17-04-06. Requirements for wind easements and wind energy leases
1. In a wind easement and a wind energy lease, the easement and lease:
a. Must be delivered to the property owner with a cover page containing the
following paragraph with the correct term of years in the blank and in at least
sixteen-point type:
Special message to property owners
This is an important agreement our lawyers have drafted that will bind you
and your land for up to ________ years. We will give you enough time to
study and thoroughly understand it. We strongly encourage you to hire a
lawyer to explain this agreement to you. You may talk with your neighbors
about the wind project and find out if they also received a proposed contract.
You and your neighbors may choose to hire the same attorney to review the
agreement and negotiate changes on your behalf.
b. May not be executed by the parties until at least ten business days after the first
proposed easement or lease has been delivered to the property owner.
c. May not require either party to maintain the confidentiality of any negotiations or
the terms of any proposed lease or easement except that the parties may agree
to a mutual confidentiality agreement in the final executed lease or easement.
d. Must preserve the right of the property owner to continue conducting business
operations as currently conducted for the term of the agreement. When a wind
energy facility is being constructed and when it is completed, the property owner
must make accommodations to the developer, owner, or operator of the facility for
the facility's business operations to allow the construction and operation of the
wind energy facility.
e. May not make the property owner liable for any property tax associated with the
wind energy facility or other equipment related to wind energy generation.
f. May not make the property owner liable for any damages caused by the wind
energy facility and equipment or the operation of the generating facility and
equipment, including liability or damage to the property owner or to third parties.
g. Must obligate the developer, owner, and operator of the wind energy facility to
comply with federal, state, and local laws and regulations and may not make the
property owner liable in the case of a violation.
h. Must allow the property owner to terminate the agreement if the wind energy
facility has not operated for a period of at least three years unless the property
owner receives the normal minimum lease payments that would have occurred if
the wind energy facility had been operating during that time. For the purposes of
this subdivision, the term "normal minimum lease payments" means a payment in
the lease or easement called a "base amount" or "minimum payment", or similar
language, or if this language is not provided for in the lease or easement,
payments at least equal to the periodic payments received by the property owner
in the last calendar year that the wind energy facility was in full operation.
i. Must state clearly any circumstances that will allow the developer, owner, and
operator of the wind energy facility to withhold payments from the property owner.
2. The owner of the wind energy facility shall carry general liability insurance relating to
claims for property damage or bodily injury arising out of the construction or operation
of the wind energy facility project site and may include the property owner as an
additional insured on the policy.
3. If the terms of the wind easement or wind energy lease are not in accordance with this
section, the court may reform the easement or lease in accordance with this section,
void the easement or lease, or order any relief allowed by law.
