Attachment VI Altus Draft Easement Amendment 0001.pdf

No. USAF-AETC-AGGN-22-2-0273

Form approved by SAF/GCN 29 Mar 2022 Previous versions are obsolete

DEPARTMENT OF THE AIR FORCE

GRANT OF EASEMENT TO

[GRANTEE]

AT

ALTUS AFB

ALTUS OK

SPE603-24-R-0501

Amendment 0001 Altus AFB, OK

SAF/GCN 29 Mar 2022 Previous versions are obsolete i

TABLE OF CONTENTS

PREAMBLE

BASIC TERMS

1. TERM

2. CONSIDERATION

3. CORRESPONDENCE

4. USE OF LEASED PREMISES

5. DEFAULT, REMEDIES, AND TERMINATION

OPERATION OF THE PREMISES

6. EASEMENTS AND RIGHTS OF WAY

7. CONDITION OF LEASED PREMISES

8. MAINTENANCE OF LEASED PREMISES

9. TAXES

10. INSURANCE

11. ALTERATIONS

12. COSTS OF UTILITIES/SERVICES

13. RESTORATION

CHANGES IN OWNERSHIP OR CONTROL

14. TRANSFER OR ASSIGNMENT

15. LIENS AND MORTGAGES

ENVIRONMENT

16. ENVIRONMENTAL PROTECTION

17. ASBESTOS-CONTAINING MATERIALS AND LEAD-BASED PAINT

18. SAFETY, HAZARDOUS MATERIALS, AND WASTE MANAGEMENT

19. HISTORIC PRESERVATION

20. INSTALLATION RESTORATION PROGRAM (IRP)

21. ENVIRONMENTAL BASELINE SURVEY/CONDITION OF PROPERTY ... 178

GENERAL PROVISIONS ................................................ Error! Bookmark not defined.

22. GENERAL PROVISIONS

23. SPECIAL PROVISIONS

24. RIGHTS NOT IMPAIRED

25. APPLICABLE LAWS

26. AVAILABILITY OF FUNDS

27. CONGRESSIONAL REPORTING

28. AMENDMENTS

29. GENERAL INDEMNIFICATION BY GRANTEE

30. ENTIRE AGREEMENT

31. CONDITION AND PARAGRAPH HEADINGS

32. STATUTORY AND REGULATORY REFERENCES

33. PRIOR AGREEMENTS

34. LIST OF EXHIBITS

ii

Exhibit A Map of Leased Premises Exhibit B Legal Description of Leased Premises Exhibit C Non-Exclusive List of Outgrants Exhibit D Physical Condition Report Exhibit E Environmental Baseline Survey/AF Form 813 Exhibit F Areas of Special Notice

DEPARTMENT OF THE AIR FORCE

GRANT OF EASEMENT OF PROPERTY

AT

Altus AFB

PREAMBLE

THE UNITED STATES OF AMERICA, acting by and through the Secretary of the Air Force (the "Government"), under and pursuant to the authority granted in 10 U.S.C.

§ 2668, the Secretary of the Air Force having determined that no more land than needed for the Easement (defined below) is included herein, and the granting of this Easement is not against the public interest; does hereby grant and convey to [GRANTEE], duly authorized to do business in the State of Oklahoma (the “Grantee”), an exclusive Easement for the purpose of developing, operating and maintaining a single Bulk Fuel Facility on, over, under and across the property on Altus AFB, Jackson, OK (“Easement Area”) at the following location: Bulk Fuel Facility at the Government fueling station as described in Exhibit A and depicted in Exhibit B; (referred to hereinafter as the “Easement”). The proposed development, operation and maintenance of the facilities and improvements, in accordance with the Contract (defined in Section 1.3 of the Basic Terms of this Easement), will be a Contractor-Owned Contractor-Operated (COCO) facility.

AND GRANTS TO GRANTEE the right to gain access to the Easement Area through a route or routes designated from time to time by the Government including use of (i) streets, driveways, sidewalks, and walkways on the installations for purposes of pedestrian and vehicular ingress and egress to and from the Easement Area which lead to the Easement Area. The Government reserves the right to change, modify, eliminate, or temporarily close any portion or portions of streets, driveways, sidewalks, walkways, and internal portions of the area, including, but not limited to, the area that surrounds the Easement Area and the Easement Area itself. The Grantee recognizes that the Easement Area is located on an active military installation. Nevertheless, the Government will make a good faith effort to provide twenty-four (24) hours’ notice to Grantee of any planned closures that eliminate access to the Easement Area, except in the case of emergencies or which, in the sole and absolute discretion of the Government, may be required to promote or protect the national defense.

RESERVING, HOWEVER, unto the Government general access over, under, across, and through the Easement Area for the purpose of accessing, using, operating, and maintaining any Government real or personal property, facilities, fixtures, equipment, utilities, or the like located on, beneath, or adjacent to the Easement Area.

BASIC TERMS

1. TERM

1.1. Term. The term of this Easement shall be __ years with ____ (__) additional __-year option to renew for a total of ____ years commencing [________________](“Commencement Date”) and ending [________________] (“Expiration Date”) unless sooner terminated. The period from the Commencement Date through the Expiration Date shall be referred to as the “Easement Term.” The Parties expressly agree that in the event of a cancellation or termination of the Contract, as defined in Paragraph 1.3.1 below, by the Defense Logistics Agency Energy (the “DLA”), there shall arise a right by Grantee to terminate this Easement, however, if the termination of the Contract is for cause, Grantee shall be liable to the Government for any and all rights and remedies provided by law.

1.1.1. Renewal Options. Each option to renew the Easement Term shall be deemed automatically exercised by the Grantee at the end of the then current Easement Term unless Grantee notifies the Government of its intent not to renew the Easement Term prior to the end of the then current Easement Term.

1.2. Delivery of Possession. The Government shall deliver and the Grantee shall accept possession of the Easement Area on the Commencement Date.

1.3. Contract-Easement Relationship.

1.3.1. The DLA has entered into a contract for services with Grantee with an effective date of [INSERT DATE] (contract No.________________) to provide COCO services (the “Contract”) in order to perform its obligations under the Contract with the DLA. 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 may, in the sole discretion of the Government, 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 in this Easement will be available to the Government on a cumulative basis to enforce the provisions of this Easement.

1.3.2. This Easement shall not be terminated by the Government prior to the termination of the Contract, except in accordance with Paragraph 5 of this Easement. Termination of the Contract will result in termination of the Easement, in accordance with Paragraph 5 below.

2. CONSIDERATION

2.1. Base Consideration. The Government shall receive consideration (“Base Consideration”) as in-kind consideration, which the Government has determined to be equal to the fair market rental value in the form of the development, operation and maintenance of the improvements and facilities located or to be later located on the Easement Area by the Grantee as set forth in the Contract and the associated cost savings to the Government. The first amount shall be pro rata from the Commencement Date to the end of that calendar year. All in-kind consideration which may be due from this Easement shall be approved and verified on an annual basis through [INSERT ADDRESS].

3. CORRESPONDENCE

3.1. Notices. Whenever the Government or the Grantee shall desire to give or serve upon the other, a notice or other communication shall be sent to the regular mailing address for the parties specified below.

If to the Grantee:

If to the Government:

97th Civil Engineer Squadron

401 L. Avenue, Bldg. 358 Altus AFB, OK 73523

With a copy to:

AFCEC/CIT

2261 Hughes Avenue, Suite 155 JBSA-Lackland, TX 78236

4. USE OF EASEMENT AREA

4.1. Permitted Uses. The development, operation, and maintenance of COCO retail fuel service station at Altus AFB upon the Easement Area will be performed by Grantee in accordance with the Contract. Grantee shall perform required tasks to include fuel operations, management, and administrative tasks pertaining to the receipt, storage, handling, and issue of DLA fuel products. In addition, the Grantee shall ensure all Grantee personnel are adequately trained to perform job tasks, maintain the security of facilities and computer systems as described in the Contract and this Easement, and comply with installation, local, state, and federal laws and regulations, and for no other purposes, subject, however, to all applicable provisions of this Easement. Grantee’s use of the Easement Area shall comply, at Grantee’s sole cost and expense, with all Applicable Laws (defined below). The Grantee shall not use or occupy the Easement Area in any manner that is unlawful, dangerous, or that results in waste, unreasonable annoyance, or a nuisance to the Government. The proposed use does not interfere with the mission of Altus AFB. The proposed use is compatible with Air Force security, safety, and the mission of Altus AFB. The proposed use meets AICUZ noise, accident potential, and height obstruction criteria according to AICUZ Handbook DoDI 4165.57.

4.2. Government Right of Access. Any agency of the United States, its officers, agents, employees, contractors, and subcontractors may enter upon the Easement Area at all times for any purposes not inconsistent with the Grantee’s use thereof under this Easement, including but not limited to confirming compliance by the Grantee with the terms of this Easement. The Government normally will enter the Easement Area during regular business hours and give the Grantee at least twenty-four (24) hours prior notice of its intention to do so, unless it determines the entry is required for safety, environmental, operations, or mission security purposes. The Grantee shall have no claim on account of any entries against the Government or any officer, agent, employee, contractor, or subcontractor. The Grantee shall not be liable for any damage to the Easement Area, either above ground or below ground, to the extent caused by the Government, Government’s contractor or the Government’s subcontractor (other than the Grantee).

5. DEFAULT, REMEDIES, AND TERMINATION

5.1. Events of Default. Any one or more of the following shall constitute an event of default (“Event of Default”) under this Easement by the Grantee:

5.1.1. Grantee’s failure to comply with any provision of this Easement, where such failure to comply continues for thirty (30) days after delivery of written notice thereof by the Government to the Grantee. If, however, such default is not reasonably susceptible to cure within such thirty (30) day period, the Grantee shall have such longer period as may be approved in writing in advance by the Government, which approval shall not be unreasonably withheld, conditioned or denied, to cure such default so long as the Grantee commences curing such default within the initial thirty (30) day period and diligently prosecutes such cure to completion in accordance with a schedule approved in writing by the Government, which approval shall not be unreasonably withheld, conditioned or denied.

5.1.2. In accordance with Paragraph 1.3 above, a default under the Contract may constitute a default under the Easement.

5.1.3. In addition to other specific conditions of this Easement, each of the following events shall be a default by the Grantee and deemed to place the Grantee in non-compliance with this Easement.

5.1.3.1. Abandonment. Abandonment of the Easement Area, or the improvements now existing or later located on the Easement Area, where such abandonment continues for a period of ten (10) days after notice by Secretary to Grantee.

5.1.3.2. Attachment or Other Levy. If any or all of the Easement Area or any right or interest of the Grantee in the Easement Area are subjected to attachment, execution or other levy, or to seizure under legal process which is not released within thirty (30) days.

5.1.3.3. Insolvency: Bankruptcy. An assignment by the Grantee for the benefit of creditors, or the filing of a voluntary or involuntary petition by or against the Grantee under any law for the purpose of adjudicating the Grantee as bankrupt; or for extending time for payment, adjustment or satisfaction of Grantee’s liabilities; or reorganization, dissolution, or arrangement on account of, or to prevent bankruptcy or insolvency; unless, in case of involuntary actions only, such actions, proceedings, and all consequent orders are dismissed, vacated or terminated within thirty (30) days.

5.2. Excusable Delay. No Event of Default shall be deemed to have occurred for any period of time during which an “Excusable Delay,” as defined in Paragraph 22.16, exists or the Grantee and the Government are attempting to resolve a dispute about an alleged default as provided in Paragraphs 5.1 or 5.2. For an Excusable Delay, the Grantee’s period for cure shall be tolled for the period of time that the Excusable Delay exists. For a dispute, if, pursuant to the dispute resolution procedures set forth in Paragraph 5.5, a default is determined to have occurred, the Grantee’s period for cure shall not begin until the day after the final decision on the dispute is issued, and such default shall not become an Event of Default until any applicable cure period has expired.

5.3. Termination. This Easement may be terminated as follows:

5.3.1. The Government may terminate this Easement without cost or liability to the Government upon written notice to the Grantee that an Event of Default exists and remains uncured in accordance with the terms and conditions of Paragraph 5.1. Such notice shall be referred to as a “Default Termination Notice” and shall be effective as of the date specified therein, which shall be at least five (5) but not more than thirty (30) days after its receipt by the Grantee.

5.3.2. The Government may revoke or terminate this Easement in whole or in part as set out above or in the event: (1) the Contract is terminated in accordance with its terms; or (2) during any national emergency declared by the President or Congress, the Government determines that a termination is necessary; or (3) the Government determines that termination of the Easement is required for military purposes or is necessary in the interest of national defense. The Grantee will be given at least thirty (30) days prior written notice by the Government in the event this Easement is revoked or terminated in accordance with this condition, except for clause (2) above where advance notice to the Grantee shall not be required. In lieu of revocation for violation of the terms and conditions of this Easement, the Government may exercise any legal remedy available under the provisions of the Contract.

5.3.3. Either the Government or the Grantee may terminate this Easement upon written notice to the other Party in the event of extensive damage or destruction of all or part of the Easement Area pursuant to Section 10.6 below.

5.4. Grantee Waiver of Suits and Claims. The Grantee hereby waives any claims or suits against the Government arising out of any termination of this Easement pursuant to Paragraph 5.3.

5.5. Disputes

5.5.1. Except as provided in the Easement or in the Contract Disputes Act of 1978 as amended January 4, 2011 (41 U.S.C. 7101-7109) (the Act), any dispute between the Government and the Grantee arising under or related to this Easement involving $10,000 (exclusive of interest) or less shall be decided by the Air Force Civil Engineer Center (AFCEC) Director ("Director") of the Installations Directorate (AFCEC/CI). The Director shall reduce his or her decision to writing and mail or otherwise furnish a copy to the Grantee. With respect to any such dispute, the Grantee agrees that the decision of the Director shall be final and conclusive and shall not be appealable or otherwise subject to challenge.

5.5.2. The Grantee and the Government agree that the following procedures constitute the administrative procedures that must be exhausted with respect to any dispute arising under or related to this Easement involving more than $10,000 (exclusive of interest) before the Grantee or the Government may pursue any other remedy that is available to it pursuant to this Easement or law.

5.5.2.1. Any dispute involving more than $10,000 (exclusive of interest) shall be decided by the Director of AFCEC/CI. The Director shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the Grantee. The decision of the Director shall be final and conclusive unless, within thirty (30) calendar days from the date of receipt of the decision, the Grantee appeals the decision, by certified mail, to the Deputy Assistant Secretary of the Air Force for Installations (SAF/IEI) and delivers a copy of its appeal to the Director by certified mail.

5.5.2.2. SAF/IEI shall render a decision by a date mutually agreed upon by the Parties. Either Party shall have the right to appeal the decision of SAF/IEI or his or her authorized representative to a court of competent jurisdiction in a timely manner;

otherwise, the decision of SAF/IEI shall be final.

OPERATION OF THE PREMISES.

6. EASEMENTS AND RIGHTS OF WAY

6.1. Easement Subject to Existing Easements. This Easement shall be subject to all existing easements, rights in the nature of easements, rights of way, licenses, and other property rights and interests (collectively, “Outgrants”), whether of public record or not, for any purpose with respect to the Easement Area. A non-exclusive list of the Outgrants is attached as Exhibit C hereto. The Government shall have the right to reserve unto itself, or to grant to third parties, additional Outgrants. However, any such additional Outgrants shall not unreasonably interfere with the Grantee’s use under this Easement or the value of the Easement Area.

7. CONDITION OF EASEMENT AREA

7.1. Condition of Premises. The Grantee has inspected, knows, and accepts the condition and state of repair of the Easement Area. It is understood and agreed that the easement rights in the Easement Area are granted in an “as-is, where-is” condition, without any representation or warranty by the Government concerning their condition, and without obligation on the part of the Government to make any alterations, repairs, or additions, except as may be expressly set forth in the Contract or Easement.

7.2. Physical Condition Report. A physical condition report (“PCR”) has been jointly prepared and signed by representatives of the Government and the Grantee and is attached as Exhibit D hereto. The PCR sets forth the agreed physical appearance and condition of the Easement Area on the Commencement Date as determined from a joint inspection by the Parties. A separate PCR for the Easement Area will be prepared by the Government, within ten (10) days after the expiration or earlier termination of this Easement (“Final PCR”). The Final PCR will be used by the Government to determine whether the Grantee has fulfilled its obligations to maintain and restore the Easement Area under this Easement, including without limitation, Paragraph 13, and Paragraph 16.

8. MAINTENANCE OF EASEMENT AREA

8.1. Maintenance of Easement Area. The Grantee, at no expense to the Government, shall at all times preserve, maintain, repair, and manage the Easement Area, Easement Area Improvements, and Grantee Equipment in an acceptable, safe, and sanitary condition in accordance with this Easement.

8.2. Damage to Government Property. If the Grantee damages or destroys any real or personal property of the Government, then the Grantee shall promptly repair or replace such real or personal property to the reasonable satisfaction of the Government. In lieu of such repair or replacement, the Grantee shall, if so required by the Government, pay to the Government money in an amount sufficient to compensate for the loss sustained by the

Government by reason of damage or destruction of Government property, including natural resources. Grantee shall not be responsible for damages not caused by its actions or that are not caused by the services Grantee performs under its Contract.

9. TAXES

9.1. Grantee Payment of Taxes. Grantee shall pay to the proper authority, when due and payable, all taxes, assessments, and similar charges that may be imposed on Grantee or the Easement Area. Each Party shall have the right, but not the obligation, at its own expense to take such actions as may be necessary and appropriate (i) to contest the validity, applicability or amount thereof; (ii) minimize such taxes, assessments or charges; or (iii) assert any exemption which may be available with respect to taxes, assessments or charges imposed on the Easement Area. If and to the extent the Easement Area are later made taxable by state or local governments under an Act of Congress, such taxes shall be paid by the Grantee.

10. INSURANCE

10.1. Risk of Loss. The Grantee shall, in any event and without prejudice to any other rights of the Government, bear all risk of loss or damage or destruction to the Easement Area, including any buildings, improvements, fixtures, or other property thereon, arising from the actions of Grantee, its invitees and any other parties coming on to the Easement Area for any reason associated with Grantee or its use of the Easement Area,; provided, however, the Government shall not be relieved of responsibility for loss or damage that is solely the result of the negligence or willful misconduct of the Government and to the extent such loss or damage is not covered by coverage of insurance required under this Easement.

10.2. Insurance Coverage. During the entire period this Easement shall be in effect, the Grantee, at no expense to the Government, will carry and maintain, and as appropriate, require any contractor performing work on the Easement Area to carry and maintain, the following at no expense to the Government, the following insurance coverages:

10.2.1. Property insurance coverage against loss or damage by open perils or its equivalent, including fire, for One Hundred Percent (100%) of the full replacement cost of the buildings, building improvements, improvements to land, fixtures, and personal property on the Easement Area. The policies of insurance carried in accordance with this Condition shall contain a “Replacement Cost Endorsement.” Such full replacement cost shall be determined from time to time, upon the written request of the Government or the Grantee, but not more frequently than once in any twenty-four (24) consecutive calendar month period (except in the event of substantial changes or alterations to the Easement Area undertaken by the Grantee as permitted under the provisions of the Easement).

10.2.1.1. If the Easement Area are located in an area that is prone to suffer property loss and damage from earthquake, flood, windstorm, or rainstorm, a special risks or perils endorsement from a commercial insurer or from a State or Federal program, in such amounts and with such limitations and retentions satisfactory to the Government.

10.2.2. Commercial general liability insurance from a reputable insurance company or companies in an amount not less than that which is commercially prudent, reasonable and consistent with sound business practices. In no event shall such liability insurance be less than $1,000,000 for persons or claims arising from any one incident with respect to bodily injuries or death resulting therefrom, or less than $1,000,000 for property damage per occurrence, 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.

10.2.2.1. An ISO business auto policy or its equivalent, covering bodily injury, death and property damage arising from covered auto Symbol 1 (“any auto”) or its equivalent, in an amount not less than that which is commercially prudent, reasonable and consistent with sound business practices. In no event shall such ISO business auto policy insurance be less than $1,000,000 for persons or claims arising from any one incident with respect to bodily injuries or death resulting therefrom, or less than $1,000,000 for property damage per occurrence, 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. All liability policies shall be primary and non-contributory to any insurance maintained by the Government.

10.2.3. If and to the extent required by law, Workers’ compensation or similar insurance covering all persons employed by Grantee or its subcontractors in connection with the work in the Easement Area performed by Grantee, its employees or subcontractors and with respect to whom death or bodily injury claims could be asserted against the Government or the Grantee, in form and amounts required by law (statutory limits), and employers’ liability, with limits of not less than $1,000,000 each coverage and policy limit.

10.3. General Requirements. All insurance required by this Easement shall be: (i) effected under valid and enforceable policies, in such forms and amounts required under this Easement; (ii) underwritten by insurers authorized to underwrite insurance in the State where the Easement Area are located, and must have a rating of at least B+ by the most recent edition of Best’s Key Rating Guide; (iii) provide that no reduction in amount or material change in coverage thereof shall be effective until at least sixty (60) days after receipt by the Government of written notice thereof; (iv) provide that any cancellation of insurance coverage based on nonpayment of the premium shall be effective only upon ten

(10) days’ written notice to the Government; (v) provide that the insurer shall have no right of subrogation against the Government; and (vi) be reasonably satisfactory to the Government in all other respects. The Government shall appear in all policies, other than Worker’s Compensation and employer’s liability, as United States of America, [INSERT

INSTALLATION ADDRESS AND PHONE NUMBER]. In no circumstance will the Grantee be entitled to assign to any third party rights of action that the Grantee may have against the Government. The Grantee understands and agrees that cancellation of any insurance coverage required to be carried and maintained by the Grantee or contractor under this Lease will constitute a failure to comply with the terms of the Easement, and the Government shall have the right to terminate the Easement upon receipt of any such cancellation notice, but only if the Grantee fails to cure such noncompliance to the extent allowed.

10.3.1. The insurance policy or policies required under Section 10.2 shall be of comprehensive form of contract and shall specifically provide protection appropriate for the types of facilities, services and activities involved.

10.3.2. The Grantee shall purchase and maintain the types of insurance that are commercially reasonable and prudent for the type of business activity conducted on the Easement Area and required under this Easement and the Contract. Neither the failure to purchase nor the purchase of such insurance shall in any way relieve the Grantee of liability to the United States.

10.4. Commercial general liability and business auto liability insurance required pursuant to this agreement shall be maintained for the limits specified, and shall provide coverage for the mutual benefit of the Grantee and the Government as an additional insured.

Property policies will provide for the Grantee to name its financing partner as a loss payee and additional insured.

10.5. Evidence of Insurance. The Grantee shall deliver or cause to be delivered upon execution of this Easement (and thereafter not less than ten (10) days prior to the expiration date of each policy furnished pursuant to this Easement), at the Government’s option, a certified copy of each policy of insurance required by this Easement, or a certificate of insurance evidencing the insurance and conditions relating thereto required by this Easement, in a form acceptable to the Government, and including such endorsements necessary.

10.6. Damage or Destruction of Premises. In the event all or part of the Easement Area is damaged (except de minimis damage) or destroyed, the Grantee shall promptly give notice thereof to the Government and the Parties shall proceed as follows:

10.6.1. In the event that the Government in consultation with the Grantee determines that the magnitude of damage is so extensive that the Easement Area cannot be used by the Grantee for its operations and the repairs, rebuilding, or replacement of the Easement Area cannot reasonably be expected to be substantially completed within three (3) months of the occurrence of the casualty (“Extensive Damage or Destruction of Easement Area”), either Party may terminate this Easement as provided herein. If this Easement is terminated, any insurance proceeds received as a result of any casualty loss to the Easement Area shall be applied to the restoration of the Easement Area prior to being afforded to the Grantee.

10.6.2. In the event that the Government in consultation with the Grantee shall determine that Extensive Damage or Destruction of the Easement Area has not occurred, neither Party shall have the right to terminate this Easement. The Grantee shall, as soon as reasonably practicable after the casualty, restore the Easement Area as nearly as possible to the condition that existed immediately prior to such loss or damage. Any insurance proceeds received as a result of any casualty loss to the Easement Area shall be applied first to restoring the damaged area and removing any related debris to the reasonable satisfaction of the Government and second, to repairing, rebuilding, and/or replacing the Easement Area to the reasonable satisfaction of the Government and the specifications in the Contract.

10.6.3. Notwithstanding any other provision of this Easement, the Grantee may, with the prior consent of the Government, self-insure any risk for which insurance coverage is required under this Easement; provided, however, that if the Grantee’s statutory limits of liability or other impediments to the assumption of liability are less than the limits of insurance required in this Easement, the Grantee shall obtain commercial coverage which is sufficient in amount and nature to satisfy the insurance requirements of this Easement when added to any such self-insurance. In order to obtain the consent of the Government to self-insure, the Grantee shall provide the Government with a writing setting forth the limitations and impediments, if any, to which the Grantee’s self-insurance is subject, the Grantee’s source of funds to pay any claim from any risk for which insurance is required under this Easement, and any other information which the Government may require to assess the Grantee’s request. If commercial insurance is required for any purpose, the total amount of commercial insurance and self-insurance shall meet the dollar limitations provided in this Easement.

11. ALTERATIONS

11.1. Easement Area Improvements. Grantee shall, at its sole cost and expense, undertake, develop, repair or replace Easement Area Improvements. Improvements must be pre-approved by the Government, including, but not limited to, the installation commander or his or her designee, whose approval will not be unreasonably withheld.

Improvements must comply with all applicable federal and state law and regulations.

11.2. Government Approval of Certain Development Related Matters. All matters of ingress, egress, contractor haul routes, development activity, and disposition of excavated material in connection with this Easement shall be approved in advance by the Government, including, but not limited to, the installation commander or his or her designee.

11.3. Grantee Installation of Machinery, Grantee Equipment, Minor Improvements and Removable Fixtures. During the Lease Term, the Grantee shall have the right at its sole cost and expense, to install such of its own machinery and equipment, to make improvements, and to attach such removable fixtures including but not limited to Grantee Equipment in, on, below or upon the Easement Area as may be necessary for its use of the Easement Area pursuant to this Lease; and to remove such Grantee machinery, Equipment, minor improvements, and removable fixtures at any time prior to the expiration or earlier termination by the Grantee of this Easement. In the event of termination of this Easement by the Government, and pursuant to Paragraph 5, the Grantee shall have a reasonable period of time following the effective termination date to remove such property including Grantee Equipment.

11.3.1. The installation of Grantee Equipment shall be done in accordance with existing federal, state, and local codes, including the National Electrical Code and other codes that directly relate to the development, installation, operation and maintenance of communication equipment. If codes differ, the more stringent code shall apply.

11.4. Title to Easement Area Improvements and Grantee Equipment. Subject to Paragraph 13, title to all Grantee Improvements and Grantee Equipment shall be vested in the Grantee throughout the Easement Term.

11.5. Airfield Development. Any new development or alteration shall comply with any applicable Air Force requirements, such as clear zones.

12. COSTS OF UTILITIES/SERVICES

12.1. Utilities and Services. The Grantee shall be responsible for all utilities, janitorial services, refuse collection, and building and grounds maintenance of the Easement Area without cost to the Government.

13. RESTORATION

13.1. Grantee’s Removal Obligation. Title to all Easement Area Improvements and Grantee Equipment placed or developed on the Easement Area by the Grantee shall, during the term of this Easement, remain with the Grantee. Within sixty (60) days of the revocation, termination, or expiration of the Easement, the Grantee shall vacate the Easement Area, remove its personal property therefrom and restore the Easement Area to the aforesaid conditions and as set forth to a condition satisfactory to the Government, including any environmental restoration in accordance with the Property Restoration Plan as set forth in Section C-3.1.2. of the Performance Work Statement (“PWS”) as incorporated by reference to the Contract.

13.2. Government Restoration of Easement Area. In the event that the Grantee shall fail or neglect to remove its Easement Area Improvements and Grantee Equipment and restore the Easement Area, then, at the option of the Government, the Easement Area Improvements and Grantee Equipment shall either become the property of the Government without compensation therefor, or the Government may cause the Easement Area Improvements and Grantee Equipment to be removed and no claim for damages against the Government or its officers or agents shall be created by or made on account for such removal and restoration work. The Grantee shall also pay within thirty (30) days of demand any sum which may be expended by the Government after the expiration, revocation, or termination of this Easement in restoring the Easement Area.

CHANGES IN OWNERSHIP OR CONTROL

14. TRANSFER OR ASSIGNMENT

14.1. Right to Assign. The Grantee shall not assign this Easement or any interest therein in any property on the Easement Area without the prior written consent of the Government.

14.1.1. Any assignment granted by the Grantee shall be consistent with all of the terms and conditions of this Easement and shall terminate immediately upon the expiration or any earlier termination of this Easement, without any liability on the part of the Government to the Grantee or any assignee. Under any assignment made, with or without consent, the assignee shall be deemed to have assumed all of the obligations of the Grantee under this Easement. No assignment shall relieve the Grantee of any of its obligations hereunder including its obligation to pay Rent.

15. LIENS AND MORTGAGES

15.1. Prohibition against Grantee Mortgage of Easement Area. The Grantee shall not: (i) engage in any financing or other transaction creating any mortgage or security interest upon the Easement Area; (ii) place or suffer to be placed upon the Easement Area any lien or other encumbrance; (iii) suffer any levy or attachment to be made on the Grantee’s interests in the Easement Area; or (iv) pledge, mortgage, assign, encumber, or otherwise grant a security interest in the Easement Area or the rents, issues, profits, or other income of the Easement Area.

ENVIRONMENT.

16. ENVIRONMENTAL PROTECTION

16.1. Compliance with Applicable Laws. The Grantee shall comply with all Applicable Laws that are or may become applicable to Grantee’s activities on the Easement Area.

16.2. Environmental Permits. The Grantee shall obtain at its sole cost and expense any environmental and other necessary permits required for its operations under this Easement, independent of any existing permits.

16.3. Indemnification. See Paragraph 29.

16.4. Environmental Protection Plan. The Grantee shall comply with [Insert Contract specific requirement, for example: “its Environmental Protection Plan as set forth in Section C-3.2.6 of the PWS as incorporated by reference to the Contract”].

16.5. Records Maintenance and Accessibility. The Government’s rights under this Easement specifically include the right for Government officials to inspect the Easement Area, upon reasonable notice as provided under Paragraph 4.3, for compliance with Applicable Laws, including environmental laws, rules, regulations, and standards. Such inspections are without prejudice to the right of duly constituted enforcement officials or any other regulatory agencies to make such inspections. Violations identified by the Government will be reported to the Grantee and to appropriate regulatory agencies, as required by Applicable Law. The Grantee will be liable for the payment of any fines and penalties that may be imposed as a result of the actions or omissions of the Grantee.

16.6. Grantee Response Plan. The Grantee shall comply with all base plans and regulations for responding to hazardous waste, fuel, and other chemical spills.

16.7. Pesticide Management. Any pesticide use will require prior Government approval.

16.8. Compliance with Water Conservation Policy. The Grantee will comply with the Installation water conservation policy, as amended from time to time (to the extent that such policy exists and the Grantee receives copies thereof), from the Commencement Date through the Expiration Date.

16.9. Protection of Environment and Natural Resources. The Grantee will use all reasonable means available to protect environmental and natural resources from damage caused by its possession and use of the Easement Area, consistent with Applicable Laws and this Easement. Where damage nevertheless occurs, arising from the Grantee’s activities, the Grantee shall be fully liable to the extent such damage is caused by Grantee’s possession and use of the Easement Area for any such damage.

16.10. Pesticides and Pesticide Related Chemicals in Soil. The Grantee acknowledges that the surface soil on the Easement Area may contain elevated levels of pesticides and pesticide-related chemicals applied in the normal course of maintaining the Easement Area, and Government shall not be liable for any such levels in exceedance of applicable laws as a result of Grantee’s maintenance of the Easement Area. The Grantee shall manage all such soil on the Easement Area in accordance with the requirements of any Applicable Laws. The Government will not be responsible for injury or death of any person affected by such soil conditions whether the person is warned or not. Notwithstanding anything to the contrary herein or elsewhere in the Easement, Grantee shall not be responsible for levels of pesticides and pesticide-related chemicals that exceeded acceptable concentration levels prior to the commencement of Grantee’s possession and use of the Easement Area.

16.11. This Paragraph 16 shall survive the expiration or termination of this Easement.

17. ASBESTOS-CONTAINING MATERIALS AND LEAD-BASED PAINT

17.1. ASBESTOS-CONTAINING MATERIALS (ACM). The Grantee is warned that the Easement Area may contain current and former improvements, such as buildings, facilities, equipment, and pipelines, above and/or below the ground, which may contain ACM. The Government is not responsible for any handling, removal or containment of asbestos or ACM to the extent the actions of the Grantee exacerbated the pre-existing conditions or for any liability related thereto. Grantee is not responsible for exacerbation of asbestos or ACM that it did not have notice of through the Environmental Baseline Survey as long as Grantee ceases work and notifies Grantor if unnoticed asbestos or ACM is encountered.

17.2. LEAD-BASED PAINT (LBP). The Grantee recognizes and acknowledges that LBP materials may be present on exterior and interior surfaces of facilities within the Easement Area or in the soil. The Grantee will be responsible at its sole cost and expense for the management, maintenance, removal and disposal of all LBP materials introduced by Grantee to the Easement Area or attributable to the Easement Area Improvements performed by Grantee or its subcontractors. Removal and disposal of LBP must be carried out in compliance with all Applicable Laws.

18. SAFETY, HAZARDOUS MATERIALS, AND WASTE MANAGEMENT

18.1. Compliance with Health and Safety Plan. The Grantee agrees to comply with the provisions of any health or safety plan in effect under the IRP, as defined below (to the extent the Grantee has received notice thereof), or any hazardous substance, pollutant or contaminant remediation or response agreement of the Government with environmental regulatory authorities (to the extent the Grantee receives notice thereof if the agreement is not of public record) during the course of any of the response or remedial actions described in Paragraph 20.3. Any inspection, survey, investigation, or other response or remedial action will, to the extent practicable, be coordinated with representatives designated by the Grantee. The Grantee and any assignees, licensees, or invitees shall have no claim on account of such entries against the United States or any officer, agent, employee, contractor, or subcontractor thereof, except to the extent permitted under federal law, including the Federal Tort Claims Act.

18.2. Occupational Safety and Health. The Grantee must comply with all Applicable Laws relating to occupational safety and health, the handling and storage of hazardous materials, and the proper generation, handling, accumulation, treatment, storage, disposal, and transportation of hazardous wastes.

19. HISTORIC PRESERVATION

19.1. 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 Easement Area, the Grantee shall immediately notify the Government and protect the site and the material from further disturbance until the Government gives clearance to proceed.

20. INSTALLATION RESTORATION PROGRAM (IRP)

20.1. IRP Records. On or before the Commencement Date, the Government shall provide the Grantee access to the IRP records applicable to the Easement Area, if any, and thereafter shall provide to the Grantee a copy of any amendments to or restatements of the IRP records affecting the Easement Area. The Grantee expressly acknowledges that it fully understands the potential for some or all of the response actions to be undertaken with respect to the IRP may impact the Grantee’s quiet use and enjoyment of the Easement Area.

The Grantee agrees that notwithstanding any other provision of this Lease, the Government shall have no liability to the Grantee or its SubGrantees should implementation of the IRP or other hazardous substance or pollutant or contaminant cleanup requirements, whether imposed by law, regulatory agencies, or the Government or the Department of Defense, interfere with the Grantee’s or its SubGrantee’s use of the Easement Area. The Grantee shall have no claim or cause of action against the United States, or any officer, agent, employee, contractor, or subcontractor thereof, on account of any such interference, whether due to entry, performance of remedial or removal investigations, or exercise of any right with respect to the IRP or under this Easement or otherwise.

20.2. Government Right of Entry. The Government and its officers, agents, employees, contractors, and subcontractors shall have the right, upon reasonable notice to the Grantee, to enter upon the Easement Area for the purposes enumerated in this Paragraph.

20.2.1. To conduct investigations and surveys, including, where necessary, drilling, soil and water samplings, testpitting, testing soil borings, and other activities related to the IRP;

20.2.2. To inspect field activities of the Government and its contractors and subcontractors in implementing the IRP;

20.2.3. To conduct any test or survey related to the implementation of the IRP or environmental conditions at the Easement Area or to verify any data submitted to the EPA or the State Environmental Office by the Government relating to such conditions; and

20.2.4. To develop, operate, maintain, or undertake any other response or remedial action as required or necessary under the IRP, including, but not limited to, monitoring wells, pumping wells, and treatment facilities. Any investigations and surveys, drilling, test pitting, test soil borings, and other activities undertaken pursuant to this Subparagraph

20.2.4 shall be conducted in a manner that is as inconspicuous as practicable. Any monitoring wells, pumping wells, and treatment facilities required pursuant to this Paragraph 20.2.4 shall be designed and installed to be as inconspicuous as practicable. The Government shall attempt to minimize any interference with the Grantee’s quiet use and enjoyment of the Easement Area arising as the result of such wells and treatment facilities.

The Government shall, subject to the availability of appropriations therefor, repair any damage caused by its exercise of the rights in this Paragraph.

20.3. ACCESS FOR RESTORATION

20.3.1. Nothing in this Easement shall be interpreted as interfering with or otherwise limiting the right of the Government and its duly authorized officers, employees, contractors of any tier, agents, and invitees to enter upon the Easement Area for the purposes enumerated in Paragraph 20.3 and for such other purposes as are consistent with the provisions of a Federal Facility Agreement (FFA) or required to implement the IRP conducted under the provisions of 10 U.S.C. §§ 2701-2705. The Grantee shall provide reasonable assistance to the Government to prevent Government’s activities under this Paragraph 20.3 from damaging property of the Grantee on the Easement Area.

20.3.2. The United States Environmental Protection Agency (“USEPA”) and state of Texas, including their subordinate political units, and their duly authorized officers, employees, contractors of any tier, and agents may, upon reasonable notice to the Grantee and with Government’s consent, enter upon the Easement Area for the purposes enumerated in Paragraph 20.3 and for such other purposes as are consistent with the provisions of an FFA. The Grantee shall provide reasonable assistance to USEPA and the state to ensure their activities under this Paragraph 20.3 do not damage property of the Grantee on the Easement Area.

21. ENVIRONMENTAL BASELINE SURVEY/CONDITION OF PROPERTY

21.1. An Environmental Baseline Survey (“EBS”) for the Easement Area dated 28 Mar 22 and AF Form 813, Request for Environmental Impact Analysis, dated 28 Mar 22 has been delivered to the Grantee and is attached as Exhibit E hereto. The EBS sets forth those environmental conditions and matters on and affecting the Easement Area on the Commencement Date as determined from the records and analyses reflected therein. The EBS is not, and shall not constitute, a representation or warranty on the part of the Government regarding the environmental or physical condition of the Easement Area, and the Government shall have no liability in connection with the accuracy or completeness thereof. In this regard the Grantee acknowledges and agrees that the Grantee has relied, and shall rely, entirely on its own environmental due diligence of the Easement Area in determining whether to enter into this Easement. A separate EBS for the Easement Area shall be prepared by the Government, after the expiration or earlier termination of this Easement (“Final EBS”). Such Final EBS shall document the environmental conditions and matters on and affecting the Easement Area on the Commencement Date as determined from the records and analyses reflected therein. The Final EBS will be used by the Government to determine whether the Grantee has fulfilled its obligations to maintain and restore the Easement Area under this Easement pursuant to Paragraph 13 and Paragraph

16. Notwithstanding the foregoing or anything to the contrary elsewhere in this Easement, Grantee shall be liable for changes to the environmental condition resulting in damages to the Government or claims against the Government or requirements to remediate by the Government to the extent caused by the actions, errors or omissions of Grantee, its employees, subcontractors and invitees.

GENERAL PROVISIONS

22. GENERAL PROVISIONS

22.1. Covenant against Contingent Fees. The Grantee warrants that it has not employed or retained any person or agency to solicit or secure this Easement upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee.

Breach of this warranty shall give the Government the right to annul this Easement without liability or in its discretion to recover from the Grantee the amount of such commission, percentage, brokerage,…