JR1_Sample_Bill_of_Sale_ _Model_Easement.pdf

Reference JR1 – Sample of Bill of Sale

BILL OF SALE

INSERT CONTRACT NUMBER

In accordance with Defense Logistics Agency Energy Contract # SPE600-XX-C-XXXX dated Month Day, 20XX, and the good and valuable consideration described therein, the United States of America, hereinafter designated “Government,” hereby sells, transfers and conveys to CONTRACTOR NAME, Contractor Address, hereinafter designated “Grantee,” the property described below:

ALL THOSE CERTAIN facilities and equipment comprising the INSTALLATION NAME NAME OF UTILITY SYSTEM, as described on the attached DA Form 337 “Request for Approval of disposal of Building and Improvements” dated Month Day, 20XX, attached hereto and made a part of this Bill of Sale.

This sale is subject to the following provisions:

1. The terms and conditions found in the Utility Privatization Contract No. SPE600-XX-C-XXXX, being an agreement between the Government and the Grantee, along with all applicable federal, state, county, municipal, and Installation laws, ordinances, regulations, rules, orders, and other requirements; and

2. The Government covenants that is has good and valid title to the facilities and equipment being conveyed by this Bill of Sale; that it is the sole owner of said facilities and equipment and no other party has any lawful interest therein, other than the possible attachment rights; and

3. The Government makes no warranty, express or implied, with regard to the condition of the facilities and equipment, which are being transferred in “AS IS” “WHERE IS” condition; and

4. These facilities will remain available through Contract No. SPE600-XX-C-XXXX for any future mobilization missions; and

5. All equipment in place and installed property will remain in these facilities.

This bill of sale is executed on behalf of the Department of the Army this _____ day of

_______________, 20XX.

<<SIGNATURE BLOCK USACE>>>

Reference JR1 – Sample of Bill of Sale

ACCEPTANCE

I am Contractor Name who holds the position of President with Company Name, and I am duly authorized to accept and sign this Bill of Sale for Company Name this _____ day of ____________, 20XX.

Company Name

By: _____________________________

Contractor Name, President

Reference JR1 - Utilities Privatization Model Easement September 2012

Recording requested by and when recorded mail to:

<<Grantee Information>>

Space Above This Line Reserved for Recorder’s Use

EASEMENT NO. DACA <<__________>>

DEPARTMENT OF THE ARMY

EASEMENT FOR <<__________>> AND CONVEYANCE

IN SUPPORT OF A UTILITY PRIVATIZATION CONTRACT

LOCATED ON

<<INSTALLATION>>

<<COUNTY>> <<STATE>>

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 Chief, Real Estate Division, U.S. Army Engineer District, <<DISTRICT>>, hereinafter referred to as the “Grantor”, under and by virtue of the authority vested in Title 10, United States Code, Section 2688 and Title 10, United States Code, Section 2668, having found that the granting of this easement will not be against the public interest and having received Congressional approval

NOTICE TO OFFERORS: The purpose of this model easement is to give to prospective offerors a preview of the approximate content of the easement that will be issued to the new owner of the utility system to which the easement applies. The final easement document may differ from this model easement depending on State law, the installation, the system to which it applies, the conditions at the time of transfer, and other factors as appropriate.

Directions and all Editorial Notes, optional information and notes on what to fill in will be deleted from the final document. Places where information should be filled in are shown as <<_______ >>. Editorial Notes and optional information are shown in [ ].

Model EASEMENT NO. DACAXX-X-XX-XXXX

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for the conveyance of the utility system, or part thereof, and pursuant to the Utility Privatization Contract No. <<__________>>, hereinafter referred to as the “Contract”, and the <<GRANTEE NAME>>, <<CORPORATION TYPE>>, 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 ownership, construction, installation, operation, maintenance, repair, removal, upgrade, and replacement of [Editorial Note: insert type of easement use from the Contract, worded for the easement; list is a merger of 10 USC 2688 and 2668] <<e.g. natural gas, water – in various forms: waste water collection, potable water, hot water, steam, chilled water, and without limitation and as appropriate, any pipes;

electric power transmission or distribution, including poles, lines and substations; telephone, telegraph or other communications signals, including poles, lines, structures for transmission, reception, and relay of such signals>>, over, across, under, in and upon lands of the United States as identified in Exhibit "A," hereinafter referred to as the “Premises”, and which are attached hereto and made a part hereof; and

Grant to Grantee, its successors or assigns, the right to use supporting space and structures provided by the Government in accordance with the terms of the contract for Grantee’s operational and administrative use; and

[Editorial Note: 10 USC 2688 states that we will transfer easements and rights of way associated with the Utility system. If there are such property interests held by Army, then they will be transferred and assigned to the Grantee. If there are no such easements or rights of way, then do not include. For example, as part of a water system, we may have an easement to take water from a nearby water source, going through private lands.]

Transfer and Assign to the Grantee, the easements and rights-of-way directly associated with the utility system and the Easement herein granted, set out in Exhibit “B;” and

[Editorial Note: The system improvements must be treated as real property or as personal property. Either is acceptable, but it must be one way or the other, depending on how the Grantee will carry them on its inventory. Select either option 1 or 2 for the appropriate language.]

[Option 1 Editorial Note: Use the following language if the Facilities will be considered Real Property by the Grantee. No separate Bill of Sales is required. The following conveys title to the Facilities and ensures that they remain real property once title is severed from the

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underlying fee. If the Grantee considers the Faculties as personal property, use Option 2 below.]

Grant and convey unto the Grantee, its successors and assigns, all of the Grantor’s right, title and interest in and to the Fort <<INSTALLATION>>’s <<utility>> system improvements, equipment, fixtures, and structures, currently located on the Premises consisting of, but not limited to, those Facilities listed in Exhibit C, attached hereto and made a part hereof, herein after the “Existing Facilities,” including any related tools.

Grantor hereby makes no claim of title during the term of this Easement to any utility system improvements, equipment, fixtures, and structures, constructed, or placed on the Premises during the term of the Easement by, or on behalf of, the Grantee, herein after the “Future Facilities”. As used herein, the term the “Facilities” shall collectively mean the Existing Facilities and the Future Facilities.

Title to any Future Facilities and any addition or alteration to the Existing 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 collective Facilities. The Facilities shall remain real property for the duration of this Easement.

[Option 2 Editorial Note: If Option 1 is not used, then use the following language since the Facilities are considered Personal Property by the Grantee. If the Grantee considers the Facilities as personal property, then they are severed from the real property inventory by this inventory documents. No separate Bill of Sale is required. The statement that they are the Grantees’ personal property and Grantor makes no claim of title is required in some states to prevent merger with the land, since they are affixed.]

Grantor has executed this Easement conveying as personal property the Existing Facilities and hereby makes no claim of title during the term of this Easement to any utility system improvements, equipment, fixtures, and structures, constructed, or placed on the Premises during the term of the Easement by, or on behalf of, the Grantee, herein after the “Future Facilities”. As used herein, the term the “Facilities” shall collectively mean the Existing Facilities and the Future Facilities. The Facilities will be considered personal property of the Grantee during the duration of this Easement.

THIS EASEMENT is granted subject to the following conditions.

1. TERM

[Editorial Note: The Term should coincide with the term of the Contract. The term of years should be the same in both, with the ending date the same. Even though there is no longer a 50 year statutory term limit, perpetual easements will not be issued to support a Contract.]

This Easement is hereby granted for a term of <<__________>> years, beginning <<___________, _____>>, and ending <<________________________, _____,>> so long as the Grantee remains in compliance with any or all of the conditions of this Easement and the Contract remains in effect.. If the Contract is extended, then the Term of this Easement will be

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extended to run concurrent with any extension of the Contract.

[Editorial Note: A separate easement document may be use for a temporary construction easement outside the Premises, or add the following sentence:

A temporary easement for construction is hereby granted across the property described in Exhibit C, for a term of five (5) years beginning <<___________, _____>>, and ending <<________________________, _____,>>, or upon notification that construction from the United States and restoration is complete, whichever is earlier.

2. CONTRACT-EASEMENT RELATIONSHIP

[Editorial Note: In most states, any contract or agreement involving the conveyance of an interest in land or an encumbrance on the land will not survive after execution of the real estate document and its filing in the land records. The recorded document takes precedence with regard to the interest in land and terms and conditions as recorded since the land records are legal notice to innocent 3rd parties as to the interest and conditions. This Condition below is intended to show that the Contract is a separate agreement. The Easement is setting out the easement estate conveyed, protection of the underlying fee property of the United States, and title to the Facilities. The Contract prevails between the parties as to operational issues.]

This Easement and the Contract shall not merge, and the terms and conditions of the Contract shall survive the execution and delivery of this Easement and any subsequent recordation thereof. In the event the terms and conditions of the Contract and Easement conflict, the terms and conditions of the Easement shall prevail as to the easement estate, protection of the underlying fee property of the United States, and title to the Facilities and the Contract shall prevail as to the obligations and operational agreement between the parties. A termination default under the Contract may constitute a termination default under this Easement and a termination default under the Easement may constitute a termination default under the Contract. Unless otherwise specified in this easement, any and all Government rights and remedies as set forth in the Contract and in this Easement will be available to the Government on a cumulative basis to enforce the provision of this Easement.

3. CONSIDERATION

The consideration for this Easement and conveyance of the Facilities is the value for the Facilities as set out in the Contract and the construction, installation, operation, maintenance, repair, removal, upgrade, and replacement of the Facilities located on the Premises for the benefit of the United States and the general public in accordance with the terms and conditions hereinafter set forth, and the terms and conditions of the Contract.

4. NOTICES

All correspondence and notices to be given pursuant to this Easement shall be in writing and addressed, if to the Grantee, to <<GRANTEE>>, <<ADDRESS, CITY, STATE, ZIP>> and, if to the Grantor, to the U. S. Army Engineer District, <<DISTRICT>>, Attention: Chief, Real

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Estate Division, <<ADDRESS, STATE, ZIP>>, or as may from time to time otherwise be directed by the parties. Both Grantor and Grantee have an obligation to ensure that the other party has their accurate address.

Official notices shall be mailed by certified mail, postage prepaid, return receipt requested, addressed to the addresses above. The effective date of the notice shall be the earlier of the actual date of receipt or the date the addressee is notified of the attempted delivery of the certified mail, whether or not the addressee actually accepts delivery.

5. AUTHORIZED REPRESENTATIVES

Except as otherwise specifically provided, any reference herein to "Grantor” or "Chief, Real Estate Division" or “Garrison Commander” shall include their duly authorized representatives. Any reference to "Grantee" shall include assignees, transferees and their duly authorized representatives.

6. SUPERVISION BY THE GRANTOR

The use and occupation of the Premises for the purposes herein granted shall be subject to this Easement under the general supervision and approval of the Grantor. The construction, installation, operation, maintenance, repair, removal, upgrade, and replacement of said Facilities, including any ancillary facilities, shall be performed in accordance with the terms of the Contract.

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, and any additional specifically identified laws, ordinances, and regulations set out in the Contract. The Grantee shall be solely responsible for obtaining at its cost and expense any permits or licenses required for its operations under this Easement, independent of any existing permits or licenses held by the Grantor.

b. 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, and provide copies to the Grantor within a reasonable time.

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, except as set out in the Contract.

9. MAINTENANCE, INSPECTION AND REPAIRS

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All right-of-ways required under the Contract shall be maintained by the Grantee. The Grantee shall inspect the Facilities and the Premises at reasonable intervals and immediately repair any defects found by such inspection or when required by Grantor to repair any such defects. All herbicide applications, including but not limited to, type of herbicide and method of application, shall be subject to approval <<as set out in the Contract or, if not covered in the Contract- by the Garrison Commander>>. The trimming of trees in the right-of-ways, around buildings, and in cantonment areas of the Installation, shall be subject to approval <<as set out in the Contract or, if not covered in the Contract - by the Garrison Commander which consent shall granted in a reasonable time and that no such approval is required where necessary to protect property, health, and life, >>. Trees that fall from outside of the Easement Premises totally or partially into the right-of-way shall be the responsibility of the Grantee to clear, including disposal of all debris. Tree limbs may be chipped and disposed of on selected portions of the right-of-way as approved by the Grantor.

10. PROTECTION OF GOVERNMENT PROPERTY

The Grantee shall be responsible for any damage that may be caused to the property of the United States by the activities of the Grantee under this Easement and the Contract 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 the Grantor, or at the election of the Grantor, reimbursement made therefore by the Grantee in an amount to reimburse for the loss satisfactory to the Grantor.

11. ACCESS AND 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 or convenient in connection with government purposes, to make inspections, to remove timber or other material, except property of the Grantee, and/or to make any other use of the lands as may be necessary in connection with government purposes, and unless as otherwise provided in the Contract, the Grantee shall have no claim for damages on account thereof against the United States or any officer, agent, or employee thereof.

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) Premises are located on active U.S. Army installations and, as such, access to the easement activities may be subject to temporary closings and identification and/or routing requirements due to the occurrence of announced or unannounced events, actual or simulated, involving: 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

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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.

(2) Grantor, acting by and through his duly authorized Commander, Fort <<INSTALLATION>>, exercises command and control over and with respect to (i) the 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.

12. TRANSFERS AND ASSIGNMENTS

Without prior written approval by the Grantor, 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.

13. 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 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.

14. SUBJECT TO EASEMENTS

a. 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 the Grantor, interfere with the use of the Premises by the Grantee.

b. At the request of the Grantee, but subject to the provisions of this Easement, the Grantor will grant easements or other outgrants, in accordance with all applicable Federal, state, county and municipal laws, ordinances and regulations, over the Premises and other areas of the Installation if reasonably required for the proper exercise of the Contract, so long as such easement or other outgrants do not materially interfere with the operation of the Installation.

Any such easement or other outgrants will provide that the Grantor may terminate such use if the easement or other outgrant materially interferes with future activities on the Installation. In the event that the Grantor denies the Grantee’s request or terminates an easement or other outgrant previously granted, the Grantor will coordinate with the Grantee to identify alternative means of access, service or other use that the requested easement or other outgrant was intended to provide.

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c. The Grantee is responsible to obtain any easements or rights-of-way over areas that are not owned or controlled by the Grantor, yet are required for performance under the Contract, at the Grantee’s sole cost and expense.

15. RELOCATION OF FACILITIES

a. This easement is granted subject to existing structures and improvements and the Grantor will not be required to relocate existing facilities, improvements, or encroachments on the Premises, except as otherwise agreed in the Contract.

b. In the event all or any portion of the Premises occupied by the said Facilities shall be needed by the Grantor, or in the event the existence of said Facilities is determined to be detrimental to governmental activities, the Grantee shall from time to time, upon notice to do so, and as often as so notified, remove said Facilities to such other location on the Premises as may be designated by Grantor. In the event said Facilities shall not be removed or relocated within ninety (90) days after such notice, the Grantor may cause such relocation. Depending on the size, complexity and urgency associated with any such relocation, and with due regard for extreme weather conditions, in the sole discretion of the Grantor, additional time for said relocation may be granted by the Grantor.

16. NONCOMPLIANCE, DEFAULT, TERMINATION DEFAULT, AND

TERMINATION OF THE EASEMENT

a. Noncompliance with the Easement. 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 Noncompliance with the 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. Default of Easement. If the Grantee fails to satisfactorily correct, or reach agreement on the corrective action necessary to reach compliance, the Grantor may elevate the 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.

c. Termination Default - Right to Terminate Easement or Proceed with other Remedies.

If the Grantee fails to satisfactorily correct, or reach agreement on the corrective action necessary to stop Default, Grantor may elevate the Default to a Termination Default. In the event of a Termination Default, the Grantor may send Notice to Terminate the Easement because of the Termination Default, or, alternatively, may stay the sending of Notice to Terminate the Easement, may seek damages, may seek 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 the Easement shall be effective as of a day specified in the Notice to Terminate, if sent.

d. Termination for other than Non-Compliance with Easement, JR1-9

(1) This Easement may be terminated by the Grantor upon <<____________>> [Editorial Note: termination can be anywhere from 30 days to 2 years. Since approval of disposal takes time, notice should be sent immediately upon a proposed disposal.] written Notice to Terminate to the Grantee if the Grantor determines that the right-of-way hereby granted interferes with the use or disposal of said land by the United States. The Grantor will provide Notice to Terminate, but the process for noncompliance set out above is not applicable.

(2) This Easement may be terminated by the Grantor if the parties agree that 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 can not 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.

(3) This Easement may be terminated by the Grantor if the Grantee fails to comply with the terms and conditions of, or is in default under, the Contract. In addition, if the Contract is terminated, expires or becomes void, then this Easement may be terminated.

17. SOIL AND WATER CONSERVATION

Upon the Easement Premises, the Grantee shall maintain, in a manner satisfactory to the 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 right-of-way herein granted. Any soil erosion occurring outside the Premises resulting from the activities of the Grantee shall be corrected by the Grantee as directed by said officer. 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.

18. 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 promptly 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. Compliance with Condition 7, APPLICABLE LAWS AND REGULATIONS, including those affecting the environment, is a condition of this Easement.

b. The use of any pesticides or herbicides within the Premises shall be in conformance with all applicable Federal, state, and local laws and regulations, including the installation’s Integrated Pest Management Plan. The Grantee must obtain approval in writing from the Garrison Commander 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. If the Grantee fails to conduct any

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necessary remediation in a satisfactory manner, as determined by the Grantor and regulatory authorities, then the Grantor may correct the deficiency and address reimbursement for costs in accordance with rights established under the Contract, rights established by applicable laws or regulations, or may pursue the matter as an affirmative claim or through litigation.

d. For hazardous chemical, hazardous waste, or petroleum, oil and lubricant (POL) spills caused by or under the control of the Grantee, the Grantee will contain the spill with Grantee-furnished materials in accordance with the Integrated Contingency Plan (ICP). While the spill is being contained, the Ft. <<INSTALLATION>> <<Fire and Emergency Services Division and environmental management office>> shall be notified immediately. Containment and notification should occur simultaneously. Cleanup and restoration shall be the responsibility of the Grantee.

e. The Grantee shall not use the Premises for the storage or disposal of non-Department of Defense owned hazardous or toxic materials, as defined in 10 U.S.C. 2692, unless authorized under 10 U.S.C. 2692 and properly approved in the Contract. The Grantee may bring onto the Installation only those materials needed to fulfill the Grantee’s purpose in regards to management of the utility.

f. Additional environmental analysis may be required to stay in compliance with applicable environmental laws. The Grantee shall be responsible for preparing any necessary documents that are driven, in whole or in part, by Grantee initiatives. Draft documents should be submitted to Ft. <<INSTALLATION>>, <<the Garrison Commander or the chief of the environmental management office>> for review and approval before they are submitted to regulatory agencies. Grantee shall also be responsible for costs incurred to meet public participation obligations, including but not limited to printing, publication of notices and conducting public meetings.

19. NON-DISCRIMINATION

The Grantee shall not discriminate against any person or persons because of race, color, age, sex, handicap, national origin, or religion in the conduct of operations on the Premises.

20. RESTORATION

a. On or before the termination or expiration without renewal of this Easement, the Grantee shall, without expense to the Grantor, except as set out in the Contract, and within such time as the Grantor may indicate, remove all properties and materials of the Grantee, except the Facilities, and restore the Premises to the satisfaction of the Grantor. In the event the Grantee shall fail to remove said properties and materials and restore the Premises, the Grantor shall have the option to take over said properties, materials and facilities without compensation, or to remove same and perform the restoration at the expense of the Grantee, and the Grantee shall have no claim for damages against the United States or its officers or agents for such action, except as otherwise provided by the Contract.

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b. Title to the Facilities shall remain in the Grantee. On or before the Expiration Date or termination date of this Easement or portion thereof, the Grantee shall deliver appropriate disposal documents to the Grantor or Contractor conveying all of the Grantee’s right, title, and interest in and to the Facilities as part of the termination of the Easement, for consideration as set out in the Contract.

c. [Editorial Note: Use the << >> expression only if we transferred other easements and/or rights of way associated with the Utility system; if so, then they also need to be transferred back .] The Grantee also will transfer and assign back to the Grantor, by appropriate document, <<the easements and rights-of-way directly associated with the utility system and >> the Easement herein granted, that are set out in Exhibit “B.”

21. DISCLAIMER

This instrument is effective only insofar as the rights of the United States in the property 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 of 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) or any other permit or license which may be required by Federal, state or local statute in connection with use of the Premises.

22. NO INDIVIDUAL LIABILITY OF GOVERNMENT OFFICIALS

No covenant or agreement contained in this Easement shall be deemed to be the covenant or agreement of any individual officer, agent, employee or representative of the Government, in his or her individual capacity and none of such persons shall be subject to any personal liability or accountability by reason of the execution of this Easement, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty, or otherwise.

23. IDENTIFICATION OF GOVERNMENT AGENCIES, STATUTES, PROGRAMS

AND FORMS

Any reference in this Easement, by name or number, to a government department, agency, statute, regulation, program, or form shall include any successor or amendment department, agency, statute, regulation, program or form.

24. FAILURE OF GRANTOR TO INSIST UPON COMPLIANCE

a. Neither the failure of the Grantor to insist, in any one or more instances, upon performance of any of the terms, covenants or conditions of this Easement, nor Grantor’s pursuit of compliance under the Contract rather than the Easement, shall not be construed as a waiver or

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relinquishment of the Grantor’s right to the current or future performance of any such terms, covenants or conditions and the Grantee’s obligations in respect to such performance shall continue in full force and effect.

b. No remedy herein or otherwise conferred upon or reserved to Grantor shall be considered to exclude or suspend any other remedy but the same shall be cumulative and shall be in addition to every other remedy given hereunder, or now or hereafter existing at or in equity, regulation or by statute, and every power and remedy given by this Easement to Grantor may be exercised from time to time and so often as occasion may arise or as may be deemed expedient.

25. RIGHT-OF-WAY WIDTH FOR DISTRIBUTION SYSTEM AND DISTRIBUTION

SYSTEM MAPPING AND RECORDS

[Editorial Note: 10 USC 2668 requires that the easement be no more land than is necessary for the easement. Easement widths may be tailored to the specific system to which the easement applies.]

a. The right-of-way for above ground lines/pipes shall be a total of <<______>> feet in width. The right-of-way for underground lines/pipes shall be a total of <<____>> feet in width.

The right-of-way for <<__________ (related facilities such as substations/switch stations, gas valve yards, pump stations, etc.)>> containing operational components of the Grantee-owned system shall include the entire area inside the fence line that encloses the area and an area of 4 feet outside of the perimeter of the fence line.

b. The maps attached as Exhibit ___ reflect the most current information available regarding the existing components of Facilities and their location.

26. JOINT USE

a. The Easement Premises are not exclusive to the Grantee. It is understood and agreed, however, that future easements granted by the Government and/or the future installation of structures and improvements by the Government or its suppliers/contractors on the Premises shall in all events avoid interference with Grantee’s use of the Premises.

27. SUBSURFACE EXCAVATION

a. 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 the Ft. <<INSTALLATION>> <<Garrison Commander and/or the Chief of the Environmental Division>> and protect the site and material from further disturbance until they give clearance to proceed.

b. The Grantee shall not conduct any subsurface excavation, digging, drilling or other disturbance of the surface without the prior written approval of the Grantor in accordance with the Contract.

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28. NON-TRANSFERRABLE RIGHTS

Conditions 6, 9, 10, 11, 13, 15, 16, 20 are non-transferable rights of the United States. In the event of disposal of the United States' underlying fee, these rights and conditions will not transfer with the land.

29. Mortgage of the Easement interest

During the term of this Easement, the Grantee may, with written consent from the Grantor, encumber its interest in the Easement. If the Grantee wishes for Grantor to provide notices to the Mortgagee, the Grantee will furnish the Grantor the name and address of each record holder of a Mortgage (excluding parties holding participation interests in the Mortgage) to be used in such notice. Further, the Grantee shall notify the Grantor promptly of any lien or encumbrance that has been created or attached to the Grantee’s interest in the Easement, whether by act of the Grantee or otherwise, of which the Grantee has actual notice.

30. to xx. [Editorial Note: Add site and installation specific clauses. Take care that the conditions are not already included in the Contract and do not need to be duplicated here. No additional clauses are required.]

JR1-14

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

IN WITNESS WHEREOF, the GRANTOR has caused this Easement to be executed in its name by the Chief, Real Estate Division, U.S. Army Engineer District, <<DISTRICT>>, this <<_______________ day of ______________________, ______>>.

Chief, Real Estate Division

[Editorial Note: Change for local recordation requirements.]

STATE OF ________)

) ss

COUNTY OF _______)

BEFORE ME, a Notary Public in and for _______ County, personally appeared _____________, to me known to be the identical person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the said instrument by authority of the Secretary of the Army, for the purposes therein expressed as the act and deed of the United States.

GIVEN under my hand and seal, this _______day of ________________, _____.

NOTARY PUBLIC

(SEAL)

Notary Registration No. __________

My Commission Expires: ______________________

JR1-15

[Editorial Note: Executions and signature for: Individuals, Individuals Trading as a Firm or Doing Business Under a Firm or Trade Name, A Partnership, Corporation, Association, State or local government entity differ. So make changes according to the Grantee entity and local recordation requirements.].

ACCEPTANCE:

WITNESS the signature of the <<GRANTEE>> this ____ day of __________, 20__ and acceptance and approval of this Easement for itself, its successors and assigns, and agrees to all the terms and conditions contained therein.

<<GRANTEE>>

BY: ______________________________

TITLE: ___________________________

STATE OF ________)

_ ) ss

COUNTY OF _______)

BEFORE ME, a Notary Public in and for _______ County, personally appeared _____________, to me known to be the identical person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the said instrument by authority of the Secretary of the Army, for the purposes therein expressed as the act and deed of the named Grantee.

GIVEN under my hand and seal, this _______day of ________________, _____.

NOTARY PUBLIC

(Seal)

My commission expires: ____________________

JR1-16

[Editorial Note: Change for local recordation requirements. If a Corporation, the Grantee must furnish a Corporate Certificate, signed by the appropriate corporate officer, other than the person executing the outgrant as follows:]

CORPORATE CERTIFICATE

I _____________________________(name) certify that I am the ___________________(title) of ________________________ <<CORPORATION>>, that ____________________(signator of outgrant) who signed the foregoing instrument on behalf of the corporation was then _________________________ (title of signator of outgrant) of the corporation. I further certify that the said officer was acting within the scope of powers delegated to this officer by the governing body of the corporation in executing said instrument.

<<GRANTEE>>

Date: ___________

Corporate Secretary or

Appropriate Officer

(AFFIX CORPORATE SEAL)

[Editorial Note: Change for local recordation requirements. The Grantee must furnish a Certificate of Authority, signed by the appropriate official, other than the person executing the outgrant, as follows:]

CERTIFICATE OF AUTHORITY

I ________________________ (name) certify that I am the _______________________(title) of <<CORPORATION>>, that ________________________ (signator of outgrant) who signed the foregoing instrument on behalf of the Grantee was then ____________________(title of signator of outgrant) of <<CORPORATION>>. I further certify that the said officer was acting within the scope of powers delegated to this governing body of the Grantee in executing said instrument.

<<GRANTEE>>

Date:________

Clerk or Appropriate Official

(AFFIX SEAL)

JR1-17

THE FOLLOWING OPTIONAL CONDITIONS ARE PROVIDED FOR

ILLUSTRATIVE PURPOSES ONLY AND WILL ONLY BE INCLUDED IN THE

EASEMENT AS APPLICABLE – THESE ARE PROVIDED AS EXAMPLES. TAILOR

THESE CONDITIONS TO INSTALLATION REQUIREMENTS. IF THESE ARE

COVERED IN THE CONTRACT, THERE IS NO NEED TO DUPLICATE.

[Editorial Note: An environmental site assessment is not required by CERCLA for easements.

Any environmental documentation will be handled as part of the Contract and will not be a requirement of the Easement action.]

HISTORIC PRESERVATION

a. The Grantee shall not construct or make or permit its subgrantee or assigns to construct or make any alterations, additions, or improvements to, or installations upon, or otherwise modify or alter the Premises in any way which may adversely affect the Ft.<<INSTALLATION>>’s historic register or historic register-eligible properties, or cultural resources, without the prior written consent of <<the Garrison Commander or a specific historic officer>>. See Exhibit <<__>> for known properties.

SOLID WASTE MANAGEMENT UNIT

a. For construction or alterations, additions, modifications, improvements, or installations (collectively “work”), in the proximity of operable units or solid waste management units (SWMUs) that are part of any Federal or State RCRA Corrective Action Program, State Remediation Consent Orders, or the Army IRP, such consent may include a requirement for written approval by the Grantor’s Remedial Project Manager. Except as such written approval shall expressly provide otherwise, all such approved alterations, additions, modifications, improvements, and installations shall become Government property when annexed to the Premises.

PROHIBITION OF COMMINGLING ARMY AND NON-ARMY HAZARDOUS

WASTES.

Ft. ______________’s accumulation points for hazardous and other wastes will not be used by the Grantee or any subgrantee. Neither will the Grantee or subgrantee permit its hazardous wastes to be commingled with hazardous waste of the Department of the Army.

REQUIREMENT FOR HAZMAT SPILL PLAN.

The Grantee shall prepare and maintain a Government approved plan for responding to hazardous waste, fuel, and hazardous material spills prior to commencement of operations on the Premises. Such a plan shall be independent of the Ft. ______________ plan and, except for initial fire response and/or spill containment, shall not rely on installation personnel or

JR1-18

equipment. Should the Government provide any personnel or equipment, whether for initial fire response and/or spill containment, or otherwise on request of any Government officer conducting timely cleanup actions, the Grantee agrees to reimburse the Government for its costs.

LEAD-BASED PAINT WARNING AND COVENANT:

a. The Premises do not contain residential dwellings and are not being outgranted for residential purposes. The Grantee is notified that the easement Premises contains buildings, structures, material, and equipment, built prior to 1978 that may contain lead-based paint. Lead from paint, paint chips, and dust can pose health hazards if not managed properly. A risk assessment or inspection for possible lead-based paint hazards is recommended prior to use of easement Premises.

b. Available information concerning known lead-based paint and/or lead-based paint hazards, the location of lead-based paint and/or lead-based paint hazards, and the condition of painted surfaces is contained in the Environmental Screening Document (ESD), which has been provided to the Grantee. Additionally, the following reports pertaining to lead-based paint and/or lead-based paint hazards have been provided to the Grantee: ________ . The grantee hereby acknowledges receipt of all of the information described in this subparagraph.

c. The Grantee acknowledges that it has received the opportunity to conduct a risk assessment or inspection for the presence of lead-based paint and/or lead-based paint hazards prior to execution of this Easement.

d. The Grantee shall not permit use of any buildings or structures on the easement Premises for residential habitation without first obtaining the written consent of the Army. The Grantee agrees to be responsible for any future remediation of lead-based paint found to be necessary on the easement Premises.

e. The Grantor assumes no liability for remediation or damages for personal injury, illness, disability, or death, to the Grantee, its successors or assigns, subgrantee, or to any other person, including members of the general public, arising from or incident to possession and/or use of any portion of the easement Premises containing lead-based paint as residential housing. The Grantee further agrees to indemnify and hold harmless the Grantor, its officers, agents, and employees, from and against all suits, claims, demands, actions, liabilities, judgments, costs, and attorneys’ fees arising out of, or in any manner predicated upon, personal injury, death, or property damage resulting from, related to, caused by, or arising out of the possession and/or use of any portion of the easement Premises containing lead-based paint as residential housing. This section____ and the obligations of the Grantee hereunder shall survive the expiration or termination of this Easement and any conveyance of the easement Premises to the Grantee. The Grantee’s obligation hereunder shall apply whenever the United States of America incurs costs or liabilities for actions giving rise to liability under this section.

JR1-19

NOTICE OF THE PRESENCE OF ASBESTOS COVENANT:

a. The Grantee is hereby informed and does acknowledge that friable and non-friable asbestos or asbestos-containing materials (“ACM”) have been found on the easement Premises, as described in the Environmental Screening Document (ESD). The ACM on the easement Premises does not currently pose a threat to human health or the environment. All friable asbestos that posed a risk to human health has been removed, repaired, encapsulated, or enclosed.

b. The Grantee covenants and agrees that its use and occupancy of the easement Premises will be in compliance with all applicable laws relating to asbestos, and that the Grantor assumes no liability for future remediation of asbestos or damages for personal injury, illness, disability, or death, to the Grantee, its successors, or assigns, subgrantees, or to any other person, including members of the general public, arising from or incident to the purchase, transportation, removal, handling, use, disposition, or other activity causing or leading to contact of any kind whatsoever with asbestos on the easement Premises described in this Easement, whether the Grantee, its successors, or assigns have properly warned or failed to properly to warn the individual(s) injured. The Grantee agrees to be responsible for any future remediation of asbestos found to be necessary on the easement Premises.

REQUIREMENTS FOR ENDANGERED OR OTHER PROTECTED SPECIES.

a. The Grantee shall in no way interfere with the management of or modify habitat designated for the management of federally listed endangered or threatened species or other protected species without coordinating with installation’s environmental management office.

Any actions with the potential to disturb vegetation, animals, soils, or initiate soil erosion will be coordinated through the installation’s environmental management office. Recurring maintenance of easements will be established through a Memorandum of Agreement with the installation DPW to establish acceptable standard methods including the use of herbicides, removal of vegetation by mechanical means, transport of equipment for same purposes, placement of utilities underground, or other actions with the potential to disturb soils, or modify the environment.

b. The installation has an Integrated Natural Resources Management Plan (INRMP), which will be made available for review.

UNEXPLODED ORDNANCE

The Grantee will be aware that since the Premises are on a military installation with a history of ordnance and explosives (OE) use, there is a potential for OE to be present on the property. In the event the Grantee or its successors and assigns should discover any OE on the property, they shall not attempt to remove or destroy it, but they shall immediately notify the military police. Competent U.S. Army Explosive Ordnance personnel will be dispatched promptly to dispose of such OE properly at no expense to the government.