FINAL EASEMENT LAFB TO MC - ALSUP RD 1-9-19.DOCX

Instrument Number: USAF-AETC-NUEX-19-2-0013
C-64-19-____-__-00
Project TT0588
When Recorded Mail To:
Maricopa County Real Estate Department
Attn: Director
2801 W. Durango Street
Phoenix, AZ 85009
EXEMPT FROM AFFIDAVIT AND FEE PURSUANT TO A.R.S. §11-1134(A) (2).
DEPARTMENT OF THE AIR FORCE
GRANT OF EASEMENT
FOR
MARICOPA COUNTY
ON
LUKE AIR FORCE BASE, ARIZONA

Instrument Number: USAF-AETC-NUEX-19-2-0013
TABLE OF CONTENTS
PREAMBLE....................................................................................................................................1
BASIC TERMS...............................................................................................................................1
1. TERM .....................................................................................................................................1
2. RENT......................................................................................................................................1
3. NOTICE..................................................................................................................................1
4. USE OF EASEMENT AREA ................................................................................................2
5. ABANDONMENT OR TERMINATION OF EASEMENT .................................................3
OPERATION OF THE EASEMENT AREA................................................................................3
6. EASEMENTS AND RIGHTS OF WAY...............................................................................3
7. CONDITION OF EASEMENT AREA..................................................................................4
8. MAINTENANCE OF EASEMENT AREA...........................................................................4
9. TAXES ...................................................................................................................................4
10. INSURANCE .......................................................................................................................4
11. ALTERATONS…………………………………………………………………………….6
12. COSTS OF UTILITIES/SERVICES....................................................................................6
13. RESTORATION...................................................................................................................7
CHANGES IN OWNERSHIP OR CONTROL .............................................................................7
14. ASSIGNMENT.....................................................................................................................7
15. LIENS AND MORTGAGES ...............................................................................................7
ENVIRONMENT............................................................................................................................8
16. ENVIRONMENTAL PROTECTION..................................................................................8
17. ASBESTOS-CONTAINING MATERIALS (ACM) AND..................................................9
LEAD-BASED PAINT (LBP) .............................................................................................9
18. SAFETY, HAZARDOUS MATERIALS, AND WASTE MANAGEMENT .....................9
19. HISTORIC PRESERVATION...........................................................................................10
20. INSTALLATION RESTORATION PROGRAM (IRP)....................................................10
21. ENVIRONMENTAL BASELINE SURVEY / ..................................................................11
ENVIRONMENTAL CONDITION OF PROPERTY.......................................................11
22. GENERAL PROVISIONS .................................................................................................12
23. SPECIAL PROVISIONS....................................................................................................15
24. RIGHTS NOT IMPAIRED ................................................................................................15
25. APPLICABLE LAWS........................................................................................................16
26. AVAILABILITY OF FUNDS............................................................................................17
27. CONGRESSIONAL REPORTING....................................................................................17
28. AMENDMENTS ................................................................................................................17
29. GENERAL INDEMNIFICATION.....................................................................................17
30. ENTIRE AGREEMENT ....................................................................................................18
31. CONDITION AND PARAGRAPH HEADINGS..............................................................18
32. STATUTORY AND REGULATORY REFERENCES.....................................................18
33. PRIOR AGREEMENTS.....................................................................................................19
34. EXHIBITS ..........................................................................................................................19
Exhibit A - Description of Easement Area................................................................................22
Exhibit B-Map of Property…………………………………………………………………….23
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Exhibit C-Physical Condition Report…………………………………………………………..24
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Instrument Number: USAF-AETC-NUEX-19-2-0013
DEPARTMENT OF THE AIR FORCE
GRANT OF EASEMENT
PREAMBLE
THE UNITED STATES OF AMERICA, acting by and through the Secretary of the Air
Force (“Grantor” or “Air Force” or “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 is included herein, and the granting of this easement is not against the
public interest, does hereby grant and convey to Maricopa County, a political subdivision of the
State of Arizona (“Maricopa County” or “Grantee”), a nonexclusive easement (“Easement”) on,
over, under, and across the property located at Luke Air Force Base (“Installation”) described in
Exhibit A and depicted on Exhibit B (the “Property” or “Easement Area”) for the construction,
installation, reconstruction, repair, replacement, removal, operation and maintenance of portions
of Alsup Road and West Bethany Home Road as well as three (3) 48" each concrete/corrugated
metal drain pipes, two (2) headwalls, guardrails, and any other structures and/or facilities
associated with the aforementioned roads. The Grantor and Grantee may collectively be
referred to as Parties or separately as a Party.
BASIC TERMS
1. TERM
1.1. Term. This Easement shall be for a term of 25 years commencing 1 January 2019, unless
sooner terminated (“Easement Term”) or amended in accordance with Paragraph 28 below.
1.2. Termination. The Government may terminate this Easement at any time in the event of
national emergency as declared by the President or the Congress of the United States, base
closure, deactivation or substantial realignment, or in the interest of national defense upon 120
days’ written notice to Grantee. If the giving of such notice is impracticable under the
circumstances, the Secretary of the Air Force will use good faith efforts to give Grantee such
advance written notice as the circumstances permit.
2. RENT
There shall be no rent associated with this instrument.
3. NOTICE
No notices, waiver or other communication under this Easement shall be effective unless in
writing and personally served, or sent by certified mail, return receipt requested, with postage
prepaid or by commercial express delivery service providing receipted delivery. All such notices
shall be addressed to the Parties at the addresses noted below. If personally served or sent via
commercial delivery service, any such notice shall be deemed given at the time of such service
or, if by mail, at the time of depositing same in a post office box regularly maintained by the
United States Postal Service.
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Instrument Number: USAF-AETC-NUEX-19-2-0013
GRANTOR:
56 CES/CC
Attn: Real Property Officer
13970 W. Gillespie Dr
Luke AFB, AZ 85309-1149
GRANTEE:
Maricopa County Real Estate Department
Attn: Director
2801 W. Durango Street
Phoenix, AZ 85009
4. USE OF EASEMENT AREA
4.1. Permitted Uses. The Grantee shall use the Easement Area solely for the construction,
installation, reconstruction, repair, replacement, removal, operation and maintenance of portions
of Alsup Road and West Bethany Home Road as well as three (3) 48" each concrete/corrugated
metal drain pipes, two (2) headwalls, guardrails, and any other structures and/or facilities
associated with the aforementioned roads. Grantee’s use of the Easement Area shall comply, at
Grantee’s sole cost and expense, with all Applicable Laws (as hereinafter defined) and with the
Permanent Obstruction Waiver. The Grantee shall not use or occupy the Easement Area in any
manner that is unlawful.
4.2. Grantee Access. Grantee is granted the nonexclusive right to use the walkways, streets,
and roads on the Installation in common with the Grantor and its grantees and licensees for
access to and from the Easement Area and the nearest public street or highway.
4.3. Grantor’s Right of Access And Inspection. Grantor shall have the right to enter the
Easement Area at any time and shall have the right to reasonably inspect Grantee’s use of it and
any of Grantee’s improvements or property placed thereon, with, except in the case of an
emergency, at least forty-eight (48) hours prior notice to Grantee.
4.4. Grantor’s Reasonable Regulation. The use and occupation of the Easement Area and the
exercise of the rights herein granted shall be subject to Grantor’s reasonable restrictions and
regulations regarding ingress, egress, safety, sanitation, and security, as Grantor, or its duly
authorized representatives, may from time to time impose. Except in the case of an emergency,
Grantor shall provide at least forty-eight (48) hours prior notice to Grantee of a change in
Grantor’s reasonable restrictions and regulations regarding ingress, egress, safety, sanitation, and
security.
4.5. No Obstructions. Neither Party shall use the Property nor construct, erect, or place any
objects, buildings, structures, signs, or wells of a permanent nature on, under, or over the
Easement Area that will unreasonably interfere with the other Party’s use of the premises, as set
out in this Easement or its reservations.
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4.6. Limitation of Grantee Rights. Except as is reasonably required to effect the purpose of
this Easement, the Grantee has no right of use, license, easement, servitude, or usufruct, for any
purpose, by necessity or otherwise, express or implied, on, over, across, or under any of the real
property of the Grantor, and the Grantee agrees not to assert any such right or interest by reason
of this Easement.
4.7. Ownership of Grantee Equipment. It is expressly understood and agreed that Grantee
retains ownership of the improvements constructed and installed by Grantee in the Easement
Area.
5. ABANDONMENT OR TERMINATION OF EASEMENT
5.1. Termination. This Easement may be terminated in whole or in part by either Party for the
other Party’s failure to comply with the terms of this Easement (“Default”). In those cases where
Grantor has reason to believe Grantee is no longer using the Easement Area, Grantor will inquire
with Grantee, in writing, as to the Grantee’s status respective to the Easement. If Grantee does
not respond within forty-five (45) days, Grantor will follow the Grantee Default notification
process. In the case of Grantee Default, the Grantor shall give written notice of any Default to
Grantee and allow one hundred eighty (180) days from receipt of the notice for Grantee to
correct the Default and/or deficiency(ies). If, after one hundred eighty (180) days, all of the
noted deficiencies are not corrected to the Grantor’s reasonable satisfaction, the Grantor may, at
its sole discretion, terminate this Easement upon written notice to Grantee. In the case of
termination due to Default, Grantee shall remove its improvements from the Easement Area in
accordance with the provisions set forth in Paragraph 13.1 below. If such default is of a nature
that it cannot reasonably be cured within said one hundred eighty (180) days, then the cure
period may be extended by mutual agreement of the Parties, in writing, for such longer time as
may be reasonably necessary, so long as Grantee commences to cure failure within said one
hundred eighty (180) day period, in good faith and with due diligence, and thereafter diligently
and continuously pursues the same to completion.
5.2. Remedies for Non-Compliance. In the event the Grantee fails to comply with any
obligation under this Easement, the Grantor may pursue monetary damages, equitable relief, or
both, and the Grantee shall reimburse the Grantor for its attorney fees and costs.
OPERATION OF THE EASEMENT AREA
6. EASEMENTS AND RIGHTS OF WAY
This Easement is subject to all outstanding easements, rights-of-way, rights in the nature of an
easement, leases, permits, licenses, and uses (collectively, “Outgrants”) for any purpose affecting
the Easement Area; at the time of entering into this Easement there are no Outgrants affecting the
Easement Area. The Air Force may make additional Outgrants and make additional uses that
may affect the Easement Area. However, any such additional Outgrants shall not be
inconsistent, or in conflict, with the use of the Easement Area by the Grantee under this
Easement.
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7. CONDITION OF EASEMENT AREA
The Grantee has inspected and knows the condition of the Easement Area. It is understood that
the Easement is granted “as is, where is” without any warranty, representation, or obligation on
the part of the Grantor to make any alterations, repairs, improvements, or corrections to
conditions or to defects whether patent or latent. The Parties shall jointly perform and sign or
otherwise authenticate a Physical Condition Report at the beginning of the Easement Term to
document the condition of the Easement Area. This report will be made a part of this Easement
as Exhibit C.
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, Grantee 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, 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.
9. TAXES
The Grantee shall pay to the proper authority, when and as the same become due and payable, all
taxes, assessments, and similar charges which, at any time during the term of this Easement may
be imposed on the Grantee or the Easement Area.
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, Easement
Area improvements, Grantee equipment, fixtures, or other property thereon, arising from any
causes whatsoever which is caused by any activity, condition, or event arising out of the
negligent performance or nonperformance of Grantee, with or without fault by the Government,
provided, however, the Government shall not be relieved of responsibility for loss or damage that
is solely the result of the gross negligence or willful misconduct of the Government to the extent
such loss or damage is not covered by coverage of insurance required under this Easement.
10.2. Grantee Insurance Coverage. The Grantor and Grantee acknowledge and agree that the
Parties to this Easement are each self-insured. During the entire Easement Term, the Grantee, at
no expense to the Government, shall carry and maintain the following types of insurance:
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10.2.1. Commercial general liability insurance, on an occurrence basis, insuring against claims
for bodily injury, death and property damage, occurring upon, in or about the Easement Area,
including any building thereon. Such insurance must be effective at all times throughout the
Easement Term, with limits of not less than $1,000,000 per occurrence, general aggregate and
products and completed operations aggregate, and include coverage for fire, legal liability, and
medical payments. This coverage may be provided under primary liability and umbrella excess
liability policies, and shall include business auto liability insurance that insures against claims for
bodily injury and property damage arising from the use of “any auto” with a combined single
limit of $1,000,000 per accident. All liability policies shall be primary and non-contributory to
any insurance maintained by the Government.
10.2.1.1. The insurance carried and maintained by the Grantee pursuant to Paragraph 10.2.1
shall provide coverage to protect the Government from any damage and liability for which the
Grantee is liable or responsible or agrees to hold harmless and indemnify the Government under
this Easement.
10.2.1.2. Commercial general liability and business auto liability insurance required pursuant to
Paragraph 10.2.1 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 with equal standing
with the named insured for purposes of submitting claims directly with the insurer.
10.2.2. Workers’ compensation or similar insurance covering all persons employed in
connection with the work 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 $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) issued by Qualified Insurers defined for purposes of this paragraph as insurers authorized to
do business and to issue the insurance policies required under this Paragraph 10 in the State of
Arizona; (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. Proceeds under all policies of insurance
carried and maintained to provide coverage required by this Paragraph 10 shall be available only
for the stated purposes of the insurance. Under no circumstances will the Grantee be entitled to
assign to any third-party rights of action that the Grantee may have against the Government in
connection with any insurance carried pursuant to this Paragraph.
10.4. Evidence of Insurance. The Grantee shall deliver or cause to be delivered upon
execution of this Easement (and thereafter not less than fifteen (15) days prior to the expiration
date of each policy furnished pursuant to this Paragraph 10), 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
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acceptable to the Government, and including such endorsements necessary to afford additional
insured status.
10.5. Damage or Destruction of Easement Area. In the event all or part of the Easement Area
is damaged (except de minimis damage) or destroyed, the risk of which is assumed by the
Grantee under Paragraph 10.1, the Grantee shall promptly give notice thereof to the Government
and the Parties shall proceed as follows:
10.5.1. 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 one (1) year of the occurrence of the casualty
(“Extensive Damage or Destruction of Easement Area”), either Party may terminate this
Easement as provided in Paragraph 5.1. If this Easement is terminated pursuant to Paragraph
5.1, 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 in accordance with Paragraph 13.
10.5.2. 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, then 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.
11. ALTERATIONS.
11.1. Alterations. At least ninety (90) days before doing any work to repair, build, alter,
modify, or demolish any improvements in the Easement Area, Grantee shall give written notice
of its plans to the 56 CES/CC’s Real Property Officer, who shall disseminate the plans to
appropriate Installation personnel who shall have the right to review and approve or reasonably
modify the plans and to place reasonable restrictions on Grantee’s access, equipment, methods,
materials, and manpower related to accomplishing the work, in order to ensure it is done
consistent with Grantor’s use of the Easement Area and the operation of the Installation.
11.2. Airfield Construction. Any new construction or alteration at the end of the runway, or
within lateral clear zones for the runway, shall comply with any applicable Air Force
requirements, such as those contained in Unified Facilities Criteria (UFC) 3-260-01 titled
"Airfield and Heliport Planning and Design," dated 17 November 2008; any deviation will
require Grantor’s written consent.
12. COSTS OF UTILITIES/SERVICES
Reserved. Not applicable.
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13. RESTORATION
13.1. Grantee’s Removal Obligation. Upon the expiration, abandonment, or termination of the
Easement, Grantor may elect, in its sole discretion, to require Grantee to remove all its
improvements and other property from the Easement Area and restore the Easement Area at
Grantee’s sole expense to substantially the same condition that existed immediately before the
grant, all to Grantor’s satisfaction. Grantor shall give notice to Grantee of such election within a
reasonable time after learning of Grantee’s abandonment, or together with Grantor’s notice of
termination. Alternatively, at those same times, Grantor may elect and give written notice to
Grantee that some or all of Grantee’s easement improvements, and any other property Grantee
may leave on the Easement Area, may be abandoned in place by Grantee, at Grantee’s election,
in which case such property and improvements will revert or be transferred to Grantor and such
reversion or transfer in lieu of Grantee’s removal and restoration obligation shall be automatic
and at no cost to Grantor and shall be effective on the Easement Term expiration date or the
effective date of any abandonment or termination, without additional consideration therefore.
Grantee shall execute any documentation reasonably requested by the Grantor to confirm any
transfer or conveyance.
13.2. Government Restoration of Easement Area. If Grantee fails to satisfy its removal and
restoration obligations within six (6) months from the date of expiration, termination, or
abandonment of this Easement, then at Grantor’s option, Grantee’s improvements and personal
property located on the Easement Area shall either become Grantor’s property without
compensation therefore or the Government may cause them to be removed or destroyed and the
Easement Area to be so restored at the expense of Grantee; and no claim for damages against
Grantor, its officers, employees, agents, or contractors shall be created by or made on account of
such removal or destruction and restoration work. Grantee shall reimburse Grantor for any
expenses it incurs to restore the Easement Area to the condition required by this grant within
thirty (30) days after the Government provides written notice to Grantee of the reimbursement
amount together with reasonable documentary support of the reimbursement amount.
13.3. Release of Easement. Within six (6) months from the date of expiration, termination, or
abandonment of this Easement, the Grantee, at its sole cost and expense, will execute, and file
for public record with the Maricopa County Recorder’s Office, a Release of Easement.
CHANGES IN OWNERSHIP OR CONTROL
14. ASSIGNMENT
The Grantee may not assign this Easement without the prior written consent of the Grantor.
15. LIENS AND MORTGAGES
Intentionally Left Blank.
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ENVIRONMENT
16. ENVIRONMENTAL PROTECTION
16.1. Compliance with Applicable Laws. Grantee shall comply with all applicable federal,
State, and local laws, regulations, and standards for environmental protection, including flood
plains, wetlands, and pollution control and abatement, as well as for payment of all fines and
assessments by regulators for the failure to comply with such standards. Grantee shall also
indemnify the Grantor to the full extent permitted by law for any violation of such law,
regulation, or standard and shall also reimburse the Grantor for any civil or criminal fines or
penalties levied against the Grantor for any environmental, safety, occupational health, or other
infractions caused by or resulting from Grantee’s action or inaction or that of its officers, agents,
employees, contractors, subcontractors, licensees, or the invitees of any of them. In the event
that any actions by Grantee including those of its officers, agents, employees, contractors,
subcontractors, licensees, or invitees cause or contribute to a spill or other release of a substance
or material, Grantee shall conduct any required cleanup, abatement, or response action in
accordance with all applicable federal, State and local laws and regulations or, at the discretion
of Grantor, indemnify Grantor for all costs of completing such cleanup, abatement, or response
action.
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. The Grantee shall, to the extent permitted by law, indemnify the
Grantor, its agents and employees, from and against any loss, damage, claim, or liability
whatsoever resulting in personal injury or death, or damage of property of the Grantor and
others, directly or indirectly due to the negligent exercise by the Grantee of any of the rights
granted by the Easement, or any other negligent act or omission of the Grantee, including failure
to comply with the obligations of this Easement or of any Applicable Laws that may be in effect
from time to time.
16.4. Government Caused Environmental Damage. Grantee does not assume any of
Grantor’s liability or responsibility for environmental impacts and damage resulting from
Grantor’s activities; however, this provision does not relieve Grantee of any obligation or
liability it might have or acquire with regard to third parties or regulatory authorities by
operation of law.
16.5. Records Maintenance and Accessibility. The Government’s rights under this Easement
specifically include the right for Government and/or regulatory officials to inspect the Easement
Area, upon reasonable notice as provided under Paragraph 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 to make such inspections.
Violations identified by the Government will be reported to the Grantee and to appropriate
regulatory agencies, as required by Applicable Laws. The Grantee will be liable for the payment
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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 Installation plans,
regulations, and applicable laws 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 Term beginning date through the
Term expiration date as applicable.
16.9. Protection of Environment and Natural Resources. The Grantee will use all reasonable
means available to protect environmental and natural resources, consistent with Applicable Laws
and this Easement. Where damage nevertheless occurs, arising from the Grantee’s activities, the
Grantee shall be fully liable 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. The Grantee
shall manage all such soil on the Easement Area in accordance with the requirements of any
Applicable Laws. Responsibility for injury or death of any person affected by such soil
conditions whether the person is warned or not, shall be determined by all Applicable Laws.
17. ASBESTOS-CONTAINING MATERIALS (ACM) AND
LEAD-BASED PAINT (LBP)
Intentionally Left Blank.
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 Installation Restoration Program (IRP)
(to the extent the Grantee has received notice thereof), or any hazardous substance remediation
or response agreement of the Government with environmental regulatory authorities (to the
extent the Grantee receives notice thereof) 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.
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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
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 Term beginning 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 Easement, the Government shall have no liability to
the Grantee or any assignees, licensees, or invitees should implementation of the IRP or other
hazardous waste cleanup requirements, whether imposed by law, regulatory agencies, or the
Government or the Department of Defense, interfere with the Grantee’s or any of its assignee’s,
licensee’s, or invitee’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
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20.2.4. To construct, 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, testpitting, 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 Subparagraph 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 therefore, 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 Air Force 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 an 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 Air Force to ensure Air Force’s
activities under this Paragraph 20.3 do not damage property of the Grantee on the Easement
Area.
20.3.2. The United States Environmental Protection Agency (USEPA) and State of Arizona,
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 Air
Force’s consent, enter upon the Premises 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 /
ENVIRONMENTAL CONDITION OF PROPERTY
An Environmental Baseline Survey (“EBS”) for the Easement Area dated 29 January 2018, has
been delivered to the Grantee, is available in both the Grantor and Grantee’s real property office
for review as necessary, and is incorporated herein by reference. The EBS and Supplements set
forth those environmental conditions and matters on and affecting the Easement Area as of 29
January 2018, 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. Grantee acknowledges and
agrees that the Grantee has relied, and shall rely, entirely on its own investigation 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 Term Expiration Date as determined from
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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 including, without limitation, Paragraph 13 and Paragraph 16.
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, or
contingent fee, in addition to the consideration herewith set forth. This warranty shall not apply
to commissions payable by the Grantee on the Easement secured or made through bona fide
established commercial agencies retained by the Grantee for the purpose of doing business.
“Bona fide established commercial agencies” has been construed to include licensed real estate
brokers engaged in the business generally.
22.2. Officials Not to Benefit. No Member of, or Delegate to the Congress, or resident
commissioner, shall be admitted to any part or share of this Easement or to any benefit that may
arise therefrom, but this provision shall not be construed to extend to this Easement if made with
a corporation for its general benefit.
22.3. Facility Nondiscrimination. As used only in this Condition, the term “Facility” means
lodgings, stores, shops, restaurants, cafeterias, restrooms, and any other facility of a public nature
in any building covered by, or built on land covered by, this Easement.
22.3.1. The Grantee agrees that it will not discriminate against any person because of race,
color, religion, sex, or national origin in furnishing, or by refusing to furnish, to such person or
persons the use of any Facility, including any and all services, privileges, accommodations, and
activities provided on the Easement Area. This does not require the furnishing to the general
public the use of any Facility customarily furnished by the Grantee solely for use by any
assignees, licensees, or invitees or their guests and invitees.
22.3.2. The Parties agree that in the event of the Grantee’s noncompliance, the Government may
take appropriate action to enforce compliance, and may terminate this Easement for default and
breach as provided in Paragraph 5, or may pursue such other remedies as may be provided by
law.
22.4. Gratuities and Conflict of Interest.
22.4.1. The Government may, by written notice to the Grantee, terminate this Easement if, after
notice and hearing, the Secretary of the Air Force or a designee determines that the Grantee, or
any agent or representative of the Grantee, offered or gave a gratuity (e.g., an entertainment or
gift) to any officer, official, or employee of the Government and intended, by the gratuity, to
obtain an easement or other agreement or favorable treatment under an easement or other
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agreement, except for gifts or benefits of nominal value offered to tenants of the Easement Area
in the ordinary course of business.
22.4.2. The facts supporting this determination may be reviewed by any court having lawful
jurisdiction.
22.4.3. If this Easement is terminated under Paragraph 22.4.1, the Government shall be entitled
to pursue the same remedies against the Grantee as in a breach of this Easement by the Grantee,
and in addition to any other damages provided by law, to exemplary damages of not fewer than
three (3), or more than ten (10), times the cost incurred by the Grantee in giving gratuities to the
person concerned, as determined by the Government.
22.4.4. The rights and remedies of the Government provided in this Paragraph shall not be
exclusive, and are in addition to any other rights and remedies provided by law or under this
Easement.
22.4.5. This Easement is subject to A.R.S. § 38-511 and may be cancelled pursuant thereto by
either Party.
22.5. No Joint Venture. Nothing contained in this Easement will make, or shall be construed to
make, the Parties’ partners or joint venturers with each other, it being understood and agreed that
the only relationship between the Government and the Grantee under this Easement is that of
easement grantor and easement grantee. Nothing in this Easement will render, or be construed to
render, either of the Parties liable to any third party for the debts or obligations of the other Party.
22.6. Records and Books of Account. The Grantee agrees that the Secretary of the Air Force,
the Comptroller General of the United States, or the Auditor General of the United States Air
Force, or any of their duly authorized representatives, shall, until the expiration of three (3) years
after the expiration or earlier termination of this Easement, have access to, and the right to
examine, any directly pertinent books, documents, papers, and records of the Grantee involving
transactions related to this Easement.
22.7. Remedies Cumulative; Failure of Parties to Insist on Compliance. The specified
remedies to which the Parties may resort under the terms of this Easement are distinct, separate,
and cumulative, and are not intended to be exclusive of any other remedies or means of redress
to which the Parties may be lawfully entitled in case of any breach or threatened breach by either
Party of any provisions of this Easement. The failure of either Party to insist on any one or more
instances upon strict performance of any of the terms, covenants, or conditions of this Easement
shall not be construed as a waiver or a relinquishment of the Parties’ right to the future
performance of any such terms, covenants, or conditions. No waiver by either Party of any
provision of this Easement shall be deemed to have been made unless expressed in writing and
signed by an authorized representative of the other Party.
22.8. Counterparts. This Easement is executed in counterparts in triplicate, each of which is
deemed an original of equal dignity with the other and which is deemed one and the same
instrument as the other.
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22.9. Personal Pronouns. All personal pronouns used in this Easement, whether used in the
masculine, feminine, or neuter gender, will include all other genders.
22.10. Entire Agreement. It is expressly agreed that this written instrument, together with the
provisions of other documents that are expressly incorporated by reference by the terms of this
Easement, embodies the entire agreement between the Parties regarding the use of the Easement
Area by the Grantee. In the event of any inconsistency between the terms of this Easement and
of any provision that has been incorporated by reference, the terms of this Easement shall
govern. There are no understandings or agreements, verbal or otherwise, between the Parties
except as expressly set forth in this Easement. This instrument may only be modified or
amended by mutual agreement of the Parties in writing and signed by each of the Parties.
22.11. Partial Invalidity. If any term or provision of this Easement, or the application of the
term or provision to any person or circumstance, is, to any extent, invalid or unenforceable, the
remainder of this Easement, or the application of the term or provision to persons or
circumstances other than those for which the term or provision is held invalid or unenforceable,
will not be affected by the application, and each remaining term or provision of this Easement
will be valid and will be enforced to the fullest extent permitted by law.
22.12. Interpretation of Easement. The Parties and their legal counsel have participated fully
in the negotiation and drafting of this Easement. This Easement has been prepared by the Parties
equally, and should be interpreted according to its terms. No inference shall be drawn that this
Easement was prepared by, or is the product of, either Party.
22.13. 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 similar department, agency, statute,
regulation, program, or form.
22.14. Approvals. Any approval or consent of the Parties required for any matter under this
Easement shall be in writing and shall not be unreasonably withheld, conditioned or denied
unless otherwise indicated in this Easement.
22.15. Third-Party Beneficiaries. There shall be no third-party beneficiaries of this Easement
and none of the provisions of this Easement shall be for the benefit of, or enforceable by, any
creditors of the Grantee.
22.16. No Individual Liability of Grantor or Grantee 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 Grantor or Grantee, 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.
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22.17. Excusable Delays. The Government and Grantee shall be excused from performing an
obligation or undertaking provided for in this Easement, and the period for the performance of
any such obligation or undertaking shall be extended for a period equivalent to the period of such
delay, so long as such performance is prevented or unavoidably delayed, retarded, or hindered by
an act of God; fire; earthquake; flood; explosion; war; invasion; insurrection; riot; mob; violence;
sabotage; act of terrorism; inability to procure or a general shortage of, labor, equipment,
facilities, materials, or supplies in the open market; failure or unavailability of transportation,
strike, lockout, action of labor unions; a taking by eminent domain, requisition, laws, orders of
government, or of civil, military, or naval authorities (but only such orders of a general nature
pertaining to the Easement Area and comparable properties in the state of Arizona; governmental
restrictions (including, without limitation, access restrictions imposed by the Government and
arising without fault or negligence on the part of the Grantee that significantly hinder the
Grantee’s ability to access the Easement Area and perform its obligations under the
Development Plan in a timely manner); required environmental remediation; or any other cause,
whether similar or dissimilar to the foregoing, not within the reasonable control, and without the
fault or negligence of, the Government or the Grantee, as the case may be, and/or any of their
respective officers, agents, servants, employees, and/or any others who may be on the Easement
Area at the invitation of the Grantee, or the invitation of any of the aforementioned persons,
specifically excluding, however, delays for adjustments of insurance and delays due to shortage
or unavailability of funds (collectively, “Excusable Delays”). Nothing contained in this
Paragraph 22.17 shall excuse the Grantor or Grantee from the performance or satisfaction of an
obligation under this Easement that is not prevented or delayed by the act or occurrence giving
rise to an Excusable Delay.
23. SPECIAL PROVISIONS
23.1. Minimum Wages Under Executive Order 13658 and 29 CFR Part 10. If the wages of
any of Grantee’s employees or contractors of any tier will be governed by the Fair Labor
Standards Act, the Davis Bacon Act, or the Services Contract Act, Grantee and Grantor must
comply with Executive Order 13658 and 29 C.F.R. Part 10, as may be in effect or modified from
time to time during the Term of this Easement.
24. RIGHTS NOT IMPAIRED
24.1. Rights Not Impaired. Nothing contained in this Easement shall be construed to diminish,
limit, or restrict any right, prerogative, or authority of the Government over the Easement Area
relating to the security or mission of the Installation, the health, welfare, safety, or security of
persons on the Installation, or the maintenance of good order and discipline on the Installation, as
established in law, regulation, or military custom.
24.2. Installation Access. The Grantee acknowledges that it understands that the Installation is
an operating military Installation that could remain closed to the public and accepts that the
Grantee’s operations may from time to time be restricted temporarily or permanently due to the
needs of national defense. Access on the Installation may also be restricted due to inclement
weather and natural disasters. The Grantee further acknowledges that the Government strictly
enforces federal laws and Air Force regulations concerning controlled substances (drugs) and
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that personnel, vehicles, supplies, and equipment entering the Installation are subject to search
and seizure under 18 U.S.C. § 1382. The Government will use reasonable diligence in
permitting the Grantee access to the Easement Area at all times, subject to the provisions of this
paragraph. Notwithstanding the foregoing, the Grantee agrees the Government will not be
responsible for lost time or costs incurred due to interference, delays in entry, temporary loss of
access, barring of individual employees from the Installation under federal laws authorizing such
actions, limitation, or withdrawal of an employee’s on-base driving privileges, or any other
security action that may cause employees to be late to, or unavailable at, their work stations, or
delay arrival of parts and supplies. The Government retains the right to refuse access to the
Easement Area by the Grantee’s parties. The Grantee, its assignees, employees, and invitees
fully agree to abide with all access restrictions imposed by the Government in the interest of
national defense.
24.3. Permanent Removal and Barment. Notwithstanding anything contained in this
Easement to the contrary, the Government has the right at all times to order the permanent
removal and barment of anyone from the Installation, including but not limited to assignees, if it
believes, in its sole discretion, that the continued presence on the Installation of that person
represents a threat to the security or mission of the Installation, poses a threat to the health,
welfare, safety, or security of persons occupying the Installation, or compromises good order
and/or discipline on the Installation.
24.4. No Diminishment of Rights. Except as provided in Paragraph 24.1, nothing in this
Easement shall be construed to diminish, limit, or restrict any right of the Grantee under this
Easement, or the rights of any assignees, licensees, or invitees as prescribed under their
easements or Applicable Laws.
25. APPLICABLE LAWS
25.1. Compliance with Applicable Laws. The Grantee shall comply, at its sole cost and
expense (except for matters for which the Government remains obligated hereunder pursuant to
Paragraph 16), with all Applicable Laws including without limitation, those regarding
construction, demolition, maintenance, operation, sanitation, licenses, or permits to do business,
protection of the environment, pollution control and abatement, occupational safety and health,
and all other related matters. The Grantee shall be responsible for determining whether it is
subject to local building codes or building permit requirements, and for compliance with them to
the extent they are applicable.
25.1.1. “Applicable Laws” means, collectively, all present and future laws, ordinances, rules,
requirements, regulations, and orders of the United States, the State where the Easement Area is
located and any other public or quasi-public federal, State, or local authority, and/or any
department or agency thereof, having jurisdiction over the Project (“Project” means, collectively,
the Easement Area and the Easement Area Improvements) and relating to the Project or
imposing any duty upon the Grantee with respect to the use, occupation, or alteration of the
Project during the Easement Term.
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25.2. Permits, Licenses, and Approvals. The Grantee will be responsible for and obtain, at its
sole expense, prior to the commencement of construction and demolition, and upon completion
of the building of Easement Area improvements, any approvals, permits, or licenses that may be
necessary to construct, occupy, and operate the Grantee improvements and Grantee equipment in
compliance with all Applicable Laws.
25.3. No Waiver of Sovereign Immunity. Nothing in this Easement shall be construed to
constitute a waiver of federal supremacy or federal sovereign immunity. Only laws and
regulations applicable to the Easement Area under the Constitution and statutes of the United
States are covered by this Paragraph. The United States presently exercises proprietary federal
legislative jurisdiction over the Easement Area.
25.4 Grantee Responsibility for Compliance. Responsibility for compliance as specified in
this Paragraph 25 rests exclusively with the Grantee. The Government assumes no enforcement
or supervisory responsibility, except with respect to matters committed to its jurisdiction and
authority. The Grantee shall be liable for all costs associated with compliance, defense of
enforcement actions or suits, payment of fines, penalties, or other sanctions and remedial costs
related to the Grantee’s use and occupation of the Easement Area.
25.5. Grantee Right to Contest. The Grantee shall have the right to contest by appropriate
proceedings diligently conducted in good faith, without cost or expense to the Government, the
validity or application of any law, ordinance, order, rule, regulation, or requirement of the nature
referred to in this Paragraph 25. The Government shall not be required to join in or assist the
Grantee in any such proceedings.
26. AVAILABILITY OF FUNDS
The obligations of any Party to this Easement or of any transferee of the Easement shall be
subject to the availability of appropriated funds for any such obligation, unless such Party or
transferee is a non-appropriated fund instrumentality of the United States. No appropriated funds
are obligated by this Easement.
27. CONGRESSIONAL REPORTING
This Easement is not subject to 10 U.S.C. § 2662.
28. AMENDMENTS
This Easement may be amended at any time by mutual agreement of the Parties in writing and
signed by a duly authorized representative of each of the respective Parties. Such amendments
may include, but are not limited to, extensions of the Easement termination date.
29. GENERAL INDEMNIFICATION
29.1. No Government Liability. Except as otherwise provided in this Easement, the
Government shall not be responsible for damage to property or injuries or death to persons that
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may arise from, or be attributable or incident to, the condition or state or repair of the Easement
Area, or the use and occupation of the Easement Area, or for damages to the property of the
Grantee, or injuries or death of the Grantee’s officers, agents, servants, employees, or others who
may be on the Easement Area at their invitation or the invitation of any one of them.
29.2. Grantee Liability. Except as otherwise provided in this Easement, the Grantee agrees to
assume all risks of loss or damage to property and injury or death to persons by reason of, or
incident to, the possession and/or use of the Easement Area negligent performance or
nonperformance by the Grantee, the Grantee’s officers, agents, servants, employees, or others
(excluding those employees or agents of the Government who are on the Easement Area for the
purpose of performing official duties) who may be on the Easement Area at their invitation or the
invitation of any one of them (the “Grantee Parties”), or the activities conducted by or on behalf
of the Grantee Parties under this Easement. The Grantee expressly waives all claims against the
Government for any such loss, damage, bodily injury, or death caused by, or occurring as a
consequence of, such possession and/or use of the Easement Area by the Grantee Parties, or the
conduct of activities or the performance of responsibilities under this Easement. The Grantee
further agrees, to the extent permitted by Applicable Laws, to indemnify, save, and hold
harmless the Government, its officers, agents, and employees, from and against all suits, claims,
demands or actions, liabilities, judgments, costs, and attorneys’ fees arising out of, claimed on
account of, or in any manner predicated upon bodily 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 Area, or any activities conducted or services furnished by or on behalf of the Grantee
Parties in connection with, or pursuant, to this Easement, and all claims for damages against the
Government arising out of, or related to, the Easement. The agreements of Grantee contained in
this Paragraph 29.2 do not extend to claims caused by the gross negligence or willful misconduct
of officers, agents, contractors, or employees of the United States without contributory fault on
the part of any other person, firm, or corporation. The Government will give the Grantee notice
of any claim against it covered by this indemnity as soon as practicable after learning of it.
30. ENTIRE AGREEMENT
It is expressly understood and agreed that this written instrument embodies the entire agreement
between the Parties regarding the use of the Premises by the Grantee, and there are no
understandings or agreements, verbal or otherwise, between the Parties except as expressly set
forth in this Easement.
31. CONDITION AND PARAGRAPH HEADINGS
The brief headings or titles preceding each Paragraph are merely for purposes of identification,
convenience, and ease of reference, and will be completely disregarded in the construction and
interpretation of this Easement.
32. STATUTORY AND REGULATORY REFERENCES
Any reference to a statute or regulation in this Easement shall be interpreted as being a reference
to the statute or regulation as it has been or may be amended from time to time.
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33. PRIOR AGREEMENTS
This Easement supersedes all prior agreements, if any, to the Grantee for the Easement Area, but
does not terminate any obligations of the Grantee under such prior easements that may by their
terms survive the termination or expiration of those easements, except to the extent such
obligations are inconsistent with this Easement.
34. EXHIBITS
Three (3) exhibits are attached to and made a part of this Grant, as follows:
Exhibit A – Description of Easement Area
Exhibit B – Map of Property and Easement Area
Exhibit C – Physical Condition Report
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IN WITNESS WHEREOF, I have hereunto set my hand at the direction of the Secretary
of the Air Force, the ________ day of ______________, 20________.
GRANTOR:
THE UNITED STATES OF AMERICA
by its Secretary of the Air Force
By: _______________________________
TODD D. CANTERBURY,
Brigadier General, USAF
Commander, 56th Fighter Wing
State of ___________________
ss
County of _________________
This document was acknowledged before me, the undersigned Notary Public, by
_____________________________ on this the ______day of ________________, 20__
____________________________________
Notary Public, State of _________________
My commission expires:
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ACCEPTANCE
The Grantee hereby accepts this Grant of Easement and agrees to be bound by its terms.
DATED: ________ day of ______________, 20________.
GRANTEE:
MARICOPA COUNTY,
a political subdivision of the State of Arizona
By: Bill Gates
Chairman of the Board of Supervisors
ATTEST:
Clerk of the Board of Supervisors Date
APPROVED AS TO FORM:
Deputy County Attorney Date
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Exhibit A - Description of Easement Area
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Exhibit B - Map of Property and Easement Area
Exhibit C – Physical Condition Report
SEE FOLLOWING PAGE
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