House File 2580 H-8225 Amend House File 2580 as follows: 1 1. Page 9, after line 24 by inserting: 2 < 16. a. Notwithstanding any other provision of this 3 chapter or any other provision of law to the contrary, on and 4 after July 1, 2026, a person shall not commence or cause to be 5 commenced the construction of a wind energy conversion facility 6 or any wind turbine that is part of a wind energy conversion 7 facility in this state unless the indemnification and hold 8 harmless agreements required by this subsection have been fully 9 executed, recorded, and delivered as provided herein. 10 b. The following persons shall each be required to execute 11 the indemnification and hold harmless agreement required by 12 this subsection as joint and several obligors: 13 (1) The promoter of the wind energy conversion facility, 14 meaning any person who has solicited or obtained, or caused to 15 be solicited or obtained, any easement, lease, option, or other 16 property interest for the purpose of siting, constructing, or 17 operating any wind turbine at the proposed site. 18 (2) The developer of the wind energy conversion facility, 19 meaning any person responsible for planning, financing, 20 permitting, or managing the construction of the facility or any 21 turbine therein. 22 (3) The manufacturer of each wind turbine to be constructed 23 at the proposed site, including any successor, assignee, or 24 affiliate of such manufacturer. 25 (4) The proposed owner of each wind turbine to be 26 constructed at the proposed site and any person who will hold 27 a direct or indirect ownership interest in such turbine upon 28 completion of construction. 29 (5) Each grantor of any easement, lease, license, or other 30 property interest on which any wind turbine is proposed to 31 be sited, meaning the owner or owners of the real property 32 on which the turbine foundation, tower, or any associated 33 infrastructure is to be physically located. 34 c. The indemnification and hold harmless agreement shall 35 -1- HF 2580.3231 (2) 91 sb/js 1/ 7 #1.
be executed in favor of, and shall be enforceable by, each and 1 every landowner of record of any parcel of real property, any 2 part of which is located within a three-mile radius of the 3 proposed location of any wind turbine to be constructed as 4 part of the facility. For purposes of this subsection, the 5 three-mile radius shall be measured from the center of the 6 proposed turbine foundation to the nearest boundary of each 7 such parcel. 8 d. The indemnification and hold harmless agreement shall 9 provide that the obligors identified in paragraph “b” shall, 10 jointly and severally, defend, indemnify, and hold harmless 11 each beneficiary identified in paragraph “c” from and against 12 any and all claims, demands, actions, causes of action, 13 damages, losses, costs, expenses, liabilities, judgments, 14 liens, and encumbrances, including but not limited to 15 reasonable attorney fees, expert witness fees, and all costs of 16 investigation, litigation, arbitration, mediation, appeal, and 17 collection, arising from, related to, or in any way connected 18 with the construction, presence, operation, maintenance, 19 repair, repowering, modification, or decommissioning of the 20 wind turbine or any component, appurtenance, or infrastructure 21 thereof at the proposed site, including but not limited to all 22 of the following: 23 (1) Personal injury, bodily injury, emotional distress, or 24 death. 25 (2) Damage to or destruction of real or personal property. 26 (3) Contamination of soil, water, crops, forage, livestock, 27 or any agricultural product by fiberglass particles, 28 microplastics, bisphenol A, epoxy resin compounds, polyurethane 29 compounds, lubricants, hydraulic fluids, or any other substance 30 or material originating from or associated with the wind 31 turbine or its components. 32 (4) Diminution in the fair market value or rental value of 33 real property. 34 (5) Loss of agricultural productivity, crop yield, crop 35 -2- HF 2580.3231 (2) 91 sb/js 2/ 7
quality, or crop marketability. 1 (6) Loss of livestock health, productivity, or 2 marketability. 3 (7) Loss of organic certification, specialty crop 4 certification, or any other agricultural certification or 5 designation. 6 (8) Interference with or damage to agricultural drainage 7 tile, surface drainage infrastructure, irrigation systems, or 8 soil structure, including soil compaction. 9 (9) Interference with aerial application of agricultural 10 chemicals, fertilizers, or seed. 11 (10) Interference with the use and enjoyment of real 12 property, including noise, shadow flicker, light emission, 13 visual impact, electromagnetic interference, interference with 14 a global positioning system or precision agriculture system, 15 or vibration. 16 (11) Ice throw, blade throw, blade failure, tower collapse, 17 fire, explosion, or any other structural or mechanical failure. 18 (12) Damage to public or private roads, bridges, culverts, 19 or other transportation infrastructure attributable to the 20 construction, maintenance, or decommissioning of the facility. 21 (13) Environmental contamination, remediation costs, or 22 natural resource damage assessed or incurred under any federal, 23 state, or local environmental law or regulation. 24 (14) Any other loss, damage, cost, or casualty of any kind 25 whatsoever that arises from or is related to the construction, 26 presence, operation, maintenance, repair, repowering, 27 modification, or decommissioning of the wind turbine or any 28 component, appurtenance, or infrastructure thereof. 29 e. The indemnification and hold harmless obligation created 30 under this subsection shall commence upon the date of execution 31 of the agreement and shall continue in full force and effect 32 for as long as the wind turbine, or any part of its foundation, 33 tower, nacelle, blades, underground infrastructure, or other 34 physical construction, remains physically present at the site, 35 -3- HF 2580.3231 (2) 91 sb/js 3/ 7
and for a period of ten years following the date on which 1 the last such physical component has been completely removed 2 from the site and the site has been restored in accordance 3 with any applicable decommissioning plan. For purposes of 4 this paragraph, the severance or abandonment of underground 5 infrastructure, including but not limited to foundations, 6 cables, and conduits, at any depth shall not constitute 7 removal, and the indemnification obligation shall continue 8 until all such infrastructure has been physically extracted 9 from the ground. 10 f. The indemnification and hold harmless obligation created 11 under this subsection shall run with the land on which the wind 12 turbine is sited and shall be binding upon each obligor and 13 upon each obligor’s successors, assigns, heirs, transferees, 14 and any person or entity that acquires any ownership interest 15 in the wind turbine, the facility, or the real property 16 on which the turbine is sited, by any means whatsoever, 17 including but not limited to sale, merger, acquisition, 18 foreclosure, bankruptcy, receivership, tax sale, or operation 19 of law. No transfer, assignment, conveyance, or change of 20 ownership or control of the wind turbine, the facility, or the 21 underlying real property shall release, diminish, or impair the 22 indemnification obligation of any obligor. 23 g. The indemnification and hold harmless agreement shall 24 be recorded in the office of the county recorder of each 25 county in which any beneficiary’s property is located, at the 26 expense of the obligors, no later than thirty days prior to the 27 commencement of any construction activity at the site. The 28 agreement shall include a legal description of each parcel 29 of real property subject to the agreement, both as to the 30 obligor grantors and as to the beneficiary landowners, and 31 shall contain a map clearly depicting the three-mile radius 32 from each proposed turbine location. A certified copy of the 33 recorded agreement shall be delivered by the obligors to each 34 beneficiary by certified mail, return receipt requested, no 35 -4- HF 2580.3231 (2) 91 sb/js 4/ 7
later than fifteen days following recording. 1 h. The recorded indemnification and hold harmless agreement 2 shall constitute constructive notice to all subsequent 3 purchasers, mortgagees, lienholders, and other persons 4 acquiring any interest in the real property on which the 5 wind turbine is sited. The obligors shall ensure that any 6 contract for the sale, transfer, or conveyance of the wind 7 turbine, the facility, or the underlying real property contains 8 a provision requiring the purchaser or transferee to assume 9 all indemnification obligations under this subsection and to 10 execute a supplemental indemnification agreement in favor of 11 all then-current beneficiaries within thirty days of closing. 12 i. The indemnification and hold harmless obligations under 13 this subsection may not be waived, released, or modified by any 14 beneficiary except by an instrument in writing, signed by the 15 beneficiary, acknowledged before a notary public, and recorded 16 in the office of the county recorder. No easement, lease, 17 option, or other agreement between a landowner and any obligor 18 shall be construed to waive or modify the indemnification 19 obligations of this subsection unless the instrument of waiver 20 expressly references this subsection by statutory citation and 21 contains a conspicuous statement, in boldface type of not less 22 than fourteen-point font, that the landowner is waiving the 23 protections of this subsection. 24 j. Each obligor shall maintain, at all times during 25 which the indemnification obligation is in effect, a policy 26 of general liability insurance or environmental liability 27 insurance, or both, with limits of not less than ten million 28 dollars per occurrence and twenty-five million dollars in 29 the aggregate, sufficient to satisfy the indemnification 30 obligations of this subsection. Proof of such insurance shall 31 be filed with the county auditor annually. The policy shall 32 name all beneficiaries as additional insureds and shall provide 33 not less than sixty days’ written notice to the county auditor 34 and all beneficiaries prior to cancellation, nonrenewal, or 35 -5- HF 2580.3231 (2) 91 sb/js 5/ 7
material modification. 1 k. Any beneficiary may enforce the indemnification and 2 hold harmless agreement by action in the district court of 3 the county in which the beneficiary’s property is located. 4 The prevailing party in any such action shall be entitled to 5 recover all reasonable attorney fees, expert witness fees, 6 and costs of litigation. The obligors shall not assert as a 7 defense the failure of a beneficiary to provide notice of a 8 claim within any particular period, provided that the action is 9 commenced within the applicable statute of limitations. The 10 statute of limitations for any action under this subsection 11 shall be ten years from the date the beneficiary knew or 12 reasonably should have known of the loss, damage, or casualty 13 giving rise to the claim, or ten years from the date of removal 14 of the last physical component of the wind turbine from the 15 site, whichever is later. 16 l. The liability of the obligors under the indemnification 17 and hold harmless agreement shall be joint and several. A 18 beneficiary may pursue any one or more obligors for the full 19 amount of any claim without being required to join, notify, or 20 first proceed against any other obligor. Contribution among 21 obligors shall be governed by chapter 668. 22 m. The indemnification and hold harmless obligations 23 created by this subsection are in addition to, and not in lieu 24 of, any other remedy available to any beneficiary under any 25 other provision of law, including but not limited to common 26 law negligence, nuisance, trespass, strict liability, or any 27 statutory cause of action. Nothing in this subsection shall be 28 construed to limit, impair, or preclude any claim or cause of 29 action that a beneficiary may have against any obligor or any 30 other person under any other provision of law. 31 n. For purposes of this subsection: 32 (1) “Construction” includes any grading, excavation, 33 foundation work, road construction, crane assembly, tower 34 erection, turbine installation, electrical interconnection, 35 -6- HF 2580.3231 (2) 91 sb/js 6/ 7
or other physical activity undertaken in preparation for or 1 in furtherance of the installation of a wind turbine at the 2 proposed site. 3 (2) “Landowner of record” means any person or entity holding 4 legal or equitable title to real property as reflected in the 5 records of the county recorder’s office, including but not 6 limited to individuals, trusts, corporations, limited liability 7 companies, partnerships, and governmental entities. 8 (3) “Loss” or “casualty” includes any injury, damage, 9 harm, cost, expense, liability, or deprivation of any kind, 10 whether economic or noneconomic, direct or consequential, past, 11 present, or future, and whether or not foreseeable at the time 12 of execution of the indemnification agreement. 13 o. If any provision of this subsection or its application to 14 any person or circumstance is held invalid, the invalidity does 15 not affect other provisions or applications of this subsection 16 that can be given effect without the invalid provision or 17 application, and to this end the provisions of this subsection 18 are severable. 19 p. This subsection shall apply to all wind energy conversion 20 facilities and wind turbines for which construction commences 21 on or after July 1, 2026, regardless of when any permit, 22 approval, easement, lease, or other authorization for the 23 facility or turbine was granted or executed. > 24 2. By renumbering, redesignating, and correcting internal 25 references as necessary. 26 ______________________________ THOMSON of Floyd -7- HF 2580.3231 (2) 91 sb/js 7/ 7 #2.