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Legal Issues Associated with Wind Farming in Kansas

Legal Issues Associated with Wind Farming in Kansas. Jennifer R. O’Hare Lincoln County Attorney Partner, Metz & O’Hare, Chtd. Smoky Hill Wind Project Facts. Project Developer – TradeWind Energy, LLC Project Ownership – Enel North America, Inc. the wholly owned subsidiary of Enel, SpA.

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Legal Issues Associated with Wind Farming in Kansas

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  1. Legal Issues Associated with Wind Farming in Kansas Jennifer R. O’Hare Lincoln County Attorney Partner, Metz & O’Hare, Chtd.

  2. Smoky Hill Wind Project Facts • Project Developer – TradeWind Energy, LLC • Project Ownership – Enel North America, Inc. the wholly owned subsidiary of Enel, SpA. • Project Location – Just north of I-70 on both sides of highway 14. In Lincoln and Ellsworth Counties • Project Interconnection to the Midwest Energy 230kV transmission line in Ellsworth, County. • Project Size – 250 MWs (phase I/phase II) • Approximately 15 landowners and 10,000 acres will be involved in the phase I project.

  3. County Perspective • Road Maintenance Agreement • Easements • Improvements to the Roads and Easements of the County • Who makes repairs? • Who supervises? • Who decides if it is good enough? • Emergency repairs • Consultation with the county • Temporary Access

  4. Traffic Issues • Increased amount of travel on county roads • Signs • How do you alert the public? • Notice Requirements • Length of time • Pre-construction requirements • Video-tape • Subcontractors bound by the agreement? • Insurance • Escrow Agreement • Protect the County • Assurance

  5. PILOT Agreement • Payment in lieu of tax payments made to the County • Statutory Authority • Lincoln County “WEB” Fund • The proposal is a five person board consisting of a Board of County Commissioners, a member from Economic Development, and three members from each commissioner district appointed by the Lincoln County Board of County Commissioners • Purpose • Control • Public Funds • Investments • Economic Development

  6. Landowner Perspective • Land involved and length of the Agreement. • How much of the land is under the agreement? • How long will the land under the agreement be affected? • Is there an option provision in the agreement? • Improvements to the property. • Does it involve everything to do with wind farming, i.e. turbine sites, substations, air space, buffer areas, vegetation restrictions, transmission lines, building restrictions and right of way?

  7. Payments • Are the payments adequate when compared to the land that you are giving up? • Is it a lump sum payment? Is it fair? • Are there tax consequences for you depending on how the payments are made? • Are the payments based on revenues generated from the wind? • Can you get information on how they figure revenues. • Is there an inflationary provision built in.

  8. Development of the Land • Will the company develop the land or use a portion of it? • What about oil and mineral leases? • Does the agreement set forth the number of wind turbines you will be getting or does it tell you “what if’s”. • If not, do you get a minimum payment. • Assignment • Can the developer sell of transfer without your consent any of the rights under the agreement. • Are they still liable then? • What about mortgages? • Do they get information? Do you need to consent? • Are the new additions bound to the agreement?

  9. Termination • What can cause a termination by the developer? • Is it with or without cause? • How do the payments work then? • What are your rights to terminate the agreement? • How do you do it? • If the agreement is terminated, what happened to the wind turbines? • Whose responsibility are they to remove? • Do they specify what they will remove? • If they don’t remove them, what can you do? • Who pays for it • Choice of Law provision

  10. Setback or “Buffer” Property • What about adjoining land owned by you. • What are you allowed to do on your property. • Oil and mineral leases • Buildings • Livestock • Farming operations. USDA programs. • Third parties • Are you responsible for acts of third parties. • What if you had no knowledge of it • Can you permit other people on the property • Indemnification agreement that indemnifies you the landowner for any liability incurred because of permissive activities like crop tenants, custom harvesters or other allowed activities on the property.

  11. Miscellaneous • Insurance • Nuisance • Loss of property value • Noise • Effect on wildlife • Aesthetics • Keep copies of everything • Confidential • There is usually a confidential provision. Don’t agree

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