The following
comments are from Suzanne Albright of the Great Lakes Wind Truth organization.
The comments were made at the April 29, 2015 program opposing the Apex Clean
Energy LLC (Lighthouse Wind project) program held at the Barker, NY fire hall and
attended by about 230 people.
-I’m here to talk about the “Wind Energy Lease” that Apex
Clean Energy is offering
to you and your neighbors for the purpose of constructing a
wind power plant on
your farms and properties .
-I have been an anti-wind activist since 2009 when the New
York Power Authority
proposed a wind factory in the waters of Lake Ontario with
the commitment: they
“would not build this project where it wasn’t wanted”
-They were convinced it would be welcomed for the multiple
benefits they were
promising. Project has since been scrapped, in part because
it became
exceedingly clear- IT WAS NOT WANTED any place where
practical offshore of
counties bordering Lake Ontario WHEN property owners -
taxpayers learned what
a sham wind energy really is.
-I posed that question to Dan Fitzgerald of Apex on 2/4/15,
and he responded
they would “NOT BREAK LOCAL, STATE, FED. LAWS &
STAKEHOLDER INPUT
INCORPORATED. – I’m convinced: when you become familiar with
how Apex is
proposing to violate your rights, everyone of you will take
a stand in opposing this
travesty.
-What Apex calls a
lease= a 35 page EASEMENT that Apex has
generated with NO
INPUT from the property owner, the landlord, a document that
basically permits
Apex, and whatever unknown company ultimately buys the lease
from them, to
turn your property into an industrial power plant for 49
years.
-In fact, the lease is not directly between you and Apex. It
is between you and one
of several Apex LLCs, separate limited liability companies
formed by Apex to own
this project. So, there is already the potential for several
different tenants…
-So, let’s look- at a few highlights of this document in
simply stated terminology -
then you decide whether this is something you are interested
in, something you
could live near, whether you believe Apex is a company you
want to do business
with, & whether you believe that the terms of this
proposal fits into the culture
of your towns. And let’s not forget- Does it violate any
ordinances or laws?
I call this document “The Surrendering and desecration of
Your Property”
THE SURRENDERING AND DESECRATION OF YOUR PROPERTY
Highlights of a Wind Energy Lease Offered to Somerset and
Yates Landowners
1.4: The Development Period of the Lease begins on the
date the lease is signed and
could last up to seven years. During this initial term of the Lease, the
rent paid is $750
annually, or $10 per acre if the Lease covers more than 75
acres (see 1.8).
(YOUR PROPERTY COULD BE TIED UP FOR SEVEN YEARS AND THE ONLY
INCOME YOU WILL RECEIVE IS $750 PER YEAR IN RENT.)
4.1.2: They can construct, replace, relocate and operate
any and all equipment
WITHOUT LIMITATION (inc. turbine generators, towers, but
also above and
underground electrical lines, substations, interconnection
facilities, operations and
maintenance buildings, transformers, roads, fences, Met
Towers, “machinery”, office
and guest facilities, staging areas, power generation
facilities, and more.
(SO MUCH FOR LIVING IN AN AGRICULTURALLY OR RESIDENTIALLY
ZONED DISTRICT!
POWER SUBSTATIONS? - ATTACHMENT #1.-POWER SUBSTATION! THAT
MIGHT BE RIGHT NEXT TO A MAINTENANCE BUILDING, A STAGING AREA, OR ANY OTHER OF
THESE ITEMS!)
4.1.4: Generate audio, visual and electrical effects, as
well as shadow flicker, radio
interference, and “other effects”. Rotors of wind turbines
on adjacent properties can
overhang onto YOUR property.
(BUT DON’T WORRY, ACCORDING TO THEM, NONE OF THIS WILL HARM
OR EVEN BOTHER YOU, YOUR LIVESTOCK, OR YOUR NEIGHBORS, WELL, EXCEPT MAYBE THE
“OTHER AFFECTS”, TV??
And, IF YOUR NEIGHBOR ALSO SIGNS ON, THEY DON’T HAVE TO
WORRY ABOUT SETBACKS FROM YOUR PROPERTY LINE!)
4.3: They will have the right of access “over and across
ALL portions” of your property.
(THAT’S PRETTY STRAIGHT FORWARD. BE CAREFUL- FAMILY PICNICS
OR EVENTS SUCH AS A GRADUATION PARTY. THEY MIGHT NEED TO ACCESS YOUR BACK YARD
THAT DAY WITH BULLDOZERS OR CEMENT TRUCKS.)
5.10: You have the right to audit the computations of
their Operating Rent to you EVERY
TWO YEARS only, by an accountant you choose, ONLY at their
site (could be anywhere in
the country), and ALL AT YOUR EXPENSE. No copy can be made
of the records and
documents reviewed in the audit and a confidentiality
agreement must be signed,
presumably so you cannot share the results of the audit with
your neighbors.
(THIS IS A BIG ONE, IN MY OPINION. THEY ARE CONTRACTED TO
PAY YOU AN OPERATING RENT, AND THERE IS A LENGTHY CALCULATION OF THIS IN THE
CONTRACT, BUT FOR THE PURPOSE OF THIS TALK, I WANT TO REVIEW THE AUDIT PROCESS.
YOU, NOT THEM, CAN AUDIT THE BOOKS EVERY 2 YEARS - AND YOU CHOOSE THE
ACCOUNTANT, BECAUSE YOU PAY FOR IT- NOT THEM!
FURTHER, BY YEAR 2, WHO KNOWS WHO WILL OWN THIS “LEASE”, OR
WHERE THEY KEEP THEIR RECORDS. CAN YOU AFFORD TO HIRE AN ACCOUNTANT, SEND HIM
OR HER TO OREGON, PAY ALL EXPENSES? AND THE CONFIDENTIALITY AGREEMENT PREVENTS
A GROUP OF NEIGHBORS FROM SHARING THE COSTS OF ONE AUDIT. A REPUTABLE BUSINESS WOULD AUDIT THEIR OWN BOOKS
ANNUALLY AT THEIR EXPENSE AND PROVIDE A COPY OF THE AUDIT TO YOU, UNLESS THEY
WANT TO MAKE AN AUDIT UNFEASIBLE.)
6.1-6.2: They state they will pay their bills and not
permit any liens against the property.
HOWEVER, if they fail to comply and a lien is then enforced
against your property, you
have the right to pay the lien(s) yourself and bill them for
your expenses.
(IN OTHER WORDS, THEY MIGHT NOT PAY THEIR BILLS, AND IN
FACT, APEX HAS ALREADY PUT LANDOWNERS IN THE POSITION OF HAVING LIENS FILED
AGAINST THEIR PROPERTIES, AND IF NOT SETTLED, THEY WILL BE UNABLE TO OBTAIN A
CLEAR TITLE TO THEIR LAND AND HAVE THEIR CREDIT DESTROYED. FURTHER, THE LIEN
HOLDER CAN FILE A LAWSUIT TO FORECLOSE THE LIEN, AND THE LANDOWNER WILL BE
LIABLE!)
6.7: They will reimburse you ONE TIME for ALL damage to
your land, crops and livestock
over the life of this lease. Further, they are NOT
responsible for soil compaction, and
therefore the inability to grow crops or raise livestock in
the future.
(THEY CAN COMPACT YOUR SOIL, BUT THEIR ROADS ON YOUR
PROPERTY WILL BE POSTED, AND IF YOU CROSS THEIR ROADS AND CAUSE ANY DAMAGE, YOU
WILL REIMBURSE THEM FOR THE COST OF ANY REPAIRS.)
7.6.3: You cannot hold them responsible for the
“generation, manufacture, production,
use, storage, release, discharge, disposal, transportation
or presence of any substance”
that is NOW or in the future classified as hazardous or
toxic, on or under your land, even
if such substances are now safely buried or encapsulated and
they disturb it during their
construction work! In fact, in such case, YOU WILL HAVE TO
HAVE THE SUBSTANCES
REMOVED AT YOUR EXPENSE.
(IS THAT UNBELIEVABLE?
IF GENERATIONS OF AGRICULTURAL CHEMICALS SUCH AS FUELS, PESTICIDES,
SOLVENTS, HERBICIDES, FUNGICIDES OR VETERINARY CHEMICALS ARE FOUND IN THE SOIL,
YOU WILL HAVE IT REMOVED AT YOUR EXPENSE? I CAN ONLY SPEAK FOR THE ALBRIGHT
FARM, BUT I CAN TELL YOU THAT 2-3 GENERATIONS AGO, STORAGE AND DISPOSAL
OF THOSE SUBSTANCES WAS NOT STRICTLY CARRIED OUT OR
MONITORED.)
7.7: If you still have a mortgage on your property, you
will be required to obtain a “non
disturbance and subordination agreement” from your lender as
requested by Apex in its
sole discretion. Such
agreements basically state that your lender will not interfere with
the terms of this lease.
The lease does not indicate who has to pay the costs for
obtaining these agreements, which means that the property
owner will have to pay. At
the very least, this could be expensive. Second, if this
project violates the terms of your
mortgage, you could be in default and your lender could
foreclose your mortgage!
(THIS CLAUSE IS PRETTY COMPLICATED, BUT BASICALLY MEANS THAT
IF YOU ARE FORCED INTO FORECLOSURE BY YOUR LENDER, THEIR RIGHTS, THE WIND
LEASE, WILL BE PRESERVED, (EVEN WHEN THERE IS A NEW OWNER.)
9.1- 9.2 and 9.6: At any time, without your consent, they
can sell this lease to ANYONE,
and to multiple other entities. They could sell each turbine
to someone different,
leaving you with multiple tenants! Apex will then be
released from ALL obligations and
liabilities! They are now gone, and you are left with
multiple unknown tenants.
(APEX HAS A HISTORY OF SELLING THESE PROJECTS, EVEN BEFORE
THEY ARE FULLY BUILT. YOU HAVE NO SAY IN WHO IT IS SOLD TO, EVEN IF IT’S A
SHELL CORPORATION WITH NO OTHER ASSETS. THEY CAN SUBDIVIDE YOUR PROPERTY TO AS
MANY NEW OWNERS AS THERE ARE TURBINES.)
10.1- 10.6: The tenant has the right to borrow money to
complete the project and to
give their lender a mortgage as security for that loan
without your consent. If there are
multiple tenants as described previously, there could be
multiple new mortgages
encumbering your property. If the new tenant(s) defaults,
there could be a foreclosure
sale and ANYONE can bid in and take over the lease. You have
no ability to terminate
the lease even if a tenant files for bankruptcy if the rent
is paid. However, there could
be other defaults by the tenant that “shall be deemed to
have been waived by
landlord.”
(SO, YOU COULD HAVE MULTIPLE TENANTS, AND MULTIPLE NEW
MORTGAGES ON YOUR PROPERTY. THESE
ADDITIONAL ENCUMBRANCES WILL LIKELY HURT YOUR ABILITY TO SELL YOUR PROPERTY OR
EVEN PLACE A NEW MORTGAGE ON YOUR PROPERTY AT ANY TIME OVER THE ENTIRE LEASE
TERM, 49 YEARS!)
13.6: This Waiver of Subrogation clause states that if
your insurance carrier pays a claim
and there would be recourse against the tenant and, therefore,
its insurance company
because the tenant caused the event that resulted in the
claim, your carrier will not be
permitted to seek reimbursement from them or their
carrier. As a result, your insurer
will possibly drop you! And if they don’t, be sure that your
premium will go up. Why is
this clause not subject to you being able to obtain
affordable insurance?
(BECAUSE THE ODDS OF GETTING A NEW POLICY ARE NOT GOOD. LOOK ON THE MANY ANTI-WIND WEBSITES. THERE
ARE MULTIPLE EXAMPLES OF INSURANCE COMPANIES DROPPING LANDOWNERS WHEN THEY
CONTRACT WITH WIND COMPANIES- ATTACHMENT #2- ONE OF THOSE CANCELLATION LETTERS.
WOULD YOUR LENDER ALLOW YOU TO GO WITHOUT LIABILITY INSURANCE? WOULD YOU GO
WITHOUT IT EVEN IF YOU COULD?)
13.7- 13.8: You must waive your constitutional right to a
jury trial in regard to ANY
litigation based on this lease. And if the tenant is found liable in any such
lawsuit, you
must accept an “actual” damage award. You are waiving your right to collect any
“PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY NATURE
WHATSOEVER.”
(WHATSOEVER? YES, THAT’S A QUOTE. THE BIG WEALTHY WIND
COMPANY WILL NOT HAVE TO PAY PUNITIVE DAMAGES. WHY WOULD ANYONE AGREE TO THIS?)
15.3: When the lease terminates for any reason, the tenant
has up to 18 months to
“restore” your property (“to the extent it is commercially
reasonable”). The lease has
terminated, so they don’t have to pay you rent for those 18
months! Further, if they DO
NOT restore your property, or decommission the project, YOU
can pay to have it done
yourself (which could be a $1 million/turbine expense) and
try to find them to seek
reimbursement, “LESS THE SALVAGE VALUE OF THE OF THE WIND
FACILITIES”. Isn’t it all
salvage at that point?
(THEY ADMIT THAT THEY MIGHT WALK AWAY WITHOUT REMOVING THE
WIND FACTORY AND RESTORING YOUR PROPERTY. THIS MAKES SENSE, AS THEY PLAN ON
SELLING IT TO WHOEVER THEY CAN TO MAKE A PROFIT, AND IT GIVES THE UNKNOWN NEW
OWNER AN “OUT” WHEN THEY CAN NO LONGER MAKE A PROFIT OR SELL IT TO SOMEONE
ELSE- WHEN THE TURBINES FAIL OR AGE OUT. THERE IS NO INCENTIVE FOR THEM TO
RESTORE YOUR PROPERTY AND THERE IS NO RISK OF PUNITIVE DAMAGES IF THEY FAIL TO
DO SO.)
16.1: This is the confidentiality clause, which will
“survive the expiration of this lease”.
(SO, IF YOU EXPOSE THE NEW OWNERS FOR THE CARPETBAGGERS THEY
ARE, THEY CAN SUE YOU FOR DIVULGING THE TERMS OF THIS LEASE, WHICH THEY HAVE
VIOLATED, WHICH ARE FOREVER CONFIDENTIAL.)
This is a small sample of what they call a “WIND ENERGY
LEASE”. In reality, this is a contract
that amounts to the end of your property as you know it for
the next 49 years, or forever. I
have barely touched on the many terms and conditions of this
document tonight. It is even
more complicated, and you need to be aware of all the
possible ramifications of signing it, not
just how much rent you might receive.
We could only hope that your attorney would discourage you
from signing this contract.
And if you have an existing mortgage on your property, you
should also consult with your
lender to determine whether entering into such a lease would
be a default under your
mortgage and therefore could result in a foreclosure against
you.
Ultimately, if you do sign such a lease, your neighbors who
don’t will likely hate you. The
wind company will eventually be one or multiple unknown
absentee tenants who you might
never meet, and who do not care about you or your property.
If you live until the end of the
“lease”, you will very likely be left with a filthy,
industrial junkyard.
I have here, an Apex lease that has been sent to me by an
opposition leader to the Kent County
Maryland project Apex is proposing there. My husband was
kind enough to compare the 2
leases, and that document is here for you to review. If you
don’t already detest Apex, I think
you will when you see the striking differences between these
two lease offerings.
COMPARISON OF TWO CURRENT APEX LEASES: APRIL, 2015
Niagara County, NY vs. Kent County, Maryland
We have been able to obtain a copy of the lease that Apex is
using for their proposed wind
project in Maryland.
That lease is significantly better for the property owner than their
proposed lease for the Niagara County project, in several
ways.
Rent differences (could add up to a lot of money over the
lease term):
1. Pre-installation
rent:
2. Minimum operating rent:
3. Installation fee:
4. Percentage rent lease rate (multiplied times gross
revenues to calculate rent):
Maryland – minimum $1,000
New York – minimum $750
Maryland – minimum $5,000 per MW of nameplate capacity of
wind turbines
New York – minimum $4,000 per MW of nameplate capacity of
wind turbines
Maryland – minimum $2,500 per MW of nameplate capacity of
wind turbines
New York – minimum $2,000 per MW of nameplate capacity of
wind turbines
Maryland – 3% during 1st 10 years, 4% 2nd 10 years, 5% 3rd
10 years
New York – 2.5% during 1st 10 years, 3% 2nd 10 years, 3.5%
3rd 10 years+
Permission required for certain installations:
In Maryland, the owner’s consent is required prior to the developer
installing transmission
substations or operations and maintenance facilities on your
property (11.14 C). No such
consent is required for your property.
Overhang of turbines on adjacent properties:
In Maryland, rotors of wind turbines located on adjacent
properties cannot overhang the
owner’s property (11.14 A).
Rotors are permitted to overhang your property.
Glare / shadow flicker problems:
In Maryland, if the property owner experiences problems with
glare or shadow flicker from the
wind turbines, the developer is required to mitigate those
problems (4.6). There is no such
requirement in your proposed lease.
Assignment requirements:
In Maryland, if the developer wishes to transfer ownership
of its lease to another party, the
assignee must demonstrate its ability to perform all the
terms of the lease before the developer
is relieved of its obligations under the lease (7.2). There is no such requirement under your
proposed lease.
Audit differences:
In Maryland, the property owner has the right to merely
request copies of the information that
would verify the percentage rent amount paid by the
developer, up to once every two years .
In your proposed lease, you must hire and pay a CPA firm to
visit the tenant’s office to conduct
an audit of their books and records, up to once every two
years.
Restoration timeframe:
In Maryland, the developer must restore the owner’s property
to its original condition within 8
months of lease termination (10.3). In your proposed lease, the tenant has up to
18 months to
restore the property.
Restoration security:
In Maryland, the developer must either maintain an escrow
account or a performance bond in
an amount equivalent to the estimated costs to restore the
owner’s property once the lease
terminates, as determined by an independent engineer. In your proposed lease, the only
restoration security is whatever may be “required by any
applicable permits or government
rules or regulations”, which could be nothing! Yes, in
Niagara and Orleans Counties, you will be
relying on your government!
(CLOSING): IF YOU LOOK AT THE TOWN OF SOMERSET WEBSITE
HOMEPAGE, THE
LAST 2 SENTENCES READ, "AS YOU TRAVEL THROUGH OUR TOWN, YOU WILL
MEET OUR FRIENDLY RESIDENTS AND BUSINESS FOLKS. YOU WILL LOVE THE
HOMETOWN FEEL OUR SMALL COMMUNITY OFFERS, A COMMUNITY WHERE WE
CARE FOR ONE ANOTHER."
IF THIS PROJECT COMES TO FRUITION, THE TOWN MIGHT NEED TO
REWRITE
THOSE LAST 2 SENTENCES TO READ, “AS YOU TRAVEL THROUGH OUR TOWN,
YOU WILL MEET OUR ANGRY, HOSTILE RESIDENTS. YOU WILL BE INTIMIDATED,
POSSIBLY EVEN FRIGHTENED, BY THE ANIMOSITY FOLKS EXHIBIT TOWARD ONE ANOTHER,
A COMMUNITY FOREVER DIVIDED."
