Case No.: U-16536
Exhibit A-5 (DBK-1)
Witness: DBKehoe
Date: May, 2011
Page: Page 1 of 14
WIND FARM EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT ("Agreement") is made as of __________________, 20_____ between
________________________________________________________________ ("Grantor", whether one or
more) and CONSUMERS ENERGY COMPANY, a Michigan corporation, One Energy Plaza, Jackson, Michigan
49201 ("Grantee").
1.

Grant of Easement. In consideration of the payment by Grantee to Grantor referred to in Section
3.1, below, the receipt of which Grantor hereby acknowledges, Grantor hereby conveys and
warrants to Grantee the easement and right to enter upon, use and occupy the land described in
Exhibit A, attached hereto and made a part hereof (the "Easement Premises") for the purpose of
constructing, operating, using, maintaining, repairing, renewing, re-powering, upgrading,
improving, inspecting, removing and replacing: (i) one or more "Wind Turbines" (as defined
below); and/or (ii) any or all "Associated Facilities" (as defined below).

2.

Definitions.
As used herein, the following capitalized terms shall have the following set forth meanings, it being
understood that such defined meanings shall, where relevant, extend to both singular and plural usages
of such terms and to use of other grammatical forms of such terms:
2.1

"Annual Payment" has the meaning set forth in Subsection 3.2(d).

2.2

"Associated Facilities" means any improvements, structures, fixtures, equipment and
facilities, other than Wind Turbines themselves, that Grantee may deem necessary or
useful in support of or in connection with constructing, operating, using, maint aining,
repairing, renewing, re-powering, upgrading, improving, inspecting, removing and
replacing any Wind Turbine(s) (whether Wind Turbine(s) actually located on the
Easement Premises, or Wind Turbine(s) located on Other Wind Farm Site(s), or both).
Associated Facilities may include but are not necessarily limited to access drives,
Meteorological Towers (as defined below), overhead electric and/or communications
lines (which may include poles, pole structures, wires, cables, guys, anchors and other
facilities), underground electric and/or communications lines (which may include wires,
cables, conduits, vaults, pad mounted surface equipment, risers and other facilities),
transformers, Substations (as defined below), communications equipment, control
equipment, fences, lighting and equipment storage sheds, pads or other areas.

2.3

"Commercially Generated Power" means electricity actually generated by a Wind Turbine for
commercial distribution and sale. The quantity of Commercially Generated Power actually
generated by any particular Wind Turbine will, for purposes of this Agreement, be determined
by Grantee at the point of Grantee's delivery of such power into the commercial energy market,
using metering and communication equipment of such type(s) and placed in such location(s),
and using such protocols, as Grantee may determine.

2.4

"Commercial Operation Date" means, for any specific Wind Turbine, the date (as reasonably
determined by Grantee) on which all of the following have been accomplished: (i) construction
of such Wind Turbine (together with all Associated Facilities needed for the commercial
operation of that Wind Turbine) is complete; (ii) said Wind Turbine (together with said
Associated Facilities) has been fully and successfully tested as Grantee deems necessary to
place such Wind Turbine into commercial operation; and (iii) Grantee has, in fact, placed said
Wind Turbine in commercial operation for the production of Commercially Generated Power.

2.5

"Easement Premises" has the meaning set forth in Section 1 hereof.
Page 1

 Case No.: U-16536
Exhibit A-5 (DBK-1)
Witness: DBKehoe
Date: May, 2011
Page: Page 2 of 14

2.6

"Energy Value - Fixed Component" means Fifteen Dollars ($15.00) per megawatt-hour.

2.7

"Energy Value - Variable Component" means, for any particular calendar month of a particular
Operating Year, an amount (expressed in dollars and cents per megawatt-hour) equal to the
average of the MISO Day-Ahead Hourly Market Prices at the Michigan Hub over the course of
that entire calendar month. Said MISO Day-Ahead Hourly Market Prices at the Michigan Hub
are expressed in dollars and cents per megawatt-hour, and are announced by MISO for each
hour of each calendar day on the day immediately preceding the calendar day in question. To
compute such average for a particular calendar month, the hourly figures for each hour of each
calendar day of that calendar month will be added together and divided by the total number of
hours in that calendar month, with the result being rounded (in such manner of rounding as
Grantee determines) to the nearest cent.
In a case where the Commercial Operation Date for a particular Wind Turbine falls other than on
the first day of a calendar month, or the date on which Grantee permanently shuts down,
retires and removes a particular Wind Turbine falls other than on the last day of a calendar
month, the "Energy Value - Variable Component" for that calendar month will nonetheless be
computed based on the entire calendar month in the manner indicated above.
In the event that MISO (or its successor(s)) cease to determine and announce such Day-Ahead
Hourly Market Prices at the Michigan Hub, or the nature of or basis for the computation thereof
by MISO (or its successor(s)) materially changes, as determined by Grantee in good faith, then
Grantee will identify another electric energy market price indicator that, in Grantee's good faith
judgment, most nearly reflects the electric energy market pricing concepts now reflected by
MISO Day-Ahead Hourly Market Prices at the Michigan Hub, and, thereupon, such other
indicator will be by Grantee to determine "Energy Value - Variable Component" hereunder.

2.8

"Meteorological Tower" means a tower (which may be guy-wire supported) upon which wind
and weather measurement equipment, and/or instrumentation to detect and/or measure birds,
bats or other wildlife and/or other environmental conditions, along with associated
communications equipment and/or other instrumentation, is mounted.

2.9

"MISO" means Midwest Independent Transmission System Operator, Inc., and its
successors.

2.10

"Operating Year" means, with respect to any particular Wind Turbine, the calendar year in
which that Wind Turbine's Commercial Operation Date occurs, and each calendar year
thereafter through such calendar year in which Grantee may elect to permanently shut down,
retire and remove that Wind Turbine.

2.11

"Other Wind Farm Site" means any parcel of land, other than the Easement Premises, located
in ___________________________________________ County(ies), Michigan, in, on, under,
over, across and/or otherwise with respect to which Grantee now has or hereafter acquires an
easement, leasehold, fee title, license or other interest or rights of any kind for, or in support of, or
in furtherance of, Wind Farm Facilities.

2.12

"Per-Wind Turbine Minimum" has the meaning set forth in Subsection 3.2(d)(i).

2.13

"Substation" means a grouping of electrical equipment, enclosed within a secured fence (or
other enclosure), that is designed to collect, transform, and/or transmit away for its further
transmission, distribution and/or sale, electrical energy produced by the Wind Turbines, and
may include (without limitation) transformers, circuit breakers, communications equipment,
Page 2

 Case No.: U-16536
Exhibit A-5 (DBK-1)
Witness: DBKehoe
Date: May, 2011
Page: Page 3 of 14
switches, and bus work. The term "Substation" does not, however, mean the pad-mounted
transformer that is normally associated with each individual Wind Turbine.

3.

2.14

"Wind Farm Facility" means any Wind Turbine or any Associated Facility.

2.15

"Wind Turbine" means a structure and its associated equipment and machinery that converts
wind energy into electrical energy, consisting of (among other components) a foundation, a
tower, rotating blades, a nacelle containing a generator and a rotor assembly and an adjacent or
nearby pad-mounted transformer.

Payments.
3.1

Payment for Grant of Easement. Upon the signing of this Agreement, Grantee has paid to
Grantor, as consideration for the easement and rights granted by Grantor to Grantee
hereunder, the sum of _________________________________ Dollars ($_____________),
the receipt of which Grantor acknowledges.

3.2

Payment in Respect to Use of the Easement Premises for Certain Specific Wind Farm
Facilities. Grantee will also pay to Grantor certain additional sums from time to time if and as
Grantee actually uses the Easement Premises for certain specific Wind Farm Facilities, as
follows:
(a)

Meteorological Towers. In the event that Grantee decides to locate a Meteorological
Tower on the Easement Premises, then Grantee will, at the time Grantee commences
the actual physical construction of such Meteorological Tower on the Easement
Premises, pay to Grantor the sum of Two Thousand Dollars ($2,000.00). Thereafter,
on each anniversary date of such payment, unless Grantee has prior to such
anniversary date removed such Meteorological Tower (in which case no further
payment will be due), Grantee will pay Grantor the same ($2,000.00) amount.
Should Grantee construct more than one Meteorological Tower on the Easement
Premises, then Grantee will make such payment in respect to each Meteorological
Tower that Grantee constructs on the Easement Premises.

(b)

Substations. In the event that Grantee decides to locate a Substation on the
Easement Premises, then Grantee will, at the time Grantee commences the actual
physical construction of such Substation on the Easement Premises, pay to Grantor a
sum computed at Twenty Thousand Dollars ($20.000.00) per acre for the amount of
land actually occupied by the Substation. For purposes hereof, the amount of land
actually occupied by the Substation will be deemed to be that amount of land included
within the Substation's fence (or other secured enclosure). Such acreage will be
conclusively determined by Grantee's surveyor, and will be computed (and the
aforesaid amount of $20,000.00 per acre accordingly prorated) to the nearest 1/10th of
an acre. Should Grantee construct more than one Substation on the Easement
Premises, then Grantee will make such payment in respect to each Substation that
Grantee constructs on the Easement Premises. Should Grantee expand a Substation
located on the Easement Premises after it has initially been constructed, then upon
Grantee's commencement of actual physical construction of the expansion, Grantee
will make an additional payment to Grantor in respect to the additional area, computed
in the same manner as for the original area as provided above.

(c)

Wind Turbines. -- Lump Sum Payment

Page 3

 Case No.: U-16536
Exhibit A-5 (DBK-1)
Witness: DBKehoe
Date: May, 2011
Page: Page 4 of 14
(i)

In the event that Grantee decides to locate a Wind Turbine on the Easement
Premises, then Grantee will, on or about the Commercial Operation Date of
such Wind Turbine, pay to Grantor a one-time lump sum of Ten Thousand
Dollars ($10,000.00). Should Grantee construct more than one Wind Turbine
on the Easement Premises, then Grantee will make such payment in respect
to each Wind Turbine that Grantee constructs on the Easement Premises.
Notwithstanding the foregoing, it is hereby agreed that with respect to any
Wind Turbine that Grantee may locate on the Easement Premises the center
point of which Wind Turbine is located less than 650 feet from any boundary
line of the Easement Premises (as conclusively determined by Grantee's
surveyor), the $10,000.00 amount to be paid by Grantee to Grantor under the
preceding provisions of this Subsection 3.2(c)(i) shall be reduced to an
amount determined by multiplying said $10,000 figure by a fraction, the
denominator of which fraction shall be the number of square feet in a 650-foot
radius circle the center point of which circle is the center point of such Wind
Turbine and the numerator of which fraction shall be the number of square
feet of such circle that are located within the Easement Premises, all as
conclusively determined by Grantee's surveyor.

(d)

(ii)

In the event that any Wind Turbine is constructed by Grantee on land outside
the Easement Premises the center point of which Wind Turbine is located
closer to a boundary line of the Easement Premises than 650 feet (as
conclusively determined by Grantee's surveyor), then, notwithstanding that
such Wind Turbine is not actually located within the Easement Premises,
Grantee will pay Grantor, on or about the Commercial Operation Date of that
Wind Turbine, an amount determined by multiplying $10,000 by a fraction, the
denominator of which fraction shall be the number of square feet in a 650-foot
radius circle the center point of which circle is the center point of such Wind
Turbine and the numerator of which fraction shall be the number of square
feet of such circle that are located within the Easement Premises, all as
conclusively determined by Grantee's surveyor.

(iii)

In the event that Grantee locates a Wind Turbine so as to, in any manner
straddle a boundary line of the Easement Premises (whether as to the Wind
Turbine's base, the sweep of its blades, or otherwise), then the amount to be
paid by Grantee to Grantor on or about the Commercial Operation Date of
such Wind Turbine shall be determined using a fraction in the same manner as
set forth in either Subsection 3.2(c)(i) or (ii) (it being recognized that the
resulting dollar amount will be the same in either case).

(iv)

Construction of any Wind Turbine to replace a Wind Turbine that previously
was or is then being removed will not require any payment under Subsection
3.2(c)(i), 3.2(c)(ii) or 3.2(c)(iii) above.

Wind Turbines. -- On-Going Payments
(i)

In the event that Grantee decides to locate one or more Wind Turbines on the
Easement Premises, then, in addition to the one-time lump sum payment
provided for in Subsection 3.2(c) above, Grantee will, with respect to each
such Wind Turbine located on the Easement Premises, from and after the
Commercial Operation Date of such Wind Turbine and until such time as
Grantee determines to permanently shut down, retire and remove such Wind
Turbine, pay to Grantor, with respect to all Commercially Generated Power
Page 4

 Case No.: U-16536
Exhibit A-5 (DBK-1)
Witness: DBKehoe
Date: May, 2011
Page: Page 5 of 14
actually produced by such Wind Turbine during each calendar month, an
amount equal to four percent (4%) of the sum of:
the Energy Value - Fixed Component; and
the Energy Value - Variable Component;
of such Commercially Generated Power. Grantee will make each such
payment due to Grantor hereunder with respect to all calendar months in an
Operating Year as soon as practicable after the end of the applicable
Operating Year (it being expressly understood that although such payments
are computed for each calendar month they are actually paid only annually,
after the end of the Operating Year); provided, that if the total amount to be so
paid to Grantor in respect to any individual such Wind Turbine for all of the
calendar months in a particular Operating Year is less than the "Per-Wind
Turbine Minimum" (as defined below), then Grantee will nonetheless pay
Grantor the Per-Wind Turbine Minimum. The "Per Wind-Turbine Minimum",
as referred to herein, shall mean an amount equal to the megawatt nameplate rating for the particular Wind Turbine in question, as specified by
such Wind Turbine's manufacturer, multiplied by Four Thousand Dollars
($4,000.00) (said Per-Wind Turbine Minimum to be prorated, however, in the
case of the Operating Year in which the Wind Turbine's Commercial
Operation Date occurs and/or the Operating Year in which Grantee
permanently shuts down, retires and removes such Wind Turbine if either or
both is less than a full calendar year).
The amount to be paid by Grantee to Grantor pursuant to the preceding
provisions of this Subsection 3.2(d)(i) in respect to a particular Wind Turbine
for a particular Operating Year is herein referred to as the "Annual Payment."
Notwithstanding the foregoing, it is hereby agreed that with respect to any
Wind Turbine that Grantee may locate on the Easement Premises the center
point of which Wind Turbine is located less than 650 feet from any boundary
line of the Easement Premises (as conclusively determined by Grantee's
surveyor), the Annual Payment to be paid by Grantee to Grantor under the
preceding provisions of this Subsection 3.2(d)(i) shall be reduced to an
amount determined by multiplying the Annual Payment determined as
aforesaid by a fraction, the denominator of which fraction shall be the number
of square feet in a 650-foot radius circle the center point of which circle is the
center point of such Wind Turbine and the numerator of which fraction shall be
the number of square feet of such circle that are located within the Easement
Premises, all as conclusively determined by Grantee's surveyor.
(ii)

In the event that any Wind Turbine is constructed by Grantee on land outside
the Easement Premises the center point of which Wind Turbine is located
closer to a boundary line of the Easement Premises than 650 feet (as
conclusively determined by Grantee's surveyor), then, notwithstanding that
such Wind Turbine is not actually located within the Easement Premises,
Grantee will pay Grantor, at the same times as would payable under and
subject to the same terms, conditions and limitations as are set forth in
Subsection 3.2(d)(i), an amount determined by multiplying the Annual
Payment (computed in the manner set forth in said Subsection 3.2(d)(i)) by a
fraction, the denominator of which fraction shall be the number of square feet
in a 650-foot radius circle the center point of which circle is the center point of
such Wind Turbine and the numerator of which fraction shall be the number of
Page 5

 Case No.: U-16536
Exhibit A-5 (DBK-1)
Witness: DBKehoe
Date: May, 2011
Page: Page 6 of 14
square feet of such circle that are located within the Easement Premises, all as
conclusively determined by Grantee's surveyor.
(iii)

3.3

In the event that Grantee locates a Wind Turbine so as to, in any manner
straddle a boundary line of the Easement Premises (whether as to the Wind
Turbine's base, the sweep of its blades, or otherwise), then Grantee will make
payments to Grantor as provided in either Subsection 3.2(d)(i) or (ii) (it being
recognized that the resulting payments will be the same in either case).

Certain Other Payments. If, by the end of the fifth (5th) calendar year following the
calendar year in which this Agreement is entered into, no Wind Turbine located either
on the Easement Premises themselves or outside the Easement Premises within such
proximity to the Easement Premises as to entitle Grantor to any payment(s) under any
of the provisions of Subsection 3.2(c) or Subsection 3.2(d) has yet been constructed
and achieved its Commercial Operation Date, then, starting with such fifth (5th)
calendar year following the calendar year in which this Agreement is entered into and
continuing until (but not including) such calendar year as the first Wind Turbine located
either on the Easement Premises themselves or outside the Easement Premises
within such proximity to the Easement Premises as to entitle Grantor to any payment(s)
under any of the provisions of Subsection 3.2(c) or Subsection 3.2(d) may have been
constructed and achieved its Commercial Operation Date, Grantee will (unless or until
the easement and rights granted hereunder are released or this Agreement is
otherwise terminated under any other provisions of this Agreement) pay to Grantor the
sum of ____________________________ Dollars ($_________) per calendar year.
Said sum shall be paid as soon as practicable after the end of the calendar year for
which such amount is payable.

4.

Compliance with Laws. In its use and occupancy of the Easement Premises hereunder,
Grantee will comply in all material respects with applicable federal, state and local laws,
ordinances and regulations.

5.

Indemnity. Each party will, at all times during the exercise of the rights granted herein, indemnify
the other party against liability for bodily injury to persons or physical damage to property to the
extent resulting from its negligent acts or omissions in its, or its representatives', invitees' or
licensees', use or occupancy of the Easement Premises.

6.

Real and Personal Property Taxes. Grantor shall pay all real estate taxes and assessments on
the Easement Premises. Grantee shall pay all personal property taxes assessed on the
easement granted to Grantee in this Agreement and on any Wind Farm Facilities or other
personal property of Grantee that may from time to time be installed, operated or stored on the
Easement Premises.

7.

Reservation of Rights by Grantor. Grantor reserves the right to utilize, for other purposes, any
of the Easement Premises not at the time in question being used by Grantee in its operations
for Wind Farm Facilities, provided that all such activities conducted upon the Easement
Premises by Grantor shall be in accordance with all other applicable provisions of this
Agreement and shall otherwise not interfere with Grantee's use and exercise of the easement
and rights granted herein. Grantor understands that any part of the Easement Premises that
Grantor may at a particular time be so using for other purposes remains subject to Grantee
deciding to use the same for or in connection with Wind Farm Facilities hereunder, provided
that Grantee will pay Grantor as set forth in Section 8 below for any then-growing crops of
Grantor that Grantee may destroy in constructing Wind Farm Facilities on the Easement
Premises. It is also expressly understood, any other provisions of this Agreement
notwithstanding, that Grantee may exercise exclusive control over such portions of the
Page 6

 Case No.: U-16536
Exhibit A-5 (DBK-1)
Witness: DBKehoe
Date: May, 2011
Page: Page 7 of 14
Easement Premises as Grantee may at any time enclose or otherwise secure, such as but not
necessarily limited to fenced Substation areas and sheds or similar structures for control
equipment or for equipment storage, and that Grantee may as it deems necessary or
appropriate restrict or prohibit entry therein by Grantor or any other persons.
8.

Crop Loss. If, during the construction of any Wind Farm Facility on the Easement Premises,
Grantee destroys any crops then growing on the Easement Premises, Grantee will reimburse
Grantor for the market value of such destroyed growing crops, computed at the same price as
crops of the same type have most recently been quoted and paid to farmers in the immediate
vicinity at the time of the loss. Grantor shall submit to Grantee a claim in writing for any such
destroyed growing crops not later than thirty (30) days following the destruction of such crops.
If the parties are unable to agree as to the value of the destroyed growing crops, they shall
mutually agree in writing (such agreement not to be unreasonably withheld) upon an appraiser
having specific knowledge of and expertise regarding the subject matter, and that appraiser's
decision shall be binding on both parties. Any fee charged by such appraiser will be divided
equally between the parties.

9.

Disposal of Excavated Fill. Grantee will dispose of all unneeded excavated fill material during
construction either by neatly spreading it on the Easement Premises or by removing it from the
Easement Premises. Alternatively, if Grantor so requests, Grantee will pile such material at such
location(s) on the Easement Premises as Grantor may reasonably specify.

10.

Ingress and Egress. Grantor represents and warrants that it has full rights of access to the
Easement Premises from a public road or roads; and without limiting the generality of the
easement and rights granted to Grantee in Section 1 hereof, it is expressly understood that
Grantee shall have the right of all necessary and convenient ingress and egress in, on, over and
across the Easement Premises for purposes of or in furtherance of the construction, operation,
use, maintenance, repair, renewal, re-powering, upgrading, improvement, inspection, removal
and replacement of Wind Farm Facilities on the Easement Premises and Other Wind Farm Sites.
In the event that Grantor locks any gate providing access to the Easement Premises, it will
immediately provide Grantee with a key, or will cooperate with Grantee in implementing a
"buddy lock" system, such that both parties will have access at all times.

11.

Certain Other Specific Rights. Also without limiting the generality of the easement and rights
granted in Section 1 above, it is expressly understood that:
(a)

Grantee may at any time enter the Easement Premises to perform surveys,
inspections, soil tests, and other tests and studies to determine the suitability of the
Easement Premises for Wind Farm Facilities. The foregoing rights are further
expressly understood to include, without limitation, the construction, operation, and
maintenance of Meteorological Tower(s).

(b)

Grantee shall have the right to cut, trim, remove, destroy or otherwise control any trees
and brush now or hereafter standing or growing on the Easement Premises that, in
Grantee's judgment, may interfere or threaten to interfere with or be hazardous to the
construction, operation, use, maintenance, repair, renewal, re-powering, upgrading,
improvement, inspection, removal or replacement of any Wind Farm Facilities.

(c)

In no event shall Grantor: (i) locate any buildings or other structures, or plant any trees,
under or over any electric lines or communications lines of Grantee on the Easement
Premises; (ii) locate any buildings or other structures on the Easement Premises that are
of such height or configuration, or plant trees of such kind or species, as may materially
interfere with the wind flow on, through and across the Easement Premises; or (iii)
otherwise locate any buildings or other structures, or plant any trees, within such
Page 7

 Case No.: U-16536
Exhibit A-5 (DBK-1)
Witness: DBKehoe
Date: May, 2011
Page: Page 8 of 14
proximity to any of Grantee's Wind Farm Facilities as, in Grantee's judgment, may
interfere or threaten to interfere with or be hazardous to the construction, operation, use,
maintenance, repair, renewal, re-powering, upgrading, improvement, inspection, removal
or replacement of such Wind Farm Facilities.
(d)

Grantor shall at no time: (i) take any action to in any manner attempt to wholly or partially
prevent, or otherwise to in any manner oppose, the granting, re-granting, issuance, reissuance, renewal or extension of any regulatory, administrative or other governmental or
quasi-governmental permits, licenses, authorizations or other approvals, of any kind or
nature and whether federal, state or local, that Grantee may at any time seek in
connection with the construction, operation, use, maintenance, repair, renewal, repowering, upgrading, improvement, inspection, removal or replacement of any Wind
Farm Facilities on the Easement Premises or on any Other Wind Farm Site; or (ii) bring
any lawsuit, complaint or other action before any court. administrative or regulatory
agency or other governmental or quasi-governmental body seeking to in any manner
enjoin or otherwise restrain, in whole or in part, the construction, operation, use,
maintenance, repair, renewal, re-powering, upgrading, improvement, inspection, removal
or replacement of any Wind Farm Facilities on the Easement Premises or on any Other
Wind Farm Site. Furthermore, Grantor hereby consents to Grantee’s application for any
permit required under the applicable zoning ordinance in effect at the time of the
application in connection with the construction, operation, use, maintenance, repair,
renewal, re-powering, upgrading, improvement, inspection, removal or replacement of
any Wind Farm Facilities on the Easement Premises or on any Other Wind Farm Site and
agrees upon Grantee's request to execute any and all documents required to effectuate
such zoning applications.

12.

Warranty of Title. Grantor hereby warrants and agrees to defend the title to the Easement
Premises, and agrees that Grantee may at any time (but shall in no event be obligated to) pay all or
part of any land contract, mortgage, taxes, or other liens or charges with respect to the
Easement Premises, either before or after maturity, and be subrogated to the rights of the holder
thereof. Without limiting the generality of Grantee's rights under the foregoing, Grantee may
withhold from any monies payable to Grantor hereunder any amounts expended by Grantee as set
forth in the preceding sentence.

13.

Notices. Any notice, document or payment required or desired to be given to either party by the
other herein, shall be in writing and shall be deemed given to that party when delivered personally
to that party (or his personal representative or successor in interest) or when sent to such party
by first class mail (all postage prepaid), or sent for delivery by a nationally-recognized overnight
courier service (all delivery charges prepaid), at such party's address as set forth at the beginning
of this Agreement, or at such other address as that party may previously have specified in a
written notice to the party giving notice. It is further understood that any notice or other
transmittal to Grantee must be marked "Attention: Real Estate Department", or to the attention of
such other person or department as Grantee may hereafter specify by a written notice to Grantor.
It is additionally understood that if, now or at any time in the future, there is more than one person
or entity constituting "Grantor", then (i) any notice, document or payment from Grantee that would
be deemed given to any one of them as set forth above in this Section 13 will, unless Grantee
specifies otherwise, be deemed given to all of them; and (ii) any notice or document given to
Grantee by any of them may at Grantee's option be treated and relied upon by Grantee as having
been given by all of them.

14.

Exclusivity. The easement and rights granted herein constitute the grant to Grantee of an
exclusive easement and right to use and occupy the Easement Premises for, in connection with,
or in furtherance of, Wind Farm Facilities. Grantor shall not, so long as the easement granted
Page 8

 Case No.: U-16536
Exhibit A-5 (DBK-1)
Witness: DBKehoe
Date: May, 2011
Page: Page 9 of 14
hereunder remains in effect, grant any other easements, leases, licenses, or other rights to
anyone else allowing for the use of the Easement Premises for, in connection with or in
furtherance of, any Wind Farm Facilities.
15.

Brokers. If either party has engaged the services of any broker or other agent in connection with
the parties' entry into this Agreement, that party shall be responsible for payment of, and shall
indemnify and save the other party harmless from all claims and liability for, any commissions, fees
or other payments due to such broker or other agent.

16.

Interpretation. Captions at the beginning of the various sections of this Agreement are not part of
the text hereof, but are merely labels to assist in locating and referring to those provisions; they
shall in no way limit or restrict the interpretation of the provisions of this Agreement. This
Agreement may be executed in duplicate counterparts and each executed counterpart shall be
considered as an original of this Agreement. All questions concerning the intention, validity, and
meaning of this Agreement or relating to the rights and obligations of the parties with respect to
performance hereunder shall be construed and resolved in accordance with the laws of Michigan.
It is expressly understood that all payment obligations of Grantee set forth in this Agreement
(including without limitation the payments provided for in Section 3 hereof) are contr actual
obligations only and do not create any implied lien on the easement and rights herein granted. It
is also expressly understood and acknowledged that upon the easement and rights granted hereunder
being released or upon this Agreement being otherwise terminated pursuant to any provision of this
Agreement, Grantor shall not be entitled to any further payments pursuant to this Agreement.

17.

Entire Agreement; Modification. With respect to the subject matter hereof, this Agreement
supersedes any prior negotiations, understandings, arrangements, representations or
agreements, whether written or oral, between the parties hereto or their representatives, and
constitutes the entire agreement between the parties with respect to such subject matter. No
changes, alterations, modifications, additions, or qualifications to the terms of this Agreement may
be made or binding unless made in writing and signed by the parties.

18.

Memorandum. At Grantee's option, Grantee may, in lieu of recording this entire Agreement,
record with the county register of deeds' office a memorandum for the purpose of giving public
notice of the existence of this Agreement and the easement and rights granted to Grantee herein.
Grantor agrees, upon Grantee's request, to properly execute and acknowledge a memorandum
prepared by Grantee for such purpose.

19.

Release of Easement at Grantee's Option. Grantee may in its sole discretion at any time release
the easement and rights herein granted as to either all or part of the Easement Premises, by
recording with the county register of deeds' office a release signed and acknowledged by a duly
authorized representative of Grantee. If Grantee so releases the easement and rights herein
granted as to less than all of the Easement Premises, then references to the "Easement
Premises" in this Agreement shall, from and after the date of recording of such partial release, be
deemed to apply only to the remaining portion(s) of the Easement Premises.

20.

Third Parties. The rights and obligations hereunder are intended only for the benefit of the parties
hereto and their respective heirs, executors, administrators, personal representatives, successors
and assigns. It is expressly understood and acknowledged that nothing in this Agreement shall, or is in
any manner whatsoever intended to:
(i)

confer any rights, claims or interests whatsoever upon, or

(ii)

impose any duties, liabilities or obligations whatsoever upon Grantee to,

Page 9

 Case No.: U-16536
Exhibit A-5 (DBK-1)
Witness: DBKehoe
Date: May, 2011
Page: Page 10 of 14
any third parties, including but limited to the owners of any lands other than the Easement Premises
themselves as herein described.
21.

Binding Effect; Successors and Assigns. The terms and conditions of this Agreement and the
easement and rights herein granted shall be deemed to run with the land and shall inure to the
benefit of and be binding upon the parties hereto, and their respective heirs, executors,
administrators, personal representatives, successors and assigns. Accordingly, all references to
"Grantor" and "Grantee" herein shall, where applicable, be deemed to mean or to include the
respective heirs, executors, administrators, personal representatives, successors and assigns of
the herein named Grantor and Grantee.
Notwithstanding the foregoing, (i) in no event may Grantor (or any individual person or entity
constituting Grantor if there is more than one) assign or otherwise transfer any rights to receive
any payments or any other rights or interests under this Agreement, other than to such person or
entity to which Grantor (or such individual person or entity constituting Grantor if there is more
than one) sells all or part of his, her, its or their fee title ownership interest in the land; and (ii) i n
no event may Grantor (or any individual person or entity constituting Grantor if there is more than
one), upon any sale of the land, reserve or otherwise retain any rights to receive any payments or
any other rights or interests under this Agreement in respect to the land sold. Upon a sale of the
land, the purchaser of the fee simple title interest will be entitled to any payment under Section
3.2 or 3.3 hereof to which the seller would have thereafter been entitled; provided that Grantee
shall not be deemed bound to have knowledge of or to otherwise in any manner recognize any
sale, or to make any payment due under Section 3.2 or 3.3 to the new owner, earlier than ninety
(90) days after the date that Grantee receives a written notice, properly addressed to Grantee in
accordance with Section 13 hereof and in form and content satisfactory to Grantee, of the sale
and the name and address of the purchaser(s) who will be entitled to any payment(s) under
Section 3.2 or 3.3 in place of the former party; and any payment in the meantime made by
Grantee to a prior owner shall fully discharge Grantee from liability for such payment.
Furthermore, any payment made by Grantee under Section 3.2 or 3.3 in reliance upon any
purported notice of a sale received by Grantee shall fully discharge Grantee from liability for such
payment even if the facts recited in such notice were not in fact correct or valid.
Grantee shall be free to disregard any purported assignment or reservation in violation of the first
sentence of the immediately preceding paragraph. However, if Grantee for whatever reason
does make any payment in accordance with a purported assignment or reservation that violates
the first sentence of the immediately preceding paragraph, Grantee's obligations in respect to
such payment shall be deemed fully discharged and Grantee shall have no further obligation to
anyone in respect thereto.
If, now or at any time in the future, there is more than one person or entity constituting "Grantor",
then, with respect to any payment to be made under Section 3.2 or 3.3 hereof, Grantee may at
Grantee's sole discretion either issue a single check payable to all such persons/entities or may
issue separate checks to such persons/entities in equal shares. Grantee shall not be required to
compute, or divide payment among, any unequal shares that may exist in the ownership held by
such persons/entities unless Grantee in its sole discretion chooses otherwise. However, if
Grantee for whatever reason does issue payments in other than equal shares, based on what
Grantee at the time in question in good faith believes to be the respective payees' appropriate
shares, then Grantee's obligations in respect to all such payments shall be deemed fully
discharged and Grantee shall have no further obligation to anyone in respect thereto. The
respective persons or entities constituting "Grantor" may, in any case, settle between themselves
(without further obligating Grantee) any adjustments to their respective entitlements to payments.
If only a portion of the Easement Premises are sold, then, even with respect to any payments
under Section 3.2 or 3.3 that are dependent upon particular Wind Farm Facilities being physically
Page 10

 Case No.: U-16536
Exhibit A-5 (DBK-1)
Witness: DBKehoe
Date: May, 2011
Page: Page 11 of 14
located on (or within a specified distance from a boundary line of) the Easement Premises,
Grantee may at Grantee's sole discretion treat the owners of all separate portions of the
Easement Premises as if they were all co-owners of the whole, and make payment accordingly
as set forth in the immediately preceding paragraph of this Section 21. If Grantee for whatever
reason does not treat the owners of all separate portions of the Easement Premises as if they
were co-owners of the whole, and issues payments based on what Grantee at the time in
question in good faith believes to be the appropriate shares of the respective owners of the
separate portions, then Grantee's obligations in respect to all such payments shall be deemed
fully discharged and Grantee shall have no further obligation to anyone in respect thereto. The
respective owners of the separate portions may, in any case, settle between themselves (without
further obligating Grantee) any adjustments to their respective entitlements to payments.
References in this Section 21 to a "sale" or "purchase" (or to a "seller" or "purchaser"), or
other forms of those words, are used herein for convenience to include, and if and where
relevant shall be understood to include, any transfer of fee simple title ownership (and the
associated transferor and transferee), including but not necessarily limited to by gift, devise,
bequest or inheritance as well as by actual purchase and sale transaction.
22.

Location of Wind Farm Facilities Within Easement Premises. Notwithstanding any other
provisions of this Agreement, it is understood that Grantee will, prior to construction of Wind Farm
Facilities within the Easement Premises, notify Grantor in writing, for Grantor's reasonable review
and approval, of Grantee's intended location(s) of such Wind Farm Facilities within the Easement
Premises.
Grantor shall not unreasonably withhold or delay such approval; and provided that Grantee's said
intended location(s) do not unreasonably interfere with Grantor's agricultural operations on the
Easement Premises it is expressly understood that Grantor shall grant such approval, and shall
communicate same to Grantee in writing, within thirty (30) days of Grantee's aforesaid notification
to Grantor.
If Grantor does not so approve any one or more of Grantee's intended Wind Farm Facility
locations within the Easement Premises because such location(s) unreasonably interfere with
Grantor's agricultural operations on the Easement Premises, then Grantor shall notify Grantee,
within thirty (30) days of Grantee's aforesaid notification to Grantor, of the speci fic nature of
Grantor's objection(s), along with proposed alternative locations within the Easement Premises
for each of the Wind Farm Facilities in question. Grantor shall then proceed to discuss in good
faith with Grantee a resolution to such objection(s). Grantee will not proceed with construction of
the specific Wind Farm Facilities in question until Grantor has given its written approval for the
location(s) of same (whether at Grantee's originally proposed location(s), as may be the case if
and to the extent the parties are able to resolve the problem without a change in location(s), or at
an alternative location(s) proposed by either Grantor or Grantee); which approval Grantor shall
not unreasonably withhold or delay.
In respect to the foregoing, Grantee recognizes that Grantor has an interest in having Wind Farm
Facilities located within the Easement Premises in such manner as will minimize interference with
Grantor's agricultural operations on the Easement Premises. Conversely, Grantor recognizes that
Grantee has an interest in having Wind Farm Facilities located within the Easement Premises in
such manner as will maximize Grantee's ability to generate, and to transmit away from the point
of generation for commercial distribution and sale, wind-generated electric power; and Grantor
understands that many different factors (including, among others, variations in wind
speed/direction at different places within the Easement Premises and the need to interconnect
Wind Farm Facilities in an efficient and economical manner) may enter into Grantee's ability to
achieve that interest. Both parties also recognize a mutual interest in existing access drives on
the Easement Premises being, if and where reasonable and practical, used in Grantee's
Page 11

 Case No.: U-16536
Exhibit A-5 (DBK-1)
Witness: DBKehoe
Date: May, 2011
Page: Page 12 of 14
operations hereunder in lieu of Grantee constructing entirely new access drives. Both parties
further recognize a mutual necessity of ensuring that Wind Farm Facilities are located within the
Easement Premises in a manner that will meet the requirements of any applicable laws,
ordinances and regulations.
Notwithstanding any of the foregoing, it is further expressly understood and acknowledged that
electric lines and/or communications lines that Grantee may construct underground, below plow
depth and below the level of any existing drain tile, shall be deemed not to unreasonably interfere
with Grantor's agricultural operations; and although Grantee will notify Grantor of the locations
thereof, Grantor's specific approval of such locations will not be necessary.
23.

Underground Electric Lines. Grantee agrees that any underground electric or communications
lines that Grantee may construct on the Easement Premises shall be below plow depth and
below the level of any existing drain tile.

24.

Remediation of Damage to Easement Premises. Grantee agrees, following its completion of
construction, maintenance or other work on its Wind Farm Facilities on the Easement Premises
hereunder, to repair any damage done to the Easement Premises (including any damage that
may be done to any existing underground drain tile on the Easement Premises) during such work
as may be necessary to restore the Easement Premises to condition reasonably equivalent to
that existing prior to the work. Grantee will endeavor to perform such restoration within ninety
(90) days after Grantee's completion of the applicable construction, maintenance or other work; it
being expressly understood, however, that the timing of certain restoration work (such as but not
necessarily limited to reseeding of disturbed grassy areas) may need to await the appropriate
weather or season. Nothing in this paragraph is intended to require Grantee to restore trees or
brush that Grantee is authorized to cut, trim, remove, destroy or otherwise control as provided in
this Agreement, or to restore any other conditions that violate the provisions of this Agreement.

25.

Release of Easement if No Wind Farm Facilities are Located on the Easement Premises Within a
Certain Time. In the event that, by the end of the fifteenth (15th) calendar year following the
calendar year in which this Agreement is entered into, Grantee has not located any Wind Farm
Facility anywhere on the Easement Premises as described in this Agreement (or outside the
Easement Premises but within such proximity to the Easement Premises as to entitle Grantor to a
payment in respect thereto pursuant to another provision of this Agreement), and provided that no
violation of or nonconformance with laws, ordinances (including but not limited to zoning
ordinances) or regulations (or permits, approvals or other documents issued by a governmental
authority pursuant thereto) would result from a release of the easement and rights hereunder,
then Grantee agrees, upon Grantor's written request, to release the easement and rights herein
granted by recording with the county register of deeds' office a release signed and acknowledged
by a duly authorized representative of Grantee. It is understood that if and at such time as
Grantee has, prior to the end of the above-indicated period (or following the end of such period
but prior to Grantor making a written request for a release to Grantee), located a Wind Farm
Facility anywhere on the Easement Premises as described in this Agreement (or outside the
Easement Premises but within such proximity to the Easement Premises as to entitle Grantor to a
payment with respect thereto pursuant to another provision of this Agreement), this section shall
have no further effect.

26.

Final Restoration of Easement Premises. Upon Grantee’s release of the easement and rights
herein granted, Grantee will (unless and except as may be otherwise mutually agreed upon in
writing) remove from the Easement Premises all Wind Farm Facilities constructed thereon
pursuant to this Agreement; leaving the Easement Premises, to the extent affected by or arising
from such removal, in a good, neat and presentable condition. Notwithstanding the above, it is
Page 12

 Case No.: U-16536
Exhibit A-5 (DBK-1)
Witness: DBKehoe
Date: May, 2011
Page: Page 13 of 14
understood that any foundations, underground electric lines or other underground facilities at a
depth of four (4) feet or below may be abandoned in place.
If Grantee releases the easement and rights herein granted as to less than all of the Easement
Premises, then the preceding provisions of this section will apply to the portion of the Easement
Premises covered by such partial release.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
Grantor:

Grantee:

____________________________________

CONSUMERS ENERGY COMPANY

___________________________________

By ____________________________________

Acknowledged before me in _________________ County, Michigan, on ________________, 20______
by ______________________________________________________________________________.

__________________________________________
Notary Public, ________________ County, Michigan
Acting in ____________________ County, Michigan
My Commission Expires ______________________

Acknowledged before me in _________________ County, Michigan, on ________________, 20______ by
_______________________________________, ______________________________________ of
CONSUMERS ENERGY COMPANY, a Michigan corporation, for the corporation.
__________________________________________

Notary Public, ________________ County, Michigan
Acting in ____________________ County, Michigan
My Commission Expires ______________________
Prepared by ___________________
_____________________________
_____________________________
_____________________________

Page 13

 Case No.: U-16536
Exhibit A-5 (DBK-1)
Witness: DBKehoe
Date: May, 2011
Page: Page 14 of 14
EXHIBIT A
Description of Easement Premises
Land in the ________________ of _______________, County of
Michigan, being more particularly described as follows:

_______________,

State

of