Real Estate Agreements for Renewable Energy Projects

Real Estate Agreements for Renewable Energy Projects

June 6-7, 2022 | Online :: Central Time

All renewable energy projects rely on site control methods (including purchases, leases, easements and similar land rights) to create and maintain real estate rights for the project.  This course discusses each of those types of agreements (including when and how they should be used), real estate due diligence considerations (including how specific issues should be addressed in a site control document) and, most importantly, how to perfect site control so that a project is both “insurable” and “financeable.”  In addition, this course will discuss specific real property issues that frequently come into play with renewable energy projects, including mineral rights, state and federal lands, and tribal lands. 

While covering all real estate agreements that may be used to establish site control, this course focuses in particular on land leases and the key terms in leases that every practitioner should understand.    

The course instructors have extensive experience negotiating all types of real estate agreements for renewable energy projects and extensive experience representing renewable energy developers, lenders, and investors.

Relevant materials will be provided.  The course is designed to provide those involved in the “dirt” side of renewable energy projects (or those just interested in what the “dirt” side does) with practical, useful knowledge, strategies and tactics for obtaining site control.

Learning Outcomes

  • Discuss the basics of renewable energy development from a real estate perspective
  • Review how renewable energy site control documents differ from standard real estate transactional contracts
  • Navigate the diligence process, both pre- and post-contract execution
  • Identify the types of real property contracts that are available to gain site control obtain site control for a renewable energy project, with a focus on land leases in particular
  • Review how title insurance impacts site control, project layout, and financing
  • Recognize unusual obstacles (third party rights, competing and/or conflicting uses) and potential curative actions
  • Build recognition of where real property/site control fits into the overall development of renewable energy projects

 

Agenda

Monday, June 6, 2022 : Central Time

8:45 – 9:00 a.m.
Log In

12:00 – 12:40 p.m.
Lunch Break

9:00 a.m. – 4:00 p.m.
Course Timing

 

Welcome: Introduction/Background

  • Setting the stage: Intro to Project development and project finance
  • A note about distributed generation projects

Establishing Site Control: Overview of Types of Real Property Documents for Renewable Energy Projects

  • Agreements/Real Property Interests
    • Fee Ownership
    • Leases
    • Easements
    • Licenses
  • Creating “Insurable” and “Financeable” Interest
    • Site control documents need to establish an “insurable” interest in real property
    • Licenses are generally not a real property interest
  • Role of Option Agreements
    • Option Agreement structure
    • Leases with “Development Periods”

11:00 – 11:15 a.m. :: Morning Break

Panel Discussion #1) Title Insurance: Hot Topics

  • Moderated panel to discuss hot topics in title insurance for renewable energy projects, including requirements for obtain mineral rights coverage, “encroachments” coverage, and mechanics lien coverage (for lenders for construction financings).
  • Panel to include title insurance company underwriters/professionals

12:00 – 12:40 p.m. :: Lunch Break

Negotiating Leases: Fundamental Lease Terms

  • Property
    • Defining the property
    • Phased takedowns
  • Term
    • At least coterminous with PPA
    • Development or option periods, operational periods
    • Termination rights
  • Rent and other Payments to Landowner
    • Option Payments/Development Period Rent
    • Base Rent
      • Acreage
      • Installed capacity
    • Royalties
    • Other payments
      • Meteorological stations
      • Crop damage/loss
      • Easements for the project
    • Security for Leasehold Obligations
    • Permitted Uses
    • Easements and related needs for the project
      • Access
      • Transmission
      • Construction
      • Exclusive rights to the resource/negative easements/severance of rights
      • Setbacks and waivers/overhang/noise
    • Non-Interference Covenants
      • Concurrent uses and how a renewable energy project affects the land
      • Farming/ranching/hunting uses
        • Conservation Reserve Program and similar programs
        • Crop and animal damage
      • Taxes:
        • Who is responsible for what taxes?
        • California: structuring lease terms to avoid property tax reassessment and imposition of transfer tax
  • Decommissioning and removal, security and bonding
  • Assignment rights and financing provisions
    • Fee debt subordination and non-disturbance agreements
    • Liens and mortgages from owner and developer perspective
      • Mortgagee protection: cure rights, foreclosure and new agreement, estoppels and amendments
      • Mechanic’s liens
  • Defaults and Landowner Remedies

2:15 – 2:30 p.m. :: Afternoon Break

Due Diligence: Incorporation into Site Control Agreements

  • Real property due diligence occurs before, during, and after the site control agreements are negotiated
  • Existing uses and proposed uses of the land
  • Third party rights
    • Minerals
    • Easements
      • Exclusive versus non-exclusive
    • Restrictions (e.g., no build)
    • Tenant rights (agricultural leases)
    • Liens and Mortgages
  • Title and survey (see below)
  • Natural resources constraints
  • Complexity of permitting
  • Meteorological conditions
  • Proximity to grid/point of interconnection

Panel Discussion #2)  Mineral Rights: What You Need to Know

  • Moderated panel to provide an overview of what mineral rights are and what it means for the development of your project, how to identify if there are “severed” mineral rights owner or oil and gas lessees, and how to address mineral rights so that project development may proceed.
    • How mineral rights should be addressed in leases and other site control documents
    • Surface waiver agreements
  • Panel to potentially include real estate attorneys, in-house counsel, and in-house developers.

 

Tuesday, June 7, 2022 : Central Time

8:45 – 9:00 a.m.
Log In

9:00 a.m. – 12:00 p.m.
Course Timing

 

Title Insurance, Title, and Survey Matters

  • Title Insurance
    • Understanding the roll of title insurance in renewable energy transactions (for developer, project finance lender and tax equity investor)
    • Customary title insurance endorsements (ALTA Energy Series; Texas is different)
  • Overview and purpose of a title report and survey
    • Incorporating title and survey review and curative provisions into the site control document.
  • Third Party Consents: Necessary for project financeability
    • SNDAs from fee lenders
    • Surface waiver/accommodation agreements from mineral rights owners and lessees
    • Crossing consents from easement holders

11:00 – 11:15 am :: Morning Break

Panel Discussion #3) Negotiating Leases in the Real World

  • Panel to discuss what issues they see most heavily negotiated between landowners and renewable energy company lessees/purchasers and how those issues are resolved.
  • Panel to potentially include in-house real estate/site acquisition professionals and attorneys

Other Issues to be discussed

  • Tribal Land/First Nations
  • BLM land/government land

Instructors

Daniel Engler, Partner, Cox Castle & Nicholson LLP

Dan Engler is a real estate transactional partner in the San Francisco office of Cox, Castle & Nicholson LLP. His practice focuses on the buying, selling, leasing, development, and financing of real estate assets, with a particular focus on renewable energy. Dan regularly assists clients with due diligence, site acquisition and assemblage, construction financing, and tax equity investments in renewable energy projects. Dan has advised clients on the development of thousands of megawatts of solar and wind energy projects in California and other states, including with respect to site control, title issues, mineral issues, and California-specific real property issues.


Jake Storms, Partner, Cox Castle & Nicholson LLP

Jake is a transactional attorney whose practice includes real estate acquisitions and dispositions, land and site control, project development and leasing.  He is a member of the Real Estate and Renewable Energy Development team.

Real Estate Development: Jake represents developers, lenders and investors across a broad-range of real estate development projects, including residential, commercial, mixed-use, healthcare, schools, military base redevelopment, mitigation and conservation (both banking and turnkey) and energy.  He frequently advises clients on complex title and survey issues, subsurface oil, gas and mineral matters and regularly drafts and negotiates ground and office leases (including medical office buildings).

Renewable Energy: Jake is an experienced energy attorney advising developers, lenders and tax equity investors on a broad range of renewable/alternative energy projects, including some of the largest utility-scale solar installations in California and across the United States.  Jake negotiates ground leases, easements and other site control documents, as well as title/survey and loan documents for distributed generation facilities (including carport and rooftop solar), community choice aggregation (CCA) projects and utility-scale installations for the solar, wind and geothermal sectors. 

Online Delivery

We will be using Microsoft Teams to facilitate your participation in the upcoming event. You do not need to have an existing Teams account in order to participate in the broadcast – the course will play in your browser and you will have the option of using a microphone to speak with the room and ask questions, or type any questions in via the chat window and our on-site representative will relay your question to the instructor.

  • IMPORTANT NOTE: After November 30 you will not be able to join a Teams meeting using Internet Explorer 11. Microsoft recommends downloading and installing the Teams app if possible. You may also use the Edge browser or Chrome.
  • You will receive a meeting invitation will include a link to join the meeting.
  • Separate meeting invitations will be sent for the morning and afternoon sessions of the course.
    • You will need to join the appropriate meeting at the appropriate time.
  • If you are using a microphone, please ensure that it is muted until such time as you need to ask a question.
  • The remote meeting connection will be open approximately 30 minutes before the start of the course. We encourage you to connect as early as possible in case you experience any unforeseen problems.

Register

Please Note: This event is being conducted entirely online. All attendees will connect and attend from their computer, one connection per purchase. For details please see our FAQ

If you are unable to attend at the scheduled date and time, we make recordings available to all registrants for three business days after the event

REGISTER NOW FOR THIS EVENT:

Real Estate Agreements for Renewable Energy Projects

June 6-7, 2022 | Online
Individual attendee(s) - $ 1195.00 each

Volume pricing also available

Individual attendee tickets can be mixed with ticket packs for complete flexibility

Pack of 5 attendees - $ 4,780.00 (20% discount)
Pack of 10 attendees - $ 8,365.00 (30% discount)
Pack of 20 attendees - $ 14,340.00 (40% discount)

Your registration may be transferred to a member of your organization up to 24 hours in advance of the event. Cancellations must be received on or before May 6, 2022 in order to be refunded and will be subject to a US $195.00 processing fee per registrant. No refunds will be made after this date. Cancellations received after this date will create a credit of the tuition (less processing fee) good toward any other EUCI event. This credit will be good for six months from the cancellation date. In the event of non-attendance, all registration fees will be forfeited. In case of conference cancellation, EUCIs liability is limited to refund of the event registration fee only. For more information regarding administrative policies, such as complaints and refunds, please contact our offices at 303-770-8800

CEUs

Credits

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EUCI is accredited by the International Accreditors for Continuing Education and Training (IACET) and offers IACET CEUs for its learning events that comply with the ANSI/IACET Continuing Education and Training Standard. IACET is recognized internationally as a standard development organization and accrediting body that promotes quality of continuing education and training.

EUCI is authorized by IACET to offer 0.9 CEUs for this event.

Requirements for Successful Completion of Program  

Participants must log in each day and be in attendance for the entirety of the course to be eligible for continuing education credit.  

Instructional Methods 

PowerPoint presentations, group discussions, as well as active participation will be utilized. 


Upon successful completion of this event, program participants interested in receiving CPE credits will receive a certificate of completion.

Course CPE Credits: 10.0
There is no prerequisite for this Course.
Program field of study: Specialized Knowledge
Program Level: Basic
Delivery Method: Group Internet Based
Advanced Preparation: None

CpeEUCI is registered with the National Association of State Boards of Accountancy (NASBA) as a sponsor of continuing professional education on the National Registry of CPE Sponsors. State boards of accountancy have final authority on the acceptance of individual courses for CPE credit. Complaints regarding registered sponsors may be submitted to the National Registry of CPE Sponsors through its web site: www.nasbaregistry.org

 

Who Should Attend

  • In-house Counsel
  • Landowner Attorneys and Advisors
  • Renewable Energy Project Managers/Developers
  • Renewable Energy Land Assemblage Teams
  • Real Estate Attorneys

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