3. 4C09_Lease draft.1.pdf

N6247326RP00208

Station: MCAS Yuma, Arizona Parcel#: 4C09 Contract#: N6247326RP00208

DEPARTMENT OF THE NAVY

LEASE FOR AGRICULTURAL PURPOSES

LEASE between __________________________ hereinafter called “LESSEE,” and the United States of America, acting by and through the Department of the Navy, represented by the Commanding Officer, Naval Facilities Engineering Systems Command Southwest, San Diego, California, hereinafter called the “GOVERNMENT.”

1) LEASED PROPERTY: Under the terms and conditions of this “LEASE,” the GOVERNMENT hereby leases to the LESSEE a portion of the MARINE CORPS AIR STATION, YUMA, ARIZONA, hereinafter called the “STATION.” That portion is hereinafter called the “LEASED PROPERTY” and is described as follows:

Parcel 4C09 currently consists of approximately 29.5 acres, is identified and delineated herein as Exhibit “A,” and made a part hereof this lease.

a) The 29.5 acres consists of the following:

+/- 27.5 acres of farmable land

+/- 2.0 acres of maintenance area

2) TERM: The term of this LEASE will be for the period beginning September 1, 2026 and ending on May 31, 2028 UNLESS sooner terminated in accordance with Clauses 14 and 15 hereof, or extended in accordance with Clause 4, OPTION TO EXTEND THE TERM OF THE LEASE, hereof.

3) RENT: LESSEE shall pay the GOVERNMENT rent in the amounts set forth below:

a) LESSEE agrees to pay the GOVERNMENT an annual rental in the amount of $ ________ for the initial Lease term payable in advance at the rate of $ __________ per semi-annum or quarterly (circle one). Rental payments shall be remitted by check or postal money order made payable to Treasurer of the United States and delivered to the Real Estate Contracting Officer, subject to any allowance for credit for work approved and performed

Term Farmable Acreage

Rent per Acre/Year

No. of Years

Total Rent per Period

Firm Term: (1 year, 9 months) Sept 1, 2026 – May 31, 2028

+/- 27.5 x

1yr, 9mo’s

Option Period 1: (4 years, 3 months) June 1, 2028 – Aug 31, 2032

+/- 27.5

4yrs, 3mo’s

Total Lease Rent (Firm Term + Option Periods) 6yrs $ pursuant to Clause 9 of this LEASE. Checks must be issued by and drawn on the account of Lessee. If a check is not issued by and drawn on the account of the Lessee, the check will be returned to the Lessee and if a check issued by and drawn on the account of the Lessee is not received in accordance with the General Provisions, the payment will be deemed delinquent and interest will accrue. Rent payments are considered received the date that the Government receives the payment and not the date indicated on the check or money order.

4) OPTION TO EXTEND THE TERM OF THE LEASE: This LEASE may be renewed at the sole option of the GOVERNMENT for One (1) additional option period of four (4) years and three (3) months, under the same terms and conditions contained herein. The GOVERNMENT shall exercise its options to extend the term of the LEASE by giving written notice thereof to the LESSEE at least one-hundred eighty (180) days prior to the expiration of the LEASE’s initial base term, or any extension thereof. Any extension of the LEASE pursuant to this Clause shall not otherwise modify the terms and conditions of the LEASE set forth or referenced herein.

5) USE: The primary use of the STATION is for United States Marine Corps Flight operations.

The agricultural LEASE operation is secondary and subject to the military requirements for the land. The LEASED PROPERTY shall be used solely for agricultural purposes. Human occupancy is not allowed. Commercial wholesale or retail sales operations are not allowed on the STATION. It is the express intent of the GOVERNMENT to have the available irrigation waters used to the maximum extent possible with sound agricultural practices. All uses of the LEASED PROPERTY must be in accordance with the Soil and Water Conservation Plan for Agricultural Outlease, attached hereto as Exhibit “B”. Operation of unmanned aerial vehicles (also known as “drones” is prohibited on the STATION, in accordance with the 10 United States Code §130i and Federal Aviation Administration regulations. All uses of the LEASED PROPERTY shall be in accordance with and in full compliance with all applicable federal, state and local environmental laws, regulations and/or ordinances, including but not limited to laws, regulations and/or ordinances concerning air emissions, water pollution prevention, and permitting requirements.

6) WATER AVAILABILTY:

a) The LEASED PROPERTY is located in the Yuma Mesa Irrigation and Drainage District

(“YMIDD or District”). The water rights associated with this lease parcel are owned by the STATION. In addition to the rent specified in Clause 3) of this LEASE, the LESSEE shall pay directly to the STATION an additional sum equal to the charges for the “basic amount” of water used on the LEASED PROPERTY. “Basic Amount” means the maximum amount of water as set by District regulations that a District water user is entitled to receive from the District without incurring excess water charges. The water rate shall be the same as that charged by YMIDD. Any additional water used during the year, over the basic amount allotted shall be charged at the higher rate imposed by YMIDD. Any charges for water in excess of the basic amount allotted shall be paid directly to YMIDD. The water payment for the basic amount shall be made payable to the STATION and shall be sent to the Comptroller, MCAS Yuma, Box 99107, Yuma AZ 85369-9107. Ms. Lupe Campbell is the Comptroller Point of Contact and can be reached at (928) 269-3170. Water bills from STATION will be sent to the LESSEE on or around November 1 and May 1 of each year. Water Payments are due and shall be received by the STATION within 30 days of receipt of invoice.

b) Scheduling of water delivery is through the YMIDD. The GOVERNMENT makes no guarantee, implied or otherwise, regarding the quality, quantity, or availability of water from YMIDD or their cooperation in providing water to the LEASED PROPERTY. It is the LESSEE’s sole responsibility to make all arrangements for obtaining, developing and delivering irrigation water and to pay any and all non-water costs, charges and fees imposed by YMIDD. The LESSEE shall also comply with all YMIDD terms, conditions, policies and procedures, specifically including, but not limited to, water conservation measures, associated therewith. The YMIDD may be reached at (928) 726-4353, 14329 S. 4th Ave., Yuma, AZ 85365. Water allocation and delivery arrangements should be made by the LESSEE prior to the execution of the LEASE.

7) PERFORMANCE BOND OR SECURITY: To secure the faithful performance of LESSEE'S obligations hereunder, LESSEE shall provide the GOVERNMENT with a security deposit in the amount equal to 50% of the annual rent shown in Clause 3 (a) or $5,000.00, whichever is GREATER. If the GOVERNMENT shall at any time determine that an increase in the amount of security is necessary to make same commensurate with LESSEE's obligations hereunder, LESSEE shall furnish additional security promptly upon request. The Security Deposit provided shall be in the form of either:

a) Certificate of Deposit:

i) Certificate of Deposit shall be accompanied by a Security Agreement, satisfactory to the GOVERNMENT in all respects, fully executed by LESSEE and GOVERNMENT AND acknowledged by the financial institution issuing the Certificate of Deposit; and

ii) Certificate of Deposit shall be made payable to the LESSEE and the Treasurer of the United States or

b) Performance Bond issued by a Corporate Surety and satisfactory to the GOVERNMENT in all respects.

i) Performance Bond shall be payable to the Treasurer of the United States

The term of the certificate of deposit or performance bond shall be secured for the entire five-year firm term of the lease. For the five-year option period exercised thereafter, the certificate of deposit or performance shall be secured in for the entire five-year term. If LESSEE shall fully and faithfully comply with all the terms and conditions of this LEASE, the security deposit shall be returned to the LESSEE upon the expiration or earlier termination of the LEASE.

8) INSURANCE REQUIREMENTS: Prior to award of the LEASE, the LESSEE shall submit a

Certificate of Insurance meeting the following requirements. Public Liability and Property Damage shall meet the following requirements at a minimum:

$2,000,000 Third Party Property Damage $2,000,000 Third Party Bodily Injury Per Person $3,000,000 Third Party Bodily Injury Per Accident

The Insurance Policy/Certificate of Insurance shall contain the following endorsements:

a) Loss, if any, under this policy shall be adjusted with (name of LESSEE) and the proceeds, at the election of the GOVERNMENT, shall be payable to (name of LESSEE); any proceeds not paid to (name of LESSEE) shall be payable to the Treasurer of the United States.

b) The insurer waives any right of subrogation against the United States of America which might arise by reason of any payment made under this policy.

c) The GOVERNMENT shall be given thirty (30) days written notice prior to making any material change in or the cancellation of the policy. Please strike out (and initial) any clauses that state “…failure to make such notice imposes no obligation or liability of any kind upon the company, etc.”

d) The United States of America (Department of the Navy) is added as an additional insured in operations of the policyholder at or from the LEASED PROPERTY at Marine Corps Air Station, Yuma, Arizona.

e) This insurance policy is for use of the LEASED PROPERTY at Marine Corps Air Station, Yuma, Arizona, contract number N6247326RP00XXX for Parcel 4C09.

f) If, at any time, the GOVERNMENT determines that the insurance maintained by the

LESSEE does not, in fact, adequately protect the GOVERNMENT, LESSEE may be required to carry such other insurance in such form, for such amounts and for such periods of time, and with such insurers as the GOVERNMENT may from time to time require or approve.

9) CONSERVATION AND MAINTENANCE WORK:

a) The LESSEE, shall at their own cost and expense, assume full responsibility for the following conservation and maintenance obligations in accordance with the specifications and guidelines set forth in the Soil and Water Conservation Plan of this LEASE, attached hereto as Exhibit “B,” and made a part hereof this lease.

b) The LESSEE agrees to perform reimbursable Conservation and Maintenance related work on the LEASED PROPERTY as identified, approved and directed by the GOVERNMENT.

Upon prior written approval by the GOVERNMENT and subsequent completion of such work by the LESSEE and the acceptance of same by the GOVERNMENT, the LESSEE shall receive payment in full for the "Actual Costs" of work performed, or shall receive rent credit in the same amount against rents payable under the terms of this LEASE; provided, however, that in no event shall such rent credit exceed the total amount of cash rent called for in the LEASE.

c) "Actual Costs" as used herein shall mean the sum of:

i) Direct labor costs, and;

ii) Direct material costs, when LESSEE has incurred such costs directly in the performance of any Conservation and Maintenance Work approved by or directed by the Real Estate Contracting Officer. When LESSEE contracts with third parties for performance of any item of Conservation and Maintenance Work, "Actual Costs" as used herein, shall mean the amount of such contracts that have been approved in advance by the Real Estate Contracting Officer.

d) Prior to commencement of any Conservation and Maintenance Work for which the

LESSEE is to receive credit or payment from the GOVERNMENT, the LESSEE must have a Modification of Contract executed by the Real Estate Contracting Officer setting forth the terms, conditions and the amount of compensation to be paid upon completion of the reimbursable work to the satisfaction of the GOVERNMENT. The following procedures apply:

i) GOVERNMENT provides LESSEE with project specifications and written notice to obtain bids.

ii) LESSEE obtains a minimum of two bids from qualified contractors with a complete description of work proposed and forwards such bids to the Real Estate Contracting Officer. LESSEE may elect to do the work him/herself. LESSEE then must submit to the Real Estate Contracting Officer an itemized bid proposal covering all aspects of the project. In the event the LESSEE elects to do the work him/herself, no other bids are necessary, provided that the LESSEE's bid price does not exceed the GOVERNMENT'S cost estimate. For each project or service proposed, LESSEE must include with the project or service description an estimated cost to perform the work.

The estimated cost shall be broken down by material, subcontract cost, labor, and overhead.

iii) Nothing in this LEASE shall preclude the LESSEE from contracting with a third-party contractor for the work. LESSEE shall require any contractor to have a Performance Bond with the penal amount of no less than the estimated cost of the work contracted for. In compliance with Clause 34 (d) (i) of this LEASE, LESSEE shall be solely responsible for obtaining any environmental permits required for the proposed work.

Copies of all required environmental and/or construction permits shall be provided to the GOVERNMENT prior to execution of work.

iv) GOVERNMENT shall review the bids (or single bid proposal if LESSEE elects to do the work him/herself), and if acceptable the GOVERNMENT shall enter into a Modification of Contract with LESSEE authorizing the project. The GOVERNMENT will retain the right to perform a technical review of any proposed work to be performed or personal property to be provided. A GOVERNMENT representative may oversee the work solely for the benefit of the GOVERNMENT, and such GOVERNMENT representative shall confirm satisfactory completion of the work to the Real Estate Contracting Officer. IN

NO CASE SHALL LESSEE BEGIN ANY PROJECT WORK PRIOR TO RECEIVING A

FULLY EXECUTED MODIFICATION OF LEASE THEREFOR.

v) A “not to exceed cost ceiling” will be established in the Modification of Contract for the reimbursable project. The Real Estate Contracting Officer may, upon written request, with supporting rationale from the LESSEE, increase the “not to exceed cost ceiling.”

Such request for an increase in said amount must be submitted, in writing, prior to incurring any cost in excess of the said amount and sufficiently in advance to provide for GOVERNMENT review of the request and, in any event, not less than ten (10) days prior to the date authorization is required. The LESSEE shall not be obligated to incur costs in excess of the “not to exceed cost ceiling.”

vi) Upon receipt of a fully executed Modification of Contract, LESSEE shall begin work coordinating all details of the work including starting dates and times, and the location of the work with the STATION Point of Contact (POC), listed in this LEASE in Clause 36 (a) (iv) (c).

vii) Upon completion of the work, the LESSEE shall submit to the GOVERNMENT an invoice signed by the LESSEE stating the full amount due for the work performed, together with all supporting documents, all bills of sale; receipts for labor and materials used in connection with the project; and in the event the LESSEE performed the work, an itemized bill for all labor and materials.

viii) The incurred cost of performing such project or service will be subject to

GOVERNMENT audit and should such audited allowable cost be less than the “not to exceed cost ceiling” amount authorized, then the amount of reimbursement or credit towards rent reduction to LESSEE shall be the audited, allowable incurred cost.

ix) The GOVERNMENT shall inspect the work for adherence to specifications and quality of workmanship, and will review the receipts and bills of sale for adherence to the previously approved bid estimates. The Real Estate Contracting Officer must provide a written final acceptance of the work performed in order for LESSEE to obtain rent reduction credit for the work performance, or reimbursement for actual costs. If the project is acceptable, the Real Estate Contracting Officer will make arrangements for appropriate rental credit or reimbursement to the LESSEE in accordance with applicable provisions of this LEASE.

x) Any bills of sale, purchase receipts, written warranty agreements and other indicia or documents of ownership shall be provided to the GOVERNMENT upon its acceptance of the improvement or personal property. Written warranties shall include but not be limited to a warranty that work performed conforms to the contract requirements and is free of any defect in equipment, material or design furnished or workmanship performed, and that the LESSEE or LESSEE’s contractor will remedy any failure to conform or any defect. Additionally, warranty shall provide that LESSEE or LESSEE’s contractor shall remedy any damage to GOVERNMENT owned or controlled real or personal property when that damage results from either contractor failure to conform to contract requirements or any defect of equipment, material, workmanship or design furnished. All warranties shall name the GOVERNMENT as an additional beneficiary. LESSEE shall enforce all warranties for the benefit of the GOVERNMENT, if directed to do so by the GOVERNMENT.

xi) Upon termination of this LEASE pursuant to Clauses Fourteen (14) and Fifteen (15), hereof, a final accounting will be performed and the balance of any rent accrued and payable to the GOVERNMENT will be due on demand. Notwithstanding termination, the GOVERNMENT reserves the right to have a final accounting at any time during the course of the LEASE, and to request that the value of any rent accrued up to that date and not already contractually obligated to any specific project or service to be performed, be paid to the GOVERNMENT on demand. Upon termination, at the GOVERNMENT’S option, LESSEE shall complete any work or service already contracted for, or if otherwise directed by GOVERNMENT, cease all project work, terminate any contract(s) for such work, and pay all accrued rent.

xii) All improvements constructed or installed under this clause are the property of the

GOVERNMENT and shall remain in place and intact upon the expiration or earlier termination of this LEASE. Should the LESSEE fail to perform such work (either him/herself or via a contract), the GOVERNMENT may arrange for the work to be completed and LESSEE shall be required to reimburse the GOVERNMENT for costs incurred.

e) All new improvements, not associated with Exhibit “B,” that the LESSEE would like to make at their own expense to the LEASED PROPERTY shall be submitted in advance to the MCAS Yuma Range Management Division (YRMD) for review and approval. Approval from MCAS Yuma's Installation & Logistics Department is required before the improvement can be installed.

10) GENERAL MAINTENANCE OBLIGATION: LESSEE, at its sole cost and expense, shall so protect, preserve, maintain and repair the LEASED PROPERTY, that the same will at all times be kept in at least as good condition as when received, less ordinary wear and tear and/or loss or damage for which LESSEE is not specifically liable hereunder.

11) RISK OF LOSS-INSURANCE:

a) LESSEE shall bear all risk of loss of or damage to the LEASED PROPERTY arising from any cause whatsoever, with or without fault by LESSEE; Provided, however, that LESSEE's liability for any loss or damage resulting from risks expressly required to be insured against under the LEASE shall not exceed the amount of insurance so required or the amount actually procured and maintained, whichever shall be the greater: Provided, further, that maintenance of the required insurance shall effect no limitation on LESSEE's liability with respect to any loss or damage resulting from the willful misconduct, lack of good faith, or negligence of LESSEE or any of its officers, agents, servants, employees, subtenants, licensees, and/or invitees.

b) LESSEE shall procure and maintain, at its own expense, insurance on the LEASED

PROPERTY in such initial amounts and types as may exceed, but shall not be less than, the minimum amounts and types specified in Clause 8 hereof. However, LESSEE shall provide, maintain, change or discontinue such insurance as the RECO may from time to time require and direct; Provided, LESSEE's liability for loss of or damage to the LEASED PROPERTY is modified accordingly; Provided, further, that if any insurance requirement is so changed an equitable adjustment shall be made in the amount of the Rent or Maximum Amount to be Expended specified in Clause 3 or 9 hereof so as to reflect any resultant savings or increased cost to LESSEE.

c) All insurance which this LEASE requires LESSEE to carry on the LEASED PROPERTY shall be in such form, for such amounts, for such periods of time and with such insurers as the GOVERNMENT may from time to time require or approve. Each policy of insurance shall contain a provision for thirty (30) days written notice to the Real Estate Contracting Officer prior to the making of any material change in or the cancellation of the policy.

LESSEE shall deliver promptly to the Real Estate Contracting Officer an original insurance policy or a certified copy of each policy of insurance required by this LEASE, and LESSEE shall also deliver to the Real Estate Contracting Officer, no later than thirty (30) days prior to the expiration of any such policy, a certificate of insurance or a certified copy of each renewal policy covering the same risks. All insurance required or carried by LESSEE on any of the LEASED PROPERTY shall be for the protection of the GOVERNMENT and LESSEE against their respective risks and liabilities in connection with the LEASED PROPERTY. Each policy of insurance shall name both LESSEE and the United States of America (Department of the Navy) as the insured, and each policy of insurance against loss of or damage to the LEASED PROPERTY shall contain a loss payable clause reading as follows:

(1) "Loss, if any, under this policy shall be adjusted with (name of LESSEE) and the proceeds, at the election of the GOVERNMENT, shall be payable to (name of LESSEE); any proceeds not paid to (name of LESSEE) shall be payable to the Treasurer of the United States.

d) In the event that any item or part of the LEASED PROPERTY shall require repair, rebuilding or replacement resulting from loss or damage, the risk of which is assumed by LESSEE under Clause 11(a) of this LEASE, LESSEE shall promptly give notice thereof to the Real Estate Contracting Officer and, to the extent of its liability as provided in Clause 11(a) of this LEASE thereof, shall, upon demand, either compensate the GOVERNMENT for such loss or damage, or rebuild, replace or repair the item or items of the LEASED PROPERTY so lost or damaged, as the GOVERNMENT may elect. In the event that the GOVERNMENT shall direct LESSEE to effect any repair, rebuilding or replacement which the LESSEE is required to effect pursuant to this Clause, the GOVERNMENT shall direct the payment to LESSEE of so much of the proceeds of any insurance carried by LESSEE and made available to the GOVERNMENT on account of loss of or damage to any item or part of the LEASED PROPERTY as may be necessary to enable LESSEE to effect such repair, rebuilding or replacement. In the event the GOVERNMENT shall elect not to require LESSEE to repair, rebuild or replace any item or part of the LEASED PROPERTY lost or damaged, LESSEE shall promptly pay to the GOVERNMENT out of any insurance proceeds collected by LESSEE such portion thereof as may be allocable to loss of or damage to the LEASED PROPERTY. When compliance with a GOVERNMENT request to effect any repair, rebuilding or replacement of any lost or damaged item or part of the LEASED PROPERTY would involve the incurring of costs in excess of LESSEE's liability for such loss or damage under this Clause, LESSEE shall be under no obligation to effect same until after a satisfactory agreement has been reached between the GOVERNMENT and LESSEE with regard to GOVERNMENT reimbursement of such excess of costs to

LESSEE.

12) REPRESENTATIONS: LESSEE has examined, knows and accepts the condition and state of repair of the LEASED PROPERTY and the STATION of which it forms a part, and acknowledges that the GOVERNMENT has made no representation concerning such condition and state of repair, nor has the GOVERNMENT made any agreement or promise to alter, improve, adapt, repair or keep in repair the same, or any item thereof or thereupon, which has not been fully set forth in this LEASE, which contains all the agreements made and entered into between the LESSEE and the GOVERNMENT.

13) SUBJECTION TO EXISTING AND FUTURE EASEMENTS AND RIGHTS OF WAY: This

LEASE is subject to all outstanding easements and rights of way over, across, in and upon the LEASED PROPERTY, or any portion thereof, and to the right of the GOVERNMENT to grant such additional easements and/or rights of way over, across, in and upon the LEASED PROPERTY as the GOVERNMENT shall determine to be in the public interest; Provided, that any such additional easement or right of way shall be conditioned on the assumption by the Grantee thereof of liability to LESSEE for such damages as LESSEE shall suffer for property destroyed or property rendered unusable on account of Grantee's exercise of its rights thereunder. There is hereby reserved to the holders of such easements and rights of way as are presently outstanding or which may hereafter be granted, to any workers officially engaged in the construction, installation, maintenance, operation, repair, or replacement of facilities located thereon, and to any Federal, State or local official engaged in the official inspection thereof such reasonable rights of ingress and egress over the LEASED PROPERTY as shall be necessary for the performance of their duties with regard to such facilities.

14) TERMINATION BY GOVERNMENT:

a) The GOVERNMENT shall have the right to terminate this LEASE, at any time, without prior notice, and regardless of any lack of breach by LESSEE of any of the terms and conditions of this LEASE. In the event of termination for any reason not involving a breach by LESSEE of the terms and conditions of the LEASE, the GOVERNMENT shall make an equitable adjustment of any advance rentals paid by the LESSEE hereunder. If the GOVERNMENT's use of the LEASED PROPERTY does not require immediate possession thereof, LESSEE shall be permitted, within such time as the Real Estate Contracting Officer shall prescribe to harvest, gather and remove from the LEASED PROPERTY such crops as can be so harvested and removed. However, if the GOVERNMENT'S requirements necessitate immediate repossession of the LEASED PROPERTY, LESSEE shall be precluded from such harvesting and removal of any growing or matured crops. LESSEE hereby specifically releases, remises, and forever discharges the GOVERNMENT from any and all liability or claims of loss or damage of any nature arising out of such termination and repossession, including, but not limited to destruction of, diminution in value of, or inability to harvest any growing crops, and/or death or diminution of value of any livestock of LESSEE.

b) In the event that the GOVERNMENT shall elect to terminate this LEASE on account of the breach by LESSEE of any of the terms and/or conditions of this LEASE, no adjustment in advance rentals paid by LESSEE shall be made, and the GOVERNMENT shall be entitled to recover and LESSEE shall pay to the GOVERNMENT:

(1) The costs incurred in resuming possession of the LEASED PROPERTY.

(2) The costs incurred in performing any obligation on the part of LESSEE to be performed hereunder.

(3) An amount equal to the aggregate of all rents, Long Term Maintenance Obligation and charges assumed hereunder and not theretofore paid or satisfied, less the net rentals, if any, collected by the GOVERNMENT on the reletting of the LEASED PROPERTY, which amounts shall be due and payable at the time when such rents, obligations and charges would have accrued or become due and payable under this LEASE.

15) TERMINATION BY LESSEE:

a) LESSEE shall have the right to terminate this LEASE upon One Hundred Eighty (180) days written notice to the Real Estate Contracting Officer in the event of damage to or destruction of all of the improvements on the LEASED PROPERTY or such a substantial portion thereof as to render the LEASED PROPERTY incapable of use for the purposes for which it is leased hereunder; provided:

(1) the Real Estate Contracting Officer either has not authorized or directed the repair, rebuilding or replacement of the improvements or has made no provision for payment for such repair, rebuilding or replacement by application of insurance proceeds or otherwise, and

(2) that such damage or destruction was not occasioned by the fault or negligence of

LESSEE or any of its officers, agents, servants, employees, subtenants, licensees and/or invitees, or by any failure or refusal on the part of LESSEE to fully perform its obligations under this LEASE.

b) The LESSEE has the right to terminate this LEASE at the end of the first term (i.e., May

31, 2028), or at the end of any succeeding year of the LEASE term (e.g., August 31, 2031) if applicable, by providing the GOVERNMENT written notice at least 180 days in advance of the end of the LEASE term.

16) SURRENDER: Upon the expiration of this LEASE or its prior termination, LESSEE shall quietly and peacefully remove itself and all of its property from the LEASED PROPERTY and surrender the possession thereof to the GOVERNMENT; Provided, in the event the GOVERNMENT shall terminate this LEASE upon less than thirty (30) days’ notice, LESSEE shall be allowed a reasonable period of time, as determined by the Real Estate Contracting Officer, but in no event to exceed thirty (30) days from receipt of notice of termination, in which to remove all of its property from and terminate its operations on the LEASED PROPERTY. During such period prior to surrender, all obligations assumed by LESSEE under this LEASE shall remain in full force and effect; Provided, however, that if the Real Estate Contracting Officer shall, in his/her sole discretion, determine that such action is equitable under the circumstances, he/she may suspend, in whole or in part, any further accruals of Rent or Maximum Amount to be Expended between the date of termination of the LEASE and the date of final surrender of the LEASED PROPERTY.

17) RESTORATION OF LEASED PROPERTY: Before the expiration of the LEASE or any extension thereof, or prior to surrender of the LEASED PROPERTY if the LEASE has been terminated prior to LEASE expiration (subject to Clause 18 (a) of the LEASE), LESSEE shall restore the LEASED PROPERTY and each item thereof or thereupon to the condition in which it was first received and used by LESSEE, or to such improved condition as may have resulted from any improvement made therein by the GOVERNMENT or by LESSEE, subject however, to ordinary wear and tear and loss or damage for which LESSEE is not expressly liable hereunder; Provided, in the event the GOVERNMENT shall terminate this LEASE upon less than thirty (30) days’ notice LESSEE shall have thirty (30) days from receipt of notice of termination to accomplish such restoration.

18) INSTALLATIONS, ALTERATIONS AND REMOVALS:

a) During the term of this LEASE, or any extension thereof, LESSEE shall have the right, at its own expense, to install such of its own machinery and equipment, to make such minor improvements and additions and to attach such removable fixtures in or upon the LEASED PROPERTY as may be necessary for its use of the LEASED PROPERTY pursuant to this LEASE, and to remove all improvements and additions LESSEE has placed upon the LEASED PROPERTY at any time prior to the expiration or termination of this LEASE or any extension thereof; Provided, that in the event of termination by the Government upon less than thirty (30) days’ notice LESSEE may remove all improvements and additions LESSEE has placed upon the LEASED PROPERTY within thirty (30) days from the receipt of notice of termination. All property not so removed shall be deemed abandoned by LESSEE and may be used or disposed of by the Government in any manner whatsoever without any liability to account to LESSEE therefore, but such abandonment shall in no way reduce any obligation of LESSEE for restoration under Clause 17 of this Lease.

b) It is expressly agreed and understood that LESSEE will make no substantial alterations, additions or betterments to or installations upon the LEASED PROPERTY without the prior WRITTEN APPROVAL of the Real Estate Contracting Officer, and then only subject to the terms and conditions of such approval which may include an obligation of removal and restoration upon the expiration or termination of this LEASE. Except insofar as said terms and conditions may expressly provide otherwise, all such alterations, additions, betterments and installations made by LESSEE shall become the property of the GOVERNMENT when annexed or affixed to the LEASED PROPERTY or any part thereof.

19) INDEMNIFICATION BY LESSEE GOVERNMENT NON-LIABILITY: LESSEE covenants that it will indemnify and save and hold harmless the GOVERNMENT, its officers, agents, assignees, licensees and employees for and from any and all liability or claims for loss of or damage to any property owned by or in the custody of LESSEE, its officers, agents, servants, employees, subtenants, licensees, or invitees, or for the death of or injury to any of the same which may arise out of or be attributable to the condition, state of repair or LESSEE's use and occupancy of the LEASED PROPERTY, or the furnishing of any utilities or services, or any interruption therein or failure thereof, whether or not the same shall be occasioned by the negligence or lack of diligence of LESSEE, its officers, agents, servants or employees.

20) UTILITIES AND SERVICES: In the event that the GOVERNMENT shall furnish LESSEE with any utilities and/or services maintained by the GOVERNMENT which LESSEE may require in connection with its use of the LEASED PROPERTY, LESSEE shall pay the GOVERNMENT the charges therefore in addition to the cash rent (and any other charges/payments) required under this LEASE. Such charges payable solely by the LESSEE may also include municipal storm water service/management fees if such fees are asserted by a local government and are determined by Government to be legally due. Such charges for utilities and services, and the method of payment thereof shall be determined by the appropriate supplier of such service, in accordance with applicable laws and regulations, on such basis as the appropriate supplier of such service may establish which may include a requirement for the installation of adequate connecting and metering equipment at the sole cost and expense of LESSEE. It is expressly agreed and understood that the GOVERNMENT in no way warrants the continued maintenance or adequacy of any utilities and/or services furnished to the LESSEE. It is also expressly agreed and understood that the GOVERNMENT does not hereby guarantee that it will provide any specific utilities and/or services to the LESSEE.

21) LIENS: LESSEE shall promptly discharge or cause to be discharged any valid lien, right in rem, claim or demand of any kind, except one in favor of the GOVERNMENT, which at any time may arise or exist with respect to the LEASED PROPERTY or materials or equipment furnished therefore, or any part thereof, and if the same shall not be promptly discharged by LESSEE, the GOVERNMENT may discharge, or cause to be discharged, the same at the expense of LESSEE.

22) ACCESS: The GOVERNMENT shall have access to the LEASED PROPERTY at all reasonable times for any purposes not inconsistent with the quiet use and enjoyment thereof by LESSEE, including, but not limited to, the purpose of inspection.

23) STATE AND LOCAL TAXES: In the event that as a result of any future Act of Congress, subjecting GOVERNMENT-owned property to taxation, any taxes, assessments or similar charges are imposed by State or local authorities upon the LEASED PROPERTY (other than upon LESSEE's possessory interest therein), LESSEE shall pay the same when due and payable and this LEASE shall be renegotiated so as to accomplish an equitable reduction in the amount of the Rent of Maximum Amount to be Expended specified in Clause 3 hereof, which reduction shall in no event exceed the amount of such taxes, assessments, or similar charges; Provided, in event the parties hereto are unable to agree within ninety (90) days from the date of the imposition of such taxes, assessments, or similar charges, upon a rental which in the opinion of the Real Estate Contracting Officer constitutes a reasonable return to the GOVERNMENT on the LEASED PROPERTY, the Real Estate Contracting Officer shall have the right to determine the amount of the rental, which determination shall be unilaterally binding on LESSEE, subject to the LESSEE’s appeal of such determination, which shall be treated as a dispute in accordance with the provisions of Clause 24 hereof.

24) DISPUTES CLAUSE (July 2002):

a) This LEASE is subject to the Contract Disputes Act of 1978, as amended (41 U.S.C. § 601-613), the “Act.”

b) Except as provided in the Act, all disputes arising under or relating to this LEASE shall be resolved under this clause.

c) “Claim,” as used in this clause, means a written demand or written assertion by LESSEE or the GOVERNMENT, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of LEASE terms, or other relief arising under or relating to this LEASE. However, a written demand or written assertion by the LESSEE seeking the payment of money exceeding $100,000 is not a claim under the Act until certified. A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim under the Act. The submission may be converted to a claim under the Act, by complying with the submission and certification requirements of this clause, if it is disputed either as to liability or amount or is not acted upon in a reasonable time.

d)

i) A claim by the LESSEE shall be made in writing and, unless otherwise stated in this LEASE, submitted within 6 years after accrual of the claim to the Real Estate Contracting Officer, Naval Facilities Engineering Systems Command, Southwest for a written decision. A claim by the GOVERNMENT against the LESSEE shall be subject to a written decision by the Real Estate Contracting Officer, Naval Facilities Engineering Systems Command, Southwest.

(a) The LESSEE shall provide the certification specified in paragraph (24)(d)(ii)(c)of this clause when submitting any claim exceeding $100,000.

(b) The certification requirement does not apply to issues in controversy that have not been submitted as all or part of a claim.

(c) The certification shall state as follows:

“I certify that the claim is made in good faith; that the supporting data is accurate and complete to the best of LESSEE’s knowledge and belief; that the amount requested accurately reflects the LEASE adjustment for which the LESSEE believes the GOVERNMENT is liable; and that I am duly authorized to certify the claim on behalf of the LESSEE.”

ii) The certification may be executed by any person duly authorized to bind the LESSEE with respect to the claim.

e) For LESSEE claims of $100,000 or less, the Real Estate Contracting Officer, Naval

Facilities Engineering Systems Command, Southwest must, if requested in writing by the LESSEE, render a decision within 60 days of the request. For LESSEE-certified claims over $100,000, the Real Estate Contracting Officer, Naval Facilities Engineering Systems Command, Southwest must, within 60 days, decide the claim or notify the LESSEE of the date by which the decision will be made.

f) The Real Estate Contracting Officer’s, Naval Facilities Engineering Systems Command, Southwest decision shall be final unless the LESSEE appeals or files a suit as provided in the Act.

g) If the claim by the LESSEE is submitted to the Real Estate Contracting Officer, Naval

Facilities Engineering Systems Command, Southwest or a claim by the GOVERNMENT is presented to the LESSEE, the parties, by mutual consent, may agree to use alternative dispute resolution (ADR). If the LESSEE refuses an offer for ADR, the LESSEE shall inform the Real Estate Contracting Officer, Naval Facilities Engineering Systems Command, Southwest, in writing, of the LESSEE’s specific reasons for rejecting the offer.

h) The GOVERNMENT shall pay interest on the amount found due and unpaid from

(i) The date that the Real Estate Contracting Officer, Naval Facilities Engineering Systems Command, Southwest receives the claim (certified, if required); or

(ii) The date that payment otherwise would be due, if that date is later, until the date of payment. With regard to claims having defective certifications, as defined in FAR 33.201, interest shall be paid from the date that the Real Estate Contracting Officer, Naval Facilities Engineering Systems Command, Southwest initially receives the claim. Simple interest on claims shall be paid at the rate, fixed by the Secretary of the Treasury as provided in the Act, which is applicable to the period during which the Real Estate Contracting Officer, Naval Facilities Engineering Systems Command, Southwest receives the claim and then at the rate applicable for each 6-month period as fixed by the Treasury Secretary during the pendency of the claim.

I) The LESSEE shall proceed diligently with performance of this LEASE, pending final resolution of any request for relief, claim, appeal, or action arising under the LEASE, and comply with any decision of the Real Estate Contracting Officer, Naval Facilities Engineering Systems Command, Southwest. This clause does not apply upon termination of this LEASE, pursuant to Clause 14, TERMINATION BY GOVERNMENT, or Clause 15, TERMINATION BY LESSEE, herein.

25) COVENANT AGAINST CONTINGENT FEES: LESSEE warrants that no person or agency has been employed or retained to solicit or secure this LEASE upon an agreement or understanding for a commission, percentage, brokerage or contingent fee, excepting bona fide employees or bona fide established commercial agencies maintained by LESSEE for the purpose of securing business. For breach or violation of this warranty, the GOVERNMENT shall have the right to annul this LEASE without liability or in its discretion to require LESSEE to pay, in addition to the rental or consideration, the full amount of such commission, percentage, brokerage, or contingent fee.

26) OFFICIALS NOT TO BENEFIT: No Member of or Delegate to Congress, or Resident Commissioner, shall be admitted to any share or part of this LEASE, or to any benefit to arise therefore, but this provision shall not be construed to extend to this LEASE if made with a corporation for its general benefit.

27) FAILURE OF GOVERNMENT TO INSIST ON COMPLIANCE: The failure of the

GOVERNMENT to insist, in any one or more instances, upon performance of any of the terms, covenants or conditions of this LEASE shall not be construed as a waiver or relinquishment of the GOVERNMENT's right to the future performance of any such terms, covenants or conditions and LESSEE's obligations in respect to such future performance shall continue in full force and effect.

28) ASSIGNMENT OR SUBLETTING:

a) The LESSEE shall neither transfer, assign, nor sublet this LEASE or any interest in it, or any property on the LEASED PROPERTY, or grant any interest, privilege, or license whatsoever in connection with this LEASE without the prior written consent of GOVERNMENT. Consent shall not be unreasonably withheld or delayed. Any costs associated with subletting, transfer, and/or assignment will be at the LESSEE’s expense and no cost to the GOVERNMENT.

b) Any SUBLEASE granted by LESSEE shall contain a copy of this LEASE as an attachment and be consistent with the terms and conditions of this LEASE and shall terminate immediately upon the expiration or any earlier termination of this LEASE, without any liability on the part of GOVERNMENT to LESSEE or any SUBLESSEE, except as specifically stated in this LEASE. No SUBLEASE shall relieve LESSEE of any of its obligations under this LEASE. Under any SUBLEASE made with or without consent of GOVERNMENT, the SUBLESSEE shall be deemed to have assumed all of the obligations of LESSEE under this LEASE. Every SUBLEASE shall be subject to, and shall be deemed to contain, the Environmental Protection provisions set forth in Clause 34 below.

c) The LESSEE shall submit requests for a sublease in writing within 180 days prior to the anniversary date of the LEASE. Only requests for subleases of the entire parcel will be considered. Requests for a sublease within the first year of the LEASE shall not be allowed. Requests for a sublease shall include an adequate reason and justification for the requested sublease and shall include payment of a Real Estate Processing Fee in the approximate amount of $1,500.00. Requests for a sublease shall include a copy of the proposed sublease agreement, and the proposed sublease agreement must provide that all the terms of the original LEASE expressly apply to the sublease agreement. If the request for a sublease is denied, the Real Estate Processing Fee will be returned, without interest, as soon as practicable.

29) LABOR PROVISION - EQUAL OPPORTUNITY:

a) Convict Labor. In connection with the performance of work required by this LEASE, LESSEE agrees not to employ any person undergoing a sentence of imprisonment at hard labor.

b) Contract Work Hours and Safety Standards Act (40 U.S.C. § 3701, et. seq.). This LEASE, to the extent that it is a contract of a character specified in the Contract Work Hours and Safety Standards Act and is not covered by the Walsh-Healy Public Contracts Act (41 U.S.C. § 35 et. seq.), is subject to the following provisions and exceptions of said Contract Work Hours Standards Act and to all other provisions and exceptions of said law:

(1) The LESSEE shall not require or permit any laborer or mechanic in any workweek in which he is employed on any work under this contract to work in excess of 8 hours in any calendar day or in excess of 40 hours in such workweek on work subject to the provisions of the Contract Work Hours Standards Act unless such laborer or mechanic receives compensation at a rate not less than one and one-half times his basic rate of pay for all such hours worked in excess of 8 hours in any calendar day or in excess of 40 hours in such workweek, whichever is the greater number of overtime hours. The "basic rate of pay," as used in this clause, shall be the amount paid per hour, exclusive of the LESSEE's contribution or cost for fringe benefits and any cash payment made in lieu of providing fringe benefits, or the basic hourly rate contained in the wage determination, whichever is greater.

(2) In the event of any violation of the provisions of Clause 29(c)(1) above, the

LESSEE shall be liable to any affected employee for any amounts due, and to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic employed in violation of the provisions of Clause 29(c)(1) above in the sum of $10 for each calendar day on which such employee was required or permitted to be employed on such work in excess of 8 hours or in excess of the standard workweek of 40 hours without payment of the overtime wages required by Clause 29(c)(1) above.

30) GOVERNMENT RULES AND REGULATIONS: LESSEE shall comply with such rules and regulations regarding STATION security, ingress, egress, safety and sanitation as may be prescribed, from time to time, by the Real Estate Contracting Officer or by the Commanding Officer of the STATION. Such rules and regulations are subject to change at any time.

Costs related to any means of access to the STATION, are not reimbursable. Any time invested, or price(s) paid, for obtaining access credentials will not be compensated in any way or approved as a direct cost of any lease with the Department of the Navy.

31) NOTICES: No notice, order, direction, determination, requirement, consent, or approval under this LEASE (including but not limited to all attachments, exhibits and addenda thereto) shall be of any effect unless in writing. All notices required under this LEASE shall be addressed to LESSEE, or to the Real Estate Contracting Officer, as may be appropriate, at the addresses thereof specified in this LEASE or at such other addresses as may from time to time be agreed upon by the parties hereto. Note that specific provisions of this LEASE and attachments, exhibits and/or addenda thereto may indicate that the LESSEE shall provide notice to a representative of the GOVERNMENT other than the Real Estate Contracting Officer (e.g., the Public Works Officer). In such cases, LESSEE should provide the notice to the individual specified in the particular provision.

32) INTEREST: Notwithstanding any other provision of this LEASE, unless paid within thirty (30) days, all amounts that become payable by the LESSEE to the GOVERNMENT under this LEASE (net of any applicable tax credit under the Internal Revenue Code) shall bear interest from the date until paid and shall be subject to adjustments as provided by Part 6 of Appendix E of the Armed Services Procurement Regulation, as in effect on the date of this LEASE. The interest rate per annum shall be the interest rate in effect which has been established by the Secretary of the Treasury pursuant to Public Law 92-41; 85 STAT 97 for the Renegotiation Board, as of the date the amount becomes due as herein provided.