First Wind settlement proposal on Sheffield Wind

In August, 2007, First Wind, LLC (formerly known as UPC Vermont Wind, LLC) received approval from the Vermont Public Service Board to erect sixteen 2.5 megawatt wind turbines within the community of Sheffield, Vermont. First Wind also received a stormwater permit issued by Vermont's Agency of Natural Resources. The permit was appealed by a group of individuals and parties who argued before the Vermont Environmental Court that the permit failed to identify the full extent of the wetland impacts.

In advance of the Environmental Court proceedings, First Wind's Kurt Adams approached the appellants seeking settlement discussions. The settlement document can be downloaded by clicking on the link at the bottom of the page. No agreement was reached. The trial proceeded as planned.

DRAFT – Term Sheet (as of 11/24/09)

This term sheet has been prepared by Vermont Wind in connection with settlement discussions with a group of individuals and parties concerning the Sheffield Wind Project, including appellants to the appeal of Vermont Wind’s Stormwater Construction Permit (Environmental Court, No. 252-10-08 Vtec) (hereinafter referred to as the “Group”).   At present, the Group members include [NAMES REDACTED]

This term sheet does not purport to contain all legal provisions that would be needed in a final settlement agreement.

All discussions, communications, offers of compromise and documents exchanged with the Group are to held in confidence, pursuant to Confidentiality Agreements previously executed by Group participants, are to remain confidential and are for purposes of settlement discussions only, and shall not be disclosed to any other party or entity (except for the party's attorneys or accountants) and shall not be used as evidence by or against the other party in any further proceedings relating to the Project.  Any agreement(s) reached by the parties to settle, in whole or in part, the disputes shall be reduced to writing and signed by the parties.

1. Stormwater

• Stabilize all disturbed earth within 7 days of initial disturbance (permit allows 14 days to stabilize).

• Limit earth disturbance to 5 acres at any one time (permit allows 7 acres).

• Vermont Wind to pay for a third party environmental monitor to conduct 1 day of monitoring per week during construction.  The Group shall have the right to choose which day the monitoring will occur by providing 24 hours advance notice to the monitor.  Such monitor would have access to inspect the environmental conditions at the site, but would not have “stop work” authority. This monitor would be free to report any environmental observations to VT ANR.  The monitor will collect pH, turbidity and temperature readings on a weekly basis at 6-8 locations across the five watersheds within the Project.

• Vermont Wind will create a detailed construction phasing plan that the contractors will be required to follow during construction.  The phasing plan will describe the sequencing of natural resource protections that will be utilized during major earth disturbance activities. 

• Benchmark monitoring of streams within the 5 watersheds of the Project was conducted by Vermont Wind.  The written information was compiled and has been shared with theStormwater Appelants.

Blasting Plan

• A comprehensive blasting plan will specify how blasting will be managed during the Project construction.  The blasting plan will include how and when blasting mats, “charge limits”, and pre-blast surveys will be utilized.  In addition, Vermont Wind will conduct a pre-blast survey of structures or wells that are within 2,640 feet of any proposed blasting associated with the Sheffield Wind Project Vermont Wind and the Group will in good faith work together prior to the settlement to create a communication plan that provides notice of blasting activity.  An information session will be held for the public no later than 1 month prior to construction to describe the blasting plan.   All blasting at the Project will be done in accordance with the Plan.

• After execution of a settlement agreement, the detailed blasting plan will be provided to Group.

2. Sound Protocol

• Vermont Wind to pay for a mutually agreeable independent 3rd party sound expert with demonstrated qualifications and experience in monitoring sound at utility-scale wind projects.  Vermont Wind will consult with this expert when developing the sound monitoring protocol which will be developed prior to the commencement of operations of the Project and submitted to the Public Service Board as required under the CPG.  If an agreement on the sound protocol can’t be reached, a Group member that presently has party status in the PSB proceeding may file comments on the sound protocol with the VT PSB during the sound protocol comment period, utilizing the work of the 3rd party sound expert.  In addition, for 2 years from the date the Project commences commercial operations, Vermont Wind will send this 3rd party expert all sound monitoring data collected during the first year of operational monitoring and after any monitoring required to respond to complaints.  This data will be sent to the 3rd party expert within 10 business days of Vermont Wind’s filings to the PSB.

3. Sound Easements

• Vermont Wind will enter into sound easements with members of the Group which will include a financial component based on each Group member’s proximity to the Project. 

• Vermont Wind may enter into sound easements with persons who are not members of the Group. 

• The total financial component for all sound easements shall not exceed $500,000 net present value, to be apportioned among the easement grantors in a mutually agreeable fashion and paid in annual installments over 20 years.

• Sound easements for all signatories will include non-disturbance provisions (see proposed language in section 10.b. below).

• All financial terms of the sound easements shall remain confidential.  All sound easements will run with the land, will be binding on the easement grantors’ successors and assigns, and will be recorded in the municipal land records.

4. Sound-related Health Claims

•   (see proposed language in Section 10.e. below)

5. Reimbursement of Legal Fees

• Vermont Wind agrees to pay reasonable legal costs incurred by the Group that are associated with a settlement agreement, if an agreement is reached as further set forth in Section 9 below.

• Where either Vermont Wind or the Group (or Group member) seek enforcement of the settlement agreement in court due to a material breach, the prevailing party shall be entitled to reasonable legal costs to the extent they exceed $5,000.

(see proposed language in Section 10.f.  below)

6. Future Expansion

• Vermont Wind will not add additional turbines beyond 16 on its leased property.  In addition, Vermont Wind will prohibit the use of any infrastructure associated with the Sheffield Project by any other wind development company for 47 years to the extent Vermont Wind controls the land uses under the existing leases.

(see proposed language in Section 10.g. below)

7. Enforcement of Settlement Agreement

• The Parties agree to memorialize settlement terms into an agreement (contract) that will be enforceable in a Vermont court under Vermont law.

8. Future Actions of Settling Parties

• The Group and its members cannot oppose the Vermont Wind or the Project, but there are no restrictions regarding other projects.

• Non-disturbance/non-disparagement to cover all settling parties, for a period of twenty years.

• All terms of the Settlement Agreement to remain confidential.

• Vermont Wind’s payment obligations shall commence at the start of commercial operation of the Project.

• All offers and terms are contingent upon the dismissal of the Stormwater Construction Permit appeal by 12/31/09.

(see proposed language in Section 10.a.-e. and h. below)

9. Specific Provisions to be included in a Settlement Agreement to Implement these Terms 

a. Dismissal of Stormwater Appeal.  Within 5 days of execution of theSettlement Agreement, all appellants shall dismiss their appeals of the Construction Stormwater Permit and its amendment, with prejudice, by filing a Joint Motion for Voluntary Dismissal and Proposed Order in Environmental Court to be attached to this Agreement.

b. Non-Disparagement/Non-Disturbance.  For a period of twenty years from the date of the Settlement Agreement, The Group and each Group member shall take no action which would directly or indirectly tend to oppose, could reasonably be expected to reflect unfavorably upon, or otherwise adversely affect the Sheffield Wind Project, Vermont Wind or any entity controlling, under common control with, or controlled by Vermont Wind.  The Group and each Group member shall not directly or indirectly support, participate in, finance, or otherwise assist in any manner in any appeal of, objections to, or challenges to the Project (so long as the Project remains substantially as approved and so long as the Project is in compliance with the conditions of the CPG governing sound levels), including but not limited to Governmental Approvals that have or will be obtained or required for the Project. 

c. Governmental Approvals.  It is understood and agreed that Vermont Wind has and may need to obtain certificates, permits, zoning changes or variances, easements, rights of way, and/or other federal, state or local authorizations, approvals, guarantees, grants, or loans (collectively, the "Governmental Approvals") from federal, state and/or local authorities for the construction and operation of the Sheffield Wind Project.   The Group and each Group member shall not interfere with, obstruct or in any way inhibit Vermont Wind in its efforts to obtain any such approvals assuming the Project remains substantially as approved and so long as the Project is in compliance with the conditions of the CPG governing sound levels.

d. Release of Claims.  As of the date hereof, the Group and each Group member, their successors and assigns do hereby release and forever discharge Vermont Wind from any action, claim, suit or proceeding in equity, law and/or administrative proceeding that the Group and each Group member individually or collectively may now have or may have in the future against Vermont Wind with respect to the past, present, or future planning, construction, operation, maintenance, or decommissioning of the Sheffield Wind Project, including but not limited to any such actions, claims, suits or proceedings arising from or relating to (i) impacts that otherwise may be enforceable under applicable zoning, planning or other federal, state or local permitting requirements or other authorizations; or (ii) construction, or operational impacts to or upon the Group and each Group member or their respective properties and/or their successors and assigns (other than such impacts as may be caused by or arise from the negligence or gross negligence of Vermont Wind or its affiliates). This provision is subject to the Reservation of Rights articulated in Section 10.e..

e. Reservation of Rights.  Notwithstanding any other provision of the Settlement Agreement, including the Release of Claims provision, but subject to the notice and cure provision below, the following rights are hereby reserved: (i) enforcement of this Agreement in Vermont Superior Court, in the event of Vermont Wind’s or the Group’s (or a Group member’s) alleged material breach; (ii) notifying a regulatory agency of any alleged material noncompliance with Governmental Approvals for the Project; or (iii) bringing an action in a judicial court of competent jurisdiction as long as such action is limited solely to damages directly related to demonstrable human health impacts directly caused by emissions from wind turbines at the Project that exceed the limits required by the Public Service Board’s CPG .

The Group or Group member, as the case may be, shall notify Vermont Wind in writing no less than 60 days prior to taking any action pursuant to this Reservation of Rights provision, and shall afford First Wind the opportunity to cure the alleged breach, non-compliance, or other concern or claim being raised by the Group or Group member. In the event the breach, non-compliance, or other concern or claim is cured, the Release of Claims provision shall apply and the Group (or Group member) shall not retain any rights under the Reservation of Rights provision with respect to that matter.

f. Attorneys’ Fees.  If all appellants file for dismissal of the stormwater construction permit appeal by 12/31/09, Vermont Wind agrees to pay the Group’s reasonable attorneys’ fees associated with the negotiation and execution of the Settlement Agreement. 

In the event the Group or Vermont Wind seek to enforce alleged material breaches of this Agreement in a judicial forum, after providing for an opportunity to cure pursuant to section 10e  above, the non-prevailing party shall pay to the prevailing party reasonable attorneys' fees, costs and expenses within 30 days of the court decision.

g. Future Projects in Sheffield, Barton or Sutton.  Vermont Wind hereby agrees to relinquish all leasehold and other rights that it may have on property within the Towns of Sutton, Barton or Sheffield that could be utilized for a future wind project development, including but not limited to land on Hardscrabble Mountain in Sheffield.  Provided, however, that Vermont Wind and its successors and assigns shall retain the right to repower the Sheffield Wind Project at the end of its useful life with up to 16 wind turbines, occupying a project footprint that is substantially similar to the Sheffield Wind Project as presently approved, without limitation on the repowered facility’s nameplate capacity, and with any necessary project infrastructure including but not limited to substation(s), O&M facilities, laydown areas, and electrical collection or transmission lines.

h. Confidentiality.  Vermont Wind and the Group and each Group member agree that the Settlement Agreement shall remain Confidential and shall not be released to any non-signatory, including but not limited to any court or any local, state, or federal governmental authority.  Provided, however, that the Agreement in its entirety may be filed under seal in a judicial proceeding when necessary to enforce the terms of the Settlement Agreement.

All financial terms associated with sound easements executed pursuant to the Settlement Agreement shall remain confidential as provided above, and such easements shall be filed with the municipal land records in a form that maintains such confidentiality.