WIND TURBINE GENERATOR
DEVELOPMENT AGREEMENT and PERMIT
This Development Agreement and Permit (“Agreement”) dated the __________ day of _______________, 20_____, is executed by the Frankstown Township, located in Blair County, in the Commonwealth of Pennsylvania and organized under the Second Class Township Code of the Pennsylvania Statutes (“Township”) and ___________________________________________________
(“Developer/Permitee”). The Township and the Developer/Permitee are referred individually as “Party” and collectively as the “Parties”.
1. Default. Any of the following occurrences shall constitute an event of default (Event of Default) under this Agreement:
a. If Developer/Permitee ceases to operate the Project provided; however, that Developer/Permitee shall not be deemed to have ceased operating the Project if Developer/Permitee ceases operations for all or substantially all the Project for a period not exceeding six (6) months;
b. If a petition is filed by Developer/Permitee under any bankruptcy, reorganization, arrangement, insolvency, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, and is not dismissed within ninety (90) days after such filing;
c. If Developer/Permitee fails to observe or perform any material condition or provision hereof for a period of sixty (60) days after receiving written notice of such failure from the Township, Developer/Permitee shall commence corrective action within thirty (30) days of notice from any source, of any failure, and shall complete corrective action within sixty (60) days of receipt of notice. Any period of time for which Developer/Permitee is unable to commence or complete corrective action as the result of any material third party withholding approval of such action shall not be counted against Developer/Permitee. If Developer/Permitee is unable to commence corrective action within thirty (30) days of notice or is unable to complete corrective action within sixty (60) days of receipt of notice for reasons other than delays caused by any material third party, Developer/Permitee shall request an extension from the Township which shall not be unreasonably withheld and which may include reasonable conditions in order for Developer/Permitee to receive and maintain such extension;
d. If Developer/Permitee continues to be in material breech of any stature, regulation, rule or permit administered by any federal, state, county or local department, agency or commission within sixty (60) days after receiving written notice of a violation by such Federal, State or County department, agency or commission, Developer/Permitee shall notify the Township, in writing, or any alleged violation, order or enforcement proceeding within seven (7) days of receipt. Developer/Permitee shall commence corrective action within thirty (30) days of notice, from any source, of any breach and/or violation, and shall complete corrective action within sixty (60) days of receipt of notice. Any period of time for which Developer/Permitee is unable to commence or complete corrective action as the result of any material third party withholding approval of such action shall not be counted against Developer/Permitee. If Developer/Permitee is unable to commence corrective action within thirty (30) days of notice or is unable to complete corrective action within sixty (60) days of receipt of notice for reasons other than delays caused by any material third party, Developer/Permitee shall request an extension from the Township which shall not be unreasonably withheld and which may include reasonable conditions in order for Developer/Permitee to receive and maintain such extension;
e. Upon an Event of Default the Township may revoke this Agreement if the following conditions are met:
(i) The Event of Default remains uncured; and
(ii) There is no Force Majeure Event causing the Event of Default to continue; and
(iii) The Township has provided Developer/Permitee an opportunity to present and explain its position before the Township Board to respond to the Event of Default, and any and all decisions and/or determinations by the Township Board may be appealed to the Court of Common Pleas of Blair County, and all appeals are de novo; and
(iv) All de novo appeals from this decision rendered by the Township Board under (iii) have been exhausted.
2. Non-Assignability. The rights granted by this Agreement are not assignable or transferable to any other person, firm or corporation, whether by operation of law or otherwise, without the express prior written consent of the Township, such consent not to be unreasonably withheld.
3. Interpretation. In their interpretation and application, the provisions of this Agreement shall be considered minimum requirements. This Agreement shall not be deemed to have been drafted by any particular Party so as to be interpreted strictly against such Party.
4. Modification. No provision of this Agreement may be modified except in writing by Developer/Permitee and the Township after public notice and hearing. Developer/Permitee is required to obtain separate authorizations for the erection and support of any buildings or improvements, highway access permits, and any other permit, license or authorization required by any County, State or Federal agency. Except as provided in Paragraph 3 hereof, the Township makes no representations regarding Developer/Permitee’s right to obtain whatever additional authorizations or permits which may be necessary for the operation of its Wind Turbine Generator(s).
5. Force Majeure. Notwithstanding any other provision of this Agreement, no party hereto shall be responsible for damages to the other for any failure to comply with this Agreement, resulting from an act of God or riot, sabotage, public calamity, flood, strike, or other event beyond its reasonable control. The party having the responsibility for the facilities affected; however, shall proceed promptly to remedy the consequences of such event.
6. Severability. Each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited or invalid under applicable law as determined by a Court of competent jurisdiction, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of the Agreement.
7. Waiver. No waiver by the Parties or their officials shall be deemed to be made unless the same shall be in writing and be signed by the duly authorized Township or Developer/Permitee official. Each wavier, if any, shall be a waiver only with respect to the specific instance involved and shall in no way impair the rights of the Township or Developer/Permitee in any other respect at any other time.
8. Performance Standards. Developer/Permitee agrees that the Project shall be operated and maintained consistent with Good Utility Practice for comparable facilities. For purpose of this Agreement, “Good Utility Practice” shall mean any of the practices, methods or acts engaged in or approved by a significant portion of the electric utility industry during the relevant time period, or any of the practices, methods and acts which in the exercise of reasonable judgment in light of the facts known at the time the decision was made, could have been expected to accomplish the desired result at a reasonable cost consistent with good business practices, reliability, safety and expedition. Good Utility Practice is not intended to be limited to the optimum practice, method, or act to the exclusion of all others, but rather to be acceptable practices, methods or acts generally accepted in the region. Under no circumstances shall the definition of “Good Utility Practices” include any violation, regardless of degree, of any local, state, and/or federal law, ordinance, rule, and/or regulation.
9. Indemnification. Developer/Permitee shall defend, indemnify and hold harmless the Township and its officials, employees and agents from and against any and all claims, demands, losses, suits, cause of action, damages, injuries, costs, expenses and liabilities whatsoever, including reasonable attorney’s fees (such liabilities together known as “Liability”) arising out of the selection, construction, operation and removal of the wind turbine generators and affiliated equipment including, without limitation, liability for property damage or personal injury (including death), whether said liability is premised on contract or on tort (including without limitation strict liability or negligence). This general indemnification shall not be construed as limiting or qualifying the Township’s other indemnification rights available under law.
10. Township Legal Authority. The Township represents and warrants that (i) the execution, delivery and performance of this Agreement is duly authorized; and (ii) it has all requisite legal authority to execute, deliver and perform this Agreement; and (iii) no further approval, authorization or other action by any governmental authority is required for the execution, delivery and performance of the Agreement.
1. Term and Renewal. This Agreement shall continue for thirty (30) years (the “Term”) form the date of approval of this Agreement, unless earlier terminated as provided herein. The Term shall automatically extend for one additional ten (10) year period (“Additional Term”), at the request of Developer/Permitee if not Event of Default permitting the Township to revoke this Agreement under 1(e) above exists at the time of such request.
The Township makes no representations to Developer/Permitee regarding the renewal of the Agreement at the expiration of the Additional Term, and the Township reserves all rights available under law or in equity to any such extension. Developer/Permitee is hereby informed that it has no property right in the expectation of the renewal of this Agreement except for the Additional Term.
2. Building Codes: Safety Standards. To ensure the integrity of the Wind Turbine Generators, Developer/Permitee shall maintain the Wind Turbine Generators in compliance with Good Utility Practice for Wind Turbine Generators. If, upon inspection by the Township and/or any other regulatory entity with lawful jurisdiction over the Wind Turbine Generators, the Township or such entity provides written notice that any of the Wind Turbine Generators fail to comply with Good Utility Practices or constitutes a danger to persons or property, then Developer/Permitee shall immediately commence corrective action for any failure and/or danger, and shall complete corrective action to bring the noncompliant Wind Turbine Generator(s) into compliance with such standards within sixty (60) days of receipt of notice. If Developer/Permitee is unable to bring the non-compliant wind turbine generator(s) into compliance with such standards within sixty (60) days of receipt of notice, Developer/Permitee shall request an extension from the Township, which shall not be unreasonably withheld and which may include reasonable conditions in order for Developer/Permitee to receive and maintain such extension. Failure to bring such non-complaint Wind Turbine Generator(s) into compliance shall constitute grounds for the Township to request removal of said Wind Turbine Generator(s) at Developer/Permitee expense. The Township is authorized to file an action for injunctive relief in the Court of Common Pleas of Blair County, Pennsylvania, to require Developer/Permitee to remove the noncompliant Wind Turbine Generator(s).
3. State and Federal Requirements, The Wind Turbine Generators shall meet current standards and regulations, if any of any other agency of the state or federal government with the authority to regulate Wind Turbine Generators. If such standards and regulations are changed, then Developer/Permitee shall bring the Wind Turbine Generators into compliance with such applicable revised standards and regulations within six (6) months of the effective date of such standards regulations, unless a different compliance schedule in mandated by the controlling state or federal agency or approved by the Township. Failure to bring the Wind Turbine Generators into compliance with such applicable revised standards and regulations shall constitute and Event of Default. The Wind Turbine Generators shall be marked as required by the Federal Aviation Administration (FAA). A Determination of No Hazard for each Wind Turbine Generator must be obtained from the FAA as a condition precedent for the installation of each turbine. Developer/Permitee shall comply with any and all future state and/or federal regulations which are applicable to Wind Turbine Generators or wind farms, unless grandfathered.
4. Design. Each Wind Turbine Generator shall consist of a tubular support, generator, nacelle, and three (3) blades. Each Wind Turbine Generator site will have access roads, underground transmission cabling to connect the generator(s) to an electric substation and underground fiber optic lines. All Wind Turbine Generator sites shall be designed and constructed in such a fashion as to avoid any disruption and/or interference with private wells, springs and/or other water sources. In the event any problems occur with any private water source, which problems are proximately caused by Developer/Permitee, Developer/Permitee shall immediately supply potable water in such quality and quantity as supplied by the original private water source. Applicants must provide written notice to all property owners and tenants occupying property within two thousand five hundred (2,500) feet of the boundary of the property upon which the Wind Turbine Generator will be located and advise them that the Applicant, at Applicant’s sole cost, will test their well prior to construction as to the land owner’s potable water, the quality of the water and the quantity of the water and supply and the report thereof shall be furnished to the Township and to the property owners and tenants.
The design of the Wind Turbine Generator shall conform to applicable industry standards, including those of the American National Standards Institute. The Applicant shall submit certificates of compliance obtained by the equipment manufacturers from the Underwriters Laboratories, Det Norske Veritas, Germanishcer Lloyd Wind Energies, or other similar certifying organizations.
All Wind Turbine Generators shall be equipped with a redundant braking system. This includes both aerodynamic overspeed 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 overspeed protection.
Developer/Permitee shall install Wind Turbine Generators of two (2) megawatts nameplate capacity each unless otherwise agreed to by the Parties, which comply with all terms and provisions of this Agreement.
5. Maintenance, Repair and Replacement. Developer/Permitee shall repair, maintain and replace the Wind Turbine Generator(s) and associated equipment during the Term of the Agreement in a manner consistent with Good Utility Practice as needed to keep the Project in good repair and operation condition.
6. Signs. No advertising material or signage other than warning, equipment information or indicia of ownership shall be allowed on the Wind Turbine Generator. This prohibition shall include the attachment of any flag, decorative sign, streamers, pennants, ribbons, spinners or waiving, fluttering or revolving devices, but not including weather devices.
7. Lighting. The Wind Turbines Generators shall not be artificially illuminated except as required by the FAA or any other applicable authority. If lighting is required, the lighting alternatives and design chosen will seek to minimize the disturbance to the surrounding views and attracting birds.
8. Aesthetics. The towers and generators of the Wind Turbine Generators shall have a non-reflective, painted steel finish in a neutral color, subject to any applicable standards of the FAA or other regulatory requirements. The blades of the Wind Turbine Generators are not covered by this section.
9. Stray Voltage/Electromagnetic Fields (EMF). The Applicant shall ensure that there will be no disruption or loss of radio, telephone, television or similar signals. Developer/Permitee will utilize Good Utility Practice to minimize, to the extent practicable, the impact, if any, of stray voltage and/or EMF on a Non-Participating property. Developer/Permitee expects there will be no stray voltage impacts from the Project because such impacts occur only on distribution facilities which are not included in the Project.
10. Wind Turbine Generator Removal. Each Wind Turbine Generator and all related improvements shall be removed within twelve (12) months of the date when the use of the particular Wind Turbine Generator has been discontinued or abandoned by Developer/Permitee, or upon expiration of this Agreement, whichever is earlier. At the time of its removal, a Wind Turbine Generator will be decommissioned and removed except for any concrete structure four (4) feet below grade. Upon removal, the land used for the removed Wind Turbine Generator and associated equipment will be restored to its original condition as nearly as possible. Private access roads, at the property owner’s request, may be left intact.
Developer/Permitee shall assure funding of these removal obligations by providing a security instrument to the Township in a form, amount and containing such terms and provisions mutually agreed to by the Township and Developer/Permitee. The security shall be maintained in effect upon the commencement of construction and for the entire life of the Project and adjusted annually for inflation in an amount equal to the preceding year’s annual increase in the Consumer Price Index.
Developer/Permitee shall also furnish satisfactory evidence to the Township that the Developer/Permitee had included in the lease agreement or other agreement with property owner a provision for the decommissioning and removal of the Wind Turbine Generator(s) and restoration of the site at the time when a Wind Turbine Generator no longer has a useful life, has been discontinued, abandoned, and/or upon expiration of this Agreement, whichever occurs first. Developer/Permitee shall demonstrate sufficient security by meeting the following requirement:
Developer/Permitee shall immediately following the first year of operation and every tenth year thereafter, at its own expense, retain an independent professional engineer, licensed as such in the Commonwealth of Pennsylvania, acceptable to the Township to estimate the cost of decommissioning and removal of the Wind Turbine Generators and restoration of the site. Developer/Permitee shall submit such report to the Township upon receipt. Developer/Permitee shall maintain the security in an amount using the greater of either fifty percent (50%) of the cost of decommissioning the Wind Turbine Generator(s) without regard to salvage value of the Wind Turbine Generator(s), or the actual cost of decommissioning the Wind Turbine Generator(s) taking into account the salvage value of the wind turbine generators.
The Parties agree that the Township shall have the right to enter the property to remove the Wind Turbine Generators in the event that the same is not removed in twelve (12) months with the Township keeping any salvage value obtained form such removal.
The estimated cost of decommissioning will be updated every tenth year, to take into account inflation or other factors deemed relevant by the independent engineer, and approved by the Township engineer, including but not limited to, any increase or decrease of the market value of the structure and its related components being decommissioned and the cost of labor to perform the decommissioning. Any costs of decommissioning, removal and restoration in excess of the decommissioning shall be promptly paid by the Developer/Permitee to the contractor retained for the removal and restoration.
11. Setbacks. The Wind Turbine Generators shall comply with the following setbacks:
(i) Civil Structures. Each Wind Turbine Generator shall be set back from the nearest existing (at the time of the building permit issuance) school (private or public), college, sanitarium, hospital, clinic, nursing home, retirement home, government building, hotel, motel, museum, church or public library, a distance of no less than two thousand five hundred (2,500) feet. The setback distance shall be measured from the center of the Wind Turbine Generator base to the nearest point on the foundation of the civil structure.
(ii) Participating Residences. For existing (at the time of the building permit issuance participating primary occupied residences, the setback distance from a Wind Turbine Generator shall be at least one thousand (1,000) feet. The setback distance shall be measured from the center of the Wind Turbine Generator base to the nearest point on the foundation of the existing participating primary occupied residence.
(iii) Non-Participating Residences. For existing (at the time of the building permit issuance non-participating primary occupied residences, the setback distance from a Wind Turbine Generator shall be at least two thousand five hundred (2,500) feet. The setback distance shall be measured from the center of the Wind Turbine Generator base to the nearest point on the foundation of the existing non-participating primary occupied residence.
(iv) Definition of Participating and Non-Participating. For purposes of this Agreement
“Participating” shall mean a property owner or property (including a residence) that is subject to an agreement or lease with Developer/Permitee. “Non-Participating” shall mean all property owners or properties (including a residence) which are not participating property owners or property.
b. Property Lines. Each Wind Turbine Generator shall be set back from the nearest property line a distance of no less than one thousand (1,000) feet. The setback distance shall be measured from the center of the Wind Turbine Generator base.
c. Public Roads. Each Wind Turbine Generator shall be set back from the nearest public road a distance of no less than one thousand (1,000) feet. The setback distance shall be measured from the right-of-way line of the nearest public road to the center of the Wind Turbine Generator base.
d. Communication and Electric Lines. Each wind turbine generator shall be set back from the nearest above-ground public electric power line or public telephone line a distance of no less than one thousand (1,000) feet. The setback distance shall be measured from the nearest public electric power line or public telephone line to the center of the Wind Turbine Generator base.
e. Wetlands. Each Wind Turbine Generator shall be set back a distance of no less than two thousand five hundred (2,500) feet from any wetlands listed on the National Wetland Inventory Map for the Township. The setback distance shall be measured from the center of the Wind Turbine Generator base.
f. Historic Sites and Structures. Each Wind Turbine Generator shall be set back a distance of no less than two thousand five hundred (2,500) feet from any historic site and structure listed on the Pennsylvania Heritage Inventory and National Historic Landmarks. The setback distance shall be measured from the center of the Wind Turbine Generator base to the nearest point on the historic site or the foundation of the historic structure.
g. Lakes, Dams, Ponds and Public/Private Water Source Wells/Springs. Each Wind Turbine Generator shall be set back a distance of no less than two thousand five hundred (2,500) feet from any lake, dam, pond, and public/private water source well/spring. The setback distance shall be measured from nearest edge of any lake, dam, pond or public/private water source well/spring to the center of the Wind Turbine Generator base.
12. Noise and Shadow Flicker. Developer/ Permitee shall comply with the following noise and flicker standards:
a. Audible sound from a Wind Turbine Generator shall not exceed forty-five (45) dbA within a reasonable margin of error as measured at the exterior of any existing Non-Participating primary occupied residences. Methods for measuring and reporting acoustic emissions from a Wind Turbine Generator shall be equal to or exceed the minimum standards for precision described in AWEA Standard 2.1 – 1989 entitled “Procedures for the Measurement and Reporting of Acoustic Emissions from Wind Turbine Generation Systems Volume I: First Tier”.
b. The parties acknowledge that the Project’s construction will be the source of intermittent noise. Developer/Permitee shall require all contractors to incorporate reasonable noise reduction measures in order to mitigate the amount of noise generated during the construction phase.
c. Developer/Permitee shall eliminate shadow flicker to any Occupied Building on a Non-participating Landowner’s property unless waived by the affected landowner.
13. Safety. Developer/Permitee shall comply with the following safety standards:
a. All wiring between the Wind Turbine Generator and the substation shall be underground to the extent practicable.
b. The outside of the Wind Turbine Generator tower shall not be climbable.
c. All access doors to the Wind Turbine Generator and electrical equipment shall be locked or fenced, as appropriate, to prevent entry of non-authorized persons.
d. Appropriate and clearly visible warning signage concerning voltage shall be placed at the base of each Wind Turbine Generator, each pad-mounted transformer and sub-station, on all electrical equipment, and at all entrances. 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 ten (10) feet from the ground.
e. Developer/Permitee shall abide by all applicable local, state and federal fire code and emergency services guidelines.
f. All Wind Turbine Generators shall be equipped with portable fire extinguishers, unless the local fire department provides written documentation establishing that the same is not necessary.
g. No Wind Turbine Generator shall be located within a distance of two thousand five hundred (2,500) feet from any Non-Participating occupied residence or occupied commercial structure existing at the time of the erection of the Wind Turbine Generators, unless the owner of such existing residential or commercial structure shall have executed a written waiver or non-disturbance easement, covenant or consent, any of the aforementioned which has been recorded in the Office or the Records of Deeds of Blair County, Pennsylvania. Such easement or covenant shall run with the land and, at a minimum, provide that the said property owner waivers and releases any and all claims, damages and/or losses resulting from higher noise levels, visual impacts or flickering, reflections and/or shadows which may arise as a result of the location of a Wind Turbine Generator within the established setback distance of an existing residential or commercial structure on the property of the owner executing the same. Such easement, covenant or consent shall meet such requirements as to form and content consistent with this Agreement as may be required by the Township.
h. Inspection and O&M Provider: Developer/Permitee shall cause its Operations and Maintenance provider (“O&M Personnel”) to comply with the following schedule:
(i) At least once every thirty-six (36) months the individual wind turbine generators shall be inspected by O&M Personnel, or its agent, who is regularly involved in the maintenance, inspection and/or erection of Wind Turbine Generators, towers and antennas. At a minimum, this inspection shall be conducted in accordance with the provisions of this Agreement and in accordance with the Wind Turbine Generator inspection check list provided by the Parties’ respective engineers, as applicable. This is considered a major inspection.
(ii) At least once every twelve (12) months a visual inspection from the ground shall be conducted by O&M Personnel. This inspection shall include, but not be limited to, visual inspection of Wind Turbine Generator foundation, structure, guy and connections for evidence of settlement or lateral movement, soil erosion, condition of paint or galvanizing, rust or corrosion, loose or missing bolts, loose or corroded lightening protection connectors, Wind Turbine Generator tower plumbness, significant variation in guy sags (i.e., guy tensions), and other material areas or matters relating to the structural integrity of the Wind Turbine Generator. This is considered a minor inspection.
(iii) In addition to the regularly scheduled major and minor inspections set forth in Paragraphs (i) and (ii) above, a minor inspection, at a minimum, will be conducted if a Wind Turbine Generator or its appurtenances are noted at any time to be visibly damaged. Additionally a major inspection should be conducted if a visible damage to a Wind Turbine Generator is significant or when, after conducting a minor inspection, significant questions remain about the structural integrity of the Wind Turbine Generator.
(iv) Developer/Permitee shall provide an annual letter to the Township certifying compliance with the inspection requirements of this Section.
14. Insurance. Developer/Permitee shall maintain the following insurance coverage:
a. A commercial general liability insurance policy with a financially responsible insurance company providing for; (i) a limit of not less than $1,000,000 for personal or bodily injury or death of any one person; and (ii) for a limit of not less than $3,000,000 for personal or bodily injury or death to any number of persons arising from any one (1) occurrence; and (iii) for a limit of not less than $1,000,000 for any instance of property damage.
b. Worker’s compensation coverage in an amount required by Pennsylvania law. Developer/Permitee shall require subcontractors and others not protected under its insurance to obtain and maintain worker’s compensation and employers’ liability insurance.
c. Umbrella liability insurance with coverage to be in excess of the insurance required above. Limits of liability shall not be less than $3,000,000 for each occurrence and $3,000,000 in aggregate.
d. The Township shall be identified as an additional insured on all insurance policies referenced herein. No policy of insurance shall be cancelled without first providing the Township with at least thirty (30) days prior written notice of intent to cancel.
Certificates of insurance evidencing compliance with these requirements shall be provided to the Township. All policies other than workers compensation shall be written on an occurrence and not on a claims made basis.
15. Defense of Land Use Decision. In addition to the indemnification described above, Developer/Permitee shall reimburse the Township its reasonable attorneys’ fees incurred in defending any legal actions brought by third parties challenging the legality or enforceability of this Agreement or any portion thereof, on the issuance of any permits to Developer/Permitee by the Township for the Project. Unless it decides to refuse indemnification, the Township shall be entitled to indemnification from the Developer/Permitee. The Township shall notify Developer/Permitee in writing promptly upon discovering any claim entitling it to a land use defense reimbursement, but in no event later than thirty (30) days (or shorter if warranted to avoid prejudice or damage to Developer/Permitee) after receiving written notice of any action, lawsuit, proceeding, investigation or other claim against it which may give rise to a claim for a land use defense reimbursement to avoid prejudice or damage to Developer/Permitee. In the event Township fails to notify Developer/Permitee, within the aforementioned thirty (30) days, Developer/Permitee shall not be obligated to indemnify and defend the Township with respect to any such liability, action or claim, only insofar as such knowing failure to notify Developer/Permitee has actually resulted in prejudice or damage to Developer/Permitee. With respect to any third party action, lawsuit, proceeding, investigation or other claim which is subject to reimbursement under this section, Developer/Permitee shall be entitled to assume the control (with counsel of its choice, which counsel must be approved by the Township provided; however, such approval shall not be unreasonably withheld) the defense of such action, lawsuit, proceeding, investigation or other claims at Developer/Permitee’s expense, provided; however, that the Township shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose (the fees and expenses of such separate counsel to be borne by the Township) and to assert against any third party any and all cross claims and counterclaims the Township may have. If Developer/Permitee elects to assume the defense of any such claim, it may settle such claim in its sole discretion so long as either: (i) such settlement provides an unconditional release of the Township, or (ii) Developer/Permitee shall obtain the prior written consent of the Township (which consent shall not be unreasonably withheld). If Developer/Permitee elects to assume the defense of any claim, the Township shall fully cooperate with Developer/Permitee and its counsel in such defense.
16. Payment to Township. Developer/Permitee will pay to the Township ONE THOUSAND FIVE HUNDRED AND 00/100 DOLLARS ($1,500.00) per proposed megawatt for Wind Turbine Generators installed in the Township upon issuance of the Building Permit by the Township (the “Issuance or Notice Date”. Thereafter, Developer/Permitee will pay the Township ONE THOUSAND FIVE HUNDRED AND 00/100 DOLLARS ($1,500.00) per megawatt for Wind Turbine Generators actually installed in the Township (the ”Per Megawatt Payment”). Such payments shall be on an annual basis payable on the anniversary of the Issuance or Notice Date. Under no circumstances shall the Township receive less the ONE THOUSAND FIVE HUNDRED AND 00/100 DOLLARS ($1,500.00) per megawatt from Developer/Permitee. However, Developer/Permitee may receive a Credit, which shall be set off against the Per Megawatt Payment. “Credit” is defined as the amount of any payments related to the Wind Turbine Generators located in the Township paid by Developer/Permitee to any other governmental entity, for which such funds are actually (or are traceable to any amount) received by the Township. If the Credit is less than the Per Megawatt Payment, then the Per Megawatt Payment, then the Per Megawatt Payment will be reduced by the Credit. However, if the Credit is equal to or greater than the Per Megawatt Payment, no Per Megawatt Payment is payable to the Township. Pursuant to the above terms, Developer/Permitee specifically agrees that the Commonwealth may not impair the right to this payment by the passage of legislation, executive order or otherwise.
17. Field Representative and Site Manager. Developer/Permitee will be responsible for overseeing compliance with the conditions of this Agreement during the construction phase of the Project. Upon completion of construction, Developer/Permitee shall designate a contact person for the Township who will be responsible for overseeing compliance with the conditions of this Agreement for the duration of the Term of this Agreement. Developer/Permitee shall provide the names, addresses, daytime telephone numbers and emergency telephone numbers of any other designated field representative and site manager to the Township. The Township may make the telephone numbers available to local residents and officials. Developer/Permitee shall be entitled, upon prior written notice to the Township, to change the field representative or site manager, or make other changes in the contract information.
In addition, Developer/Permitee will make contact information available for the entity providing operation (monitoring) and maintenance services.
18. Inspections. Representatives of the Township shall be allowed to inspect the Wind Turbine Generator sites after providing not less than twenty-four (24) hours advance written notice to Developer/Permitee through its site manager or field representative as defined in Section 17, and to the property owner. Wildlife specialists, when accompanied by representatives of the Township, shall be allowed to inspect the Wind Turbine Generator sites annually for bird, bat and other wildlife kills. Provided however, during construction Developer/Permitee may limit the access to the Wind Turbine Generator to two (2) designated representatives of the Township, unless safety reasons mandate otherwise and/or the inspection is required by law. Any costs of inspection by any entity, including the Township, shall be borne by the Developer/Permittee.
19. Project Permit. Upon execution by both Parties to this Agreement, this document shall also constitute a permit for Developer/Permitee to proceed with the Project, subject to the requirements of this Agreement and the requirement of Developer/Permitee to obtain all other necessary permits and approvals as required by Federal, state, and local law, including, but not limited to, Township Subdivision and Land Development approval, FAA permits, Pennsylvania Department of Environmental Protection permits, and building permits.
20. Governing Law and Venue. This agreement shall be interpreted in accordance with and governed by the laws of the Commonwealth of Pennsylvania, without regard to the conflicts of law principles thereof. The Court of Common Pleas of Blair County, Pennsylvania, shall have jurisdiction/venue over any and all matters or disagreement between the Parties hereto arising out of interpretation of this Agreement or any matters herein set forth.
21. Relationship of Parties. The Parties understand and agree that no Party is an agent, employee, contractor, vendor, representative or partner of the other Party, that (except as expressly set forth in writing) no Party shall owe a fiduciary duty to any other Party and no Party shall hold itself out as such to third parties and that no Party is capable of binding the other Party to any obligation or liability without the prior written consent of the other Party. Neither the execution nor delivery of this Agreement, nor the consummation of the transactions contemplated hereby, shall create or constitute a partnership, joint venture or any other form of business organization or arrangement between the Parties.
22. Equality of Treatment. Developer/Permitee hereby covenants to provide Township equal treatment as is provided to all other municipalities within Blair County and other Counties having similar arrangements with Developer/Permitee and any of its parent entities and/or subsidiaries including all successors and assigns. During the term of this Agreement or any extension thereof, any section, clause or provisions which are modified, added or renewed in any Agreement with another municipal entity presently or hereafter included in or part of a Wind Farm may be incorporated into this Agreement at the sole discretion of the Township provided, however, that incorporation of any section, clause or provisions perceived to be more favorable to another entity shall also require incorporation of any section, clause or provisions which caused Developer/Permitee to provide such perceived favored status. Developer/Permitee shall forward information pertinent to the above process and the Township shall review same for purposes of acceptance or rejection. The Township shall give written notice of the decision to accept or reject, which acceptance/rejection shall not be effective until received by the Developer/Permitee.
23. Attorney’s Fees. If either party shall at any time be in default under this agreement and if the non-defaulting party shall institute a legal action or summary proceeding against the defaulting party based upon such default, then the losing party will reimburse the prevailing party fro its reasonable attorney’s fees and disbursements.
24. Immunity. Neither party hereto waives any rights or immunities arising out of and/or pursuant to any applicable governmental immunity, laws and/or statutes.
25. Compliance with Laws. Nothing contained in this Agreement shall provide or apply/infer that either party is authorized to engage in any conduct which is not in compliance with all federal, state, and local laws, rules and regulations that presently exist and/or are adopted/amended in the future.
26. Non-exclusive Remedy. No right or remedy herein conferred upon or reserved to either party is intended to be exclusive of any other right or remedy, and every right and remedy shall be cumulative and in addition to any other right or remedy given by this agreement or now or hereafter existing at law or in equity. The failure of either party to insist upon the strict performance of any obligations shall not be deemed a waiver thereof.
IN WITNESS WHEREOF, the parties have hereto caused this Agreement to be duly executed on the date set forth above.
ATTEST: TOWNSHIP OF FRANKSTOWN
_______________________________ By: __________________________________________
NAME OF DEVELOPER/PERMITEE
ATTEST OR WITNESS: