
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Tower.
3. Locked WECS Tower doors.
G. Blade Clearance
The minimum distance between the ground and any protruding blade(s) utilized on a WECS shall be fifteen (15) feet, as measured at the lowest point of the arc of the blades. The minimum distance shall be increased as necessary to provide for vehicle clearance in locations where over-sized vehicles might travel.
H. Noise and Vibration
Noise and vibration levels shall be in compliance with all County, State and Federal regulations.
I. Utility Interconnection
The WECS, if interconnected to a utility system, shall meet the requirements for interconnection and operate as set forth in the electrical utility’s then-current service regulations applicable to WECS.
J. Waste Management
All solid waste whether generated from supplies, equipment, parts, packaging, or operation or maintenance of the facility, including old parts and equipment, shall be removed from the site in a timely manner consistent with industry standards. All HAZARDOUS WASTE generated by the operation and maintenance of the facility, including but not limited to lubricating materials, shall be handled in a manner consistent with all local, state and federal rules and regulations.
K. Lighting
1. Except with respect to lighting required by the FAA all lighting shall be shielded so that no glare extends substantially beyond the boundaries of the Wind farm Facilities.
2. Any WECS thereof declared to be unsafe by the Benton County Building Inspector by reason of inadequate maintenance, dilapidation, obsolescence, fire hazard, disaster, damage or abandonment is hereby declared to be a public nuisance and shall be abated by repair, rehabilitation, demolition or removal in accordance with the procedures set forth in the County Ordinances governing the removal of Nuisances.
L. Compliance with Additional Regulations:
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Nothing in this Ordinance is intended to preempt other applicable state and federal laws and regulations.
VII. SETBACKS:
A. No WECS shall be constructed in any setback, dedicated public easement or dedicated public right-of-way without prior written authorization from the county.
B. Installation of any WECS may not be nearer than three hundred fifty (350) feet or 1.1 times the height of the WECS tower height, whichever is greatest, to any property lines, dedicated roadway, railroad right-of-way or overhead electrical transmission or distribution lines. Distance shall be measured from the center of the foundation at the base of the tower. New structures built adjacent to wind power facilities shall maintain these same minimum setback requirements. Participating landowners within the area comprising the wind energy conversion system may waive property line setbacks with written approval from all landowners sharing such property line.
C. Except as provided herein the setback distance for turbines with a rated capacity of 1.0 MW or less shall be 1,000 feet or more from any existing or occupied residence and turbines with a greater rated capacity shall be set back 1,000 feet or more from any existing or occupied residence or from the boundary of any to which as of the date of approval of the WECS is in a platted subdivision and shall be setback from a property line 1.1 times the height of the turbine with the blade tip at its highest point. Distance shall be measured at the time of application for building permit from the center of the foundation at the base of the tower. A turbine with a capacity of 1.0 MW or less may be placed as near as 600 feet from an occupied residence with the prior written approval of the owner. The setback distance will be followed except in specific instances allowed by the County Board.
D. The setback distance for the WECS will be 1500 feet from any platted community under the zoning jurisdiction of a municipality. Distance shall be measured from the center of the foundation at the base of the WECS to the closest Corporate Limit boundary line.
VIII. USE OF ROADS/SERVICES
An Applicant, Owner, or Operator proposing to use any county road(s), for the purpose of transporting WECS or Substation parts and/or equipment for construction, operation, or maintenance of the WECS(s) or Substation(s), shall prior to construction:
A. Identify all such public roads and services;
1. Roads
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a. Any proposed routes that will be used for construction and maintenance purposes shall be identified. If the route includes a public road, it must be approved by the Benton County Highway Supervisor. The Supervisor shall conduct a pre-construction baseline survey to determine existing road conditions for assessing potential future damage.
b. Any road damage caused by the construction of the WECS project equipment, the installation of same, or the removal of same, must be repaired to the satisfaction of the Benton County Highway Supervisor. The Supervisor may choose to require either remediation of road repair upon completion of the project or are authorized to collect fees for oversized load permits. Further, a corporate surety bond in an amount to be fixed by a Professional Engineer may be required by the Supervisor to insure the county that future repairs are completed to the satisfaction of the unit of local government. The cost of bonding is to be paid by the applicant.
c. Newly constructed WECS access roads may not impede the flow of water.
2. Dust Control
Reasonable dust control measures will be required by the County during construction of the WECS.
3. Sewer and Water
Any facility shall comply with existing septic and well regulation as required by the Benton County Health Department and the State of Indiana Department of Public Health.
4. Drainage Repair
All damages to waterways, drainage ditches, field tiles, or any other infrastructures caused by the construction or maintenance of the WECS, must be completely repaired to near original condition, and so as not to impede the natural flow of water.
All repairs must be completed within a reasonable amount of time.
IX. OPERATION
A. Maintenance / Inspection
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1. The Owner or Operator of the WECS must submit, on an annual basis, a summary of the operation and maintenance reports to the County. In addition to the above annual summary, the Owner or Operator must furnish such operation and maintenance reports as the County reasonably requests.
2. Any physical modification to the WECS that alters the mechanical load, mechanical load path, or major electrical components shall require re- certification. Like-kind replacements shall not require re-certification. Prior to making any physical modification (other than a like-kind replacement), the owner or operator shall confer with the Building Commissioner to determine whether the physical modification requires re- certification.
3. The Benton County Building Commissioner staff, along with licensed 3rd party professionals retained by the County for the specific purpose of conducting inspections of the WECS shall have the right, at any reasonable time and with sufficient prior notice, to accompany the owner or operator, or his agent, on the premises where a WECS has been constructed, to inspect all parts of said WECS installation and to require that repairs or alterations be made. The owner or operator of a WECS may retain a licensed 3rd party professional engineer familiar with WECS systems to prepare and submit to the Benton County Building Commissioner staff a written report which addresses the repairs or alterations requested, and which suggests alternate methods for addressing the concerns or provides evidence that said repairs or alterations are unnecessary, within thirty (30) days after receiving notice from the Benton County Building Commissioner staff that repairs or alterations are requested, or within a longer period of time mutually acceptable to both parties. The Benton County Building Commissioner staff will consider any such written report and determine whether the repairs or alterations should be made as originally requested or as suggested in the written report. In the event of a dispute between the Benton County Building Commissioner staff and the owner or operator, or a 3rd party professional engineer retained by them, as to the repairs or alterations which are required, the decision of the Building Commissioner shall be final.
4. Inspections, at a fee to be determined from time to time by the Benton County Plan Commission and paid by the applicant, may be made by the Benton County Building Commissioner, or by a qualified inspector for equipment of this type selected by the Benton County Building Commissioner, no more than once annually to certify the safety and maintenance of the WECS and accessory structures.
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B. Interference
If, after construction of the WECS, the Owner or Operator receives a written complaint related to interference with local broadcast residential television, telecommunication, communication or microwave transmissions, the Owner or Operator shall take reasonable steps to respond to minimize the complaint.
C. Coordination with Local Fire Department
1. The Applicant, Owner or Operator shall submit to the local fire department a copy of the site plan.
2. Upon request by the local fire department, the Owner or Operator shall cooperate with the local fire department to develop the fire department’s emergency response plan.
3. Nothing in this section shall alleviate the need to comply with all other applicable fire laws and regulations.
D. Materials Handling, Storage and Disposal
1. All solid wastes related to the construction, operation and maintenance of the WECS shall be removed from the site promptly and disposed of in accordance with all federal, state and local laws.
2. All hazardous materials or waste related to the construction, operation and maintenance of the WECS shall be handled, stored, transported and disposed of in accordance with all applicable local, state and federal laws.
X. LIABILITY INSURANCE
The Owner or Operator of the WECS(s) shall maintain a current general liability policy covering bodily injury and property damage and name Benton County as an additional insured with limits of at least $2 million per occurrence and $5 million in the aggregate with a deductible of no more than $5 thousand.
XI. DECOMMISSIONING PLAN
Prior to receiving siting approval under this Ordinance, the County and the Applicant, Owner, and/or Operator must formulate a Decommissioning Plan to ensure that the WECS Project is properly decommissioned. The Decommissioning Plan shall include:
A. Assurance that the facilities are properly decommissioned upon the end of the project life or facility abandonment. Applicant’s obligations with respect to decommissioning shall include removal of all physical material pertaining to the project improvements to a depth of 48” beneath the soil surface, and restoration of
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the area occupied by the project improvements to as near as practicable to the same condition that existed immediately before construction of such improvements. Prior to issuance of a building permit, the Applicant shall provide a contractor cost estimate for demolition and removal of the WECS facility and will provide financial assurance in an amount at least equal to said demolition and removal contractor cost estimate, through the use of a bond, letter of credit or other security acceptable to the County, for the cost of decommissioning each tower to be constructed under that building permit, which security shall be released when such tower is properly decommissioned as determined by the Benton County Building Commissioner. In the event of abandonment by the owner or operator, the Applicant will provide an affidavit to the Benton County Building Commissioner representing that all easements for wind turbines shall contain terms that provide financial assurance, including access to the salvage value of the equipment, for the property owners to ensure that facilities are properly decommissioned within twelve (12) months of expiration or earlier termination of the project.
B. The Applicant’s, Owner’s, or Operator’s failure to materially comply with any of the above provisions shall constitute a default under this Ordinance.
C. Prior to implementation of the existing County procedures for the resolution of such default(s), the appropriate County body shall first provide written notice to the Owner and Operator, setting forth the alleged default(s). Such written notice shall provide the Owner and Operator a reasonable time period, not to exceed 60 days, for good faith negotiations to resolve the alleged default(s).
D. If the County determines in its discretion, that the parties cannot resolve the alleged default(s) within the good faith negotiation period, the existing County ordinance provisions addressing the resolution of such default(s) shall govern.
XII. Requirements of these ordinances may by waived by the Benton County Board of Zoning
Appeals upon application and after public hearings.
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ORDINANCE NO. 2006-0307-2
An Ordinance Amending Chapter 8, Article 1, Section 8-10 of the Benton County Code Pertaining to Conditional Uses and Special Exceptions
WHEREAS, the Benton County Advisory Plan Commission has recommended amending Chapter 8, Article 1, Section 8-10 of the Benton County Code pertaining to Conditional Uses and Special Exceptions to allow Wind Energy Conversion Systems; and
WHEREAS, the Board of Commissioners of Benton County desires to amend the Benton County Code, Chapter 8, Article 1, Section 8-10 to allow Wind Energy Conversion Systems.
NOW, THEREFORE BE IT ORDAINED by the Board of Commissioners of Benton County, that the Benton County Code, Chapter 8, Article 1, Section 8-10(b) is amended to include:
36. Wind Energy Conversion System, All zones except R-1, R-2, R-3 and R-4.
This Ordinance shall be in full force and effect from and after its adoption by the Benton County Board of Commissioners, and publication as required by law.
ORDAINED this 7th day of March, 2006.
BOARD OF COMMISSIONERS OF BENTON COUNTY
/s/ Mel Budreau, President
/s/ Kevin Leuck
/s/ Jim Hasser
ATTEST:
/s/ Joan Schluttenhofer, Auditor of Benton County
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ORDINANCE NO. 2006-0307-3
An Ordinance Amending Chapter 8, Article 1, Section 8-7 of the Benton County Code Pertaining to Noise Regulation
WHEREAS, the Benton County Advisory Plan Commission has recommended amending Chapter 8, Article 1, Section 8-7 of the Benton County Code pertaining to noise standards adopted for Wind Energy Conversion Systems, such that Chapter 8, Article 1, Section 8-7 is amended to refer to the noise regulations for Wind Energy Conversion Systems contained in Chapter 8, Article 1, Section 8-23; and
WHEREAS, the Board of Commissioners of Benton County desires to amend the Benton County Code, Chapter 8, Article 1, Section 8-7 to have a cross-reference within the Section 8-7 that there are separate regulations for Wind Energy Conversion Systems contained in Section8- 23.
NOW, THEREFORE BE IT ORDAINED by the Board of Commissioners of Benton County, that the Benton County Code, Chapter 8, Article 1, Section 8-7(d)(7) is amended to add the following sentence to the end of the existing subsection:
“Notwithstanding the foregoing noise regulations which apply for Enclosed Industrial Uses, noise standards for Wind Energy Conversion Systems, as that term is defined in Section 8- 23 of this Code, shall be governed by the noise regulations contained in Section 8-23 of this Code.”
This Ordinance shall be in full force and effect from and after its adoption by the Benton County Board of Commissioners, and publication as required by law.
ORDAINED this 7th day of March, 2006.
BOARD OF COMMISSIONERS OF BENTON COUNTY
/s/ Mel Budreau, President
/s/ Kevin Leuck
/s/ Jim Hasser
ATTEST:
/s/ Joan Schluttenhofer, Auditor of Benton County
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ORDINANCE NO. 2006-0307-4
An Ordinance Amending Chapter 8 of the Benton County Code Pertaining to Wind Energy Conversion Systems in Bolivar Township
WHEREAS, the Benton County Advisory Plan Commission has recommended amending Chapter 8 of the Benton County Code pertaining to the siting and operation of Wind Energy Conversion Systems (WECS), to allow WECS to be sited and operated in all Benton County townships including Bolivar Township; and
WHEREAS, the Board of Commissioners of Benton County desires to amend the Benton County Code, Chapter 8, to regulate the siting and operation of Wind Energy Conversion Systems to allow WECS to be sited and operated in all Benton County townships.
NOW, THEREFORE BE IT ORDAINED by the Board of Commissioners of Benton County, that the Benton County Code, Chapter 8, Article 1, Section 8-23, subsection “III. Applicability” is hereby amended to provide that WECS may be sited and operated in all Benton County townships including Bolivar Township.
This Ordinance shall be in full force and effect from and after its adoption by the Benton County Board of Commissioners, and publication as required by law.
ORDAINED this 7th day of March, 2006.
BOARD OF COMMISSIONERS OF BENTON COUNTY
/s/ Mel Budreau, President
/s/ Kevin Leuck
/s/ Jim Hasser
ATTEST:
/s/ Joan Schluttenhofer, Auditor of Benton County
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OUCC DATA REQUEST
Meadow Lake Wind Farm VI LLC
Cause No. 45010
Dated December 22, 2017
Q1.1: On pages 7 and 8 of Petitioner’s Exhibit 1, the Verified Direct Testimony of Ryan J. Brown, Mr. Brown states: “Petitioner is currently evaluating the risk of impact to bald eagles and is in communication with USFWS regarding whether an Eagle Take Permit is warranted.”
Please provide the communications Mr. Brown is referring to.
Objection: Meadow Lake VI objects to the Data Request on the basis of the foregoing general objections.
Response: Communications with the USFWS regarding risk to eagles have been verbal. On November 29, 2017, Meadow Lake VI met with the USFWS Indiana Field Office to discuss results of the first year of wildlife surveys and the plan for the second year of wildlife surveys. The USFWS did not express concern regarding risk of impact to eagles. On December 19, 2017, Meadow Lake VI held a conference call with the USFWS Region 3 Eagle Coordinator and the Indiana Field Office to specifically discuss eagles. Meadow Lake VI conveyed to USFWS that is it not Meadow Lake VI’s intention to seek an Eagle Take Permit at this time, but Meadow Lake VI will confirm this decision once the second year of avian use surveys has been completed in summer 2018.
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OUCC DATA REQUEST
Meadow Lake Wind Farm VI LLC
Cause No. 45010
Dated December 22, 2017
Q1.2: On page 8 of Petitioner’s Exhibit 1, the Verified Direct Testimony of Ryan J. Brown, Mr. Brown states:
“Petitioner has obtained a Technical Assistance Letter from USFWS stating that the standard of insignificant or discountable take of the Indiana bat and northern long-eared bat will be met by the implementation of certain minimization measures and monitoring efforts by Petitioner in the Project area. In addition, Petitioner is developing a Habitat Conservation Plan in order to obtain an Incidental Take Permit from USFWS.” Please provide the Technical Assistance Letter and the Habitat Conservation Plan Mr. Brown is referring to. If the Habitat Conservation Plan is not completed, please provide any documentation available at this time.
Objection: Meadow Lake VI objects to the Data Request on the basis of the foregoing general objections.
Response: Please see Attachment 1.2 for the Technical Assistance Letter and the Memorandum dated August 20, 2017 referenced in the Technical Assistance Letter. A draft of the Habitat Conservation Plan has not been completed, nor have any drafts been shared with the USFWS. Therefore, Meadow Lake VI is not prepared to provide incomplete documentation that could incorrectly reflect its intentions pertaining to the Habitat Conservation Plan at this time as indicated by counsel for Meadow Lake VI in a telephone conversation with counsel for the OUCC on December 20, 2017.
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TECHNICAL MEMORANDUM
Date: August 30, 2017
To: Scott Pruitt, US Fish and Wildlife Service, Bloomington Field Office
From: Erin O’Shea, EDP Renewables North America LLC
Subject: Plan to Avoid Indiana Bat and Northern Long-Eared Bat Take at the Meadow Lake VI Wind Facility in Support of a USFWS Technical Assistance Letter
In accordance with the Draft Requirements for Issuing a Technical Assistance Letter for Avoidance of Indiana and Northern Long-eared Bat Take at Wind Energy Facilities in Indiana (USFWS 2015) and based on discussions with US Fish and Wildlife Service (USFWS) Indiana Field Office, Meadow Lake Wind Farm VI LLC (“Meadow Lake”) agrees to the below avoidance measures and monitoring efforts for the federally endangered Indiana bat (INBA) and the federally threatened northern long-eared bat (NLEB) at the Meadow Lake Wind Farm VI (MLVI or Project) located in Benton County, Indiana.
Meadow Lake requests the USFWS issue a Technical Assistance Letter (TAL) stating that the standard of insignificant or discountable take of INBA and NLEB will be met by the implementation of the below minimization measures and monitoring efforts at the Project. Meadow Lake expects that the TAL will be valid for up to a three year period or until an Incidental Take Permit (ITP) is obtained to cover INBA and NLEB, whichever is sooner.
Avoidance Measures – Spring Migration
Meadow Lake commits to feathering all 66 turbines during the spring migration period (March 15–May 15) for the first three years of Project operations or until an ITP is obtained to cover 1 INBA and NLEB, whichever is sooner, below a cut-in speed of 5.0 meters per second (m/s) for /2 1 hour before sunset to /2 hour after sunrise.
1
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Turbines will be monitored and controlled based on wind speed on an individual basis (i.e., the entire facility will not alter cut-in speed at the same time, rather operational changes will be based on wind speed conditions specific to each turbine). Turbines will begin operating when the 5- to 10-minute rolling average wind speed is above 5.0 m/s; turbines will be feathered again if the 5- to 10-minute rolling average wind speed goes below 5.0 m/s during the course of the night.
Avoidance Measures – Summer
The proposed Project contains very little suitable habitat for bats (Figure 1). Less than 96 acres of forest habitat are present, based on the US Geological Survey National Landcover data set (USGS NLCD 2011, Homer et al. 2015). Mist-netting was conducted in June 2017 in following a study plan (Iskali 2017) approved by the USFWS Indiana Field Office on May 5, 2017. A revised plan was submitted due to a change in Project boundary. The revised plan was reviewed and approved by the USFWS Indiana Field Office on August 3, 2017. Surveys were completed in accordance with the USFWS 2017 Range-Wide Indiana Bat Summer Survey Guidelines (USFWS 2017). No Indiana or northern long-eared bats were captured, therefore, Meadow Lake has avoided potential risk to INBA and NLEB during the summer period (May 16–July 31) by locating the Project in an area that is not occupied by the species during the summer season.
Avoidance Measures – Fall Migration
Meadow Lake commits to feathering all 66 turbines during the fall migration period (August 1– October 15) for the first three years of Project operations or until an ITP is obtained to cover 1 INBA and NLEB, whichever is sooner, below a cut-in speed of 6.9 m/s for /2 hour before sunset 1 to /2 hour after sunrise.
Turbines will be monitored and controlled based on wind speed on an individual basis (i.e., the entire facility will not alter cut-in speed at the same time, rather operational changes will be based on wind speed conditions specific to each turbine). Turbines will begin operating when the 5- to 10-minute rolling average wind speed is above 6.9 m/s; turbines will be feathered again if the 5- to 10-minute rolling average wind speed goes below 6.9 m/s during the course of the night.
2
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Figure 1. Meadow Lake VI turbine locations and the mist-net site surveyed for Indiana and northern long-eared bats during June of 2017.
Monitoring and Reporting Commitments
Meadow Lake commits to monitoring all 66 turbines at the MLVI during the spring migration period, March 15–May 15, and the fall migration period, August 1-October 15, for the first three years of Project operations or until an ITP is obtained to cover INBA and NLEB, whichever is sooner. Areas around turbines will be searched once per week 1 . Fifty six turbines will be searched on roads and pads only and the remaining 10 turbines will be searched on cleared plots with a 40-m radius, centered on the turbine.
1 The weekly search frequency may need to be adjusted depending on the results of carcass removal trials
3
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Search Methods:
In all seasons, road and pad search plots will include the entire gravel turbine pad and all gravel access roads within 40 m of the turbine. Searchers will walk out and back on each access road within 40 m of the turbine and will walk a circle around the turbine on the turbine pad. Within the cleared plots, searchers will walk north/south oriented transects 5 m apart at a rate of approximately 45-60 m per minute. Searchers will scan the area on both sides of each transect out to approximately 2.5 m, thereby surveying the entire plot area.
Data Collection:
Data to be recorded for each search include date, start time, end time, observer, turbine area searched (including Universal Transverse Mercator [UTM] coordinates) and weather information. When a dead bat or bird is found, the observer will record the distance he or she is from the carcass when first observed. Observers will place a flag near the carcass and continue the search. After searching the entire plot, the observer will return to each carcass and record information on a fatality data sheet, including the date, species, sex and age (when possible), observer name, turbine number, measured distance from turbine, azimuth from turbine (including UTM coordinates), habitat surrounding carcass, condition of carcass (intact, scavenged, feather spot [for birds only]), and estimated time of death (e.g., less than one day, two days, etc.). The condition of each carcass found will be recorded using the following categories:
Intact - a carcass that is completely intact, is not badly decomposed, and shows no sign of being fed upon by a predator or scavenger. Scavenged - an entire carcass that shows signs of being fed upon by a predator or scavenger, a portion(s) of a carcass in one location (e.g., wings, skeletal remains, portion of a carcass, etc.), or a carcass that has been heavily infested by insects. Feather Spot - 10 or more feathers at one location indicating predation or scavenging of a bird carcass.
Digital photographs will be taken of the carcass, any visible injuries, and the surrounding habitat. Rubber gloves will be used to handle all carcasses to eliminate possible transmission of rabies or other diseases and to reduce any possible human scent bias for carcasses later used in scavenger removal trials. All bat carcasses found will be placed in re-sealable plastic bags; labeled with unique carcass identification number, turbine number, and date; and frozen for future reference and possible necropsy (following state and federal handling requirements). For each collected carcass, a copy of the data sheet will be maintained with the carcass at all times.
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Bird carcasses will be identified and recorded as described above, but will not be collected and instead will be left in place. Bird carcasses will be marked with orange spray paint2 to ensure carcasses are not recorded multiple times during surveys. All injured bats and birds observed in search plots also will be recorded (labeled as intact) and considered as fatalities for future analyses. The health of injured birds will be assessed in the field, and in consultation with a wildlife rehabilitator. If the bird is considered a candidate for rehabilitation by the wildlife rehabilitator, the bird will be carefully captured by the observer and immediately transported to the nearest wildlife rehabilitation center, depending on the rehabilitation center availability. No injured bats will be transported from the facility due to the concern of spreading white-nose syndrome. Injured, non-myotis bat species will be humanely euthanized. Any bat that is euthanized will be placed in a plastic bag, labeled, and maintained similarly to the carcasses described above.
Carcasses found in non-search areas (e.g., near a turbine not included in the search area) or outside of the scheduled search time will be coded as incidental discoveries and will be documented in a similar fashion as those found during standard searches. Incidental discoveries found outside the scheduled search area will not be included in the calculation of fatality estimates. Those found outside scheduled search times, but within a scheduled search area, will be included in estimates under the assumption that they would have been found during the next search had they not been found incidentally. Data on incidental discoveries will be included in all reports.
Searcher Efficiency Trials:
The objective of the searcher efficiency trials is to estimate the percentage of carcasses which are found by searchers. Searcher efficiency trials will be conducted in the same areas carcass searches occur. Trials will be conducted every 2-4 weeks during each monitoring period to cover the changing seasons and growing conditions. Searcher efficiency will be estimated by size of carcass (large bird, small bird, and bat) and plot type. Fatality estimates will be corrected for detection bias by using estimated searcher efficiency to adjust the total number of trial carcasses found for those missed by searchers.
Searcher efficiency trials will begin when carcass search studies begin. Personnel conducting carcass searches will not know when trials are conducted or the location of the detection carcasses. During each season, approximately 15 carcasses of “small birds”, 15 carcasses of
2 Any federally or state-listed species will be reported to the Indiana Department of Natural Resources and the USFWS within 24 hours of discovery and will not be spray painted.
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“large birds,” and 20-25 carcasses of bats will be placed in the road and pad search areas and the cleared plot search areas, for a total of 200-220 searcher efficiency trial carcasses.
Bird carcasses will consist of non-native/non-protected or commercially available species such as house sparrows (Passer domesticus), European starlings (Sturnus vulgaris), rock pigeons (Columba livia), Conturnix quail (Conturnix conturnix), hen mallards (Anas platyrhynchos) or hen ringed-neck pheasants (Phasianus colchicus). Non-myotis bat carcasses found during surveys will be used for trials, if available. If bat carcasses are not available, bats will be obtained from other sources, such as Indiana State University, or small brown/black mice will be used as surrogates.
All carcasses will be placed at random locations within areas being searched prior to the carcass search on the same day. Carcasses will be dropped from waist high or higher and allowed to land in a random posture. Each trial carcass will be discreetly marked with a black zip-tie around the leg for birds, or around the upper arm for bats, prior to dropping so that it can be identified as a study carcass after it is found. The number and location of trial carcasses found during each carcass search will be recorded. The number of carcasses available for detection during each trial (i.e., not removed by scavengers prior to the trial) will be determined immediately after the trial by the person responsible for distributing the carcasses.
Carcass Persistence Trials:
The objective of carcass persistence trials is to estimate the average probability a carcass is available to be found after an interval of time. The probability is determined by the length of time a carcass remains in the search plot before being removed by scavengers or by other means. Carcass removal includes removal by predation/scavenging or removal by other means such as being plowed into a field. Carcass persistence studies will be conducted every 2-4 weeks to adequately cover all growing conditions. Fatality estimates will be corrected for carcass persistence by using estimated carcass persistence times to adjust the total number of trial carcasses found for those removed from search plots.
Carcass persistence trials will begin when carcass search studies begin. The same carcasses used for searcher efficiency trials will also be used for carcass persistence trials (see above for number of carcasses of each type for each season). Carcasses will be placed throughout the study period, spreading the trials among plot types to incorporate the effects of varying weather, climatic conditions, and scavenger densities.
Carcasses will be dropped from waist high or higher and allowed to land in a random posture. Each trial carcass will be discreetly marked with a black zip-tie around the leg for birds or around the upper arm for bats prior to dropping so that it can be identified as a study carcass if it is found by other searchers or wind facility personnel.
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Trial birds and bats will be monitored over a 30-day period according to the following schedule as closely as possible. Carcasses will be checked every day for the first four days, and then on days seven, 10, 14, 20, and 30. This schedule may vary depending on weather and coordination with the other survey work. Each trial carcass will be left at the location it was placed until the end of the carcass removal trial. At the end of the 30-day trial period, any evidence of trial carcasses that remain will be removed from the search plot.
Statistical Analysis:
Bird and bat mortality rates will be estimated for each monitoring year to assess the effectiveness of avoidance measures for bats and to support the Bird and Bat Conservation Strategy currently in development for the MLVI. Mortality rates will be calculated using the Shoenfeld and Huso mortality estimators. Estimates of facility-related mortality will be based on:
Observed number of carcasses found during standardized searches; Non-removal rates, expressed as the estimated average number of days trial carcasses are expected to remain on search plots and be available for detection by searchers during removal trials; Searcher efficiency, expressed as the proportion of trial carcasses found by observers during searcher efficiency trials; and Correction for area searched on road and pad plots compared with cleared plots.
Annual Reporting:
Annual reports describing the avoidance measures implemented and the methods and results from mortality monitoring will be submitted to the USFWS Indiana Field Office by December 31 of each year the TAL is in effect (up to a three year period or until an ITP is obtained to cover take of INBA and NLEB, whichever is sooner). Annual reports will include:
Results from monitoring, including results of bias corrections (i.e., searcher efficiency trials, carcass persistence trials, and searchable area adjustments) and estimates of bat mortality; Raw data sheets (that include all bat and bird fatalities); and Spreadsheets showing the temperature, timing, and actual speeds at which the turbines were operational and feathered during the monitoring period.
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References Cited
Homer, C. G., J. A. Dewitz, L. Yang, S. Jin, P. Danielson, G. Xian, J. Coulston, N. D. Herold, J. D. Wickham, and K. Megown. 2015. Completion of the 2011 National Land Cover Database for the Conterminous United States-Representing a Decade of Land Cover Change Information. Photogrammetric Engineering and Remote Sensing 81(5): 345-354. Available online from: http://www.mrlc.gov/nlcd2011.php
Iskali, G. 2017. Study Plan, Bat Surveys for the Meadow Lake VI Wind Energy Project, Benton County, Indiana. Prepared for EDP Renewables, Inc. Prepared by Western EcoSystems Technology, Inc. August 4, 2017.
US Fish and Wildlife Service (USFWS). 2015. Draft Requirements for Issuing a Technical Assistance Letter for Avoidance of Indiana and Northern Long-eared Bat Take at Wind Energy Facilities in Indiana. Ecological Services Field Office, Bloomington Indiana. U.S. Fish and Wildlife Service, June 2015
US Fish and Wildlife Service (USFWS). 2017. 2017 Range-Wide Indiana Bat Summer Survey Guidelines (May 9, 2017). USFWS Endangered Species Program: Midwest Region. Available online from: https://www.fws.gov/midwest/endangered/mammals/inba/surveys/pdf/2017INBASummer SurveyGuidelines9May2017.pdf
US Geological Survey (USGS) National Land Cover Database (NLCD). 2011. National Land Cover Database 2011 (NLCD 2011). Multi-Resolution Land Characteristics Consortium (MRLC), National Land Cover Database (NLCD). USGS Earth Resources Observation and Science (EROS) Center, Sioux Falls, South Dakota. Available online from: http://www.mrlc.gov/ nlcd2011.php; Legend information available at: http://www.mrlc.gov/nlcd11_leg.php
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OUCC DATA REQUEST
Meadow Lake Wind Farm VI LLC
Cause No. 45010
Dated December 22, 2017
Q1.4: On page 11 of Petitioner’s Exhibit 1, the Verified Direct Testimony of Ryan J. Brown, Mr. Brown states: “Petitioner will have its decommissioning plan approved in accordance with the Benton County ordinance.”
Please provided a copy of the decommissioning plan. If the plan has yet to be approved please provide a draft and describe why it has yet to be approved and provide an anticipated date.
Objection: Meadow Lake VI objects to the Data Request on the basis of the foregoing general objections.
Response: Please see Attachment 1.4. The Decommissioning Agreement was approved by the Benton County Commissioners on Tuesday, December 19, 2017, which explains why it is not fully executed. Meadow Lake VI further states that while currently blank in Section 2.3 of the Decommissioning Agreement, Benton County and Meadow Lake VI have agreed upon a per turbine limit of $25,000.
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BENTON COUNTY DECOMMISSIONING AGREEMENT
This Decommissioning Agreement (“Agreement”) dated as of September __, 2017 (“Effective Date”) by and between Meadow Lake Wind Farm VI LLC, a Delaware limited liability company, qualified to do business in Indiana (the “Company”) and Benton County, Indiana (the “County”).
RECITALS
WHEREAS, the Company desires to build wind farm facilities in Benton County, Indiana (the “Wind Farm” or “Project”);
WHEREAS, the Company has or will enter into certain Wind Energy Lease and Agreement with Grant of Easements or other similar agreements (collectively, the “Wind Leases”) with the landowners within the Wind Farm area (the “Landowners”);
WHEREAS, pursuant to Section 8-24(k) of the Wind Energy Conversion Systems (WECS) Section of the Benton County Zoning Code (the “Code”), the Company is required to provide financial assurance to cover the estimated Net Removal Cost (as defined herein below), in the form of a bond, letter of credit or other security acceptable to the County;
WHEREAS, the Company shall post a bond, letter of credit or other security acceptable to the County, for the Net Removal Cost upon the terms and conditions more fully set forth below;
WHEREAS, the County may, but shall not be required to, use the salvage value of the Project as set forth in Section 3.1 below, located within the Wind Farm to cover the Net Removal Cost in the event the Company and its lenders fail to complete the decommissioning in accordance with the Code; and
WHEREAS, for purposes of this Agreement, the Project is defined to include, but not be limited to, wind power facilities, transformers, met towers, underground cable circuits, site roads and collector substations.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
ARTICLE 1 BOND ISSUANCE
Section 1.1 Agreement to Decommission; Restoration Fund Amount. Company shall decommission the Project and related improvements pursuant to the terms of this Agreement and the Code. This Agreement shall be deemed the decommissioning plan under the Code. The Company shall decommission the Project and related improvements upon the discontinuation of use (“Discontinuation of Use”) which, under the Code, shall be deemed to occur upon the failure of the Project to produce electricity for twelve (12) consecutive months, unless a plan outlining the steps and schedule is submitted and approved by the Benton County Building Commissioner
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(“Building Commissioner”) or such failure is a result of a Force Majeure Event (defined below). The approval of the Building Commissioner of such a plan may not be unreasonably withheld. If the Company’s performance of its obligations to decommission pursuant to such a plan is prevented, delayed, or otherwise impaired at any time due to any of the following causes, then the time for performance as herein specified shall be appropriately extended by the time of the delay actually caused by such circumstances: acts of God, extreme weather, war, civil commotion, riots, or damage to work in progress by reason of fire or other casualty, strikes, lock outs or other labor disputes, delays in transportation, inability to secure labor or materials in the open market, terrorism, sabotage, civil strife or other violence (any such cause, a “Force Majeure Event”).
After the Benton County Board of Zoning Appeals approves the Wind Farm Conditional Use and prior to the issuance of the Improvement Location Permit, Company shall deliver to Building Commissioner a bond, letter of credit or other security reasonably acceptable to the County (the “Restoration Fund”), issued by a financial institution, an investment grade entity, one of the companies listed in the latest version of “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies,” Department Circular 570, issued by the Department of the Treasury (in the event such Circular is no longer published, then the parties shall agree on another publication of a similar nature listing companies which are then recognized as acceptable sureties on federal bonds and as acceptable reinsuring companies), or other company reasonably acceptable to the County (the “Bond Provider”), securing performance of the decommissioning obligations. The amount of the Restoration Fund shall be equal to one hundred percent (100%) of the estimated amount, if any (the “Net Removal Cost”), by which the cost of decommissioning the Project exceeds the salvage value of such Project, which Net Removal Cost shall be determined as follows: the Company shall retain a licensed professional engineer, a contractor capable of completing the decommissioning, or a person with suitable expertise or experience with decommissioning wind farms (a “Professional Engineer”), to provide an estimate of the Net Removal Cost, which Professional Engineer shall be subject to reasonable approval of the County. The Professional Engineer’s estimate of the Net Removal Cost shall include a reasonable adjustment factor for inflation. Company shall pay the cost of retaining the Professional Engineer. Company shall keep the Restoration Fund, or a like replacement security, in force throughout the remainder of the term of this Agreement.
Beginning with any replacement or extension of the Restoration Fund on or after five (5) years from the issuance of the Improvement Location Permit, an updated estimate of the Net Removal Cost shall be prepared by the Professional Engineer then retained by the Company at that time (as set out in Section 1.1), and the Restoration Fund shall be reduced to an amount equal to the greater of one hundred percent (100%) of the Net Removal Cost or twenty-five percent (25%) of the estimated costs of removing decommissioning the Project, and for purposes of estimating the salvage value, any turbine or other portion of the Project that is subject to a lien or security interest for the benefit of a lender or creditor of the Company or other party (other than the County or a tax investor) shall be deemed to have salvage value only to the extent that the salvage value exceeds the amount of the lien. Notwithstanding the above, salvage value shall not be reduced by the amount of any lien or security interest for the benefit of a lender or creditor to the extent such lender or creditor subordinates its lien or security interest in writing to the County’s rights under this Agreement, which subordination shall be in a form reasonably acceptable to the County.
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Section 1.2 Restoration Fund Beneficiaries. The County shall be named as the beneficiary of the Restoration Fund, provided, however, that the disbursement of and rights to the Restoration Fund funds shall be governed by Article 2 below; and provided further, that the Landowners may also be beneficiaries of the Restoration Fund. The Company represents that it has not granted and the Company shall not grant to the Landowners or any other party rights to the Restoration Fund senior to the rights of the County to the Restoration Fund.
Section 1.3 Restoration Fund Renewal. The Restoration Fund shall be renewed annually for the duration of the operation of the Wind Farm. Every year for the duration of the operation of the Wind Farm, the Company shall deliver to the Building Commissioner not later than one hundred twenty days (120) days prior to the expiration date of any posted Restoration Fund (the “Renewal Deadline”), a certificate of continuation extending the expiration date of the then-existing Restoration Fund for an additional year (the “Certificate of Continuation”). Beginning with any renewal, replacement or extension of the Restoration Fund on or after five (5) years from the issuance of the Improvement Location Permit, such Certificate of Continuation shall also include an updated estimate of the Net Removal Cost prepared by the Professional Engineer then retained by the Company at that time and as set out in the third paragraph of Section 1.1.
Section 1.4 Failure to Provide Restoration Fund. If the Company fails to provide the Restoration Fund or Certificate of Continuation as provided in Sections 1.2 and 1.3 respectively, the County shall provide written notice to Company and Company shall be afforded sixty (60) business days from Company’s receipt of such notice to cure prior to County’s declaring a default under this Agreement. If Company fails to provide the Restoration Fund or Certificate of Continuation as provided in Sections 1.2 and 1.3 after such sixty (60) business days and the County declares an event of default hereunder, the County shall have the right, after a reasonable period of time but not to exceed sixty (60) days, to (a) seek any necessary injunctive relief available under applicable law to effect the providing of the Restoration Fund or any other requirement under this Agreement, (b) pay any premium necessary to continue the Restoration Fund, in which case Company shall reimburse the County for the amount of such premium, (c) draw on the Restoration Fund and deposit the drawn funds in a bank account and, at the County’s election, apply such funds to the decommissioning of the Project, and (d) seek all remedies at law. The Company shall pay to County the County’s attorney and professional fees and other reasonable costs with respect to the pursuit and implementation of such remedies.
Section 1.5 Substitution of Form of Restoration Fund Security. Company shall have the right to substitute a letter of credit, cash in escrow or other security acceptable to the County, in an amount equal to the Restoration Fund, as adjusted by the third-paragraph of Section 1.1 herein. Any escrow account established pursuant to this Section 1.5 shall be governed by an escrow agreement in compliance with the terms of the Code and otherwise reasonably acceptable to the Company and the County.
ARTICLE 2 DISBURSEMENT OF SECURITY
Section 2.1 Rights of County. In the event of Discontinuation of Use, if the Company and its lenders fail to decommission the Wind Farm in accordance with the requirements of the
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Code, the County may, in its sole election, undertake the decommissioning of the Wind Farm. The County’s election to decommission all or any portion of the Wind Farm shall not create an obligation to the Landowners, the Company or any other third party to complete the decommissioning of the entire Wind Farm. In the event the County elects to undertake the decommissioning of the Wind Farm, it may make a claim(s) upon the Restoration Fund to the Bond Provider for the Net Removal Cost subject to the limitations set forth herein. Any claim made by the County upon the Restoration Fund shall be limited to such reasonable expenses incurred by the County for the removal of all structures including up to a depth of four (4) feet below the surface and the restoration of the Wind Farm area, as set forth in the Code, including reasonable professional fees (the “Decommissioning Obligations”).
Section 2.2 County Cooperation. In the event of Discontinuation of Use, if the County elects not to undertake or complete the decommissioning of all or any portion of the Wind Farm, the County shall execute all documentation reasonably required or requested by the Restoration Fund, the Bond Provider, the Landowners, the Company and/or its lenders necessary to waive the County’s rights to all or the corresponding portion, as applicable, of the Restoration Fund funds and to otherwise permit any of the foregoing to make claims against all or the corresponding portion, as applicable, of the Restoration Fund or at the request of any of the foregoing, return all or the corresponding portion, as applicable, of the Restoration Fund to Company. Additionally, the County and any Landowners may enter into a “Letter of Understanding” (in recordable form) by which certain Wind Farm facilities such as access roads and out buildings, as deemed necessary or useful by such Landowners, may be allowed to remain.
Section 2.3 Landowner Rights. In the event of Discontinuation of Use, if the Company and its lenders fail to decommission the Wind Farm in accordance with the requirements of the Code, the Landowners shall have the right to perform the Decommissioning Obligations. Prior to commencing any Decommissioning Obligations, a Landowner must contact the County and obtain written confirmation that the County has affirmatively elected not to undertake any Decommissioning Obligations (the “County Waiver”). If the Landowner receives the County Waiver, a Landowner may undertake the Decommissioning Obligations of the Wind Farm facilities located on their property and may, upon submission of a copy of the County Waiver to the financial institution or other company that issued or holds the form of security compromising the Restoration Fund, make a claim for the reasonable costs incurred by such Landowner associated with such Decommissioning Obligations in an amount not to exceed [______] ($[______]) per wind turbine located on such Landowner’s property, subject to such terms, conditions and limitation set forth in the Wind Leases.
Section 2.4 Wind Leases. The Company represents that all Wind Leases for the Project shall contain terms that provide financial assurance in the event of abandonment of the Project by the Company, including access to the salvage value of the Project, for Landowners to ensure that the Project and related improvements are properly decommissioned within one (1) year of expiration or earlier termination of the Project, as required by the Code. Specifically, at the time of abandonment or early termination of the Project, Company will provide an affidavit to the Building Commissioner representing that all Wind Leases for wind turbines with property owners contain terms that provide financial assurance for decommissioning pursuant to the terms of the preceding sentence.
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Section 2.5 Release of Restoration Fund. The Bond Provider shall release the Restoration Fund when the Company has demonstrated to the reasonable satisfaction of the Building Commissioner that the Decommissioning Obligations have been satisfied. The Building Commissioner shall provide such notices or other documentation necessary to release the Restoration Fund
ARTICLE 3 SALVAGE VALUE
Section 3.1 County Right to Salvage Value of the Project. If the Company and its lenders fail to perform the Decommissioning Obligations in accordance with the terms of the Code and this Agreement in the event of a Discontinuation of Use, in addition to any rights to make a claim upon the Restoration Fund, the Project shall be deemed abandoned and pursuant to the Code, the County is hereby granted a subeasement to enter the Wind Farm to remove Project improvements and shall be entitled to apply the salvage value of the Project to any costs of decommissioning the Wind Farm in excess of the funds available under the Restoration Fund.
ARTICLE 4 OTHER RIGHTS OF COUNTY
Section 4.1 Other Relief. If the Company and its lenders fail to perform the Decommissioning Obligations in accordance with the terms of the Code and this Agreement in the event of a Discontinuation of Use, then, in addition to any other rights and remedies granted herein, the County shall have the right to seek any injunctive relief available under applicable law to effect or complete the decommissioning of the Wind Farm. In addition, the County shall have the right to seek reimbursement from Company, its successors or assigns, for any reasonable costs of decommissioning the Wind Farm incurred by the County in excess of the funds available under the Restoration Fund and the salvage value of the Project.
ARTICLE 5 REPRESENTATIONS AND WARRANTIES
Section 5.1 Representations, Warranties and Covenants of County. The County represents and warrants to the Company as follows:
a. The County has full power and authority to execute, deliver and perform this Agreement and to take all actions necessary to carry out the transactions contemplated by this Agreement.
b. This Agreement has been duly executed and delivered by the County and constitutes the legal, valid and binding obligation of the County, enforceable against the County in accordance with its terms.
c. The execution, delivery, and performance of this Agreement by the County will not, to the best of County’s knowledge, violate any applicable law of the State of Indiana.
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Section 5.2 Representations, Warranties and Covenants of Company. The Company represents and warrants to the County as follows:
a. The Company has full power and authority to execute, deliver and perform this Agreement and to take all actions necessary to carry out the transactions contemplated by this Agreement.
b. This Agreement has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.
ARTICLE 6 DISPUTES; DETERMINATIONS
Section 6.1 Default; Disputes. Subject to Section 1.9.4 of the Code, the breach of or default under this Agreement by the Company shall constitute a breach of the Code, and any remedies set forth under the Code shall be in addition to the remedies set forth in this Agreement. In the event of any dispute as to any amount to be paid pursuant to this Agreement, the right of the County to the Restoration Fund funds and the salvage value of the Project shall take priority over the rights of the Landowners as set forth in this Agreement.
ARTICLE 7 TERM
Section 7.1 Term. The term of this Agreement shall commence on the date of this Agreement, and this Agreement and County’s rights hereunder shall terminate upon the completion of the decommissioning of the Wind Farm in accordance with the terms of this Agreement. Upon termination of this Agreement, the County shall execute all documentation necessary or reasonably required in order to release and waive all claims to the Restoration Fund and the salvage value of the Project upon the request of the Company.
ARTICLE 8 MISCELLANEOUS
Section 8.1 No Waiver; Remedies Cumulative. No failure on the part of any party hereto to exercise, and no delay in exercising, any right, power or remedy shall operate as a waiver thereof. No single or partial exercise by any party hereto of any such right, power or remedy hereunder shall preclude any other further exercise of any right, power or remedy hereunder. The rights, powers and remedies herein expressly provided are cumulative and not exclusive of any rights, powers or remedies available under applicable law.
Section 8.2 Notices. All notices, requests and other communications provided for herein (including any modifications, or waivers or consents under this Agreement) shall be given or made in writing (including by telecopy) delivered to the intended recipient at the address set forth below or, as to any party, at such other address as shall be designated by such party in a notice to the other party. Except as otherwise provided herein, all notices and communications shall be deemed to have been duly given when transmitted by telecopier with confirmation of receipt received, personally delivered, or in the case of a mailed notice sent by certified mail, return
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If to Company: Meadow Lake Wind Farm VI LLC c/o EDP Renewables North America LLC 808 Travis Street, Suite 700 Houston, TX 77002 Attn: General Counsel
With copy to:
Meadow Lake Wind Farm VI LLC c/o EDP Renewables North America LLC 808 Travis Street, Suite 700 Houston, TX 77002 Attn: Executive Vice President – Eastern Region
If to Financing Parties: To the address indicated in each Financing Party’s notice sent to County under Section 8.4(f) hereof
If to the County: Benton County Commissioners Benton County Courthouse 706 East 5th Street Fowler, IN 47944 Attn.: County Auditor
Section 8.3 Amendments. This Agreement may be amended, supplemented, modified or waived only by an instrument in writing duly executed by each of the parties hereto.
Section 8.4 Successors and Assigns.
a. This Agreement shall (i) remain in full force and effect until the termination hereof pursuant to Section 7.1 herein; and (ii) be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.
b. Company may, without the consent of the County, but upon notice to County, assign or transfer this Agreement or any or all of its rights, interests, and obligations under this Agreement. Any assignee of this Agreement will assume, as of the date of the assignment, the obligations and liabilities of Company under this Agreement. Such assignment may further include any encumbrance, by security, charge or otherwise, of Company’s interest under this Agreement and any amendments thereto for the purposes of financing the development, construction, operation of or investment in the Project, or the transfer of equity interests or assignment of interests in connection with the sale or transfer of the Project assets (collectively,
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“Collateral Assignment”). If requested by any party financing such transaction(s) (“Financing Parties”), County shall execute and deliver any reasonably requested consents related to the Collateral Assignment providing for cure periods and other rights reasonably afforded to Financing Parties under such consents. Section 8.5 Counterparts; Effectiveness. This Agreement may be executed in any number of counterparts, all of which when taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart. This Agreement constitutes the entire agreement and understanding among the parties hereto with respect to matters covered by this Agreement and supersede any and all prior agreements and understandings, written or oral, relating to the subject matter hereof.
Section 8.6 Severability. If any provision hereof is invalid or unenforceable in any jurisdiction, then, to the fullest extent permitted by applicable law: (a) the other provisions hereof shall remain in full force and effect in such jurisdiction in order to carry out the intentions of the parties hereto as nearly as may be possible; and (b) the invalidity or unenforceability of any provision hereof in any jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction.
Section 8.7 Headings. Headings appearing herein are used solely for convenience of reference and are not intended to affect the interpretation of any provision of this Agreement.
Section 8.8 Governing Law. This Agreement shall be governed by, and construed in accordance with the laws of the State of Indiana. Venue for any action related to this Agreement shall be in a court of appropriate jurisdiction located in Benton County, Indiana.
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OUCC DATA REQUEST
Meadow Lake Wind Farm VI LLC
Cause No. 45010
Dated December 22, 2017
Q1.5: On page 16 of Petitioner’s Exhibit 1, the Verified Direct Testimony of Ryan J. Brown, Mr. Brown states: “The overhead route will run through private farmland, not along public right of ways. The overhead transmission line will cross Interstate 65 in accordance with a permit to be issued by INDOT.”
Please provide copies of any private easements Petitioner has secured for the overhead route. Please provide copies of any correspondence petitioner has had with INDOT regarding the mentioned permit, including any correspondence through INDOT’s electronic permitting system (“EPS”). If the permit has yet to be issued please describe why and provide an anticipated date.
Objection: Meadow Lake VI objects to the Data Request on the basis of the foregoing general objections.
Response: Meadow Lake VI has not acquired any easements for the transmission line at this time. Rather, Meadow Lake VI has obtained options for the transmission line easements. A template transmission line easement document and the INDOT permit application are attached as Attachment 1.5. Meadow Lake VI has no correspondence with INDOT concerning the permit other than the permit application included in Attachment 1.5.
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EXHIBIT B
Form of the Transmission Easement Agreement
PREPARED AND DRAFTED BY AND AFTER RECORDED MAIL TO:
Meadow Lake Wind Farm VI LLC 808 Travis, Suite 700 Houston, Texas 77002 Attn: General Counsel
TRANSMISSION EASEMENT AGREEMENT
THIS TRANSMISSION EASEMENT AGREEMENT (the “Easement Agreement”), is effective this ___ day of ______, 20___ (the “Effective Date”), by and between ______and [its][her][his][their] successors and assigns ("Grantor”) and Meadow Lake Wind Farm VI LLC, a Delaware limited liability company, its successors and assignees (“Grantee”). Grantor and Grantee may hereafter be referred to as, together, the “Parties” and each, a “Party.”
RECITALS
A. Grantor is the owner of a certain tract of real property located in Benton County, Indiana and more particularly described on Exhibit A attached hereto and made a part hereof (the "Property").
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B. Grantor desires to grant and convey to Grantee an exclusive perpetual easement for the erection, installation and maintenance of certain facilities for the transmission of electric power over and across a certain portion of the Property.
C. Grantee initially desires to develop, construct and operate a commercial wind power electric generation facility consisting of wind-powered turbines and generators capable of producing electricity and associated appurtenances, equipment, facilities and roadways that will produce and transmit electrical energy, including without limitation related power lines, and other equipment and facilities used or useful in connection with the production and transmission of electrical energy (the “Wind Project”) in, on and upon certain real property which is in the vicinity of the Property (the “Wind Project Property”).
D. Grantee and its successors, assignees and any subsequent purchaser of interest in Grantee may also construct, operate and maintain additional similar commercial wind power projects (collectively, “Subsequent Wind Projects”) in, on and upon certain real property that is in the vicinity of the Wind Project Property (each and collectively, the “Subsequent Wind Projects Property”).
AGREEMENT
IN CONSIDERATION of the foregoing and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereto agree as follows:
1. Grant. Grantor does hereby grant, bargain, sell and convey unto Grantee and its successors and assignees the following perpetual easements as easements appurtenant to the Wind Project Property and the Subsequent Wind Projects Property:
1.1 An exclusive easement (the “Transmission Easement”) on, in, along, across and under that portion of the Property more particularly described on Exhibit B attached hereto (the “Easement Area”), for the purposes of surveying, erecting, constructing, replacing, relocating, improving, enlarging, removing, inspecting, maintaining, operating, repairing and utilizing, from time to time, (a) transmission facilities, including without limitation, overhead transmission lines, cables (including but not limited to fiber optic cables) and wires, cross arms, conduit, footings, foundations, towers, poles, crossarms, guy lines and anchors, circuit breakers and transformers, for the transmission of electrical energy and communication; (b) overhead and underground control, communications and radio relay systems and telecommunications equipment, including without limitation, fiber, wires, cables, conduit and poles; and (c) all necessary and proper foundations, footings and other appliances, facilities, fixtures, equipment, and machinery any way related to or associated with any of the foregoing (collectively, the “Transmission Facilities”); together with (i) the right of ingress to and egress from the Transmission Facilities (whether located on the Property, on adjacent property or elsewhere) over and along the Property by means of roadways thereon, if existing, or otherwise by such temporary roadway(s) thereon as Grantee may construct from time to time (a temporary roadway shall mean a roadway that is installed on the Property and is fully removed and the ground restored to grade and left free from debris within twelve (12) months from the commencement of the installation of the roadway); (ii) the right to permit the installation, placement or attachment to the Transmission
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Facilities, conduits, cables, wires, lines, equipment, fixtures, facilities, systems and devices of others, related to or associated with the transmission of power, electricity, signals, control, communications and radio relay systems, telecommunications equipment and/or data, whether above or below the surface; (iii) the right to keep the Easement Area clear of all brush, trees, timber or other hazards which in Grantee's reasonable opinion would interfere with the Transmission Facilities or Grantee's exercise of its rights hereunder; (iv) the right during construction of the Transmission Facilities to have a temporary laydown area and/or conductor stringing area, as necessary on the Property; and (v) the right to conduct any and all inspections of and studies and surveys on the Property that Grantee deems appropriate, including conducting surveys and environmental, biological, cultural, geotechnical and other tests, including but not limited to geotechnical drilling and studies. At the completion of its inspections, studies and surveys on the Property, Grantee, at its expense, will promptly restore that portion of the Property used by Grantee for such inspections, studies and surveys to as near as possible to its original condition prior such inspections, studies and surveys but will not replace the bushes, trees or timber removed from the Property for such inspections, studies and surveys. Grantor expressly permits the installation of poles and foundations for poles to be installed in and under the Easement Area. Notwithstanding anything to the contrary contained herein, the Wind Company shall not have the right to install any equipment or facilities that are not expressly for the sole use and benefit of the Wind Project and Subsequent Wind Projects.
1.2 Notwithstanding the foregoing, upon completion of the Transmission Facilities, the Easement Area shall be deemed to be a strip of land two hundred (200) feet wide, running one hundred (100) feet on either side of a center line where possible as shown in Exhibit B-1. Grantor acknowledges that the general location of the Easement Area, as described in the Exhibits attached hereto, is based on preliminary mapping only and Grantor hereby agrees that the Transmission Easement hereby granted shall apply to the actual location of the Transmission Facilities and applicable right of way when constructed. With regards to a change in the location of the Easement Area previously approved by Grantor of more than ten (10) feet, Grantee will obtain the prior written consent of Grantor which said consent shall be in Grantor’s sole discretion. Grantor agrees to execute an amendment to this Easement Agreement evidencing the legal description of the Easement Area after completion of the Transmission Facilities, which shall be recorded in the Benton County Clerk's Office at Grantee's expense.
1.3 Cross-arms of up to twenty (20) feet in length may overhang any part of the Easement Area and may encroach onto the Property and outside of the Easement Area. The Easements include all of the rights and privileges necessary and incidental to the full use and enjoyment of the Easements for the purposes permitted in this Easement Agreement.
1.4 An easement, right and entitlement (the “Effects Easement”) on, over, across and under the Property for any audio, visual, view, light, noise, vibration, air turbulence, wake, electromagnetic, television reception, ice or other weather created hazards or other effect of any kind whatsoever resulting directly or indirectly from any (a) operations conducted on (i) the Property subject to this Easement Agreement, (ii) the Wind Project Property or (iii) the Subsequent Wind Projects Property or (b) facilities now or hereafter located on (i) the Property subject to this Easement Agreement, (ii) the Wind Project Property or (iii) the Subsequent Wind Projects Property.
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1.5 The Transmission Easement and Effects Easement are collectively referred to herein as the "Easements.” The Easements include all of the rights and privileges necessary and incidental to the full use and enjoyment of the Easements for the purposes permitted in this Easement Agreement.
1.6 Grantee shall have the right to terminate the Easements and this Easement Agreement at any time. The Easements and this Easement Agreement shall not be terminable by Grantor, or its successors or assignees, under any circumstances. Upon complete removal of the improvements comprising the Wind Project and the Subsequent Wind Projects, Grantee shall file a termination of this Easement Agreement in the public records. Within eighteen (18) months after the expiration, surrender or termination of this Easement Agreement, Grantee shall remove from the Easement Area (or such part thereof, as applicable) any above ground Transmission Facilities owned, installed or constructed by Grantee thereon except for roads unless requested by the Grantor, and Grantee shall have a continuing easement to enter the Property for such purpose during such eighteen (18) month period. Nothing contained in this Section shall be construed as precluding Grantee, in its sole discretion, from taking any of the actions contemplated in this Section at any time during the term of this Easement Agreement.
2. Payment. As consideration for this Easement Agreement, Grantee agrees to pay Grantor the consideration stated in the Easement Payment Letter Agreement dated as of the Effective Date.
3. No Interference. Except as required by a governmental authority, Grantor shall not construct, install, or permit to be constructed or installed, any improvements, fences, structures, buildings, foliage or vegetation, utility lines or other improvements of any type whatsoever upon, in, on, under or near the Easement Area that would inhibit or impair any of Grantee's rights or benefits as set forth in this Easement Agreement. Grantee shall have the right, without compensation to Grantor, to cut, prune and remove or otherwise dispose of any foliage or vegetation on or near the Easement Area that Grantee deems a threat or potential threat to Grantee's Transmission Facilities or its rights hereunder. Grantee shall pay to Grantor crop damages pursuant to Section 32 for any crops removed by Grantee within the Easement Area. Grantor shall not grant or permit any person or persons claiming through Grantor, other than Grantee, any right- of-way, encumbrance, easement or other right or interest in, to or affecting the Easement Area, without the prior written consent of Grantee in each instance, which consent Grantee may grant, withhold or deny in its sole discretion.
4. Construction. Grantee shall determine the type of surface any roadway, if any which Grantee, at its sole expense, may construct and utilize over the Property.
5. Authority. Grantor hereby represents and warrants to Grantee that it owns the Property in fee simple subject to no liens or encumbrances except as approved by Grantee in its sole discretion prior to this Easement Agreement and is fully authorized and empowered to grant the rights and benefits granted to Grantee in this Easement Agreement.
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6. Assignment. Grantee shall also have the right without Grantor’s consent to sell, convey, lease, transfer or assign all or any portion of the Easements, this Easement Agreement or the Transmission Facilities on either an exclusive or non-exclusive basis, or to apportion, grant sub-easements co-easements, separate easements, leases, licenses or similar rights, however denominated (collectively, “Assignments”), to one or more persons or entities (collectively “Assignees”). Any member of Grantee shall have the right without Grantor's consent to transfer any membership interest in Grantee to one or more persons or entities. Upon an Assignment of all of the then-Grantee’s then-existing right, title or interest under this Easement Agreement, the assigning Grantee shall be released from all of its obligations and liability under this Easement Agreement, so long as the Assignee assumes Grantee’s obligations and liabilities with respect to the right, title and interest so transferred.
7. Legal Fees. In the event of any controversy, claim or dispute arising out of or relating to the Easements and/or this Easement Agreement or the enforcement or breach hereof, the prevailing party shall be entitled to recover from the losing party the prevailing party's reasonable costs, expenses and attorneys' fees (including but not limited to those incurred at trial, on appeal and on petition for review).
8. Right to Mortgage and Mortgagee Protection.
8.1 Right to Mortgage. Grantee may, upon notice to Grantor, but without Grantor's consent or approval, mortgage, collaterally assign, or otherwise encumber and grant security interests in all or any part of its interest in this Easement Agreement, the Easements, the Easement Area and the Transmission Facilities (collectively, the “Transmission Facilities Assets”), which said security interests in all or a part of the Transmission Facilities Assets are collectively referred to herein as “Mortgages” and the holders of the Mortgages, their designees and assigns are referred to herein as “Mortgagees.” Under no circumstances shall any Mortgagee have any greater rights of ownership or use of the Easement Area or the Easements than the rights granted to Grantee in this Easement Agreement.
8.2 Grantor's Obligations. Grantor agrees to consent in writing to financing documents as may reasonably be required by Mortgagees. As a precondition to exercising any remedies related to any alleged default by Grantee under this Easement Agreement, Grantor shall give written Notice of Default to each Mortgagee at the same time it delivers Notice of Default to Grantee, specifying in detail the alleged Event of Default and the required remedy. Each Mortgagee shall have the same amount of time to cure the default as to Grantee’s entire interest or its partial interest in the Transmission Facilities Assets as is given to Grantee and the same right to cure any default as Grantee or to remove any property of Grantee, Mortgagees or Assignees located on the Easement Area. The cure period for each Mortgagee shall begin to run at the end of the cure period given to Grantee in this Easement Agreement, but in no case shall the cure period for any Mortgagee be less than thirty (30) days after receipt of the Notice of Default. Mortgagee shall have the absolute right, but not the obligation, to substitute itself for Grantee and perform the duties of Grantee hereunder for purposes of curing such Event of Default. Grantor expressly consents to such substitution, agrees to accept such performance, and authorizes Mortgagee (or its employees, agents, representatives or contractors) to enter upon the Easement Area to complete such performance with all of the rights and privileges of Grantee hereunder. Any Mortgagee that
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does not directly hold an interest in the Transmission Facilities Assets, or whose interest is held solely for security purposes, shall have no obligation or liability under this Easement Agreement prior to the time Mortgagee directly holds an interest in the Transmission Facilities Assets, or succeeds to absolute title to Grantee’s interest. A Mortgagee shall be liable to perform Grantee's obligations under this Easement Agreement only for and during the period it directly holds such interest or absolute title. Further if a Mortgagee elects to (a) perform Grantee's obligations under this Easement Agreement; (b) continue operations on the Easement Area; (c) acquire any portion of Grantee 's right, title or interest in all or any of the Transmission Facilities Assets; or (d) enter into a new easement agreement as provided in Section 8.3.4, then such Mortgagee shall not have any personal liability to Grantor in connection therewith, and Grantor's sole recourse in the Event of Default by such Mortgagee shall be to execute against such Mortgagee's interest in the Transmission Facilities Assets. Moreover, any Mortgagee or other party who acquires the Transmission Facilities Assets pursuant to foreclosure or an assignment in lieu of foreclosure shall not be liable to perform any obligations under this Easement Agreement to the extent the same are incurred or accrue after such Mortgagee or other party no longer has ownership of the Transmission Facilities Assets.
8.3 Mortgagee Protection. Any Mortgagee, upon delivery to Grantor of notice of its name and address, for so long as its Mortgage is in existence shall be entitled to the following protections which shall be in addition to those granted elsewhere in this Easement Agreement:
8.3.1 Mortgagee's Right to Possession, Right to Acquire and Right to Assign. A Mortgagee shall have the absolute right: (a) to assign its Mortgage; (b) to enforce its lien and acquire title to all or any portion of the Transmission Facilities Assets by any lawful means; (c) to take possession of and operate all or any portion of the Transmission Facilities Assets and to perform all obligations to be performed by Grantee under this Easement Agreement, or to cause a receiver to be appointed to do so; and (d) to acquire all or any portion of the Transmission Facilities Assets by foreclosure or by an assignment in lieu of foreclosure and thereafter without Grantor’s consent to assign or transfer all or any portion of the Transmission Facilities Assets to a third party. Grantor's consent shall not be required for any of the foregoing, and upon acquisition of the interests of all or any portion of the Transmission Facilities Assets by a Mortgagee or any other third party who acquires the same from or on behalf of Mortgagee, Grantor shall recognize Mortgagee or such other party (as the case may be) as Grantee's proper successor, and this Easement Agreement and the Easements shall remain in full force and effect.
8.3.2 Opportunity to Cure. Following acquisition of all or a portion of the Transmission Facilities Assets by Mortgagee as a result of either foreclosure or acceptance of an assignment in lieu of foreclosure, or by a purchaser at a foreclosure sale, this Easement Agreement shall continue in full force and effect and Mortgagee or party acquiring title to the Transmission Facilities Assets shall, as promptly as reasonably possible, commence the cure of all defaults under this Easement Agreement and thereafter diligently process such cure to completion; provided, however, that Mortgagee or party acquiring title to the Transmission Facilities Assets shall not be required to cure those defaults which are not reasonably susceptible of being cured or performed by such party (“Non-Curable Defaults”). Non-Curable Defaults shall be deemed waived by Grantor upon completion of foreclosure proceedings or acquisition of Grantee's interest in the Transmission Facilities Assets by such party. If a Mortgagee is prohibited by any process or
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injunction issued by any court or by reason of any action of any court having jurisdiction over any bankruptcy or insolvency proceeding involving Grantee from commencing or prosecuting the appropriate judicial or nonjudicial proceedings, then any cure period for commencing such proceedings shall be extended for the period of such prohibition.
8.3.3 Termination. Neither the bankruptcy nor the insolvency of Grantee shall be grounds for terminating this Easement Agreement or the Easements as long as all payments and all other monetary charges payable by Grantee under this Easement Agreement are paid by Mortgagee in accordance with the terms of this Easement Agreement.
8.3.4 New Easement. If this Easement Agreement (a) terminates because of Grantee's uncured Event of Default or (b) is rejected or disaffirmed pursuant to bankruptcy law or any other law affecting creditors' rights, then, so long as a Mortgagee has cured any such monetary Event of Default and is making commercially reasonable efforts to cure any such non- monetary Event of Default as provided herein, Grantor shall, immediately upon written request from such Mortgagee received within ninety (90) days after any such event, without demanding additional consideration therefor, enter into a new easement agreement in favor of such Mortgagee, which new easement agreement shall (i) contain the same covenants, agreements, terms, provisions and limitations as this Easement Agreement (except for any requirements that have been fulfilled by Grantee prior to such termination, foreclosure, rejection or disaffirmance); (ii) be for a term commencing on the date of such termination, foreclosure, rejection or disaffirmance and continuing for the remaining term of this Easement Agreement before giving effect to such termination, foreclosure, rejection or disaffirmance; (iii) contain a grant of Easements, over, under, upon, along and across the Easement Area or such portion thereof as to which such Mortgagee held a lien on the date of such termination, foreclosure, rejection or disaffirmance; (iv) enjoy the same priority as the Easement Agreement has over any lien, encumbrance or other interest created by Grantor; and (v) until such time as such new easement agreement is executed and delivered, Mortgagee may enter, use and enjoy the Easements and the Easement Area and conduct operations thereon as if this Easement Agreement were still in effect. At the option of Mortgagee, the new easement agreement may be executed by a designee of such Mortgagee, with Mortgagee assuming the burdens and obligations of Grantee thereunder. If more than one Mortgagee makes a written request for a new easement agreement pursuant hereto, then the same shall be delivered to Mortgagee whose lien is senior in priority.
8.3.5 Mortgagee Consent. Notwithstanding any provision of this Easement Agreement to the contrary, (a) Grantor shall not agree to a modification or amendment of this Easement Agreement if the same could reasonably be expected to materially reduce the rights or remedies of a Mortgagee or impair or reduce the security for its lien; and (b) Grantor shall not accept a surrender of the Easement Area, the Easements or any part thereof or a termination of this Easement Agreement, in each such case without the prior written consent of each Mortgagee.
9. Default. If Grantee fails to perform its obligations hereunder (an “Event of Default”), then it shall not be in default hereunder unless it fails to cure such Event of Default within 60 days after receiving written notice from Grantor stating with particularity the nature and extent of such Event of Default and specifying the method of cure (a “Notice of Default”); provided however, that if the nature or extent of the obligation or obligations is such that more than 60 days are required, in the exercise of commercially reasonable diligence, for performance
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of such obligations, then Grantee shall not be in default if it commences such performance with such 60-day period and thereafter pursues the same to completion with commercially reasonable diligence.
10. Condemnation. If all or any part of the Easement Area is taken by condemnation, or is purchased by any governmental body or agency having the power of condemnation, the Parties hereto shall be entitled to share in the condemnation award or purchase price on the basis of the value of their respective interests and rights therein and the use thereof as the Parties shall at that time agree.
11. Taxes. Grantor shall pay, when due, all real property taxes and assessments levied against the Property, including the Easement Area and the improvements located thereon, by a governmental body (collectively, "Taxes"). Grantee shall pay, when due, all real property taxes and assessments levied against the Transmission Facilities, whether assessed separately or not. If the Taxes are levied or assessed in the name of Grantor, Grantee agrees to promptly reimburse Grantor for Grantee’s proportionate share thereof, or to pay the same directly to the taxing authority, at Grantor’s preference, upon written notice by Grantor to Grantee setting forth Grantee’s proportionate share thereof. Grantee and/or Grantor may contest the legal validity or amount of any Taxes for which each is responsible under this Easement Agreement, and may institute such proceedings as they consider necessary. Grantee’s duty to reimburse shall exist only with respect to Taxes accrued for tax years during the period this Easement Agreement remains in effect, regardless of when such Taxes are payable. Grantor shall promptly send to Grantee evidence that the Taxes have been paid by Grantor. To the extent available from the taxing authority, Grantee shall also be entitled to receive a copy of each tax bill from the taxing authority during the term of this Easement Agreement. In the event Grantor fails to pay the Taxes against the Property including the Easement Area, Grantee may take any and all lawful steps to protect its interests in the Easement Area and the Easements, including but not limited to, direct payments of its proportionate share of the Taxes to the taxing authority.
12. Notices. Any notice to be given hereunder or that either Party wishes to give to the other shall be in writing and may be delivered personally to the other or given by mailing by depositing the same in the U.S. Mail, with all postage and certification charges thereon prepaid, in a sealed envelope and sent by registered or certified mail with return receipt requested, addressed as follows:
If to Grantor: ______
______
______
If to Grantee: Meadow Lake Wind Farm VI LLC c/o EDP Renewables North America LLC 808 Travis, Suite 700 Houston, Texas 77002 Attn: General Counsel 17
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If to any Mortgagee: To the addresses indicated in the notices to Grantor provided under Section 8.
or to such other address as either Party shall hereafter specify by written notice to the other. Any notice shall be deemed delivered three days after deposit in the mail in accordance with the foregoing provision.
13. Waiver. The waiver of any covenant, condition, or agreement contained herein shall not vitiate this Easement Agreement or any of the Easements, terms, covenants, conditions or provisions herein. The waiver of the time for performing any act shall not constitute a waiver of the time for performing any other act or any identical act required to be performed at a later time. No waiver by a Party of any provision of this Easement Agreement shall be deemed to be a waiver of any other provision hereof.
14. Entire Agreement. This Easement Agreement, including any exhibits, constitutes the entire agreement between Grantor and Grantee and no promises or representations, express or implied, either written or oral, not herein set forth shall be binding upon or inure to the benefit of Grantor and Grantee and all prior or contemporaneous proposals, agreements, understandings and representations, whether oral or written, shall be deemed to have been merged herein and superseded hereby. This Easement Agreement shall not be modified by any oral agreement, either express or implied, and all modifications hereof shall be in writing and signed by both Grantor and Grantee.
15. Remedies. If Grantee violates the terms or conditions of this Easement Agreement, Grantor shall be entitled to any remedy available under applicable law or equity, subject to the default provisions contained herein; provided, however, that no such default shall result in a termination of the Easements granted by this Easement Agreement and/or this Easement Agreement. If Grantor violates the terms or conditions of this Easement Agreement, Grantee shall be entitled to any remedy available under applicable law or equity.
16. Setback Waiver. Grantor hereby waives any and all setbacks and setback requirements, whether imposed by applicable law or by any person or entity, including any setback requirements described in the zoning ordinance of the County, city or town, as applicable or in any governmental entitlement or permit heretofore or hereafter issued to Grantee or an affiliate and any setback requirements caused by the existence of the Transmission Facilities. Further, if so requested by Grantee or such affiliate, Grantor shall, without demanding additional consideration therefor, (a) execute (and if appropriate cause to be acknowledged) any setback waiver, setback elimination or other document or instrument reasonably requested by Grantee, the County, city or town, as applicable in connection therewith; and (b) return the same thereto within ten days after such request.
17. Grantor's Representation. To the best of Grantor’s knowledge, (a) no underground tanks are now located or at any time in the past have been located on the Property or any portion thereof; (b) no asbestos-containing materials, petroleum, explosives or other substances, materials or waste which are now or hereafter classified or regulated as hazardous or toxic under any law
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(each, a "Hazardous Material") has been generated, manufactured, transported, produced, used, treated, stored, released, disposed of or otherwise deposited in or on or allowed to emanate from the Property or any portion thereof other than as permitted by all health, safety and other laws (each, an "Environmental Law") that govern the same or are applicable thereto; and (c) there are no other substances, materials or conditions in, on or emanating from the Property or any portion thereof that may support a claim or cause of action under any Environmental Law. Grantor has not received any notice or other communication from any governmental authority alleging that the Property is in violation of any Environmental Law.
18. Improvements. Any improvements (“Improvements”) constructed or placed on the Property by Grantee, as permitted by this Easement Agreement, shall be owned and remain the sole property of Grantee. To the extent permitted by law, Grantor hereby waives any statutory or common law lien that it might otherwise have in or to all Improvements or any part thereof and if such waiver is not enforceable or permitted by law, then Grantor hereby subordinates each such statutory or common law lien to any mortgage from time to time existing against such Improvements or any portion thereof.
19. Overburdening. Grantor hereby agrees that (a) no use of or improvement to the Easement Area; and (b) no apportionment, Assignment or granting of a subeasement thereof shall, separately or in the aggregate, constitute an overburdening of the Easement Area and no act or failure to act on the part of Grantee shall be deemed to constitute an abandonment, surrender or termination thereof.
20. Binding Effect; Governing Law. The Parties hereby agree that all of the covenants and agreements contained in this Easement Agreement touch and concern the real estate described in this Easement Agreement and are expressly intended to, and shall, be covenants running with the land and shall be binding and a burden upon the Easement Area, the Property and each Parties' present or future estate or interest therein and upon each of the Parties, their respective heirs, administrators, executors, legal representatives, successors and assignees as holders of an estate or interest in the Easement Area and/or the Property (including without limitation, any mortgagee, lender or other person acquiring title from any such person upon foreclosure or by deed in lieu of foreclosure), and shall benefit Grantee and its respective heirs, administrators, executors, legal representatives, successors and assignees and the Wind Project Property and the Subsequent Wind Projects Property. To the extent any of the provisions of this Easement Agreement are not enforceable as covenants running with the land or the status of such as appurtenant is extinguished, the Parties agree that they shall be as assignable and alienable easements in gross. The provisions hereof shall be governed by and construed in accordance with the laws of the State of Indiana.
21. Severability and Parties Bound. The enforceability, invalidity, or illegality of any provisions of this Easement Agreement shall not render the other provisions hereof unenforceable, invalid or illegal. This Easement Agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and the assigns of the respective Parties hereto.
22. Construction of Agreement. The rule of strict construction shall not apply to the Easements or to this Easement Agreement. This Easement Agreement shall be given a reasonable
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construction so that the intention of the Parties to create reasonably usable benefits and reasonably enforceable obligations is carried out.
23. Cooperation. Grantor shall fully support and cooperate with Grantee in its operations and the exercise of its rights hereunder and in carrying out and otherwise giving full force and effect to the purposes and intent of the Easement Agreement, including without limitation, Grantee's efforts to obtain from any governmental authority or any other person or entity any environmental impact review, permit, entitlement, approval, authorization or other rights necessary or convenient in connection with its respective operations, including, without limitation, (a) improving public roads as may be deemed necessary by Grantee to support its construction and operations traffic; (b) widening public roads (i) to a width of up to four rods with a fifteen (15) - foot construction easement to windrow or stockpile the topsoil when extending the ditches of the roads, the width of which will vary depending on the topography, the width of the shoulder, buildings or other improvements, boulders, wetlands, roads, transmission facilities or lines, recreational areas, inhabited areas, leased lands (or other rights of third parties) or other obstacles or impediments; or (ii) as required by the applicable governmental authority; and/or (c) the installation of utilities, private or public, in the road right of way (collectively, “Road Improvements”). Grantor hereby consents to any such Road Improvement, and Grantor shall, without demanding additional consideration therefore, (a) execute, and, if appropriate, cause to be acknowledged, any map, application, document or instrument (including any document or instrument intended to correct an error in this Easement Agreement to amend the legal description attached hereto) that is reasonably requested by Grantee in connection herewith or therewith; (b) execute a consent agreement and/or easement agreement regarding the Road Improvements and any governmental authority’s efforts in the Road Improvements for no consideration; and (c) return the same (as executed) to Grantee within ten days after Grantor's receipt thereof. Without limiting the generality of the foregoing, in connection with any application by Grantee for a governmental permit, approval, authorization, entitlement or other consent, Grantor agrees (a) if requested by Grantee to execute any letter consent or other document required as a condition of such permit. Grantor shall not be required to testify at any hearing or proceeding, public or private, in support of such application.
24. Estoppel Certificates. Grantor shall execute estoppel certificates (certifying as to truthful matters, including without limitation that no default then exists under this Easement Agreement, if such be the case), consents to assignment and non-disturbance agreements as Grantee or any Mortgagee may reasonably request at any time and from time to time. Grantor and Grantee shall cooperate in (a) amending this Easement Agreement from time to time to include any provision that may be reasonably requested by Grantee or Grantor or any Mortgagee to implement the provisions contained in this Easement Agreement or to preserve a Mortgagee’s security interest; and (b) executing any documents which may reasonably be required by Grantee or a Mortgagee. Grantor shall request any of Grantor’s lenders to execute an agreement of non- disturbance from any Mortgagee with respect to Grantee's interest in the Easement Area.
25. Mortgage Payments. If the Property is subject to a mortgage as of the date of this Easement Agreement, Grantor agrees to pay all obligations secured by such mortgage. If Grantor fails to pay any of its obligations secured by a mortgage on the Property when due, Grantee may, at its option, pay the same and deduct the amount paid from any amount due Grantor hereunder. Grantor agrees to promptly provide Grantee with a copy of any default notices that Grantor 20
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receives from its lender. In addition, Grantor, at the request of Grantee, shall use reasonable efforts to obtain from any existing lender a subordination and/or non-disturbance agreement in form and substance reasonably acceptable to Grantee. Grantor expressly acknowledges and agrees that any statutory or common law lien rights in favor of Grantor or any mortgage granted by Grantor subsequent to the date of this Easement Agreement are expressly subordinate and inferior to Grantee's right, title and interest in this Easement Agreement and/or the Easements and to any liens and security interests granted by Grantee in favor of any Mortgagee who has provided financing for the Transmission Facilities on the Property. Grantor agrees to execute any further documentation that may be requested by Grantee or its Mortgagee to evidence such subordination.
26. Further Acts and Assurances. Each Party hereby agrees that each shall execute such additional documents or instruments, and shall undertake such actions as are necessary and appropriate to effectuate the intent of this Easement Agreement.
27. Counterparts. This Easement Agreement may be executed in counterparts, each of which shall be deemed an original and all of which when taken together shall constitute one and the same document.
28. Construction Liens. Grantee shall keep the Property free and clear of all liens and claims of lien for labor and services performed on, and materials, supplies and equipment furnished to, the Property in connection with Grantee’s use of or activities on the Property. In the event a mechanic’s or other lien arising out of Grantee’s use of or activities one the Property is filed against the Property, then Grantee shall promptly discharge or cause to be discharged the lien at Grantee’s expense, provided, however, that Grantee shall have the right, in its sole discretion, to contest such liens and claims by appropriate legal proceedings (which may be brought in the name(s) of Grantor and/or Grantee where appropriate or required). If Grantee wishes to contest any such lien, Grantee shall provide or cause its contractors or subcontractors to provide, within thirty (30) days after it receives notice of the lien, a bond or other security to protect against such lien, or pay to discharge the lien from encumbering the Property in the manner provided by applicable law. Grantor shall cooperate in every reasonable way in such contest, and Grantee shall reimburse Grantor for its reasonable out-of-pocket expenses incurred for such cooperation.
29. Maintenance and Repair. Subject to Sections 1.6 and 3, at all times during the term of this Easement Agreement, Grantee shall keep and maintain, or cause to be kept and maintained, the Transmission Facilities erected on the Property by Grantee in a good state of repair (except for reasonable wear and tear) at Grantee’s expense.
30. Farm and Soil Stewardship. Grantee agrees (i) that all topsoil removed for construction of the Transmission Facilities shall remain on the Property (ii) subsoil that is not used for backfill will be removed from the Property and (iii) Grantee shall restore the natural surface drainage of the Property following Completion of Construction.
31. Field Tile Damage. Grantee shall be responsible for repair of field tile that are damaged as a result of the studies, construction, access or maintenance activities associated with the Transmission Facilities on the Property. Grantee shall repair such damaged tile as soon as practicable using a qualified field tile repair contractor approved by Grantor in advance, at
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Grantee’s expense. In the event that Grantee does not complete the repairs, Grantor may select a qualified field tile repair contractor to complete the repairs and Grantee shall within thirty (30) days of receipt of the invoice reimburse Grantor for the reasonable costs incurred by Grantor to complete such repairs. Following Completion of Construction, needed tile repairs that result from previous construction shall be completed by a contractor chosen from a list approved by the landowners in the Project, with reasonable costs being reimbursed by Grantee.
32. Crop Damages and Soil Compaction. For access and maintenance activities on the Property following the Completion of Construction, Grantee shall compensate Grantor as follows: 32.1 Damage will equal Price x yield x Percentage of Damage x Acreage damaged, destroyed or compacted. The Parties shall try in good faith to agree to the extent of damage and acreage affected. If they cannot agree, they shall have the area measured and extent of damage or compaction assessed by an impartial third party chosen by mutual agreement of Grantor and Grantee, such as a crop insurance adjuster or extension agent.
32.2 Prices for damaged or destroyed crops will be based on the twelve (12) month average of spot futures of the Chicago Board of Trade prices for that crop plus any additional subsidy normally applicable to that crop under Grantor’s or Grantor’s tenant’s Federal Crop Insurance policy and/or the 2002 Farm Bill or succeeding acts. Yield will be the average of the previous three (3) season’s yields according to the Grantor’s or Grantor’s tenant’s records for the land area that includes the damaged area. In areas determined to have significant compaction from Grantee’s use, compensation will be quadruple the value of crops lost or destroyed, to be grown or land taken out of production in the area compacted with no additional compaction damages payable in future years for that episode of compaction. Payment shall be made within thirty (30) days after determining the extent of any damage.
33. Conservation Reserve Program. Grantee agrees to reimburse Grantor any actual costs, expenses or penalties incurred by the Grantor directly associated with the installation of the Transmission Facilities on land enrolled in the USDA Conservation Reserve Program or the USDA Conservation Reserve Enhancement Program, or the release of such land from any such program to allow the installation of any Transmission Facilities.
34. Indemnification. Each Party (the "Indemnifying Party") shall defend, indemnify and hold harmless the other Party and such other Party's Related Persons (each, an "Indemnified Party") from and against any and all claims, litigation, actions, proceedings, losses, damages, liabilities, obligations, costs and expenses, including reasonable attorneys’, investigators’ and consulting fees, court costs and litigation expenses (collectively, "Claims") suffered or incurred by such Indemnified Party, arising from (a) physical damage to the Indemnified Party's property which (i) in Grantee’s case shall include damage to any improvements installed in accordance with this Easement Agreement and (ii) in Grantor’s case shall include damage to crops (as set forth in Section 32) improvements and livestock) to the extent caused by the Indemnifying Party or any Related Person thereof, (b) physical injuries or death (including by reason of any hunting on the Property) to or of the Indemnified Party or other persons, to the extent caused by the operations or activities of Indemnifying Party or any Related Person thereof on the Property, or any negligent or intentional act or omission on the part of the Indemnifying Party or any Related Person thereof, (c) any breach of any covenant, and any failure to be true of any representation or warranty, made by the Indemnifying Party under this Lease, (d) the presence or release of Hazardous Materials in, 22
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under, on or about the Property, which are or were brought or permitted to be brought onto the Property by the Indemnifying Party or any Related Person thereof or (e) the violation of any Environmental Law by the Indemnifying Party or any Related Person thereof; provided, however, that in no event shall the Indemnifying Party be responsible for defending, indemnifying or holding harmless any Indemnified Party to the extent of any Claim caused by, arising from or contributed to by the negligence or willful misconduct of such Indemnified Party. Notwithstanding the foregoing sentence, except as expressly set forth herein (i) neither Grantee nor any Related Person thereof shall be liable to Grantor or any Related Person thereof for any crops damaged or destroyed, or any farmland taken out of production, as a result of Transmission Facilities installed, constructed or operated in the exercise of Grantee’s rights under this Easement Agreement, (ii) the reference to property damage in this Section does not include losses of rent, business opportunities, profits and the like that may result from the conduct of operations on the Property by Grantee as permitted by this Easement Agreement, (iii) the foregoing indemnity shall not extend to damage or injury attributable to risks of known dangers associated with electrical generating and transmission facilities except as set forth below, and (iv) in no event shall Grantee be or Grantor be liable for any damage, injury or death that is not caused by its own negligence or willful misconduct. In no event shall Grantor or Grantee or any of their respective officers, directors, members, partners, shareholders, employees, agents or affiliates be liable for special, indirect, exemplary, punitive or consequential damages of any nature whatsoever connected with or resulting from the performance or non-performance of this Easement Agreement or any exhibit attached hereto, including without limitation damages or claims in the nature of lost revenue, income or profits, loss of use, or cost of capital, irrespective of whether such damages are reasonably foreseeable and irrespective or whether such claims are based upon negligence, strict liability, contract, operation of law or otherwise. Notwithstanding any contrary provision contained herein, it is expressly understood and agreed that Grantor shall have no duty to indemnify Grantee or any of its Related Persons from and against the acts of third persons who are not agents, employees or persons on the Property with the permission of Grantor. Further, Grantee agrees to indemnify and defend Grantor and its Related Persons from and against claims of third parties for property damage or personal injuries attributable to risks of known and unknown dangers associated with electrical generating facilities, or claims of nuisance based on shadow, interference with radio and television signal reception or the construction, appearance, sound, operation, maintenance or removal of the Transmission Facilities, and Claims by persons opposing the permitting of any Transmisison Facilities or a Subsequent Wind Project or otherwise engaged in activities intended to prevent, hinder or delay the permitting, construction or operations of the Transmission Facilities or a Subsequent Wind Project.
35. Notice to Grantor. Within thirty (30) days after an Assignment, Grantee shall give notice of the same to Grantor along with satisfaction that the provisions of Section 6 of this Easement Agreement have been satisfied; provided, however, that the failure to give such notice shall not constitute an Event of Default (as defined below) but rather shall have the effect of not binding Grantor hereunder with respect to such Assignee. Grantor hereby consents to the recordation of the interest of the Assignee in the Official Records of the County in which the Property is located.
36. Grantor Transfers. Grantor shall have the right to transfer Grantor’s interest in all of the Property to any person or entity (“Transferee”) provided there is a concurrent transfer and/or assignment and assumption of Grantor’s rights and obligations under this Easement Agreement to 23
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the same Transferee as part of the same transaction. Grantor shall have no right to sever the wind rights from the Property. Further, Grantor shall have the right to transfer Grantor’s interest in a portion of the Property to any person or entity; provided, however, that if Grantor transfers less than all of the Property to any party or entity (a “Partial Transferee”) (i) Grantee shall have the right to receive, review, comment on and/or approve any applications for any such Subdivision (defined below) and shall be entitled to receive notice from Grantor of any public proceeding relating thereto, (ii) any such Subdivision shall not violate any zoning and/or subdivided land ordinances and regulations (including but not limited to any setback requirements) imposed upon any Project located thereon or on the Wind Project Property, (iii) each such Partial Transferee shall assume in a writing reasonably acceptable to Grantee all of the Grantor’s then-existing obligations under this Easement Agreement to the extent same relate to the portion of the Property being transferred (which writing may include a bifurcation of this Easement Agreement, with such changes as in Grantee’s reasonable opinion are necessary to accommodate the partial transfer and to reflect the state of obligations and rights with respect to same at the time of the partial transfer). “Subdivision” shall mean any subdivision or zoning approval other than an exemption under any applicable subdivision map act or equivalent law applicable to the Property. In the event of such assumption, all references in this Easement Agreement (as same may be bifurcated) to "Grantor" shall be deemed to include a Partial Transferee. Grantor shall have the right to mortgage the Property without the consent of Grantee, provided any such mortgage shall be subordinate to and subject to this Easement Agreement.
37. Restoration. Within twelve (12) months after the termination of this Easement Agreement, whether as to the entire Property or only as to a part thereof, Grantee shall (a) remove from the Property (or such part thereof, as applicable) any Transmission Facilities and other physical material related to the Project owned, installed or constructed by Grantee thereon, except for any roads unless required by the Grantor or as required by state or local law to be removed, and (b) leave the surface of the Property (or such part thereof, as applicable) free from debris; provided, however, that with regard to any Transmission Facilities located beneath the surface of the land (including footings and foundations), Grantee shall be required to remove same to the greater of (i) forty-eight (48) inches below the surface of the land based on the grade of the undisturbed adjacent land or (ii) the depth (if any) required by applicable Law; and Grantee shall have a continuing easement to enter the Property for such purpose during such twelve (12) month period. Nothing contained in this Section shall be construed as precluding Grantee, in its sole discretion, from taking any of the actions contemplated by clauses (a) or (b) of this Section at any time prior to the termination of this Easement Agreement.
38. Utility Services. Grantee shall pay the appropriate utility for all water, electric, telecommunications and other utility services used by the Transmission Facilities or Grantee on the Property.
39. Weed Control. Grantee and Grantor shall mutually agree on a weed control plan for the Easement Area. Grantee shall take all necessary steps for the control of noxious weeds as recommended by the local cooperative extension office, soil and water conservation district or equivalent local agency.
[SIGNATURES TO FOLLOW ON NEXT PAGE ]
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IN WITNESS WHEREOF, the Parties have executed this Easement Agreement as set forth below.
GRANTOR:
______
______
GRANTEE:
Meadow Lake Wind Farm VI LLC, a Delaware limited liability company
By: ______
Name: ______
Title: ______
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ACKNOWLEDGEMENT FOR GRANTOR
State of ______) ) ss: County of ______)
Before me, ______, a Notary Public, this ____ day of ______, 20___, personally appeared ______, and acknowledged the execution of the foregoing instrument. My commission expires on ______.
County of Residence: ______Notary Public
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ACKNOWLEDGEMENT FOR GRANTEE
State of ______) ) ss: County of ______)
Before me, ______, a Notary Public, this ____ day of ______, 20___, personally appeared Meadow Lake Wind Farm VI LLC, a Delaware limited liability company, by ______, its ______, and acknowledged the execution of the foregoing instrument. My commission expires on ______.
County of Residence: ______Notary Public
This instrument was prepared by Jack P. Turano III, Attorney at Law, Meadow Lake Wind Farm VI LLC, 808 Travis, Suite 700 Houston, Texas 77002.
I affirm, under penalties for perjury, that I have taken reasonable care to redact each social security number in this document, unless required by law.
Jack P. Turano III
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EXHIBIT A TO TRANSMISSION EASEMENT AGREEMENT
Legal Description of the Property
The following real property located in Benton County, Indiana consisting of approximately ______acres, more or less:
PIN:
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EXHIBIT B TO TRANSMISSION EASEMENT AGREEMENT
Legal Description of the Easement Area
A two hundred (200) foot wide strip of land out of the following property located in Benton County, Indiana:
INSERT LEGAL DESCRIPTION
PIN:
and generally depicted on the map attached hereto and made a part hereof as Exhibit B-1.
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EXHIBIT B-1 TO TRANSMISSION EASEMENT AGREEMENT
Map of Easement Area
ATTACH MAP SHOWING THE EASEMENT AREA
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MLVI Transmission Easement Option Form (JPT 7.13.17) Cause No. 45010 - Attachment 1.5 p021 Cause No. 45010 OUCC Attachment LMA-2 Page 45 of 57 RIGHT OF WAY PERMIT STATE OF INDIANA INDIANA DEPARTMENT OF TRANSPORTATION State Form 41769 (R8 / 5-17) Approved by State Board of Accounts, 2017 Approved by Auditor of State, 2017 Application number Type of Permit:
Excavation Pole Line Railroad Miscellaneous Shared Use District Subdistrict Telephone number
Project locations: Reference pt. number
Project description: Road number
Project purpose: County number
Bond required: If Yes, Penal Sum Bond number Yes No $
PERMIT FEE: (Make check or bank draft payable to "Indiana Department of Transportation") $ Expiration date Fee amounts per IC 8-23-2-6(13); fee schedule address: http://www.in.gov/indot/2727.htm SPECIAL PROVISIONS:
THE APPLICANT AGREES TO INDEMNIFY, DEFEND, EXCULPATE, AND HOLD HARMLESS THE STATE OF INDIANA, ITS OFFICIALS AND EMPLOYEES FROM ANY LIABILITY DUE TO LOSS, DAMAGE, INJURIES, OR OTHER CASUALTIES OF WHATSOEVER KIND, OR BY WHOMSOEVER CAUSED, TO THE PERSON OR PROPERTY OF ANYONE ON OR OFF THE RIGHT-OF-WAY ARISING OUT OF, OR RESULTING FROM THE ISSUANCE OF THIS PERMIT OR THE WORK CONNECTED THEREWITH, OR FROM THE INSTALLATION, EXISTENCE, USE, MAINTENANCE, CONDITIONS, REPAIRS, ALTERATION, OR REMOVAL OF ANY EQUIPMENT OR MATERIAL, WHETHER DUE IN WHOLE OR IN PART TO THE NEGLIGENT ACTS OR OMISSIONS (1) OF THE STATE, ITS OFFICIALS, AGENTS, OR EMPLOYEES; OR (2) OF THE APPLICANT, HIS AGENTS, OR EMPLOYEES, OR OTHER PERSONS ENGAGED IN THE PERFORMANCE OF THE WORK, OR (3) THE JOINT Issue date NEGLIGENCE OF ANY OF THEM; INCLUDING ANY CLAIMS ARISING OUT OF THE WORKMEN'S COMPENSATION ACT OR ANY OTHER LAW, ORDINANCE, ORDER, OR DECREE. THE APPLICANT ALSO AGREES TO PAY ALL REASONABLE EXPENSES AND ATTORNEY'S FEES INCURRED BY OR IMPOSED ON THE STATE IN CONNECTION HEREWITH IN THE EVENT THAT THE APPLICANT SHALL DEFAULT UNDER THE PROVISIONS OF THIS PARAGRAPH. Signature of permit applicant Printed name of permit applicant
Name of company organization Telephone number Permit number Address (number and street, city, state, ZIP code)
Inspector
District Regulatory Supervisor
District Director
District addresses can be found at: https://entapps.indot.in.gov/dotmaps/districtmaps/
Cause No. 45010 - Attachment 1.5 p022 Cause No. 45010 OUCC Attachment LMA-2 Page 46 of 57 RIGHT OF WAY PERMIT STATE OF INDIANA INDIANA DEPARTMENT OF TRANSPORTATION State Form 41769 (R8 / 5-17) Approved by State Board of Accounts, 2017 Approved by Auditor of State, 2017 Application number Type of Permit:
Excavation Pole Line Railroad Miscellaneous Shared Use District Subdistrict Telephone number
Project locations: Reference pt. number
Project description: Road number
Project purpose: County number
Bond required: If Yes, Penal Sum Bond number Yes No $
PERMIT FEE: (Make check or bank draft payable to "Indiana Department of Transportation") $ Expiration date Fee amounts per IC 8-23-2-6(13); fee schedule address: http://www.in.gov/indot/2727.htm SPECIAL PROVISIONS:
THE APPLICANT AGREES TO INDEMNIFY, DEFEND, EXCULPATE, AND HOLD HARMLESS THE STATE OF INDIANA, ITS OFFICIALS AND EMPLOYEES FROM ANY LIABILITY DUE TO LOSS, DAMAGE, INJURIES, OR OTHER CASUALTIES OF WHATSOEVER KIND, OR BY WHOMSOEVER CAUSED, TO THE PERSON OR PROPERTY OF ANYONE ON OR OFF THE RIGHT-OF-WAY ARISING OUT OF, OR RESULTING FROM THE ISSUANCE OF THIS PERMIT OR THE WORK CONNECTED THEREWITH, OR FROM THE INSTALLATION, EXISTENCE, USE, MAINTENANCE, CONDITIONS, REPAIRS, ALTERATION, OR REMOVAL OF ANY EQUIPMENT OR MATERIAL, WHETHER DUE IN WHOLE OR IN PART TO THE NEGLIGENT ACTS OR OMISSIONS (1) OF THE STATE, ITS OFFICIALS, AGENTS, OR EMPLOYEES; OR (2) OF THE APPLICANT, HIS AGENTS, OR EMPLOYEES, OR OTHER PERSONS ENGAGED IN THE PERFORMANCE OF THE WORK, OR (3) THE JOINT Issue date NEGLIGENCE OF ANY OF THEM; INCLUDING ANY CLAIMS ARISING OUT OF THE WORKMEN'S COMPENSATION ACT OR ANY OTHER LAW, ORDINANCE, ORDER, OR DECREE. THE APPLICANT ALSO AGREES TO PAY ALL REASONABLE EXPENSES AND ATTORNEY'S FEES INCURRED BY OR IMPOSED ON THE STATE IN CONNECTION HEREWITH IN THE EVENT THAT THE APPLICANT SHALL DEFAULT UNDER THE PROVISIONS OF THIS PARAGRAPH. Signature of permit applicant Printed name of permit applicant
Name of company organization Telephone number Permit number Address (number and street, city, state, ZIP code)
Inspector
District Regulatory Supervisor
District Director
District addresses can be found at: https://entapps.indot.in.gov/dotmaps/districtmaps/
Cause No. 45010 - Attachment 1.5 p023 Cause No. 45010 OUCC Attachment LMA-2 Page 47 of 57
Cause No. 45010 - Attachment 1.5 p024 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Cause16 No. 45010 OUCC Attachment LMA-2 Page 48 of 57
A A
B B
C C
D D
E E
F F
G G
COPYRIGHT ã 2017 FISHER ASSOCIATES, P.E., L.S., L.A., D.P.C.
INDIANA DEPARTMENT OF TRANSPORTATION (INDOT) STANDARD SPECIFICATIONS DATED 2014 AND INDIANA MANUAL ON UNIFORM © TRAFFIC CONTROL DEVICES (IMUTCD) DATED 2011 SHALL BE USED WITH THESE PLANS FOR ANY WORK WITHIN INDOT RIGHT-OF-WAY.
DATE SCALE AS SHOWN MEADOW LAKE VI WIND FARM H 11/1 DRAWN DP GILBOA AND WEST POINT TOWNSHIPS, INDIANA H
11/1 CHECKED SDW GENERAL PLAN 11/1 APPROVED SDW Rev. XX Page:003 of 110
VER. DATE MODIFICATION PAGES MODIFIED VER. DATE MODIFICATION PAGES MODIFIED Format ANSI D Proj. Nº: 175015 Doc. Nº: XXX Drawing Nº: C-010 FILE NAME:H:\Projects\175015-00-Meadow_Lake_Wind_Farm_VI\Eng\CAD\CUT\175015 T-Line DOT Permit.dwg 5:07:54 PM DATE/TIME:11/21/2017 USER:Jremington 1 2 3 4 5 6 7 10 11 12 13 14 15 Cause No. 45010 - Attachment16 1.5 p025 Cause No. 45010 OUCC Attachment LMA-2 STATE OF INDIANA Page 49 of 57 INDIANA DEPARTMENT OF TRANSPORTATION
Title VI Assurances
The permitee for himself, his heirs, personal representatives, successors in interest, and assigns, as part of the consideration hereof, does hereby covenant and agree that in the event facilities are constructed, maintained, or otherwise operated on the said property described in this permit for a purpose for which a Department of Transportation program or activity is extended or for another purpose involving the provision of similar services or benefits, the permitee shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to Title 49, code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-assisted programs of the Department of Transportation – Effectuation of Title VI of the Civil Rights Act of 1964, and as said regulations may be amended.
That in the event of breach of any of the above nondiscrimination covenants, Indiana Department of Transportation shall, have the right to terminate the permit and to re-enter and repossess said land and the facilities thereon, then hold the same as if said permit had never been made or issued.
Cause No. 45010 - Attachment 1.5 p026 Cause No. 45010 OUCC Attachment LMA-2 Indiana Department Of Transportation Page 50 of 57 Permit Section Traffic Control Quick Reference Guide
Work on Paved Shoulders >8ft. Paved Shoulder >8ft. Legend OPTIONAL SKIPS BASED TAPERS or Parking Lanes Closed on Divided Roadway Channelizing Portable Sign (For a 12 Ft Wide Closure) ROAD Work Area WORK Device Support Shoulder Tapers Shifting Tapers Merging Tapers AHEAD Speed (MPH) (optional) A Shoulder or L #S CS #C L #S CS #C L #S CS #C Parking Lane Arrow Board Arrow Board Warning Display 20 80 2 20 5 80 2 20 5 160 4 20 9 Display Symbol Roll Ahead Sign Distance 25 80 2 20 5 80 2 20 5 160 4 20 9
Flagger Shadow Vehicle 30 80 2 20 5 120 3 20 7 200 5 20 11 Buffer Buffer Symbol With Flashing Light
Speed Low 35 120 3 20 7 160 4 20 9 280 7 20 15 Shoulder Shoulder Taper 40 120 3 40 4 160 4 40 5 320 8 40 9
½ A SHOULDER Flagger Standards and Procedures CLOSED 45 200 5 40 6 280 7 40 8 560 14 40 16 A OR Shoulder Work SHOULDER 24" WORK A SHOULDER CLOSED 50 200 5 40 6 320 8 40 9 600 15 40 17 AHEAD B If flaggers are used B ROAD ROAD 55 240 6 40 7 360 9 40 10 680 17 40 18 ROAD WORK WORK they must be properly 24" WORK AHEAD AHEAD
AHEAD trained and equipped Notes: 60 240 6 60 5 360 9 60 7 720 18 60 13
1. SHOULDER CLOSED signs should be used on limited-access highways at all times. Speed High where there is no opportunity for disabled vehicles to pull off the traveled way. 65 280 7 60 6 400 10 60 8 800 20 60 15 Note: WORKERS or UTILITY WORK AHEAD signs may be used 2. UTILITY WORK AHEAD or WORKERS signs may be used instead of the instead of the SHOULDER WORK or ROAD WORK AHEAD signs. ROAD WORK AHEAD sign. Only 24”Diameter To 70 280 7 60 6 440 11 60 9 840 21 60 15 3. Use of an arrow display is optional. If used, it shall be operated in the caution Stop/Slow paddles 7’ Stop To mode. Traffic Traffic Alert 2-Way & Downstream Tapers are always 100/2.5/20/7 4. <40mph speed limit, shadow vehicle optional. are allowed while Proceed And flagging on State L = Length #S = Number CS = Cone #C = Number Slow Shadow Vehicles CANNOT be used as work vehicles Right-Of-Way Traffic (ft) of Skips Spacing (ft) of Cones
Lane Closure on a Two-Lane Road Guidelines for Buffer Lengths and Distance of Flagger Lane Closure on a Divided (Two Flagger Operation) Acceptable Channelizing Devices Station in Advance of the Workspace Roadway or One Way Street ROAD 1. Stripes on barricade rails slope downward at an angle of 45 WORK Optional Skips Based END END AHEAD degrees toward the direction traffic is to pass. ROAD WORK ROAD WORK MUTCD Speed Buffer ONE LANE C 2. Barricade rail stripe widths shall be 6 inches except where rail (optional) (optional) ROAD Based Buffer Number of AHEAD lengths are less than 36 inches, then 4 inch wide stripes may (mph) Length B Length (ft) Skips be used. (ft) 3. The sides of barricades facing traffic shall have retroreflective 20 115 120 3 A rail faces. Roll Ahead Distance If an arrow board 4. All channelizing devices shall meet AASHTO Manual for 25 155 160 4
is used on the Assessing Safety Hardware (MASH) Requirements. 30 200 200 5 Shadow Vehicle Area END ROAD WORK shadow vehicle, A Spacing 35 250 280 7 then it shall be in Buffer On Tapers: The distance in feet equal to the speed limit in mph, 40 305 320 8 the caution mode. Downstream Taper 100' Merging Alongside the work area: The distance in feet equal to 2.0 times 45 360 360 9 Taper the speed limit in mph. 50 425 440 11 Shoulder Taper Alternatively, the spacing for straight-a-ways may be as follows: (optional) 55 495 520 13 • 20 to 40 mph: 1 cone for every 40’ (every skip) Buffer 60 570 600 15 A A • 40 to 55 mph: 1 cone for every 80’ (every other skip) 65 645 680 17 • 60 mph & above: 1 cone for every 120’ (every 3 skips) B B Taper 70 730 760 19
RIGHT LANE RIGHT LANE CLOSED CLOSED AHEAD AHEAD A A C C END ROAD ROAD ROAD WORK Sign Spacing (feet) WORK WORK Roll-ahead Distances AHEAD AHEAD B (Optional ONE LANE 25-30 35-40 45-55 Multilane Divided Expressway/ ROAD AHEAD mph mph mph 50 mph or higher Freeway Speed Stationary Mobile Notes: C ROAD 1. When a side road intersects the roadway within the work zone, WORK AHEAD A 100 350 500 1000 1000 additional devices shall be erected to channelize traffic to/from Notes: < 45 mph 100 ft 150 ft the side road, and a ROAD WORK AHEAD sign shall be placed 1. The flagger or flaggers shall use approved B 100 350 500 1600 1600 50 - 55 mph 150 ft 200 ft on each side road approach. flagging procedures according to the IMUTCD 2. On non-freeway multi- lane roads in urban areas, the sign 2. If there is a side road intersection within the work C 100 350 500 2640 2640 60 - 65 mph 200 ft 275 ft spacing may be reduced area, additional traffic control, such as flaggers 3. <40mph speed limit, shadow vehicle optional. Distances shown are approximate. Sign spacing should be adjusted for 70 mph 225 ft 325 ft and appropriate signage, may be needed on the side road approaches. curves, hills, intersections, driveways, etc., to improve sign visibility. DISCLAIMER… The purpose of this document is to present guidelines for work zone traffic control. This covers the basic requirements set forth in Part VI of the Indiana Manual on Uniform Traffic Control Devices (MUTCD) as it pertains to Right-Of-Way Permit work. Any changes or additions of traffic control of protection can be requested per the INDOT District Permit Sections. This document MUST accompany the Right-Of-Way Permit Application. Created By INDOT, Work Zone Safety Section, June 2011.
Cause No. 45010 - Attachment 1.5 p027 www.in.gov/indot Cause No. 45010 OUCC Attachment LMA-2 Page 51 of 57
OUCC DATA REQUEST
Meadow Lake Wind Farm VI LLC
Cause No. 45010
Dated December 22, 2017
Q1.6: On page 16 of Petitioner’s Exhibit 1, the Verified Direct Testimony of Ryan J. Brown, Mr. Brown discusses the planned transmission lines as only going through private farmland. However, on page 20 of Petitioner’s Exhibit 1petitioner requests: “Retention of the use of the public right-of-way will allow Petitioner to place transmission lines and collector lines in the public right-of-way.”
Please clarify if Petitioner intends to place any transmission lines in the public right-of- way. If so, please explain the intended use of the public right-of-way and provide any correspondence petition has had with INDOT regarding petitioner’s intended use of the public right-of-way, including any correspondence through INDOT’s electronic permitting system (“EPS”).
Objection: Meadow Lake VI objects to the Data Request on the basis of the foregoing general objections.
Response: Meadow Lake VI intends to use public rights-of-way for perpendicular road crossings and drainage ditch crossings. Meadow Lake VI has had no correspondence with INDOT pertaining to Meadow Lake VI’s intended use of the public right-of-way (other than the INDOT permit application produced in Attachment 1.5) and the permit application to install temporary gravel radius road widening attached as Attachment 1.6.
18937291 9 Cause No. 45010 OUCC Attachment LMA-2 Page 52 of 57 RIGHT OF WAY PERMIT STATE OF INDIANA INDIANA DEPARTMENT OF TRANSPORTATION State Form 41769 (R8 / 5-17) Approved by State Board of Accounts, 2017 Approved by Auditor of State, 2017 Application number Type of Permit:
Excavation Pole Line Railroad Miscellaneous Shared Use District Subdistrict Telephone number
Project locations: Reference pt. number
Project description: Road number
Project purpose: County number
Bond required: If Yes, Penal Sum Bond number Yes No $
PERMIT FEE: (Make check or bank draft payable to "Indiana Department of Transportation") $ Expiration date Fee amounts per IC 8-23-2-6(13); fee schedule address: http://www.in.gov/indot/2727.htm SPECIAL PROVISIONS:
THE APPLICANT AGREES TO INDEMNIFY, DEFEND, EXCULPATE, AND HOLD HARMLESS THE STATE OF INDIANA, ITS OFFICIALS AND EMPLOYEES FROM ANY LIABILITY DUE TO LOSS, DAMAGE, INJURIES, OR OTHER CASUALTIES OF WHATSOEVER KIND, OR BY WHOMSOEVER CAUSED, TO THE PERSON OR PROPERTY OF ANYONE ON OR OFF THE RIGHT-OF-WAY ARISING OUT OF, OR RESULTING FROM THE ISSUANCE OF THIS PERMIT OR THE WORK CONNECTED THEREWITH, OR FROM THE INSTALLATION, EXISTENCE, USE, MAINTENANCE, CONDITIONS, REPAIRS, ALTERATION, OR REMOVAL OF ANY EQUIPMENT OR MATERIAL, WHETHER DUE IN WHOLE OR IN PART TO THE NEGLIGENT ACTS OR OMISSIONS (1) OF THE STATE, ITS OFFICIALS, AGENTS, OR EMPLOYEES; OR (2) OF THE APPLICANT, HIS AGENTS, OR EMPLOYEES, OR OTHER PERSONS ENGAGED IN THE PERFORMANCE OF THE WORK, OR (3) THE JOINT Issue date NEGLIGENCE OF ANY OF THEM; INCLUDING ANY CLAIMS ARISING OUT OF THE WORKMEN'S COMPENSATION ACT OR ANY OTHER LAW, ORDINANCE, ORDER, OR DECREE. THE APPLICANT ALSO AGREES TO PAY ALL REASONABLE EXPENSES AND ATTORNEY'S FEES INCURRED BY OR IMPOSED ON THE STATE IN CONNECTION HEREWITH IN THE EVENT THAT THE APPLICANT SHALL DEFAULT UNDER THE PROVISIONS OF THIS PARAGRAPH. Signature of permit applicant Printed name of permit applicant
Name of company organization Telephone number Permit number Address (number and street, city, state, ZIP code)
Inspector
District Regulatory Supervisor
District Director
District addresses can be found at: https://entapps.indot.in.gov/dotmaps/districtmaps/
Cause No. 45010 - Attachment 1.6 p001 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Cause16 No. 45010 OUCC Attachment LMA-2 Page 53 of 57
A A
B B
C C
D D
E E
F F
G G
COPYRIGHT ã 2017 FISHER ASSOCIATES, P.E., L.S., L.A. OF NEW YORK, P.C.
©
DATE SCALE AS SHOWN MEADOW LAKE VI WIND FARM H 11/1 DRAWN DP GILBOA AND WEST POINT TOWNSHIPS, INDIANA H 11/1 CHECKED SDW US RTE 231 AT W 600 S 11/1 APPROVED SDW IMPROVEMENTS - PLAN Rev. XX Page:016 of 110 VER. DATE MODIFICATION PAGES MODIFIED VER. DATE MODIFICATION PAGES MODIFIED Format ANSI D Proj. Nº: 175015 Doc. Nº: XXX Drawing Nº: C-101 FILE NAME:H:\Projects\175015-00-Meadow_Lake_Wind_Farm_VI\Eng\CAD\CUT\175015 C-101 - C-103.dwg 1:40:56 PM DATE/TIME:11/10/2017 USER:Doug 1 2 3 4 5 6 7 10 11 12 13 14 15 Cause No. 45010 - Attachment16 1.6 p002 Cause No. 45010 OUCC Attachment LMA-2 Page 54 of 57 RIGHT OF WAY PERMIT STATE OF INDIANA INDIANA DEPARTMENT OF TRANSPORTATION State Form 41769 (R8 / 5-17) Approved by State Board of Accounts, 2017 Approved by Auditor of State, 2017 Application number Type of Permit:
Excavation Pole Line Railroad Miscellaneous Shared Use District Subdistrict Telephone number
Project locations: Reference pt. number
Project description: Road number
Project purpose: County number
Bond required: If Yes, Penal Sum Bond number Yes No $
PERMIT FEE: (Make check or bank draft payable to "Indiana Department of Transportation") $ Expiration date Fee amounts per IC 8-23-2-6(13); fee schedule address: http://www.in.gov/indot/2727.htm SPECIAL PROVISIONS:
THE APPLICANT AGREES TO INDEMNIFY, DEFEND, EXCULPATE, AND HOLD HARMLESS THE STATE OF INDIANA, ITS OFFICIALS AND EMPLOYEES FROM ANY LIABILITY DUE TO LOSS, DAMAGE, INJURIES, OR OTHER CASUALTIES OF WHATSOEVER KIND, OR BY WHOMSOEVER CAUSED, TO THE PERSON OR PROPERTY OF ANYONE ON OR OFF THE RIGHT-OF-WAY ARISING OUT OF, OR RESULTING FROM THE ISSUANCE OF THIS PERMIT OR THE WORK CONNECTED THEREWITH, OR FROM THE INSTALLATION, EXISTENCE, USE, MAINTENANCE, CONDITIONS, REPAIRS, ALTERATION, OR REMOVAL OF ANY EQUIPMENT OR MATERIAL, WHETHER DUE IN WHOLE OR IN PART TO THE NEGLIGENT ACTS OR OMISSIONS (1) OF THE STATE, ITS OFFICIALS, AGENTS, OR EMPLOYEES; OR (2) OF THE APPLICANT, HIS AGENTS, OR EMPLOYEES, OR OTHER PERSONS ENGAGED IN THE PERFORMANCE OF THE WORK, OR (3) THE JOINT Issue date NEGLIGENCE OF ANY OF THEM; INCLUDING ANY CLAIMS ARISING OUT OF THE WORKMEN'S COMPENSATION ACT OR ANY OTHER LAW, ORDINANCE, ORDER, OR DECREE. THE APPLICANT ALSO AGREES TO PAY ALL REASONABLE EXPENSES AND ATTORNEY'S FEES INCURRED BY OR IMPOSED ON THE STATE IN CONNECTION HEREWITH IN THE EVENT THAT THE APPLICANT SHALL DEFAULT UNDER THE PROVISIONS OF THIS PARAGRAPH. Signature of permit applicant Printed name of permit applicant
Name of company organization Telephone number Permit number Address (number and street, city, state, ZIP code)
Inspector
District Regulatory Supervisor
District Director
District addresses can be found at: https://entapps.indot.in.gov/dotmaps/districtmaps/
Cause No. 45010 - Attachment 1.6 p003 Cause No. 45010 OUCC Attachment LMA-2 Page 55 of 57
Cause No. 45010 - Attachment 1.6 p004 Cause No. 45010 OUCC Attachment LMA-2 STATE OF INDIANA Page 56 of 57 INDIANA DEPARTMENT OF TRANSPORTATION
Title VI Assurances
The permitee for himself, his heirs, personal representatives, successors in interest, and assigns, as part of the consideration hereof, does hereby covenant and agree that in the event facilities are constructed, maintained, or otherwise operated on the said property described in this permit for a purpose for which a Department of Transportation program or activity is extended or for another purpose involving the provision of similar services or benefits, the permitee shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to Title 49, code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-assisted programs of the Department of Transportation – Effectuation of Title VI of the Civil Rights Act of 1964, and as said regulations may be amended.
That in the event of breach of any of the above nondiscrimination covenants, Indiana Department of Transportation shall, have the right to terminate the permit and to re-enter and repossess said land and the facilities thereon, then hold the same as if said permit had never been made or issued.
Cause No. 45010 - Attachment 1.6 p005 Cause No. 45010 OUCC Attachment LMA-2 Indiana Department Of Transportation Page 57 of 57 Permit Section Traffic Control Quick Reference Guide
Work on Paved Shoulders >8ft. Paved Shoulder >8ft. Legend OPTIONAL SKIPS BASED TAPERS or Parking Lanes Closed on Divided Roadway Channelizing Portable Sign (For a 12 Ft Wide Closure) ROAD Work Area WORK Device Support Shoulder Tapers Shifting Tapers Merging Tapers AHEAD Speed (MPH) (optional) A Shoulder or L #S CS #C L #S CS #C L #S CS #C Parking Lane Arrow Board Arrow Board Warning Display 20 80 2 20 5 80 2 20 5 160 4 20 9 Display Symbol Roll Ahead Sign Distance 25 80 2 20 5 80 2 20 5 160 4 20 9
Flagger Shadow Vehicle 30 80 2 20 5 120 3 20 7 200 5 20 11 Buffer Buffer Symbol With Flashing Light
Speed Low 35 120 3 20 7 160 4 20 9 280 7 20 15 Shoulder Shoulder Taper 40 120 3 40 4 160 4 40 5 320 8 40 9
½ A SHOULDER Flagger Standards and Procedures CLOSED 45 200 5 40 6 280 7 40 8 560 14 40 16 A OR Shoulder Work SHOULDER 24" WORK A SHOULDER CLOSED 50 200 5 40 6 320 8 40 9 600 15 40 17 AHEAD B If flaggers are used B ROAD ROAD 55 240 6 40 7 360 9 40 10 680 17 40 18 ROAD WORK WORK they must be properly 24" WORK AHEAD AHEAD
AHEAD trained and equipped Notes: 60 240 6 60 5 360 9 60 7 720 18 60 13
1. SHOULDER CLOSED signs should be used on limited-access highways at all times. Speed High where there is no opportunity for disabled vehicles to pull off the traveled way. 65 280 7 60 6 400 10 60 8 800 20 60 15 Note: WORKERS or UTILITY WORK AHEAD signs may be used 2. UTILITY WORK AHEAD or WORKERS signs may be used instead of the instead of the SHOULDER WORK or ROAD WORK AHEAD signs. ROAD WORK AHEAD sign. Only 24”Diameter To 70 280 7 60 6 440 11 60 9 840 21 60 15 3. Use of an arrow display is optional. If used, it shall be operated in the caution Stop/Slow paddles 7’ Stop To mode. Traffic Traffic Alert 2-Way & Downstream Tapers are always 100/2.5/20/7 4. <40mph speed limit, shadow vehicle optional. are allowed while Proceed And flagging on State L = Length #S = Number CS = Cone #C = Number Slow Shadow Vehicles CANNOT be used as work vehicles Right-Of-Way Traffic (ft) of Skips Spacing (ft) of Cones
Lane Closure on a Two-Lane Road Guidelines for Buffer Lengths and Distance of Flagger Lane Closure on a Divided (Two Flagger Operation) Acceptable Channelizing Devices Station in Advance of the Workspace Roadway or One Way Street ROAD 1. Stripes on barricade rails slope downward at an angle of 45 WORK Optional Skips Based END END AHEAD degrees toward the direction traffic is to pass. ROAD WORK ROAD WORK MUTCD Speed Buffer ONE LANE C 2. Barricade rail stripe widths shall be 6 inches except where rail (optional) (optional) ROAD Based Buffer Number of AHEAD lengths are less than 36 inches, then 4 inch wide stripes may (mph) Length B Length (ft) Skips be used. (ft) 3. The sides of barricades facing traffic shall have retroreflective 20 115 120 3 A rail faces. Roll Ahead Distance If an arrow board 4. All channelizing devices shall meet AASHTO Manual for 25 155 160 4
is used on the Assessing Safety Hardware (MASH) Requirements. 30 200 200 5 Shadow Vehicle Area END ROAD WORK shadow vehicle, A Spacing 35 250 280 7 then it shall be in Buffer On Tapers: The distance in feet equal to the speed limit in mph, 40 305 320 8 the caution mode. Downstream Taper 100' Merging Alongside the work area: The distance in feet equal to 2.0 times 45 360 360 9 Taper the speed limit in mph. 50 425 440 11 Shoulder Taper Alternatively, the spacing for straight-a-ways may be as follows: (optional) 55 495 520 13 • 20 to 40 mph: 1 cone for every 40’ (every skip) Buffer 60 570 600 15 A A • 40 to 55 mph: 1 cone for every 80’ (every other skip) 65 645 680 17 • 60 mph & above: 1 cone for every 120’ (every 3 skips) B B Taper 70 730 760 19
RIGHT LANE RIGHT LANE CLOSED CLOSED AHEAD AHEAD A A C C END ROAD ROAD ROAD WORK Sign Spacing (feet) WORK WORK Roll-ahead Distances AHEAD AHEAD B (Optional ONE LANE 25-30 35-40 45-55 Multilane Divided Expressway/ ROAD AHEAD mph mph mph 50 mph or higher Freeway Speed Stationary Mobile Notes: C ROAD 1. When a side road intersects the roadway within the work zone, WORK AHEAD A 100 350 500 1000 1000 additional devices shall be erected to channelize traffic to/from Notes: < 45 mph 100 ft 150 ft the side road, and a ROAD WORK AHEAD sign shall be placed 1. The flagger or flaggers shall use approved B 100 350 500 1600 1600 50 - 55 mph 150 ft 200 ft on each side road approach. flagging procedures according to the IMUTCD 2. On non-freeway multi- lane roads in urban areas, the sign 2. If there is a side road intersection within the work C 100 350 500 2640 2640 60 - 65 mph 200 ft 275 ft spacing may be reduced area, additional traffic control, such as flaggers 3. <40mph speed limit, shadow vehicle optional. Distances shown are approximate. Sign spacing should be adjusted for 70 mph 225 ft 325 ft and appropriate signage, may be needed on the side road approaches. curves, hills, intersections, driveways, etc., to improve sign visibility. DISCLAIMER… The purpose of this document is to present guidelines for work zone traffic control. This covers the basic requirements set forth in Part VI of the Indiana Manual on Uniform Traffic Control Devices (MUTCD) as it pertains to Right-Of-Way Permit work. Any changes or additions of traffic control of protection can be requested per the INDOT District Permit Sections. This document MUST accompany the Right-Of-Way Permit Application. Created By INDOT, Work Zone Safety Section, June 2011.
Cause No. 45010 - Attachment 1.6 p006 www.in.gov/indot AFFIRMATION
I affirm, under the penalties for perjury, that the foregoing representations are true.
Lauren M. Aguilar Utility Analyst Indiana Office of Utility Consumer Counselor
1/11/2018 Date
CERTIFICATE OF SERVICE
This is to certify that a copy of the OUCC Testimony of Lauren M. Aguilar has been
served upon the following parties of record in the captioned proceeding by electronic service on
January 11, 2018
David T. McGimpsey Michael T. Griffiths BINGHAM GREENEBAUM DOLL LLP BINGHAM GREENEBAUM DOLL LLP 212 West Sixth Street 2700 Market Tower Jasper, Indiana 47546 10 W. Market Street [email protected] Indianapolis, IN 46204-4900 [email protected]
______Jesse James Deputy Consumer Counselor
INDIANA OFFICE OF UTILITY CONSUMER COUNSELOR PNC Center 115 West Washington Street Suite 1500 South Indianapolis, IN 46204 [email protected] 317/232-2494 – Telephone 317/232-5923 – Facsimile