Common use of Easements and Access Rights Clause in Contracts

Easements and Access Rights. (a) The Lessor (as the record and beneficial owner) hereby grants to the Lessee for the Term the right of access to the Leased Premises contained in the Access Agreement attached as Schedule B hereto (the “Access Rights”). The Lessor shall, or, if applicable, shall cause its Affiliates to, reasonably cooperate in providing such additional access rights as are necessary or required by the Lessee in the future and which do not adversely affect the Lessor’s, or, with respect to any third party that is permitted or authorized by the Lessor to enter upon, occupy or operate on Lessor’s Premises, such Third Party’s, operation, use or enjoyment of the Lessor’s Premises taking into account the Lessor’s future plans for the Lessor’s Premises, which additional access rights shall be included within the defined term “Access Rights.” Notwithstanding anything herein to the contrary, the Access Rights granted to the Lessee hereunder shall be for the sole purpose of operating the Permitted Business and are subject to this Lease, the Access Agreement and all reasonable terms and conditions that the Lessor may from time to time establish. (b) The Lessor hereby grants to the Lessee for the Term those certain non-exclusive easements of use described in the Easement Agreement attached as Schedule C hereto (the “Easements”), subject, however, to the Permitted Encumbrances. The Lessor shall reasonably cooperate in providing such additional non-exclusive easements and the beneficial use of the Lessor’s easements that are appurtenant to the Leased Premises, in each case, subject to the Permitted Encumbrances, as are necessary or required by the Lessee in the future and which do not adversely affect the Lessor’s, or, with respect to any Third Party that is permitted or authorized by the Lessor to enter upon, occupy or operate on Lessor’s Premises, such Third Party’s, operation, use or enjoyment of the Lessor’s Premises taking into account the Lessor’s future plans for the Lessor’s Premises, which additional easements shall be included within the defined term “Easements.” Notwithstanding anything herein to the contrary, the Easements granted to the Lessee hereunder shall be for the sole purpose of operating the Permitted Business and are subject to this Lease, the Easement Agreement, Permitted Encumbrances and all reasonable terms and conditions that the Lessor may from time to time establish. The Lessor agrees to maintain all Easement Areas and the Construction Laydown Area in good order and repair, suitable for the purposes contemplated in this Lease for which they are currently used, for so long as, and to the extent that, the Lessor uses such areas in connection with the Lessor’s business operations at the Lessor’s Premises. The Lessee shall be solely responsible, at its sole cost and expense, for all maintenance, repair and replacement of Lessee’s Improvements within the areas covered by the Easements (collectively, the “Easement Areas”) or on or with respect to any of the Lessee’s Improvements located therein, within the Construction Laydown Area and of all utility lines, pipelines and other facilities serving the Facility located on the Leased Premises, the Construction Laydown Area and the Easement Areas. Notwithstanding anything to the contrary contained in this Section 2.4(b): (w) the Lessee shall contract with the Lessor or its Affiliates for performance of such maintenance, repairs and replacements or shall utilize contractors approved by the Lessor in writing in advance to do so; (x) in the event any maintenance activities required to be performed by the Lessor hereunder with respect to any particular Easement Area (and/or any facilities or improvements located on or within such Easement Areas) are not covered by the Site Services Agreement, then the costs of such activities shall be charged by the Lessor to the Lessee at the rates applicable for “Site Services” as defined in and pursuant to the Site Services Agreement and (y) the Lessee agrees that the Lessee shall not perform any maintenance or other similar or related activities (other than emergency activity as reasonably necessary to protect human health or the environment) within the Easement Areas or the Construction Laydown Area or on or with respect to any facilities or lines and piping located therein, or thereon without in each instance (other than to the extent reasonably necessary to address such an emergency situation) first consulting with the Lessor and coordinating any such work with the Lessor. (c) The Easement Areas not used by the Lessor in connection with the Lessor’s business operations at the Lessor’s Premises, Lessee’s Improvements and personal property owned by the Lessee and located in, on or under the lands subject to the Access Areas and the Easement Areas shall be maintained by the Lessee in accordance with the standards set forth in Article 5, Article 9, Article 10 and Article 14 hereof and in compliance with all applicable Laws and Lessor’s Safety Requirements. The Lessee shall at all times use those portions of the Lessor’s Premises over which the Access Rights or the Easements are granted or to which they are appurtenant so as to not unreasonably interfere with the Lessor’s, or, with respect to any Third Party that is permitted or authorized by the Lessor to enter upon, occupy or operate on Lessor’s Premises, such Third Party’s, operation, use and enjoyment of the Lessor’s Premises. (d) The Lessor reserves an easement on, over, across and under the Leased Premises (i) to permit all existing or replacement improvements, facilities, roads, tracks, pipelines, pipe racks, wires, lines, conduits or other infrastructure (that are not part of the Facility and/or Lessee’s Improvements) now situated on, under or over the Leased Premises to remain in the location which they are situated and (ii) for reasonable ingress and egress to and from other portions of the Lessor’s Premises for the purpose of using, maintaining, repairing, improving or connecting into all such improvements, facilities, roads, tracks, pipelines, pipe racks, wires, lines, conduits or other infrastructure located upon the Leased Premises. For the avoidance of doubt, the Lessor shall be permitted to expand and/or add additional pipes, wires, lines, conduits or other infrastructure to the Lessor’s existing structures. In exercising its rights under this Section 2.4(d), the Lessor shall (A) respect the Lessee’s security and operational requirements, as well as the Lessee’s Safety Requirements and (B) proceed in a manner so as to not unreasonably interfere with the Lessee’s operation, use and enjoyment of the Leased Premises beyond that which would be reasonably expected or inferable from the joint use of infrastructure and physical plant and co-existence of the separate businesses from adjoining locations. (e) Any Easement(s) granted pursuant to this Section shall be further subject to the following terms and conditions: (i) Any Easement(s) granted will benefit and bind each Party and their permitted assigns and successors in interest as lessor and lessee under this Lease and will be granted by the Lessor at the costs described in subparagraphs (iii) and (iv) below; (ii) The Easement(s) granted will be non-exclusive such that the Easement Area may be built upon, developed and used by the Lessor or third parties in any manner that does not materially interfere with the Easement(s) granted or the Lessee’s use thereof or the Lessee’s construction, use, inspection, operation or repair of the Lessee’s Improvements therein or thereon. The Lessor shall have the right to relocate the Easement Areas subject to and in accordance with the provisions of subsection (iv) of this Section 2.4(e), as applicable. The Lessor shall also have the right to relocate any of Lessee’s Improvements within an Easement Area, subject to and in accordance with the provisions of subsection (iv) of this Section 2.4(e); (iii) All construction, installation, maintenance, repairs and replacements of the facilities and Improvements placed in or on such Easement(s) by the Lessee, shall be done in a manner that does not materially interfere with the operations of or access to any other portions of the Lessor’s Premises or any Person’s facilities thereon, and in accordance with Lessor’s Procedures (except for those of Lessor’s Procedures which the Lessor has expressly waived in writing). All of Lessee’s Improvements located thereon shall be subject to the Lessor’s prior approval of the plans therefor. The Lessee shall contract with the Lessor or an Affiliate of the Lessor for the construction, installation, maintenance, repair and replacement of such Lessee’s Improvements or with contractors approved by the Lessor in writing in advance. (iv) Notwithstanding anything herein to the contrary, it is understood and agreed that the Lessor shall have the right from time to time throughout the Term to relocate to other portions of the Lessor’s Premises as designated by the Lessor that are reasonably acceptable to the Lessee, all or any portion of any Easements, infrastructure facilities or the Lessee’s Improvements located within any Easement Area. Such relocation shall be at the Lessor’s sole cost and expense (except to the extent the Lessee or its Affiliates is responsible for any such cost under the terms of the Site Services Agreement or any other agreement between the Lessor or its Affiliates and the Lessee or its Affiliates) and shall be performed in such a manner so as to mitigate the effects of such relocation on the Lessee’s operations during the relocation and not to materially interfere with the Lessee’s operations from or with respect to the Facility after completion of the relocation. With respect to any relocation, the Lessor shall provide the Lessee with written notice of such proposed relocation and the Lessor and the Lessee agree to meet with the other, at either’s request, to discuss the proposed relocation and any matters that may be appropriate to determine whether the proposed relocation can or should be modified to limit any material adverse effects on the Lessee’s Premises or operations that are likely to occur in connection with such proposed relocation and how such material adverse effects should be mitigated during the relocation in accordance herewith. Upon the completion of any such relocation, this Lease shall be amended if and as necessary to properly reflect such relocation and revise the description and grants of the Easements applicable or necessary for the use of the relocated Easements or Lessee Improvements in an Easement Area. Any Lessee Improvements that are replaced by the Lessor in connection with such relocation in accordance herewith shall be abandoned by the Lessee, and the Lessee shall execute such instruments as may be reasonably required by the Lessor to effectuate the transfer of such Lessee Improvements to the Lessor. (v) Any Easement(s) and rights of access and use granted as provided in this Lease shall terminate automatically when this Lease terminates and shall be assignable by the Lessee only pursuant to a permitted assignment of this Lease. (f) Lessee shall utilize its rights under this Section 2.4 in each and every event (A) only for uses or services required solely in connection with the operation of the Facility at the Lessor’s Premises and (B) in accordance with the Lessor’s Procedures. Any obligation of the Lessor under the provisions of this Section 2.4 to act reasonably shall in all events be subject to the Lessor’s Procedures relative to the matter at issue, and any specific health, safety, environmental or security concerns the Lessor may have relating to the specific matter at issue.