Attachment B - Model EULA for Enterprise Park (2023-11-16).pdf

ENHANCED USE LEASE AGREEMENT (EULA)

BETWEEN

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA)

AND

[Tenant]

FOR

2,600 ACRES OF LAND AND BUILDING 9121

Last Updated: 16 Nov 2023

Table of Contents

PREAMBLE

RECITALS

ARTICLE 1 - PROPERTY

1.1 Lease of Property

1.2 Property Disposition

ARTICLE 2 - TERM

2.1 Term of Lease

2.2 Modification of Term of Lease

2.3 Possession

2.4 Expiration of the Term

ARTICLE 3 - FAIR MARKET VALUE CONSIDERATION

3.1 Consideration

3.2 Payment

3.3 Late Payment

4.1 Permitted Uses

4.2 NASA Approval of Uses and Tenants

4.3 Right of Access

4.4 Right of Entry

ARTICLE 5 - IMPROVEMENTS

5.1 Definitions

5.3 Lien Rights

5.4 Notice of Completion

5.5 Limitation on Effect of Approvals

5.6 Protection from Mechanic's Liens

5.7 Utility Metering

ARTICLE 6 – CENTER-SPECIFIC REQUIREMENTS

6.1 General Requirements

6.2 Safety Requirements

ARTICLE 7 - ENVIRONMENTAL CONDITION, MANAGEMENT AND COMPLIANCE

7.1 Definitions

7.2 Environmental Site Assessment (ESA)

7.3 General Compliance and Permitting

7.4 Existing Environmental Hazards

7.5 Environmental Checklist

7.6 National Environmental Policy Act (NEPA)

7.7 Historical and Cultural Resources

7.8 Regulated Waste Management and Disposal

7.9 Air Emissions Compliance

7.10 Spill Reporting and Cleanup

7.11 Spill Prevention, Control, and Countermeasures (SPCC)

7.12 Registered Petroleum Storage Tank Systems

7.14 Endangered Species Act Compliance

7.15 Other Environmental Compliance and Permitting Matters

7.16 Recordkeeping

7.17 NASA Reviews

7.18 Requirements Communication

7.19 Cancellation of Permits and Registrations

7.20 Lease Termination Inspection

7.21 Continuing Liability

ARTICLE 8 - PROTECTIVE SERVICES

8.1 Protective Services – Fire, Emergency Management, and Security

8.2 Fire Protection

8.3 Emergency Management

8.4 Security

ARTICLE 9 - INDEMNIFICATION AND INSURANCE

9.1 Damage or Injury

9.2 Insurance Coverage and Amounts

9.3 Insurance Requirements

9.4 Subrogation

ARTICLE 10 - RESTORATION OF THE PROPERTY

10. General Requirements

ARTICLE 11 - ASSIGNMENT AND SUBLEASE

11.1 Assignment

11.2 Sublease of the Property and Improvements Thereon

11.3 Tenant Not Released

11.4 Assignment of Contracts and Subleases to NASA

11.5 Mortgage

11.6 Tenant's Right to Mortgage

ARTICLE 12 - RIGHT TO TERMINATE, EVENTS OF DEFAULT, REMEDIES

12.1 Termination by Mutual Consent

12.2 Default by Tenant

12.3 Termination Due to an Event of Default

12.4 Continuation

12.5 Remedies Cumulative

12.6 Abandoned Property

12.7 Default by NASA

12.8 Termination by NASA for Other Than an Event of Default

ARTICLE 13 - NOTICES AND PRINCIPAL POINTS OF CONTACT

13.1 Method

ARTICLE 14 - EMBLEMS

14.1 NASA Name and Initials

14.2 NASA Emblems

ARTICLE 15 - EXCLUSIVITY

ARTICLE 16 – MISCELLANEOUS

16.1 General

16.2 No Waiver

16.3 Exhibits

16.4 Broker(s)

16.5 Entire Agreement and Modification

16.6 Governing Law

16.7 Taxes and Assessments

16.8 Anti-Deficiency Act

16.9 Authority

16.10 Successors and Assigns

16.11 Information Technology Compliance with Laws and Regulations

EXHIBIT A

Legal Description/Survey Map

EXHIBIT B

Schedule of Annual Lease Payments

EXHIBIT C

Points of Contact

EXHIBIT D

Schedule of Services

EXHIBIT E

Demarcation Points/Interference Points for Affected Utilities

EXHIBIT F

Environmental Baseline Survey

EXHIBIT G

NEPA Documentation Associated with the Lease Activities

EXHIBIT H

NASA Form 1509

PREAMBLE

This Enhanced Use Lease ("Lease") is made, effective as of the date of the last signature below, by and between the NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, an Agency of the United States, Stennis Space Center (“Center”), in Hancock County, MS 39529, as the lessor ("NASA") and [Name of the Tenant, including entity type and state of organization, e.g., “. . . a Delaware corporation”], located at [address of Tenant principle office], as the lessee ("Tenant”, together with NASA, collectively, "the Parties"). This Lease is made under the authority of 51 U.S.C. § 20145 with reference to the following:

RECITALS

A. NASA is committed to using its real property assets to efficiently support the Nation's space exploration activities and enable the greatest public benefit from the leasing of non-excess, underutilized real property under its jurisdiction.

B. Tenant is a [Insert a description of Tenant].

C. Tenant desires to lease certain real property (“Property”) at the Center as further defined in Article 1, Property, below, which is non-excess to NASA, but which NASA is not currently fully utilizing. Tenant's planned use of the Property will not interfere with NASA operations and will have no negative impact to NASA missions.

D. Accordingly, the Parties hereby enter this Lease for the Property in accordance with the terms and conditions set forth herein. The Parties acknowledge and agree that NASA is not providing the Property to Tenant as Government-furnished property under any contract or subcontract, and Tenant agrees that it shall not charge or submit for payment any consideration provided pursuant to this Lease as a direct cost or charge under any such contract or subcontract.

Now, therefore, NASA and Tenant agree as follows:

ARTICLE 1 - PROPERTY

1.1 Lease of Property

NASA hereby leases to Tenant, and Tenant leases from NASA, for the term set forth in Section 2.1 and subject to the terms, covenants and conditions hereinafter set forth, the Property located on Center and consisting of ~2,600 acres as further described in Paragraph 1.2 and in Exhibit A.

1.2 Property Disposition

The Property consists of approximately 2,600 acres of greenfield space in the northern region of the SSC Fee Area of the Center that had been a part of the former Mississippi Army Ammunition Plant (MSAAP). This greenfield space consists of the entirety of the 1,100-acre Enterprise Park, ~800 acres to the east of Enterprise Park, and ~700 acres in the north/central area. Additionally, the Property consists of Building 9121 near the Enterprise Park area and a construction laydown yard in the SSC 9100 area, totaling 7.4 acres. Tenant acknowledges that it has inspected the Property and has found it suitable for the "Permitted Use" defined in Section 4.1. Tenant accepts the Property "as is" and acknowledges that NASA has made no covenant, representation, or warranty of any kind, express or implied, about the suitability of Property for the Permitted Use and that NASA has no duty to make any improvements to the Property.

ARTICLE 2 - TERM

2.1 Term of Lease

This Lease becomes effective on the date of the last signature below (“Effective Date”). The initial term of the Lease (“Term”) is expected to extend for 10 years, commencing on the later of the Effective Date or (such date of commencement being the “Commencement Date”), and shall expire on the earliest to occur of the following: (a) the completion of the initial Term on (“Expiration Date”), unless extended pursuant to the terms hereof; or (b) the date of termination pursuant to the termination provisions set out in this Lease (such date of termination being the “Termination Date”).

2.2 Modification of Term of Lease

A. At the option of Tenant, the Term may be extended by up to two 10 year extensions, provided (i) Tenant provides written notice of its election to extend this Lease no later than one (1) year prior to this Lease's expiration date, and (ii) the Parties enter into a written amendment to the Lease in accordance with the requirements of Section 16.5 in respect of the extended Term and the Rent to be due for such extended Term. Once amended, the Termination Date shall be extended to the last date of the extended Term.

B. If Tenant does not, in NASA’s reasonable judgement, commence the construction of facilities on the Property within 12 to 24 months of the Commencement Date, then NASA shall have the right to terminate this Lease thirty (30) days after providing Tenant with written notice. If Tenant can demonstrate to NASA’s satisfaction that it is diligently working toward commencement of construction, such as materially engaging in design activities, NASA shall give Tenant an additional 6 months to commence construction before exercising its right to terminate under this Section.

C. In the event Tenant chooses to extend the Term in accordance with this Article 2, NASA shall have the right to reappraise the Property and to reassess the annual Base Rent (defined below) and annual escalation rate related thereto, and the annual Support Amount (defined below) and annual rate escalation related thereto. No more than 120 days following NASA’s receipt of Partner’s notice to NASA of its election to extend the Term under this Article 2, NASA shall provide Tenant in writing a Schedule of Annual Lease Payments setting out the annual Base Rent and annual Support Amount for each year of the extended Term. If Tenant agrees to the Rent (defined below) for the extended Term, the Parties shall enter into a written amendment to the Lease in accordance with the requirements of Section 16.5 to effect the extended Term and the Rent to be due for such extended Term.

2.3 Possession

A. Tenant shall be entitled to take possession of the Property from NASA on the

Commencement Date of this Lease. If NASA, for any reason whatsoever, does not deliver possession of the Property to Tenant on the Commencement Date, this Lease shall not be void or voidable and NASA shall not be liable to Tenant for any loss or damage resulting there from, but, in such event, the Commencement Date shall be postponed until the date on which NASA delivers possession of the Property to Tenant, but the Term shall not be extended. No rent shall be required for that delay period. NASA shall communicate to the Tenant any anticipated delays in delivering possession of the Property to the Tenant, and if the anticipated delay, or the actual delay, is more than two months, then the Tenant may cancel the Lease.

B. Relocation of the Tenant. If, during the Term of this Lease, NASA determines that it is necessary to relocate the Tenant to a different location due to a determination by the NASA Assistant Administrator, Office of Strategic Infrastructure or Director, Facilities and Real Estate Division, that the interests of the national space program, the national defense, or the public welfare require it or that all or part of the building has become uninhabitable, NASA may, in lieu of Termination under Article 12, provide other space within the Buildings or the Property that has approximately the same gross, contiguous area and services and be of the same classification(s) as the original Property. In such event, NASA shall provide at least 90 days’ notice if feasible, and the Tenant will be entitled to an abatement of Base Rent for any reasonable period in which Tenant’s operations are substantially interrupted and will be entitled to a reduction in Rent for any reduction in square footage. Tenant may terminate the Lease for the complete Property or portions thereof as NASA agrees prior to relocation, paying only accrued Rent, if the Tenant does not accept the relocation, and the parties shall amend the Lease as provided for herein.

2.4 Expiration of the Term

A. Upon expiration of the Term of the Lease, or upon other termination as provided under this

Lease, Tenant shall vacate and surrender the Property to NASA. Surrender of the Property shall not be deemed to be a payment in lieu of any consideration that may be due pursuant to this Lease. Prior to the expiration of the Term, or upon an earlier termination, Tenant shall restore the Property in accordance with Article 10, Restoration of the Property.

B. If, with consent by NASA, Tenant holds possession of the Property after the expiration date, Tenant shall become a tenant from month to month under the essential terms of this Lease, including the authority and all other terms relating to care and maintenance of the Property, but the rental fee due during such tenancy shall be the fair market value of the Property as determined by NASA, in its sole discretion, taking into consideration the increased costs and value attributable to a month to month tenancy, of which NASA shall notify Tenant, and such rental fee shall be payable on a monthly basis due on the first of each month. NASA and Tenant each shall have the right to terminate such month-to-month tenancy by giving at least thirty (30) days’ written notice of termination to the other at any time, in which event such tenancy shall terminate on the date set forth in such termination notice. If Tenant holds possession of the Property after the Termination Date or Expiration Date without consent by NASA, Tenant shall become a tenant at sufferance and NASA shall have the right in accordance with law to remove Tenant from the Property and shall have the right but not the obligation to perform on Tenant’s behalf any remaining obligations of Tenant under the Lease, including the requirements of Article 10.

Tenant shall pay NASA on demand any reasonable sum which may be expended by NASA in performing such obligations on behalf of Tenant.

ARTICLE 3 - FAIR MARKET VALUE CONSIDERATION

3.1 Consideration

A. Base Rent. Tenant agrees to pay NASA the base rental fee (“Base Rent”) of $ for the first year of the Lease Term, which Base Rent is payable on or before the Commencement Date. The annual Base Rent for the first year is based on a rental rate of $ per acre for the Land and $ per square foot for Building 9121. From and after the first year of the Lease, the annual Base Rent will increase by 3.0%, and Tenant will pay NASA the annual Base Rent set forth in Exhibit B ("Schedule of Annual Lease Payments"), being the schedule of Base Rent payments and Support Amount (defined below) payments for each year of the Lease Term, which annual Base Rent and Support Amount shall be due and payable on or before that date which is thirty (30) days prior to the anniversary of the Commencement Date. NASA will endeavor to provide an annual notice reflecting the Base Rent and Support Amount payable; however, the annual Base Rent and Support Amount is due and payable in accordance with the foregoing regardless of whether notice is provided. The total of Base Rent payments for the original Term of the Lease is

B. Support Services.

(i) NASA agrees to provide to Tenant certain base level shared support services (“Support

Services”) under the Lease, and Tenant agrees to pay NASA for such Support Services (“Support Amount”, together with the Base Rent, the “Rent”). The Support Amount for the first year of the Lease Term is $ . From and after the first year of the Lease, the annual Support Amount will increase by 3%. The Support Amount shall include the full cost to NASA in connection with this Lease. NASA reserves the right to reassess the Support Amount with the same frequency as Base Rent is re-appraised. Any change to the Rent will be reflected in an amendment to the Lease entered into in accordance with Section 16.5. The total of Support Amount payments for the original Term of the Lease is $ .

(ii) Support Services are required services associated with being located on NASA premises, e.g., security, general operations and maintenance, grounds maintenance, common area maintenance, and lease management and administration. Services or support wanted by Tenant beyond the Support Services, including utilities, are considered additional or demand services, which Tenant may receive from NASA subject to entering into a separate Reimbursable Space Act Agreement (“RSAA”) between the Parties in accordance with NASA’s standard terms and conditions.

C. Fair Market Value. The Rent (i.e., “Base Rent” together with the “Support Amount”) as shown in Exhibit B (“Schedule of Annual Lease Payments”) constitute the fair market value of the Property as determined by NASA. The total amount of fair market value payments for the original Term of the Lease is $ .

3.2 Payment

Tenant shall make payments to NASA through the NASA Shared Services Center (NSSC). The NSSC strongly encourages payment by electronic transfer ((1) or (2) below); therefore, Tenant shall make payment by check only if circumstances preclude the use of electronic transfer. All payments and other communications regarding this Lease shall reference NASA, and the title, date, and number of this Lease. Choose one form of payment:

A. U.S. Treasury FEDWIRE Deposit System, Federal Reserve Wire Network Deposit System.

B. Pay.gov at www.nssc.nasa.gov; or

C. A check should be payable to NASA and sent to:

NASA Shared Services Center FMD – Accounts Receivable For the Accounts of:

Stennis Space Center Building 1111, Jerry Hlass Road Stennis Space Center, MS 39529

Any refunds will be processed via Electronic Funds Transfer (EFT) which requires completion of the Automated Clearing House (ACH) Vendor/Miscellaneous Payment Enrollment Form (OMB 1510-0056).

3.3 Late Payment

Tenant must make all payments owed under the terms of this Lease on or before the date they are due to avoid NASA's imposition of interest, penalties, and administrative costs in accordance with 31 U.S.C. § 3717 and 14 C.F.R. § 1261.412.

ARTICLE 4 - USE OF LEASED PROPERTY

4.1 Permitted Uses

A. Tenant shall use and occupy the Property solely for:

http://www.nssc.nasa.gov/

[To be determined once it is known what Tenant Planned usage is agreed upon] and for lawful purposes related or incidental thereto and no other purposes whatsoever (collectively, the "Permitted Use"). Such Permitted Use shall be consistent with the terms and conditions of this Lease and any NASA approvals required under this Lease. Tenant's Permitted Use shall comply with applicable federal, state, and local laws.

NASA may allow additional uses to the extent such uses are consistent with the purpose of this Lease, NASA policy and applicable law. Tenant and NASA shall formally negotiate and amend this Lease to include such additional uses as they may arise (upon amendment such additional uses shall then be considered part of the Permitted Uses).

Tenant shall not do, or permit to be done, in, on, or about the Property, nor bring or keep or permit to be brought or kept therein anything which is prohibited by or will in any way conflict with any applicable federal, state, and local laws.

B. Tenant shall not do or permit anything to be done in, on, or about the Property that will unreasonably obstruct or interfere with the rights of NASA or other users of the Center, or injure or cause damage to them, or which is prohibited. Tenant shall not cause, maintain, or permit any nuisance in, on, or about the Property or commit or suffer to be committed any waste in, on, or about the Property. Tenant shall not receive, store, or otherwise handle any product or material that is explosive or highly inflammable, except in accordance with applicable laws, regulations, and NASA policies.

4.2 NASA Approval of Uses and Tenants

NASA shall have the right to approve, disapprove, or approve subject to conditions, at NASA's sole discretion, all uses and tenants (at any tier) at the Property. Tenant shall submit requests for use or tenant approvals to the Real Property Accountability Officer (RPAO) Point of Contact (POC) listed in Exhibit C, Points of Contact.

4.3 Right of Access

NASA hereby grants Tenant a right of access to the Property. NASA hereby grants Tenant the nonexclusive right, in common with other users of the Center, to access and use only for their intended purposes the common areas in the Center that are designated by NASA as common areas and not leased to or allocated for the use of NASA or another user of the Center. NASA shall have the right from time to time to change the size, location, configuration, character, or use of any such common areas, construct additional improvements or facilities in any such common areas, close any such common areas, or grant easements over such common areas, so long as any such action does not materially adversely affect Tenant's use of or access to the Property. Tenant shall not obstruct in any way any portion of the common areas or in any way unreasonably interfere with the rights of other persons entitled to use the common areas and shall not, without the prior written consent of NASA, use the common areas in any manner, directly or indirectly, for the location or display of any property belonging to Tenant or for the location of signs relating to Tenant's operations in the Property. The common areas shall always be subject to the exclusive control and management of NASA. All access to the Property and such Center common areas shall be subject to applicable security policies, procedures, and controls requiring access credentials that NASA will issue to Tenant personnel and contractors. NASA will manage traffic and public access to NASA for major events but will work with Tenant to ensure access to the Property. Site employee badges, entry via certain specific points, or other access assurance methods may be involved. In the event of extraordinary and unpredictable circumstances that could arise from hostile acts, warfare, major accidents, or natural disaster, access by Tenant and their employees will be no less than NASA badged employees.

4.4 Right of Entry

A. NASA reserves the right to enter the Property without prior notification to Tenant (i) at any time for reasons NASA deems, in its sole discretion, to constitute an emergency requiring immediate response, and (ii) at any other times for reasons NASA deems, in its sole discretion, to be necessary for the protection or administration of U.S. Government property, or to otherwise protect the United States' interests.

B. For nonemergency inspections, reviews, and other tasks contemplated herein requiring

NASA to enter the Property, NASA shall make a good faith effort to provide Tenant with at least forty-eight (48) hours' notice prior to NASA's arrival at the Property. NASA will make every effort to ensure that entry does not unreasonably interrupt Tenant's use of the Property. NASA shall endeavor to combine inspections where possible.

4.5 Maintenance and Repair

A. Tenant shall, at Tenant’s sole cost and expense, (i) be responsible for the maintenance and repair of the Property to an operational standard acceptable to NASA in its reasonable discretion, and (ii) keep the Property free from dirt, rubbish, waste, and debris, and maintain and repair the Property and any Improvements (defined in Section 5.1) in good order and operating condition, ordinary wear and tear and any periods of repair, or restoration excepted.

B. Tenant shall always during the Term and at Tenant's sole cost and expense, operate, maintain, repair, or bring all facilities that Tenant is using for its operations up to an operating condition acceptable to NASA in its reasonable discretion. Tenant shall submit a change in facility occupancy status to the RPAO POC identified in Exhibit C.

C. Tenant shall be solely responsible for providing all consumables and materials to fulfill its maintenance, use and repair obligations as required herein.

D. Tenant shall ensure that the Property retain its functionality for the Permitted Uses as identified in this Lease, for the entire Term.

E. Tenant shall ensure that the Property grounds are maintained free of overgrowth and weeds and the grass is cut for the entire Term.

F. Tenant shall support and participate in various, required facility inspections and assessments performed by NASA. These will consist of site visits by NASA personnel and dialogue with responsible Tenant facility manager. All site inspections and assessments will be coordinated in accordance with Section 4.4, “Right of Entry,” of this Lease.

G. If NASA reasonably believes that Tenant is not performing one or more of its obligations pursuant to this section, NASA shall give Tenant written notice of the need for any maintenance or repair for which Tenant is responsible, after which Tenant shall have a reasonable opportunity to perform the maintenance or make the repair, and Tenant shall not be liable for any failure to do so unless such failure continues for thirty (30) days after NASA gives such written notice to Tenant; provided, however, such thirty (30) day period shall be extended so long as Tenant commences the maintenance or repairs within the thirty (30) day period and diligently completes the same. With respect to utilities and any other infrastructure serving the Property and located on portions of the Center other than the Property, the Parties agree that Tenant’s obligations under this section extend to and include the Demarcation Points (as defined herein). In the event that NASA reasonably believes that Tenant’s failure to perform its obligations under this section is resulting in imminent danger to people, or that any delay in performing such obligations may result in potential major damage to facilities or other infrastructure, NASA may require that the Tenant perform such obligations in a prompt and timely manner, and NASA shall have the right but not the obligation to enter upon the Property and perform such activities on behalf of Tenant as NASA deems necessary to avoid or mitigate imminent danger to people or potential major damage to facilities or other infrastructure and be reimbursed the full costs of performing such activities upon demand to Tenant. Tenant shall promptly repair any damage to the Center caused by Tenant or any of Tenant’s Related Entities (defined in Section 9.1).

4.6 Health and Safety Protocols

Tenant agrees to comply with the Center’s policies and procedures relating to health and safety including COVID protocols and procedures. Tenant acknowledges that any persons entering upon the Property during the Term are required to comply with Executive Order 13991, Protecting the Federal Workforce and Requiring Mask-Wearing, dated January 20, 2021, to the extent that Executive Order remains in effect and as it may be revised or replaced from time to time.

ARTICLE 5 - IMPROVEMENTS

5.1 Definitions

The term "Improvements," as used in this Lease, is defined as any addition, alteration, or other modification of any kind to the Property, including any new buildings and collateral equipment that Tenant may construct or install upon the Property, except for routine maintenance or repair activities that do not change the size or design of the building or Collateral Equipment. The term "Collateral Equipment" means building support equipment and substantially affixed equipment/property that normally is required to make a facility useful and operable, and for which the removal would impair the usefulness, safety, or environment within the facility. For this Lease, Collateral Equipment includes, but is not limited to, elevators, transformers, compressors, and facility systems and subsystems, such as heating, ventilation, and air conditioning, electrical, plumbing, pneumatic, fire protection, fire suppression, control systems, and monitoring systems that are installed in, or provide service to, buildings or other real property.

5.2 Design and Construction Requirements

A. Advance Design and Construction Approval.

In advance of commencing any Improvements to the Property that (1) potentially impact or affect NASA infrastructure or systems outside the Property, (2) significantly change the overall functionality of the Property (to include construction or demolition of any facility),

(3) modify any fire protection or life safety system within the Property, or (4) estimated to cost $100,000 or more, Tenant shall request and obtain NASA's written approval in accordance with this Article. For such Improvements, Tenant's approval request shall be in the form of a completed Commercial Aerospace NASA Form 1509 Template (Exhibit H).

This template is used by NASA to complete the Facility Project-Brief Project Document (NASA Form 1509). Upon NASA's request, Tenant shall provide any drawings or other design information that will assist NASA in responding to Tenant's Improvement approval request. Tenant shall provide this information to the NASA POC set forth in this Lease.

NASA shall provide any comments or conditions to such requests within sixty (60) days of their receipt. Tenant shall follow applicable NASA policies and procedures when implementing any facility Improvements projects, including, but not limited to, policies regarding outage coordination, switching limitation, hot work permits, excavation permit and utility locate procedures, trailer/equipment tie-down requirements, and movement of oversize loads.

B. Utility Project Coordination.

Tenant shall coordinate with NASA in the early planning phase of any proposed Improvements that may require an increase in current capacity or configuration change to any NASA-provided utility service (e.g., electrical, water/wastewater, gaseous nitrogen, natural gas) and shall establish a design and construction coordination process to notify NASA of significant changes during design and construction that affect configuration or safety of upstream utility services. Where NASA serves as Tenant's utility service provider, NASA may perform, in accordance with the terms of a separate RSAA with Tenant, any requested and approved utility modifications that occur on the NASA side of the negotiated interface points (e.g., expansion, safing, and reconfiguration). Demarcation (isolation) points and/or interface points for affected utilities (“Demarcation Points”) are captured in Exhibit E, Demarcation Points/Interference Points for Affected Utilities, to this Lease.

The Center Survey Department shall be contacted prior to any modification or new installation of underground utilities (e.g., sanitary, primary/secondary electric, communication, water). This includes directional drilling and direct bury (trenching) installation methods. The utility as-built survey data shall be collected and provided to the Center Geographic Information System (GIS) Department for inclusion in the Center GIS database.

C. Design and Construction Requirements.

The following requirements apply to any Tenant-proposed Improvements regardless of whether the Improvement falls within the scope of Section 5.2.A.

(i) Construction documents shall comply with the latest published editions of the local building code and the local fire prevention code and, where required by state law, shall be prepared, and signed by a registered design professional. In addition, Tenant shall comply with the following design requirements, as applicable:

(ii) NASA-STD-8719.11, Safety Standard for Fire Protection, as it relates to fire sprinkler and fire alarm systems and associated occupancy and hazard classifications. This standard serves as a simple NASA-specific reference to those building code and National Fire Protection Association (NFPA) requirements that are applicable at NASA and covers situations where there are no applicable codes.

(iii) The environmental requirements set forth in Article 7, Environmental Condition, Management and Compliance.

(iv) Sustainable Design Requirements.

NASA has adopted the U.S. Green Building Council (USGBC) Leadership in Energy and Environmental Design (LEED) as its performance measure for sustainable development. All new facility construction and major building renovation projects, regardless of who owns the facility or the source of the funding and including any Improvements as defined herein, shall obtain, at a minimum, LEED Silver certification from the USGBC. Compliance with this policy for applicable projects is mandatory unless it has been clearly demonstrated that pursuing LEED Silver is not feasible, and a waiver approving a lower certification level has been granted by NASA consistent with NASA Procedural Requirements 8820.2.

(a) Upon NASA approval and the issuance of a corresponding LEED waiver, Tenant may utilize the Green Building Initiatives Green Globes rating system in lieu of LEED. This is the minimum third-party certification levels that will be accepted without project-specific waivers.

(b) When the use of an alternate rating system has been approved by NASA for a given project, NASA Form 1509 shall identify which sustainable building rating system is being followed, what rating level is being pursued, what specific track within the applicable sustainable building rating system is being followed (e.g., Building Design and Construction, Commercial Building, etc.), and whether it is pursuing certification. NASA will review the proposed levels of certification to determine whether they meet NASA's requirements before approving NASA Form 1509. Certification of the project by the rating system organization is not mandatory but is strongly encouraged. In lieu of certification, a qualified third party under direction from Tenant may perform rating system verification checks during planning, design, construction, and operational phases to score and certify the project using the selected rating system scorecard/checklist. Tenant shall provide to NASA the credentials for the qualified third party. Tenant shall register the project with the rating system agency, and Tenant shall provide to NASA the scoring documentation demonstrating that the project meets the agreed upon rating level. Appropriate credit for Tenant's infrastructure design and site features may be counted toward each facility project's score in determining compliance with the selected rating system.

(c) Where practical, improvements shall also comply with Guiding Principles for Federal

Leadership in High Performance and Sustainable Buildings. The five principles are these: (1)

Employ Integrated Design Principles (including commissioning); (2) Optimize Energy Performance (including reduction of energy use by thirty (30) percent compared to the baseline building performance rating by the American Society of Heating, Refrigeration and Air-Conditioning Engineers); (3) Protect and Conserve Water; (4) Enhance Indoor Environmental Quality; and (5) Reduce Environmental Impact of Materials. Specific expectations associated with these principles are contained in the Federal Leadership in the High Performance and Sustainable Buildings Memorandum of Understanding (2006), as supplemented by the latest edition of the Interagency Sustainability Working Group's High Performance and Sustainable Building Guidance, and the Energy Star's Portfolio Manager's Guiding Principal Checklist.

(v) NASA review and approval is required for final design drawings and specifications to be utilized for facility construction and modification. NASA conducts such reviews to determine compliance with the above listed standards, and to determine possible impacts to NASA-maintained facility and utility distribution systems. For any NASA concerns to be identified in a timely manner, Tenant shall provide, to NASA, design documents at Tenant's typical design review intervals, including preliminary and final review intervals. Tenant shall coordinate with NASA the timing and frequency of such review intervals in advance of facility construction commencing. Tenant-provided design review packages shall be fully integrated designs (reflecting all applicable facilities and installed systems), with both drawings and specifications completed to the designated review level and including descriptions of planned occupancies, operations, and associated hazards.

(vi) Tenant shall coordinate with the NASA Authority Having Jurisdiction (AHJ) for approval of

Certificate of Occupancy or its equivalent and shall not occupy, utilize, or operate facilities impacted by the construction without said approval. This AHJ review and Certificate of Occupancy only address fire protection and life safety systems compliance. Tenant shall use an independent third-party contractor, employed by Tenant and acceptable to the AHJ, to perform design review for code compliance and inspect construction/installation of life safety systems. The approved third-party contractor shall submit a letter of compliance stating that the facility complies with all applicable codes and standards prior to requesting AHJ final acceptance testing to support the issuance of the Certificate of Occupancy.

(vii) Tenant acknowledges that it is required to comply with the building code requirements identified in the local building code and the local fire prevention code, using the edition that is most recent to the Commencement Date. Tenant further acknowledges that it is required to comply with such building code requirements regardless of whether the applicable local or state authority asserts jurisdiction over the Improvements on the Property. If the relevant city, county, or state authorities do not assert or choose to exercise jurisdiction, Tenant shall comply with the following:

(a) To document compliance with the local building code and applicable NASA design standards, Tenant shall use an independent third-party provider to perform both design document review and building inspection services. The building inspector shall be licensed by the state, and Tenant shall provide to NASA the building inspector's license information.

These review and inspection services shall be performed in accordance with local building standards, as hereby tailored:

(b) NASA will serve as the "local building official," but does not require building permit applications, per se, and will not issue building permits.

(c) In lieu of building permit applications, Tenant shall submit, for NASA acceptance, appropriate affidavits from the third-party provider, certifying that the design documents comply with applicable code requirements and NASA design standards.

(d) NASA reserves the right to respond in writing to any such affidavits, as described in local law, to document any identified code compliance deficiencies or concerns.

(e) No physical work shall start on structures, site utilities, or other systems subject to local building code requirements until the associated code compliance affidavit has been received and accepted by NASA.

(f) The third-party provider shall perform the required inspections of construction, notify NASA of such inspections, and record the results of these inspections as described in local law.

(g) The third-party provider shall provide certificates of compliance as described in local law.

(h) With the exception of the fire protection and life safety systems Certificate of Occupancy provided by the AHJ, NASA will not issue certificates of occupancy or certificates of completion, as described in local law, but will provide written responses, either accepting the certificates of compliance or documenting any identified deficiencies.

(viii) Reasonable grounds for NASA disapproval of proposed Improvement plans and specifications include, but are not limited to, the following:

(a) Failure to comply with applicable codes, generally accepted construction standards or practices, or the requirements of this Lease.

(b) The proposed Improvement's undue interference with other activities at NASA.

(c) Incompatibility with the NASA Master Plan.

(d) Inclusion of design features that are reasonably considered unacceptable for a building on

NASA property, as not in compliance with Article 4, Use of Leased Property.

(e) Legitimate security, environmental, or safety concerns, or other concerns involving legitimate U.S. Government interests.

(ix) Upon approval of the proposed Improvements, Tenant may commence construction of the proposed Improvements in accordance with this Article.

5.3 Lien Rights

All construction contracts shall advise contractors, suppliers, and laborers that they shall not assert lien rights against fee title to the Property.

5.4 Notice of Completion

Within sixty (60) days after the completion of the construction of an Improvement, Tenant shall (i) submit to NASA a notice of such completion; (ii) provide NASA with a complete set of as-built drawings, in a standard computer-based format, and building information modeling data (if any); and (iii) provide NASA with such other documents as NASA may reasonably require for its real property records and reporting requirements. Tenant shall identify utility service interfaces in the as-built drawings. Within sixty (60) days of receiving such notice, drawings, and data, NASA shall provide Tenant with its approval or non-approval, with detailed reasons as to any non-approval. Once Tenant has placed systems into operation, Tenant shall provide appropriate configuration control to maintain as-built documentation as current throughout the life of the Lease. Tenant shall not occupy any constructed facility on the Property until NASA and all applicable governmental agencies have issued all necessary approvals, including certificates of occupancy, and Tenant has provided NASA with copies of such approvals and certificates; provided, however, that Tenant may apply for a partial or temporary certificate of occupancy and, if issued, occupy portions of the constructed facility pursuant thereto.

5.5 Limitation on Effect of Approvals

All rights of NASA to review, comment upon, approve, inspect, or take any other action with respect to the Property or Improvements thereon are specifically for the benefit of NASA and no other party. No review, comment, approval, or inspection, required or permitted by, of, or to, NASA hereunder shall give or be deemed to give NASA any liability, responsibility, or obligation for, in connection with, or with respect to, the design, demolition, construction, maintenance, repair, preservation, rehabilitation, reconstruction, restoration, or operation of the Property or any Improvements thereon, nor shall any such approval or inspection be deemed to relieve Tenant of its sole obligation and responsibility for the design, construction, maintenance, repair, preservation, rehabilitation, reconstruction, restoration, and operation of the Property or any Improvements thereon required under this Lease. Similarly, no inspection performed or not performed by NASA under this Lease shall (a) give or be deemed to give NASA any responsibility or liability with respect to the thing inspected, the work or the prosecution thereof, or the design or construction of the work or any part thereof; (b) constitute or be deemed to constitute a waiver of any of Tenant's obligations or Tenant's rights hereunder; or (c) be construed as approval or acceptance of the thing inspected or the prosecution thereof or the design or construction of the work or any part thereof.

5.6 Protection from Mechanic's Liens

A. Tenant shall have no power to do any act or to make any contract that may create or be the foundation for any lien, mortgage, or other encumbrance upon the reversion, fee interest, or other estate of NASA or of any interest of NASA in the Property. Tenant shall notify all contractors that Tenant does not own fee title to the Property, and Tenant shall instruct such contractors to record any preliminary notice or other document related to any mechanic's or materialmen's liens against only Tenant's ground leasehold interest in the Property and not against fee title to the Property. At least ten (10) days before the date of any commencement of construction, Tenant shall give written notice to NASA of the date of such commencement of construction or of the delivery of materials. Nothing in this Lease shall be deemed to be, or be construed in any way as constituting, the consent of, or request by NASA, expressed or implied, by inference or otherwise, to any person, firm, or corporation, for the performance of any labor or the furnishing of any materials for any construction, repairs, maintenance, replacement, or alterations of, or to Property, facilities thereon, or any part thereof, or as giving Tenant any right, powers or authority to contract for, or permit the rendering of any services or the furnishing of any materials that might in any way give rise to the right to file any lien against NASA's interest in the Property.

B. Tenant shall not suffer or permit any liens to stand against the Property or any part thereof by reason of any work, labor, services, or materials done for, or supplied to, or claimed to have been done for, or supplied to, Tenant. Tenant shall keep the Property free and clear of all choate mechanic's, materialmen, and other liens for work done, services performed, materials supplied, or appliances used or furnished in or about the Property in connection with any activities of Tenant on or about the Property. If any such lien shall at any time be filed, Tenant shall cause the same to be discharged of record (whether by bonding) within thirty (30) days prior to the date any such lien may be foreclosed upon.

5.7 Utility Metering

Tenant shall install revenue grade meters for any NASA-provided utilities (e.g., power and water), as well as meters for commodities (e.g., GN2 and GHe) on any new facilities and existing facilities requiring meters. Tenant shall obtain NASA's approval of the design for any such meter installation. NASA will inspect the installation, as well as perform periodic inspections, to validate that the meter is reading properly.

ARTICLE 6 – CENTER-SPECIFIC REQUIREMENTS

6.1 General Requirements

Any use of radio frequency (RF) emitting devices must be coordinated and approved by the NASA SSC Frequency Manager prior to use.

6.2 Safety Requirements

A. General Requirements

(i) It is the Tenant's responsibility to ensure Tenant’s operations at Center are performed in a manner that minimizes risk to NASA SSC personnel, hardware, facilities, visitors, and the public.

(ii) Tenant acknowledges full responsibility for the safety and health of its own employees and that of others who may be impacted by the condition of the Properties and the execution of operations within them. As such, Tenant shall:

a. Provide and maintain a safe and healthful defined area/facility.

b. Perform operations in a manner that minimizes risk to personnel and property.

c. Ensure those who may be impacted by their operation are made aware of hazards caused by the operation.

(iii) Tenant is responsible for ensuring compliance with Occupational Safety and Health Administration (OSHA), National Fire Protection Association codes and standards, federal, state, and local laws to include all building, fire, life-safety, safety, and environmental codes.

(iv) Tenant shall deliver a Site Plan for all propulsion component, engine and stage testing as required in NASA-STD-8719.12A Safety Standard for Explosives, Propellants, and Pyrotechnics at the conclusion of the Tenant’s design process to ensure compliance. SPR

6330.1 Stennis Space Center Explosive Safety Program is also applicable for any explosive activities including storage, operations, and disposal.

(v) When unsafe or unhealthful conditions/acts pose imminent danger to personnel or property, Tenant’s personnel have the right and obligation to stop the work posing the unsafe or unhealthful conditions/act.

(vi) Tenant shall comply with Stennis Space Center Procedural Requirement (SPR) 8715.1 Safety and Health Procedural Requirements, where specifically applicable to Tenant.

(vii) If NASA determines that hazards resulting from Tenant’s activities may affect NASA personnel or property because the proposed hazard controls are not adequate, NASA shall identify the inadequacy in writing. With exception given to immediate danger to life and health, if the Tenant disagrees with the analysis and proposed additional hazard controls, the Tenant may appeal the decision through the Formal Dissent process as outline in SPLN- 1200– 0003.

(viii) NASA SSC Safety and Mission Assurance (S&MA) shall not interfere with or impose requirements on Tenant’s operations that occur within the Property and do not result in hazards that extend beyond Tenant’s Property.

B. Mishaps

(i) Tenant shall report the following mishaps to NASA SSC, defined as “SSC Mishaps” in the event they occur:

a. The death of an individual.

b. Serious injury or illness to a NASA employee/NASA Contractor or any individual that is not employed by the Tenant or its agents, contractors, tenants, or invited guests.

c. Damage to NASA real or personal property inside the Tenant’s defined area that has not been

“loaned/leased” to the Tenant.

d. High visibility or high public interest event, including events which could bring OSHA or media attention to NASA or SSC.

(ii) Tenant shall report such SSC Mishaps to NASA SSC, within one hour of the event being known (after appropriate emergency/medical response is notified), by telephoning the NASA SSC S&MA Directorate and notifying the appropriate NASA POC(s) as identified in the Agreement.

(iii) NASA SSC S&MA is required to investigate a mishap that involves injuries to NASA personnel or damage to NASA property (which could include SSC Interim Response Team activities, data and artifact impoundment and control of the scene).

(iv) If Tenant conducts an independent investigation into an SSC Mishap that requires reporting to NASA SSC under this paragraph, the Tenant shall provide a copy of the final mishap report to the appropriate NASA POC(s) as identified in the Agreement.

(v) Tenant shall report any close call (“near miss”) that could have led to an SSC Mishap to the appropriate NASA POC(s) identified in the Agreement, as well as to the NASA SSC Safety and Mission Assurance Directorate.

(vi) Tenant shall develop, maintain, and provide to NASA SSC any applicable area access training for NASA SSC personnel residing or performing work on the Property.

(vii) Ownership of these requirements resides with the NASA SSC S&MA Directorate. The interpretation of the requirements in this exhibit is the responsibility of the S&MA Directorate with the appropriate SSC organizations that support the agreement. Disputes regarding this process will follow the Formal Dissent process found in document

SPLN1200–0003.

ARTICLE 7 - ENVIRONMENTAL CONDITION, MANAGEMENT

AND COMPLIANCE

7.1 Definitions

As used in this Lease, "Environmental Law" shall mean all applicable federal, state, and local environmental laws, statutes, ordinances, regulations, rules, judicial and administrative orders, and decrees issued by governmental agencies (such as, but not limited to, the United States Environmental Protection Agency, United States…