Common use of Terms and Provisions Clause in Contracts

Terms and Provisions. 1. Petronila Wind will provide a voluntary contribution of funds in the amount of $750,000.00 to the DoD in accordance with reference (a). Petronila Wind will transfer these funds, in the manner to be specified by DoD, prior to the start of ground disturbing activity (exclusive of any surveying, geotechnical surveying, or environmental testing) within the Project Boundary (Commencement of Construction). These funds are being offered and will be accepted in accordance with Section 358(g) of reference (a) as amended. The DoD will accept the offered funds and will transfer the funds to appropriate Navy accounts for execution. 2. The Navy will use the funds to offset the cost associated with the necessary steps required to research, conduct technical reviews of, analyze, test, and implement measures to mitigate identified impacts of the Wind Project on military operations and readiness in one or more of the following ways (to the extent that the below measures require approval and/or action on the part of the FAA, the Navy shall use reasonable measures to work with the FAA to implement the same): a. Optimization of the NASK Airport Surveillance Radar-11 (ASR-11) defined to include measures such as range-azimuth gate mapping of the wind turbines, adjustments to the Target Beam and STC Map, Doppler Filter Editing, False Plot Censor, Plot Amplitude Thresholding, Track Eligibility, and weather optimization settings before the date the Wind Project begins commercial operations (Generation Commencement Date); b. If acceptable to the Federal Aviation Administration (FAA), integration of the Corpus Christi International Airport (CRP) ASR-11 into the NASK Standard Terminal Automation Replacement System (STARS) to enhance NASK’s surveillance capabilities; c. Implementation of FUSION tracking within the NASK STARS; d. Evaluation and implementation of concurrent beam processing to allow for the simultaneous processing of the high and low antenna beams used in the NASK and CRP ASR-11s; e. Evaluation and implementation of gap filler radar technology; Date; f. Optimization of the NASK ASR-11 Radar after the Generation Commencement g. Implementing mitigation for any other navigational aid determined to be affected by operation of the Wind Project; h. Implement any other appropriate measure to mitigate the impact of the Wind Project’s wind turbines on NASK or CRP ASR-11s. If the mitigation measures listed above are considered by the Navy to be sufficient to prevent the use of curtailment described in Section 10 below, and if funds are still available, the Navy may use remaining funds in the following ways: i. Enhancements and validation of the radar toolbox wind farm analysis functionality; and/or j. Improve models for predicting the impact of additional wind turbines, given a baseline of existing wind turbines. 3. It is the responsibility of the Navy to determine the priority in expenditure of the funds; however, it is agreed that neither the Navy nor the DoD shall request to curtail the Wind Project (outside of the test parameters in Section (B)(9)) until such time as Sections (B)(2)(a) and (B)(2)(b) are implemented, to the extent they can reasonably be implemented by Navy. Upon receipt of funds, the Navy, DoD, and Petronila Wind will form a joint working group (Working Group). Each Party, at its election, may designate at least one representative to be part of the Working Group to study the effectiveness of the mitigation measures implemented; to recommend the mitigation measures to be prioritized moving forward; and, if the curtailment provisions have not been waived pursuant to Section (B)(11), to review the need for curtailment other than for test purposes as described in Section (B)(9). The Working Group, which will be chaired by Commanding Officer, NASK, shall first meet within thirty (30) days after Commencement of Construction to discuss the mitigation measures that have been implemented and to identify which mitigation measures shall be implemented moving forward. Within thirty (30) days after the Generation Commencement Date, the Working Group shall meet again to discuss the findings of mitigation and optimization efforts, and to determine if any future mitigation measures are required. Following such meeting, the Working Group shall continue to meet on an as needed basis or upon request of any one of the Working Group members to discuss the effectiveness of the mitigation measures. The Navy, DoD, and Petronila Wind agree to provide all Parties to this Agreement with copies of any studies of the effects of the Wind Project on NASK and CRP immediately upon completion of such studies. Although the Navy has the final authority to determine how to allocate the funds to mitigate the Wind Project, the Navy shall consult with the Working Group and take Petronila Wind’s recommendations under consideration, so long as the funds are still available, when making such determination. Additionally, if within the first two years following the Generation Commencement Date all technical mitigations to either or both ASR-11s at NASK and CRP have been adopted pursuant to FAA approval, within the funding limits described in Section (B)(1), and the local procedures for air traffic control services conducted within guidelines of established FAA regulations fail to provide for the repeated and safe handling of cooperating aircraft within the National Airspace System, the Navy and Petronila Wind agree to discuss via the Working Group the establishment of preemptive curtailment, if required, under specified meteorological conditions. 4. DoD and the Navy agree not to posit any objection to the construction and operation of the Wind Project under the FAA Obstruction Evaluation/ Airport Airspace Analysis (OE/AAA) system, or as they relate to NASK or CRP, to any regulatory entity with cognizance over the Wind Project, provided Petronila Wind carries out the terms of this Agreement. This Agreement may be shared freely with any person or entity. 5. Notwithstanding Section (B)(4), Petronila Wind agrees to abide by the Safe, Efficient Use, and Preservation of the Navigable Airspace Subpart C, as delineated in 14 C.F.R. Part 77. Violation of these airspace protections may lead to the DoD or the Navy filing an “objection” to the Wind Project. 6. Petronila Wind agrees to confine the placement of all Wind Project turbines to the area indicated in Attachment A. Petronila Wind also agrees not to construct more than 100 wind turbines within the area indicated in Attachment A and to limit the height of all turbines to not more than 500 feet. No changes are permitted to Attachment A without prior written agreement from DoD and Navy. 7. Any measures agreed to by the DOD or the Navy pursuant to this Agreement shall not be binding upon any other Federal agency, nor waive required compliance with any other law or regulation. 8. Petronila Wind agrees to provide the Navy, within 30 days of completion of construction of the Wind Project, a final “as built” drawing including actual wind turbine coordinates post construction and will notify the Navy and DoD of the Generation Commencement Date.