Attachment_VII_Draft_Easement.pdf

Easement No. DACA84-2-XX-XXXX

DEPARTMENT OF THE ARMY

EASEMENT FOR

CONTRACTOR OWNED CONTRACTOR OPERATED

FUEL DISPENSING FACILITY LOCATED ON

U.S ARMY GARRISON, HAWAII SCHOFIELD BARRACKS AND

WHEELER ARMY AIRFIELD

This Easement is made on behalf of THE UNITED STATES OF AMERICA (the “United States”), between THE SECRETARY OF THE ARMY, acting by and through the Real Estate Contracting Officer, Real Estate Division, U.S. Army Engineer District, Omaha hereinafter referred to as the “Grantor”, under and by virtue of the authority vested in Title 10, United States Code, Section 2668, and pursuant to that certain Contract No. _______________, dated _____________, hereinafter called the “Contract” between the Defense Logistics Agency (DLA) Energy, hereinafter referred to as the “Agency”, having found that the granting of this easement will not be against the public interest, and the <<GRANTEE NAME>>, <<Select: INDIVIDUAL, CORPORATION, PARTNERSHIP OR STATE AGENCY>>, <<duly organized and existing under and by virtue of the laws of the State of <<STATE>>,>> with its principal offices located at <<ADDRESS>>, <<CITY, STATE, ZIP>>, hereinafter referred to as the “Grantee.”

NOW THEREFORE:

The Grantor, for good and valuable consideration set forth below, the receipt and sufficiency of all of which are hereby acknowledged, upon and subject to the terms, covenants and conditions set forth in this Easement, does hereby:

Grant and convey to Grantee, an Easement for the installation, operation, maintenance, repair, removal, upgrade, and replacement of a Contractor-Owned Contractor-Operated (COCO) Fuel Dispensing Facility, hereinafter collectively referred to as the “Facilities”, over, across, under, in and upon lands of the United States as identified in EXHIBITS “A” and “B”, having been determined not to be more land than is necessary for the Easement, hereinafter referred to as the “Premises”, and which are attached hereto and made a part hereof; subject to any existing outgrants and encumbrances identified in EXHIBIT “C”.

The Grantor hereby makes no claim of title during the term of this Easement to any Facilities of whatever nature located, constructed, or placed on the Premises by the Grantee.

THIS EASEMENT is granted subject to the following conditions:

USAG-HI SCHOFIELD BARRACKS

MANEUVER SITE COCO FUEL DISPENSING

FACILITY EASEMENT NO. DACA84-2-xx-xxxx

1. TERM

This Easement is hereby granted for a term of ______ ( ) years, beginning <<BEGIN DATE>>, and ending <<END DATE>>>> so long as the Grantee remains in compliance with any or all of the conditions of this Easement.

2. CONSIDERATION

The consideration for this Easement shall be the installation, operation, and maintenance of a fuel dispensing facility for the benefit of the Department of the Army and use of the Premises not against the public interest in accordance with the terms herein set forth.

3. MITIGATION AND DAMAGES

The Grantee shall mitigate adverse affects, including but not limited to, taking measures to repair or limit any damages caused to the Premises, surrounding areas, or to Pinon Canyon Maneuver Site or any adverse affects caused by the Grantee’s activities or inactivities where Grantee has a duty to act, as well as any caused during operation, maintenance, or installation work, and complete all site restoration <<in accordance with the Mitigation / Restoration Plan submitted by the Grantee and attached as EXHIBIT “D” on file in the U.S. Army Corps of Engineers, Omaha District.

4. NOTICES

All notices and correspondence to be given pursuant to this Easement shall be addressed, if to the Grantee, to <<NAME>>, <<ADDRESS>>, <<CITY>>, <<STATE>>, <<ZIP CODE>>; and if to the United States, to the District Commander, Attention: Chief, Real Estate Division, 1616 Capitol Avenue, Omaha, Nebraska 68102-4901; or as may from time to time otherwise be directed by the parties. Notice shall be deemed to have been duly given if and when enclosed in a properly sealed envelope addressed as aforesaid, and deposited, postage prepaid, in a post office regularly maintained by the United States Postal Service.

5. AUTHORIZED REPRESENTATIVES

Except as otherwise specifically provided, any reference herein to "Secretary", "Real Estate Contracting Officer ", or "said officer" shall include their duly authorized representatives. Any reference to "Grantee" shall include any assignees, transferees, successors, and their duly authorized representatives.

6. SUPERVISION BY THE INSTALLATION COMMANDER

The use and occupation of the Premises shall be subject to the general supervision and approval of the Installation Commander, hereinafter referred to as said

FACILITY EASEMENT NO. DACA84-2-xx-xxxx officer, and to such rules and regulations as may be prescribed from time to time by said officer.

7. APPLICABLE LAWS AND REGULATIONS

a. The Grantee shall comply with all applicable federal, state, county and municipal laws, ordinances, and regulations wherein the Premises are located.

b. The Grantee shall be solely responsible for obtaining at its cost and expense any permits or licenses required for their operations under this Easement, independent of any existing permits or licenses held by the Grantor.

c. The Grantee shall promptly report to the Grantor any incident for which the Grantee is required to notify a Federal, State, or local regulatory agency or any citation by federal, state, or local regulatory agency of non-compliance with any applicable law, ordinance, or regulation.

8. CONDITION OF PREMISES

The Grantee acknowledges that it has inspected the Premises, knows the condition, and understands that the same is granted without any representation or warranties whatsoever and without any obligation on the part of the United States to make any alterations, repairs, or additions thereto.

9. INSPECTION AND REPAIRS

a. Upon completion of any phase of the Easement activities which causes damage to the Premises, the Grantee shall restore said damage immediately, at the Grantee’s own expense, to the same condition in which they existed prior to the commencement of such work, to the satisfaction of the Grantor.

b. The said officer shall supervise the said Premises and Easement Facilities and cause it to be inspected at reasonable intervals and shall report any defects to the DLA Energy Contracting Officer. Grantee shall immediately repair any defects found by such inspection, or when directed by the DLA Energy Contracting Officer to repair any defects.

10. PROTECTION OF PROPERTY

The Grantee shall keep the Premises in good order and in a clean, safe condition by and at the expense of the Grantee. The Grantee shall be responsible for any damage that may be caused to property of the United States by the activities of the Grantee under this Easement and shall exercise due diligence in the protection of all property located on the Premises against fire or damage from any and all other causes.

Any property of the United States damaged or destroyed by the Grantee incident to the exercise of the privileges herein granted shall be promptly repaired or replaced by the Grantee to a condition satisfactory to said officer, or at the election of said officer, FACILITY EASEMENT NO. DACA84-2-xx-xxxx reimbursement made therefore by the Grantee in an amount necessary to restore or replace the property to a condition satisfactory to said officer.

11. INSURANCE

a. At the commencement of this Easement, the Grantee shall obtain, from a reputable insurance company, or companies, liability insurance. The insurance shall provide an amount not less than that which is prudent, reasonable and consistent with sound business practices or a minimum combined single limit of $1,000,000, whichever is greater, for any number of persons or claims arising from any one incident with respect to bodily injuries or death resulting therefrom, property damage, or both, suffered or alleged to have been suffered by any person or persons resulting from the operations of the Grantee under the terms of this Easement. The Grantee shall require its insurance company to furnish to the Real Estate Contracting Officer a copy of the policy or policies, or if acceptable to the Real Estate Contracting Officer, certificates of insurance evidencing the purchase of such insurance. The minimum amount of liability insurance coverage is subject to revision by the Real Estate Contracting Officer every three years or upon renewal or modification of this lease.

b. The insurance policy or policies shall be of comprehensive form of contract and shall specifically provide protection appropriate for the types of Facilities, services and activities involved. The Grantee shall require that the insurance company give the Real Estate Contracting Officer thirty (30) days written notice of any cancellation or change in such insurance. The Real Estate Contracting Officer may require closure of any or all of the Premises during any period for which the Grantee does not have the required insurance coverage.

12. RIGHT TO ENTER

a. The right is reserved to the United States, its officers, agents, and employees to enter upon the Premises at any time and for any purpose necessary in connection with government purposes; to make inspections.

b. The Grantee shall have the right to enter the Installation to exercise its rights under this Easement, subject to certain restrictions and/or special conditions required by the Installation. The Grantee acknowledges and recognizes that:

(1) the Premises are located on an active U.S. Army installation which may be subject to temporary closings and identification and/or routing requirements due to the occurrence of unannounced events, actual or simulated, including, but not limited to: mobilization, extreme weather conditions, security, anti-terrorist force protection measures, police, medical or fire-related emergencies; the occurrence of a national emergency declared by the President or Congress; or due to planned military training exercises affecting the Premises. It is expressly understood that the Grantor may limit or restrict the right of access granted in any manner considered necessary, in the Grantor’s sole discretion.

FACILITY EASEMENT NO. DACA84-2-xx-xxxx

(2) Said officer exercises command and control over the (i) Premises, including traffic control, security, force protection, law enforcement, fire protection, activities performed thereon and command and control matters, and (ii) military personnel that may be at or otherwise present on the Premises from time to time.

13. TRANSFERS AND ASSIGNMENTS

Without prior written approval of the Real Estate Contracting Officer, the Grantee shall neither transfer nor assign this Easement or any part thereof, nor grant any interest, privilege, or license whatsoever in connection with this Easement. The provisions and conditions of this Easement shall extend to and be binding upon and shall inure to the benefit of the representatives, successors and assigns of the Grantee. Failure to comply with this condition shall constitute a noncompliance for which the Easement may be revoked immediately by the Real Estate Contracting Officer.

14. INDEMNITY

The United States shall not be responsible for damages to property or injuries to persons which may arise from or be incident to the exercise of the privileges herein granted, or for damages to the property of the Grantee, or for damages to the property or injuries to the person of the Grantee's officers, agents or employees or others who may be on the Premises at their invitation or the invitation of any one of them, and the Grantee shall hold the United States harmless from any and all such claims not including damages due to the fault or negligence of the United States or its contractors.

15. SUBJECT TO EASEMENTS

This Easement is subject to all other existing easements, or those subsequently granted as well as established access routes for roadways and utilities located, or to be located, on the Premises, provided that the proposed grant of any new Easement or route will be coordinated with the Grantee, and easements will not be granted which will, in the opinion of Grantor, interfere with the use of the Premises by the Grantee.

16. COST OF UTILITIES

The Grantee shall pay the cost, as determined by the Grantor’s utility meters installed at the boundary of the Premises. The Government shall be under no obligation to furnish utilities or services. Payment shall be made in the manner prescribed by the officer having such jurisdiction using the Government utility rates.

17. NONCOMPLIANCE, DEFAULT, TERMINATION, AND RELINQUISHMENT

a. The Grantee is charged at all times with full knowledge of all the limitations and requirements of this Easement, the necessity for correction of deficiencies, and with compliance with the terms and conditions. The Grantor will notify the Grantee of any

FACILITY EASEMENT NO. DACA84-2-xx-xxxx noncompliance with this Easement, which notice shall be in writing or shall be confirmed in writing, giving a period of time in which to correct the noncompliance.

b. If the Grantee fails to satisfactorily correct or reach agreement on the corrective action necessary to reach compliance, the Grantor may elevate the Grantee’s noncompliance to a default upon delivery to the Grantee of a written notice of default, giving a period of time in which to correct the default, subject to Section 24 on NOTICE AND CURE, unless otherwise provided in this Easement.

c. If the Grantee fails to satisfactorily correct or reach agreement on the corrective action necessary to stop such default, Grantor may terminate this Easement.

In the event of such a termination, the Grantor may send Grantee a notice to terminate this Easement, or, alternatively, may stay the sending of such notice to terminate, and may seek damages, specific future measures to prevent the reoccurrence of such default, and/or pursue any other remedy available under law or equity. The termination date for this Easement shall be effective as of a day specified in the notice to terminate.

In the event this Easement is terminated pursuant to this Section 17.c, the Grantor shall issue the Grantee a License for a period not to exceed one hundred eighty (180) days, for the purposes of conducting restoration as described in Section 23, RESTORATION.

d. All or any part of this Easement may be terminated by the Grantor upon sixty

(60) days written notice to Grantee if the Grantor determines that all or any such part of the Premises have been abandoned or not used for a period of two (2) years by the Grantee. If Grantor has made a good faith effort to locate Grantee to provide Notice to Terminate, but Grantee cannot be located or no longer exists as a corporate entity, the Grantor may proceed with termination, and provide notice in the land records by any appropriate method required to clear title. Except for any consideration owing to the Grantor which has already accrued pursuant to Section 2, CONSIDERATION, no further consideration shall be owing upon termination of this Easement by the Grantor.

e. Grantee may terminate this Easement only with the consent of the Grantor.

f. The Grantor may revoke or terminate this Easement in whole or in part in the event the Contract is terminated in accordance with its terms.

18. SOIL AND WATER CONSERVATION

The Grantee shall maintain, in a manner satisfactory to Grantor, all soil and water conservation structures that may be in existence upon said Premises at the beginning of or that may be constructed by the Grantee during the term of this Easement, and the Grantee shall take appropriate measures to prevent or control soil erosion within the said Premises. Any soil erosion occurring outside the Premises resulting from the activities of the Grantee shall be corrected by the Grantee as directed by Grantor’s representative having immediate jurisdiction over the property.

FACILITY EASEMENT NO. DACA84-2-xx-xxxx

19. ENVIRONMENTAL PROTECTION

a. Within the limits of their respective legal powers, the parties hereto shall protect the Premises against pollution of its air, ground, and water. The Grantee shall comply with any laws, regulations, conditions, or instructions affecting the activity hereby authorized if and when issued by the Environmental Protection Agency, or any Federal, state, interstate or local governmental agency having jurisdiction to abate or prevent pollution. The disposal of any toxic or hazardous materials within the Premises is specifically prohibited. Such regulations, conditions, or instructions in effect or prescribed by the said Environmental Protection Agency, or any Federal, state, interstate or local governmental agency are hereby made a condition of this Easement.

The Grantee shall not discharge waste or effluent from the Premises in such a manner that the discharge will contaminate streams or other bodies of water or otherwise become a public nuisance.

b. The use of any pesticides or herbicides within the Premises shall be in conformance with all applicable Federal, state, interstate and local laws and regulations.

The Grantee must obtain approval in writing from said officer having operational control over the property before any pesticides or herbicides are applied to the Premises.

c. The Grantee will use all reasonable means available to protect the environment and natural resources, and where damage nonetheless occurs arising from the Grantee's activities, the Grantee shall be liable to restore the damaged resources.

20. ENVIRONMENTAL SITE ASSESSMENT

An Environmental Condition of Property report (ECP) documenting the known history of the property with regard to the storage, release, or disposal of hazardous substances thereon, is attached hereto and made a part hereof as EXHIBIT “E”. Upon expiration, revocation, or termination of this Easement, another ECP shall be prepared which will document the environmental condition of the property at that time. A comparison of the two reports will assist the Grantor in determining any environmental restoration requirements. Any such requirements will be completed by the Grantee in accordance with the Condition on RESTORATION.

21. HISTORIC PRESERVATION

The Grantee shall not remove or disturb, or cause or permit to be removed or disturbed, any historical, archeological, architectural, or other cultural artifacts, relics, remains, or objects of antiquity. In the event such items are discovered on the Premises, the Grantee shall immediately notify said officer having operational control over the property and protect the site and the material from further disturbance until the said officer gives clearance to proceed.

FACILITY EASEMENT NO. DACA84-2-xx-xxxx

22. NON-DISCRIMINATION

a. The Grantee shall not discriminate against any person or persons or exclude them from participation in the Grantee’s operations, programs or activities conducted on the Premises, because of race, color, religion, sex, age, handicap, or national origin.

The Grantee will comply with the Americans with Disabilities Act and attendant Americans with Disabilities Act Accessibility Guidelines (ADAAG) published by the Architectural and Transportation Barriers Compliance Board.

b. The Grantee, by acceptance of this Easement, is receiving a type of Federal assistance and, therefore, hereby gives assurance that it will comply with the provisions of Title VI of the Civil Rights Act of 1964 as amended (42 U.S.C. § 2000d); the Age Discrimination Act of 1975 (42 U.S.C. § 6102); the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794); and all requirements imposed by or pursuant to the Directive of the Department of Defense (32 CFR Part 300) issued as Department of Defense Directive 5500.11 and 1020.1, and Army Regulation 600-7. This assurance shall be binding on the Grantee, its agents, successors, transferees, and assignees.

23. RESTORATION

a. On or before the expiration of this Easement or its termination by the Grantor, the Grantee shall vacate the Premises, remove the property of the Grantee, and restore the Premises to a condition satisfactory to Grantor and in accordance with the Environmental Condition of Property (ECOP) report.

b. If the Grantee shall fail or neglect to remove said property, then, at the option of the Grantor, (a) title to said property shall revert to the United States without compensation therefore, or (b) the Grantor may cause the property to be removed as restoration of the Premises, set out in c. below.

c. If the Grantee shall fail or neglect to restore the Premises, as agreed, the Grantor may cause restoration work to be performed. The Grantee shall pay the United States on demand any sum which may be expended by the United States after the expiration, revocation, or termination of this Easement in restoring the Premises.

d. No claim shall be created by or made on account of such reversion, removal, demand, damages and restoration against the United States or its officers or agents.

e. The Grantee grants the Grantor limited power of attorney to execute any deed, bill of sale or other documents to clear title to the personal property and improvements whose non-removal has been agreed to by the Grantor or where title is reverting to the United States. The Grantor may provide appropriate evidence of title in the Grantee to all property being removed by Grantee.

FACILITY EASEMENT NO. DACA84-2-xx-xxxx

24. NOTICE AND CURE

The Grantee shall be deemed to have violated or neglected to perform under this Easement if it fails to comply with any provision herein, where such failure to comply continues uncured for sixty (60) days after delivery of written notice by the Grantor to the Grantee. If, however, the time required to cure exceeds the sixty (60) day period, the Grantee shall not be deemed to be in default if the Grantee, within such period, shall begin the actions necessary to bring it into compliance with this Easement in accordance with a compliance schedule acceptable to the Grantor. This Section 24 shall not apply to any failure of the Grantee to procure and maintain insurance under Section 11.

25. DISCLAIMER

This instrument is effective only insofar as the rights of the United States in the Premises are concerned; and the Grantee shall obtain such permission as may be required on account of any other existing rights. It is understood that the granting of this Easement does not eliminate the necessity for obtaining any Department of the Army permit which may be required pursuant to the provisions of Section 10 of the Rivers and Harbors Act of 3 March 1899 (30 Stat. 1151; 33 U.S.C. § 403), Section 404 of the Clean Water Act (33 U.S.C. § 1344), Section 408 (33 U.S.C. § 408) or any other permit or license which may be required by federal, state, interstate or local laws in connection with the use of the Premises.

26. DESCRIPTION

Upon the completion of installation, the Grantee, will provide as-built drawings and a description of the Premises. This Easement will be amended to correct the description based on the as-built drawings and description.

27. TITLE TO IMPROVEMENTS

The installation, repair, and renovation of the Facilities are private undertakings, and during the term of this Easement title to the Facilities constructed by or on behalf of Grantee shall vest and remain in Grantee. The Parties agree that title to any Facilities and any addition or alteration to the Facilities, shall, upon completion thereof, immediately vest in the Grantee, and such future Facilities and such addition or alteration shall be deemed to be part of the Facilities. Upon expiration or termination of this Easement, the provisions of Condition on RESTORATION, shall apply.

28. MINIMUM WAGE REQUIREMENT (EXECUTIVE ORDER 14026)

a. It has been determined this Easement is not subject to Executive Order 14026 or the regulations issued by the Secretary of Labor in 29 CFR part 23 pursuant to the Executive Order.

FACILITY EASEMENT NO. DACA84-2-xx-xxxx

b. If a duly authorized representative of the United States discovers or determines, whether before or subsequent to executing this Easement, that an erroneous determination regarding the applicability of Executive Order 14026 was made, Grantee, to the extent permitted by law, agrees to indemnify and hold harmless the United States, its officers, agents, and employees, for and from any and all liabilities, losses, claims, expenses, suits, fines, penalties, judgments, demands or actions, costs, fees, and damages directly or indirectly arising out of, caused by, related to, resulting from or in any way predicated upon, in whole or in part, the erroneous Executive Order 14026 determination. This includes Grantee releasing any claim or entitlement it would otherwise have to an equitable adjustment to the Easement and indemnifying and holding harmless the United States from the claims of subgrantees and or Grantee employees.

29. PAID SICK LEAVE REQUIREMENT (EXECUTIVE ORDER 13706)

a. It has been determined this Easement is not subject to Executive Order 13706 or the regulations issued by the Secretary of Labor in 29 CFR part 13 pursuant to the Executive Order.

b. If a duly authorized representative of the United States discovers or determines, whether before or subsequent to executing this Easement, that an erroneous determination regarding the applicability of Executive Order 13706 was made, Grantee, to the extent permitted by law, agrees to indemnify and hold harmless the United States, its officers, agents, and employees, for and from any and all liabilities, losses, claims, expenses, suits, fines, penalties, judgments, demands or actions, costs, fees, and damages directly or indirectly arising out of, caused by, related to, resulting from or in any way predicated upon, in whole or in part, the erroneous Executive Order 13706 determination. This includes Grantee releasing any claim or entitlement it would otherwise have to an equitable adjustment to the Easement and indemnifying and holding harmless the United States from the claims of subgrantees and or Grantee employees.

30. SPECIAL CONDITIONS

a. Cost of installation, operation, and maintenance of the COCO Fuel Facility project. Grantee will be responsible for all costs incurred to install, operate, and maintain the proposed COCO facility, as well as all infrastructures required to serve the project and area, to include, but not limited to, the cost of all utilities, roads, janitorial services, security, fire protection, roadway and parking lot maintenance, fence maintenance, and grounds and building maintenance. Grantee shall not seek reimbursement from Army for any such costs except as otherwise agreed upon by the Parties.

b. Architectural: Engineering and Building Design. The Parties agree to collaboratively plan, develop, review and otherwise participate in all phases of design

FACILITY EASEMENT NO. DACA84-2-xx-xxxx and installation of the COCO facility and its related infrastructure. Army hereby recognizes that the COCO facility contract allows for commercial fuel facility design standards and given the significant capital investment required of Grantee to implement the COCO project, Grantee shall, as between the Parties, retain the right of approving the architectural and engineering plans, building schematics and building specifications for the COCO project and each infrastructure component; however, Grantee, in recognition that the COCO project and its infrastructure are to be constructed upon real property which shall remain under the real property inventory of the Department of the Army, shall endeavor to comply with the Installation Design Guide for design and installation of buildings and infrastructure upon Department of the Army real property in such a manner as is similar in materials and appearance to surrounding buildings and compatible with existing infrastructure. Grantee shall provide Army the opportunity to review and comment upon the design and installation effort as undertaken by Grantee prior to Grantee making any physical improvements to the Premises.

c. Permits and Licenses: Grantee shall be solely responsible for obtaining, at its sole expense, all necessary permits and licenses required by Federal, State, and local authorities as a result of its use and occupation of the Premises. Copies of all required permits shall be provided to Army for inspection upon request. Any environmental permit required for the Premises will list Grantee as Operator. Grantee shall also perform periodic Environmental Compliance Reviews with regard to its use and occupation of the Premises. In the instance of such permits which have been issued to Army as owner of the real property on which the COCO project is to be constructed and operated, Grantee shall comply with all such permits for those actions of Grantee covered by said permits. In the event a permit, license or other compliance document must be issued to Army as the Premises property custodian, Grantee shall nonetheless be responsible for all cost involved to obtain and comply with any such permit, license or compliance document and reimburse Army for any such cost incurred to obtain or comply with same on Grantee’s behalf.

d. Inspection. Army’s rights under this Agreement specifically include the right for Army officials to inspect, upon reasonable notice, the Premises for compliance with environmental, safety and occupational health laws and regulations, whether or not Army is responsible for enforcing such laws and or regulations. At all reasonable times throughout the term of this Agreement, Army shall, upon reasonable notice to Grantee, be allowed to access the Premises for any legitimate purpose as may be necessary to ensure compliance with applicable laws and regulations. Army normally will give Grantee twenty-four (24) hours prior notice of its intention to enter the Premises unless it determines the entry is an emergency required for safety, environmental, health, operations, or security purposes, in which event no notice shall be required. Grantee shall have no claim on account of any entries against Army or any officer, agent, employee or contractor thereof. All such entries by Army will be scheduled and conducted, to the extent possible, so as not to interfere with or hamper operation.

e. Emergency Spill Response Plan. Grantee shall have an Army approved plan for responding to spills or events involving hazardous substances, hazardous waste, fuel, and other chemicals within or upon the Premises that is approved by the permitting

FACILITY EASEMENT NO. DACA84-2-xx-xxxx authority and complies with the Installation-level spill response plan, prior to commencement of Grantee’s installation and conducting operations on the Premises that would involve such materials. Should Army provide any personnel or equipment in response to a spill or hazardous event on or within the Premises, whether for initial fire response and/or spill containment, or otherwise on request of Grantee, or because Grantee was not, in the opinion of the Army, conducting timely response or cleanup actions, Grantee agrees to reimburse Army for its reasonable cost associated with such response or clean up.

f. Storage of Toxic and Hazardous Material. Pursuant to 10 U.S.C § 2692 (b)(1), Grantee is exempt from the prohibition against the storage of hazardous material on the Premises.

g. Security, Anti-Terrorism, and Force Protection. Grantee shall operate consistent with Department of Army security requirements. Army recognizes Grantee’s authority to maintain operational control of Premises and to respond to security threats and alert conditions consistent with Department of Army security requirements. In matters of mutual security interest, Grantee recognizes Army’s lead role as owner of the real property on which the Facilities is situated. Grantee will be responsible for reasonable cost for its share of any mutual effort to undertake such prudent precautions, as agreed to by the Parties, to ensure the Premises are secure. In the event that Directives or Instructions issued by the Secretary of Defense, the Secretary of the Army, regarding Force Protection measures direct conflicting security measures and or requirements. The Parties shall apply to respective cognizant authority promulgating such Directive or Instruction for a determination. While such determination is pending, in the spirit of cooperation and mutual security, Grantee will comply, to the fullest extent possible, as proposed by Army, with such security measures while they are under review.

h. A copy of contract No. ____________ is attached as EXHIBIT “F”. The Easement and the Contract shall not merge. In the event that the terms and conditions of this Easement conflict with the terms and conditions of the Contract, the terms and conditions of the contract shall prevail. A default under the contract shall constitute a default under this Easement. Unless otherwise specified in this Easement, any and all Government rights and remedies as set forth in the contract and this Easement will be available to the government on an individual and cumulative basis to enforce the provision of this Easement. Fort Carson Military Installation, Colorado will coordinate with Army Petroleum Center and DLA Energy if contract changes are required.

i. Environmental Protection Provisions are attached hereto and made a part hereof as EXHIBIT “G”.

j. The Grantee shall provide to said officer a survey and legal description for said Premises within 180 days from execution of this Easement on behalf of the Government. Following approval, the survey and legal description will be attached

FACILITY EASEMENT NO. DACA84-2-xx-xxxx hereto and made a part hereof as EXHIBIT “H”. The legal description should not include any more land than is necessary and should tie into a known government monument. Submittals shall conform to the following:

(1) Drawings are to be in a “.DGN” (Ground to Grid converted) and “.SHP” or Geodatabase (ESRI) file format(s) and projected in _______________________ coordinate system.

(2) Legal Descriptions are to be furnished in DOCX (WORD).

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FACILITY EASEMENT NO. DACA84-2-xx-xxxx

THIS EASEMENT is not subject to Title 10, United States Code, Section 2662, as amended.

IN WITNESS WHEREOF, I have hereunto set my hand by authority of the Secretary Army, this ______ day of ______________________, 20________.

<<NAME>>

<<TITLE>>

Real Estate Contracting Officer

NOTARIAL CERTIFICATE

STATE OF <<STATE>> )

) ss.

COUNTY OF <<COUNTY>> )

I, <<name>> a Notary Public, in and for said County in said State, hereby certify that <<NAME>>, whose name as <<Title>>, <<Company>> is signed to the foregoing instrument, and who is known to me, acknowledged before me on this day that, being informed of the contents of the instrument <<he/she>>, as such officer and with full authority, executed the same voluntarily for and as the act of said company.

Given under my hand this [number] day of [month], [year].

<<signature>> Notary Public

<<SEAL>>

My commission number: [number] My Commission Expires: [date]

[Grantor Signature Page]

FACILITY EASEMENT NO. DACA84-2-xx-xxxx

THIS EASEMENT is also executed by the Grantee this ____day of _________, 20__.

AUTHORIZED REPRESENTATIVE

BY: __________________________________

TITLE: _______________________________

NOTARIAL CERTIFICATE

STATE OF <<STATE>> )

) ss.

COUNTY OF <<COUNTY>> )

I, <<name>> a Notary Public, in and for said County in said State, hereby certify that <<NAME>>, whose name as <<Title>>, <<Company>> is signed to the foregoing instrument, and who is known to me, acknowledged before me on this day that, being informed of the contents of the instrument <<he/she>>, as such officer and with full authority, executed the same voluntarily for and as the act of said company.

Given under my hand this [number] day of [month], [year].

<<signature>> Notary Public

<<SEAL>>

My commission number: [number] My Commission Expires: [date]

[Grantee Signature Page]

FACILITY EASEMENT NO. DACA84-2-xx-xxxx

CORPORATE CERTIFICATE

I, _____________________________certify that I am the

_________________________of,_____________________________ and that, ___________________________________, who signed the foregoing instrument on behalf of the corporation, was authorized to sign for the corporation. I further certify that said signer was acting within the scope of powers delegated to this officer by the governing body of the corporation in executing said instrument.

Date: _________________, 20__

Corporate Secretary or Appropriate Officer

<<Affix Corporate Seal>>

FACILITY EASEMENT NO. DACA84-2-xx-xxxx

Exhibits “A” and “B”

MAP, SURVEY & LEGAL DESCRIPTION OF PREMISES

Exhibit “C”

EXISTING OUTGRANTS AND ENCUMBRANCES

Exhibit “D”

MITIGATION AND RESTORATION PLAN

Exhibit “E”

ENVIRONMENTAL CONDITION OF PROPERTY REPORT

Exhibit “F”

COPY OF DLA-E CONTRACT

Exhibit “G”

ENVIRONMENTAL PROTECTION PROVISIONS

Exhibit “H”

GRANTEE’S SURVEY AND LEGAL DESCRIPTION