Use and occupancy agreement. — Delaware Code § 2005

§ 2005. Use and occupancy agreement.

(a) In conjunction with the issuance of a permit by the Department under § 2004 of this title, the Department is authorized to enter into use and occupancy agreements with renewable energy entities for the locating of renewable energy interconnection facilities in the ROW under terms that:

(1) Protect the public health, safety and welfare along Delaware’s roadways.

(2) Minimize conflicts with the use of the State’s ROW for the primary purpose of transportation.

(3) May prohibit the renewable energy entity from owning and placing poles as part of renewable energy interconnection facilities in the State’s ROW.

(4) Establish a preference that renewable energy interconnection facilities be located underground, but would authorize above-ground facilities in a ROW near a roadway where safety and other considerations allow such facilities.

(5) Ensure that the renewable energy entity entering into a use and occupancy agreement has the financial, technical, organizational, and managerial resources needed to site and operate in the ROW for the full-term of the use and occupancy agreement.

(6) Are competitively neutral and nondiscriminatory.

(7) Charge a fair market rental rate for the use of the State’s ROW by renewable energy entities.

(b) Such use and occupancy agreements shall be for a term of 30 years with an option to renew for additional 5-year terms subject to compliance with performance requirements set by the Department, and the authority of the Department to revoke such agreements for cause.

(c) Such use and occupancy agreements shall be nonassignable and nontransferable without the reasonable consent of the Department based on the assignee or transferee having the financial, technical, organizational, and managerial resources needed to operate in the ROW for the term of the use and occupancy agreement and protecting the public health, safety and welfare.

(d) Each renewable energy entity entering into a valid use and occupancy agreement shall comply with the Underground Utility Damage Prevention and Safety Act, Chapter 8 of Title 26, to the extent applicable.

(e) Notwithstanding the provisions hereof related to restrictions on assignment and transfer, a renewable energy entity may pledge and/or collaterally assign its interest in the use and occupancy agreement and associated renewable energy interconnection facilities in the ordinary course of securing financing for any renewable energy interconnection facilities, or associated renewable energy project, without the consent of the Department, provided that no entity may take possession of the renewable energy interconnection facilities in a public right of way, and no entity may receive any interest under a use and occupancy agreement, unless and until the Department has provided its consent to such a transfer under the provisions of subsection (c) of this section.

84 Del. Laws, c. 401, § 13;