Attachment C EUL Sample.pdf

LEASE NO. DACA

DEPARTMENT OF THE ARMY LEASE

BETWEEN

THE DEPARTMENT OF THE ARMY

AND

(LESSEE)

FOR THE LEASED PREMISES LOCATED ON

(INSTALLATION)

(Called the “Installation” in this Lease.)

TABLE OF CONTENTS

RECITALS

SECTION 1: BASIC LEASE PROVISIONS

Paragraph 1.01: Date and Parties Paragraph 1.02: Leased Premises Paragraph 1.02(a): Fee Title Paragraph 1.02(b): Easements and Rights-of-Way Paragraph 1.02(c): Additional Easements and Rights-of-Way Paragraph 1.03: Use and Access Paragraph 1.03(a): Use Paragraph 1.03(b): Installation Rules Paragraph 1.03(c): Conflict with Lease Paragraph 1.03(d): Right of Access Paragraph 1.04: Lease Term, Early Termination, and Renewal Paragraph 1.04(a): Lease Term Paragraph 1.04(b): Early Termination by Government Paragraph 1.04(c): Early Termination by Lessee Paragraph 1.04(d): Renewal Paragraph 1.05: Lessee’s Compliance with Applicable Laws Paragraph 1.05(a): Lessee’s Compliance Paragraph 1.05(b): Special Compliance Paragraph 1.05(c): Permitted Signs Paragraph 1.05(d): Federal Supremacy and Sovereign Immunity Paragraph 1.05(e): Lessee’s Responsibility Paragraph 1.05(f): Lessee’s Right to Contest Paragraph 1.06: Condition of the Leased Premises Paragraph 1.06(a): Physical Condition Report Paragraph 1.06(b): Environmental Condition of Property Report

SECTION 2: RENT, REIMBURSEMENTS, AND TAXES

Paragraph 2.01: Consideration Paragraph 2.01(a): Rent Paragraph 2.01(b): Proration of Rent Paragraph 2.02: Reimbursements Paragraph 2.03: Payments Paragraph 2:04: Penalty Charges Paragraph 2.04(a): Assessment of Penalty Charges Paragraph 2.04(b): Payment of Penalty Charges Paragraph 2.05: Taxes

SECTION 3: REPRESENTATIONS, WARRANTIES, AND COVENANTS

Paragraph 3.01: Lessee’s Representations, Warranties, and Covenants

Paragraph 3.02: Government’s Representations, Warranties, and Covenants

SECTION 4: ENVIRONMENTAL MATTERS

Paragraph 4.01: Lessee’s Compliance with Environmental Laws Paragraph 4.02: Lessee’s Plans Paragraph 4.03: Required Government Approval Paragraph 4.04: Definitions Paragraph 4.04(a): Environmentally and Safety Regulation Materials Paragraph 4.04(b): Environmental Law Paragraph 4.05: Lessee’s Indemnification Paragraph 4.06: Required Notices and Government’s Right of Inspection Paragraph 4.06(a): Required Notices Paragraph 4.06(b): Right to Terminate Paragraph 4.06(c): Discovery of On-Site Contamination Paragraph 4.06(d): Government’s Right of Inspection Paragraph 4.07: Application of Pesticides and Herbicides Paragraph 4.08: No Liability for Government’s Environmental Impacts Paragraph 4.09: Hazardous Waste Storage Facilities Paragraph 4.10: Availability of Lessee Records Paragraph 4.11: Government’s Access for Environmental Testing and Remediation Paragraph 4.12: Site Specific Lease Restrictions Paragraph 4.13: Hazardous Substance Notice

SECTION 5: LIABILITY AND INSURANCE

Paragraph 5.01: Government’s Limitation of Liability and General Indemnification by Lessee Paragraph 5.02: Liability for Actions of Lessee Parties Paragraph 5.03: Insurance Paragraph 5.03(a): Property Insurance Paragraph 5.03(b): Commercial General Liability Insurance Paragraph 5.03(c): Builder’s Risk Insurance Paragraph 5.03(d): Increase in Insurance Paragraph 5.03(e): Insurance Criteria Paragraph 5.03(f): Evidence of Insurance

SECTION 6: ALTERATIONS, REPAIRS, MAINTENANCE, AND SURRENDER

Paragraph 6.01: Utilities and Services Paragraph 6.01(a): Purchase of Government Utility Services Paragraph 6.01(b): Fire Protection Paragraph 6.01(c): Police Protection Paragraph 6.01(d): Interruption of Services Paragraph 6.02: Alterations and Improvements Paragraph 6.02(a): Consent Paragraph 6.02(b): Conditions of Consent Paragraph 6.02(c): Title to Improvements Paragraph 6.02(d): Notice of Completion

Paragraph 6.02(e): Payment and Ownership of Improvements Paragraph 6.03: Operation, Maintenance, and Surrender Paragraph 6.03(a): Lessee’s Care of the Leased Premises Paragraph 6.03(b): Lessee’s Bills and Obligations Paragraph 6.03(c): Surrendering the Leased Premises

SECTION 7: DEFAULT AND TERMINATION

Paragraph 7.01: Lessee’s Default Paragraph 7.01(a): Defaults Paragraph 7.01(b): Excusable Delays Paragraph 7.02: Government’s Remedies Paragraph 7.02(a): Remedies Paragraph 7.02(b): Lessee Waiver of Claims Paragraph 7.02(c): Government’s Rights and Remedies Paragraph 7.02(d): Removal Period in the Event of Default Paragraph 7.02(e): Other Expenses Paragraph 7.03: Exception to Cure Period

SECTION 8: ENCUMBRANCES OF THE LESSEE’S ESTATE

Paragraph 8.01: Encumbrance of Lessee’s Estate Paragraph 8.02: Permitted Mortgages Paragraph 8.03: Non-Qualifying Party Paragraph 8.04: Lessee Required Notices Paragraph 8.05: Acquisition of Lessee’s Interest by Approved Mortgagee or Affiliate Paragraph 8.06: Approved Mortgagee Protections Paragraph 8.07: Termination Notice and Right to Postpone Paragraph 8.08: No Obligation to Deliver the Leased Premises or Improvements Paragraph 8.09: Rights of Multiple Approved Mortgagees Paragraph 8.10: New Lease Paragraph 8.11: Government Protections

SECTION 9: LOSS OF LEASED PREMISES

Paragraph 9.01: Damage Paragraph 9.02: Lessee’s Obligation to Restore Paragraph 9.03: Extensive Damage or Destruction of Improvements Paragraph 9.04: Insurance Proceeds Paragraph 9.05: Waivers Paragraph 9.06: Transfer of the Leased Premises by the Government

SECTION 10: TRANSFER, ASSIGNMENT AND SUBLEASE

Paragraph 10.01: Transfer, Assignment, and Sublease Paragraph 10.01(a): Procedure Paragraph 10.01(b): Voided Transfer, Assignment or Sublease Paragraph 10.02: Reasonableness Paragraph 10.03: Conditions of Subleases and Assignments Paragraph 10.04: Sublease

SECTION 11: PERMITTED ENTRIES

Paragraph 11.01: Permitted Entries Paragraph 11.02: Entry Conditions

SECTION 12: DISPUTES

Paragraph 12.01: Disputes Paragraph 12.01(a): Disputes Valued at $50,000 or Less (exclusive of interest)

Paragraph 12.01(b): Disputes Valued at More than $50,000 (exclusive of interest)

Paragraph 12.02: Judicial Review Paragraph 12.03: Opportunity to be Heard and to Offer Evidence

SECTION 13: MISCELLANEOUS

Paragraph 13.01: Covenant Against Contingent Fees Paragraph 13.02: Officials Not to Benefit Paragraph 13.03: Non-Discrimination Paragraph 13.04: Gratuities Paragraph 13.05: Subject to Mineral Interests Paragraph 13.06: No Joint Venture Paragraph 13.07: NoticesParagraph 13.07(a): Notice Defined Paragraph 13.07(b): Notice in Writing to Address Paragraph 13.07(c): Parties’ Addresses Paragraph 13.07(d): Deemed Receipt Paragraph 13.07(e): Refusal to Accept Paragraph 13.08: Records and Books of Account Paragraph 13.09: Partial Invalidity Paragraph 13.10: Headings, Titles, and Personal Pronouns Paragraph 13.11: Waiver Paragraph 13.12: Time is of the Essence Paragraph 13.13: Construction Paragraph 13.13(a): Construction Against Drafter Paragraph 13.13(b): Deletions Paragraph 13.13(c): Additions Paragraph 13.14: Good Faith and Fair Dealing Paragraph 13.15: Government Representatives and Successors Paragraph 13.16: Binding on Successors Paragraph 13.17: Governing Law Paragraph 13.18: Counterparts Paragraph 13.19: Recording Paragraph 13.20: Survival of Remedies Paragraph 13.21: Authority of Parties Paragraph 13.22: Business Days Paragraph 13.23: Meaning of the Term “Government” Paragraph 13.24: Entire Agreement Paragraph 13.25: Applicable Laws Paragraph 13.26: Anti-Deficiency Act

Paragraph 13.27: No Commitments on Future Use Paragraph 13.28: Executive Order 13658 Paragraph 13.29: Definition of Lease

EXHIBITS

Exhibit A: Description of Leased Premises [TBD] Exhibit B: Map of Leased Premises [TBD] Exhibit C: Existing Encumbrances [TBD] Exhibit D: Mandatory Lease Requirements [ATTACHED] Exhibit E: Physical Condition Report [TBD] Exhibit F: Environmental Condition of Property Report [TBD] Exhibit G: Notice of Hazardous Substances [TBD] Exhibit H: Government Approved Improvements [TBD]

RECITALS

A. The Secretary of the Army, under the authority contained in 10 U.S.C. § 2667, has determined:

(i) the Leased Premises, as defined in this Lease, is not excess property as defined under 40

U.S.C. § 102(3) and is not at this time needed for other public use;

(ii) a lease of such Leased Premises is advantageous to the United States; and

(iii) a lease of such Leased Premises on the terms set forth in this Lease is in the public interest.

B. NOW, THEREFORE, the Secretary of the Army, by virtue of the authority conferred by law, for the consideration set forth below, hereby leases to the Lessee the Leased Premises (as defined in this Lease) subject to the terms, conditions, covenants and agreements set forth in this Lease as follows:

SECTION 1—BASIC LEASE PROVISIONS

1.01. Date and Parties. This lease (“Lease”) is made as of this ________ day of

___________________, 20__, between the United States of America, acting through the Secretary of the Army (“Government”) and ________________, organized under the laws of

__________________, with principal offices at ___________________________ (“Lessee”).

The Government and the Lessee may be referred to jointly as the “Parties” and each separately as a “Party.”

1.02. Leased Premises. The Government leases to the Lessee the land described in Exhibit A and shown on Exhibit B (the “Leased Premises”) located at [Installation] (“Installation”), together with the right to gain access to the Leased Premises through a route or routes designated from time to time by the Government, in accordance with this Paragraph 1.02, and to use the streets, driveways, sidewalks, and walkways on the Installation for the purposes of pedestrian and vehicular ingress and egress to and from the Leased Premises. The Government reserves the right to change, modify, or eliminate, or temporarily to close, any portion or portions of streets, driveways, sidewalks, and walkways in a manner that will not unreasonably interfere with the

Lessee’s use of the Leased Premises under this Lease. Notwithstanding the foregoing, the Government reserves its right of general access to the Leased Premises for such purposes as maintaining, repairing, or replacing utility systems located within the Leased Premises, and to the extent they are needed by the Government for the operation, security, or safety of the Installation, or its assigned personnel, or for any other lawful purpose.

1.02(a). Fee Title. Fee title to the land shall continue to vest at all times with the Government.

1.02(b). Easements and Rights-of-Way. The Leased Premises may be subject to certain reservations, easements, restrictions and rights. A list of such known reservations, easements, restrictions and rights, upon current information and belief of the Government, is included in the list of Existing Encumbrances at Exhibit C. The Government shall have the further right to create and grant additional easements and rights-of-way (hereafter “Additional Encumbrances”) over, across and through the Leased Premises, including, without limitation, the right to modify and relocate any of the Existing Encumbrances. The Lessee shall accept and occupy the Leased Premises subject to and in compliance with the Existing Encumbrances and Additional

Encumbrances (collectively, the “Encumbrances”); provided, however, the Government agrees that it will not create any Additional Encumbrances or relocate Existing Encumbrances in a manner that is inconsistent with or materially impairs the rights and benefits of the Lessee under this Lease with respect to the development, construction, ownership, leasing, use and operation of the Leased Premises by the Lessee.

1.02(c). Additional Easements and Rights-of-Way. Subject to 10 U.S.C. § 2668 and 10 U.S.C.

§ 2662, the Government may grant and create easements and rights-of-way as shall be reasonably required to enable the Lessee to develop, construct, lease, use, operate and maintain the Lessee-owned facilities on the Leased Premises in accordance with the permitted uses authorized under Paragraph 1.03(a) below, which easements and rights-of-way over Government owned or controlled land shall be set forth in documentation prepared by the Government, provided that such easements shall not be located or relocated in a manner that would unreasonably interfere with the overall operation or impair the security of the Installation, of which the Leased Premises are a part. Obtaining any easements and rights-of-way over property not owned or controlled by the Government shall be the responsibility of the Lessee to obtain or procure, at the Lessee’s sole cost and expense.

1.03. Use and Access.

1.03(a). Use. The Lessee shall use the Leased Premises solely for the purposes of developing, constructing, operating, and maintaining ________________________________________ (the

“Facilities”). The Lessee shall comply, at its own expense, with all laws, ordinances, rules, requirements, regulations and orders of the United States of America, the state where the Leased

Premises are located and any other public or quasi-public federal, state, interstate or local authority and any department or agency thereof, having jurisdiction over the Leased Premises and relating to the Leased Premises or imposing any duty upon the Lessee with respect to the use, occupation or alteration of the Leased Premises and in effect during the Term. The Lessee shall not create a nuisance or use the Leased Premises for any immoral or illegal purposes, and in no event shall the Leased Premises be used by the Lessee for any of the following:

(i) Activities involving the storage, treatment, transportation, disposal, or manufacture of hazardous materials, hazardous substances, or hazardous wastes, except as specifically authorized by Paragraph 4.02.

(ii) Activities that adversely affect the health, safety, morals, welfare, morale, and discipline of the Armed Forces, such as the sale or use of drug abuse paraphernalia, illicit gambling, and prostitution.

(iii) Partisan political activities.

(iv) Activities by entities advocating the overthrow of the United States Government.

1.03(b). Installation Rules.

(i) The Lessee’s use and occupation of the Leased Premises shall be subject to the general supervision and approval of the Installation Commander and to such rules and regulations regarding access to the Installation, and the preservation of health, safety, security and the maintenance of good order and discipline on the Installation as the Installation Commander may prescribe from time to time.

(ii) In addition to such other rules and regulations as may be prescribed from time to time by the Installation Commander, the Lessee shall comply with the Government's specific requirements for antiterrorism and operations security, as established by the Installation, and which may be amended from time to time. The Installation will provide the Lessee with such requirements upon execution of this Lease, and with updated versions as such requirements are amended or revised.

(iii) The Lessee shall also comply with and implement, as applicable, the Government's specific requirements for cyber security as established by the Department of the Army, and as may be amended from time to time. The Government will provide the Lessee with such requirements upon execution of this Lease, and with updated versions as such requirements are amended or revised.

(iv) The Leased Premises and any improvements located thereon are subject to periodic inspection by Installation security personnel in conjunction with their official duties. The

Lessee will cooperate in these inspections to the extent required to ensure that law enforcement activities are not hindered and that Installation security requirements are met.

The Government shall normally give the Lessee twenty-four (24) hours prior notice of its intention to enter the Leased Premises, unless it determines the entry is required for safety, environmental, operations, or security purposes. Lessee may, but is not required, to accompany the Government. If requested, Government officials inspecting the Leased Premises shall comply with such reasonable safety and operating procedures of the Lessee, including any training required prior to entrance of any Government officials onto the

Leased Premises. The Government shall exercise its access rights hereunder to minimize the interference with the Lessee’s use of the Leased Premises. The Lessee shall have no claims against the United States or any officer, agent, employee or contractor thereof on account of any entries made pursuant to this Lease.

(v) The Lessee, its officers, agents, employees, independent contractors, and subcontractors must obtain identification passes from Installation military police before admission to the

Installation. Vehicles of such personnel also must be registered with and issued temporary passes by Installation military police before they may be driven onto the Installation. Such vehicles are subject to inspection by Installation military police, and, before temporary passes will be issued, drivers must present evidence that they comply with the minimum insurance requirements of the state in which their vehicle is registered.

(vi) The Government retains the right to refuse access to the Installation, including the

Leased Premises, by the Lessee, its officers, agents, employees, independent contractors, and subcontractors during a national emergency or for other compelling reasons as determined by the Installation Commander in his or her sole discretion.

1.03(c). Conflict with Lease. If a rule or regulation issued under Paragraph 1.03(b) conflicts with or is inconsistent with any Lease provision, the Lease provision controls.

1.03(d). Right of Access. The Lessee acknowledges that it understands the Installation is an operating military installation that can be closed to the general public, and, as a result, agrees that the Lessee’s operations may be restricted to accommodate the needs of national defense. Access on the Installation may also be restricted due to inclement weather and natural disasters. The

Lessee further acknowledges that the Government strictly enforces federal laws and Army regulations concerning controlled substances (drugs) and that personnel, vehicles, supplies and equipment entering the Installation are subject to search and seizure under 18 U.S.C. § 1382. The

Government will reasonably permit the Lessee access to the Leased Premises at all times, subject to the provisions of this Paragraph 1.03(d). Except as otherwise set forth in this Lease, the Lessee agrees the Government will not be responsible for lost time or costs incurred due to delays in entry, temporary loss of access, barring of individual employees from the Installation under federal laws authorizing such actions, limitation or withdrawal of an employee’s Installation driving privileges, or any other security action that may cause employees to be late to or unavailable at their work stations, or delay arrival of parts and supplies under the terms of this Lease. The Lessee, its sublessees, employees, and invitees shall abide with all Installation access restrictions imposed by the Government.

1.04. Lease Term, Early Termination, and Renewal.

1.04(a). Lease Term. This Lease shall be for a term beginning at 12:00 a.m., ______________, 20___, (“Beginning Date”) and will be for a duration of [TBD] years ending at 11:59 p.m., _______________, 20___ (“Ending Date”), unless sooner terminated in accordance with the terms contained in this Lease. As used in this Lease, the term “Ending Date” shall mean the date set forth above as to the duration of this Lease or the date of any authorized earlier termination, such as for default, whichever date is earlier. The period from the Beginning Date through the Ending Date shall be referred to as the “Term.”

1.04(b). Early Termination by Government. In the event, subject however to an Excusable Delay as defined in Paragraph 7.01(b), the Lessee shall fail to commence its development activities within _____ days/months/years from the Beginning Date, or having commenced such development activities shall fail to proceed with reasonable diligence to complete all of its development activities within _____ days/months/years from the Beginning Date, and such failure shall continue after the expiration of the cure period set forth in Paragraph 7.01(a)(i), the

Government, in its sole discretion, may terminate the Lease. If pursuant to the foregoing the

Government terminates this Lease, Lessee shall vacate and surrender the Leased Premises as provided in Paragraph 7.02(d).

1.04(c). Early Termination by Lessee. Notwithstanding any other provision of this Lease, if

Lessee, in Lessee's sole discretion, determines that the development as contemplated under this Lease is not feasible, Lessee may, at any time prior to the first anniversary date of the Effective

Date and upon sixty (60) days prior written notice to the Government, terminate this Lease without penalty. If Lessee elects to terminate the Lease pursuant to this Paragraph 1.04(c), Lessee shall pay to the Government Rent for the period of time from the Beginning Date to the date Government receives Lessee’s written notice of early termination by Lessee. Rent for any partial month shall be prorated by multiplying the monthly Rent by a fraction, the numerator of which is the number of days of the partial month included in the Term and the denominator of which is the total number of days in the full calendar month. Following such termination by Lessee, Lessee and the Government shall have no further rights or obligations whatsoever under this Lease, except for any claims which may arise during Lessee’s occupation of the Leased

Premises, and the Leased Premises shall be free and clear of the encumbrance of this Lease. If

Lessee fails to deliver a written notice of termination to the Government sixty (60) days prior to the first anniversary date of the Effective Date, then this Lease shall remain in full force and effect. In addition, the termination provisions contained in this Paragraph 1.04(c) shall become null and void and be of no further force or effect if the Lessee or Lessee's agents or contractors have commenced construction of the improvements contemplated under this Lease.

1.04(d). Renewal. [TBD] The Lessee shall have [TBD] option (“Renewal Option”) to extend the

Term for an additional period of [TBD] consecutive years (“Extension Period”) provided that: (i) the Lessee gives written notice (“Exercise Notice”) to the Government of its election to exercise the Renewal Option no later than twelve (12) months prior to the expiration of the then current

Term; (ii) Lessee has not committed more than two (2) Defaults as defined in Paragraph 7.01(a) within any year during the Term of this Lease; and (iii) as of the date that the Exercise Notice is delivered to the Government, no Default (beyond the notice and cure period set forth in this

Lease) has occurred and then remains uncured. All terms and conditions of this Lease shall remain in full force and effect during the Extension Period, and consideration shall be due and payable as provided in Paragraph 2.01.

1.05. Lessee’s Compliance with Applicable Laws.

1.05(a). Lessee’s Compliance. The Lessee shall at all times during the Term promptly observe and comply, at its sole cost and expense, with the provisions of all applicable federal, state, and local laws, regulations, and standards. Further, with respect to the Lessee’s improvements and all other equipment and operations on the Leased Premises, the Lessee shall comply with all Army safety, health, and fire regulations, standards, technical orders, and procedures in common use work and operating areas.

1.05(b). Special Compliance. The Lessee shall comply with all applicable state and local laws, ordinances, and regulations with regard to construction, sanitation, licenses, or permits to do business, and all other matters. The Lessee shall be responsible for determining whether it is subject to local building codes or building permit requirements, and for compliance with them to the extent they are applicable with respect to the Lessee’s use of the Leased Premises.

Government shall cooperate reasonably with the Lessee, so long as such can be completed without the Government incurring any costs or liability, as are necessary for the Lessee to comply with or obtain any land use permits and approvals, tax-incentive or tax-abatement program approvals, building permits, environmental impact reviews, or any other approvals necessary in connection with Lessee's development, financing, construction, installation, replacement, maintenance, operation, or removal of the Facilities. Although this Lease is not subject to either the Federal Acquisition Regulation or the Defense Federal Acquisition Regulation Supplement, the Secretary of the Army has determined the advisability of the inclusion of the requirements set forth in the list contained in Exhibit D (“Mandatory Lessee Requirements”). These Mandatory

Lessee Requirements are hereby incorporated by reference into this Lease as if fully set forth herein and shall be binding upon the Lessee, its officers, agents, servants, employees, or others

(excluding those employees or agents of the Government who are on the Leased Premises for the purpose of performing official duties) who may be on the Leased Premises at their invitation or the invitation of any one of them (collectively the “Lessee Parties”). The Lessee Parties shall comply with the Mandatory Lessee Requirements as currently promulgated, or as may be amended from time to time. Failure to comply with these Mandatory Lessee Requirements shall be subject to immediate termination of this Lease, at the Government’s sole discretion, as further provided in Section 7.

1.05(c). Permitted Signs. The Lessee shall comply with Government regulations with respect to the placement of signage in, on or about the Leased Premises. Other than the signs and listings permitted under the aforementioned regulations, the Lessee shall not place or have placed any other signs, listings, advertisements, or any other notices anywhere else in, on or about the Leased

Premises.

1.05(d). Federal Supremacy and Sovereign Immunity. Nothing in this Lease shall be construed to constitute a waiver of federal supremacy or federal sovereign immunity.

1.05(e). Lessee’s Responsibility. Responsibility for compliance as specified in this Paragraph

1.05 rests exclusively with the Lessee. The Government assumes no enforcement or supervisory responsibility except with respect to matters committed to its jurisdiction and authority. The

Lessee shall be liable for all costs associated with compliance, defense of enforcement actions or suits, payment of fines, penalties, or other sanctions and remedial costs related to the Lessee’s use of the Leased Premises.

1.05(f). Lessee’s Right to Contest. The Lessee shall have the right to contest by appropriate proceedings diligently conducted in good faith, without cost or expense to the Government, the validity or application of any law, ordinance, order, rule, regulation, or requirement of the nature referred to in this Paragraph 1.05. The Government shall not be required to join in or assist the

Lessee in any such proceedings. Lessee’s right to contest hereunder shall not constitute a default under Paragraph 7.01(a) if:

(i) Payment is not yet due or compliance is not yet required under any law, ordinance, order, rule, regulation, or requirement referred to under this Paragraph 1.05, or proceedings to contest the same suspends payment or compliance thereunder;

(ii) Lessee shall give the Government reasonable notice of, and information pertaining to, such contest and regular progress reports with respect thereto; and

(iii) Lessee shall indemnify, protect, and hold harmless the Government and the Leased

Premises from any lien or liability with respect to any contest thereof.

1.06. Condition of the Leased Premises. The Lessee agrees that it has inspected, knows, and accepts the condition and state of repair of the Leased Premises. It is understood and agreed that the Leased Premises are leased in an “as is, where is” condition without any representation or warranty by the Government concerning their condition, and without obligation on the part of the

Government to make any alterations, repairs, or additions. The Government shall not be liable for any latent or patent defects in the Leased Premises under this Lease. The Lessee acknowledges that, pursuant to this Lease, the Government has made no representation or warranty concerning the condition and state of repair of the Leased Premises nor any agreement or promise to alter, improve, adapt, or repair them that has not been fully set forth in this Lease.

The Lessee represents, warrants, and acknowledges that it has entered into this Lease on the basis of its own full investigation of all facts and conditions underlying or relating to the Leased

Premises and the development and use of the Leased Premises, including without limitation, environmental conditions, and that it has solely relied upon its own investigation. Given the Lessee’s deemed knowledge of the facts and conditions affecting the Leased Premises, the Lessee shall exercise the appropriate level of care when conducting any ground disturbing activities to ensure that such activities do not result in the release of any Environmentally and Safety

Regulated Materials, as defined in Paragraph 4.03(a). The Lessee shall also be responsible for exercising the appropriate level of care as described in this Paragraph 1.06 with respect to any underground pipes and related infrastructure that may exist within the Leased Premises. The

Lessee waives any claim or cause of action the Lessee may have against the Government under any federal, state, interstate, or local law, ordinance, rule or regulation now existing or hereafter enacted or promulgated, relating to environmental matters or conditions, in, on, under, about or migrating from or onto the Leased Premises, or by virtue of any common law right related to environmental conditions or matters in, on, under, about or migrating from or onto the Leased

Premises except for:

(i) Any pre-existing environmental conditions, including without limitation any release of

Environmentally and Safety Regulated Materials arising prior to the Beginning Date of this

Lease, requiring response under applicable law that are attributable to the Government and that are not exacerbated by the Lessee; and

(ii) Any release of Environmentally and Safety Regulated Materials caused by the

Government that migrate onto the Leased Premises and that are not exacerbated by the Lessee.

The provisions of this Paragraph 1.06 shall survive the expiration of this Lease.

1.06(a). Physical Condition Report. A physical condition report (“PCR”) signed by representatives of the Government and the Lessee is attached to this Lease as Exhibit E. The

PCR sets forth the agreed physical appearance and condition of the Leased Premises on the Beginning Date as determined from a joint inspection by the Parties. If a differing site condition is encountered, the PCR shall be amended to identify such condition. A separate PCR (“Final

PCR”) for the Leased Premises will be prepared and signed by the Parties, after the expiration or earlier termination of this Lease. The Final PCR will be prepared at the Lessee’s expense and will set forth the actual physical appearance and condition of the Leased Premises on the ending date of this Lease as determined from a joint inspection by the Parties. The Final PCR will be used, in conjunction with the Final ESA (see Paragraph 1.06(b) below), by the Government in determining whether the Lessee has fulfilled its obligations to maintain and restore the Leased

Premises to their condition at the Beginning Date under this Lease including without limitation, Section 4 and Section 6.

1.06(b). Environmental Condition of Property Report. An Environmental Condition of

Property (ECP) Report of the Leased Premises was completed on ______________, and is attached to this Lease as Exhibit F. The ECP sets forth those environmental conditions and matters on and affecting the Leased Premises on the Beginning Date, as determined from the records and analyses reflected in the ECP. If a differing site condition is encountered, the ECP shall be amended to identify such condition. The ECP is not, and shall not constitute, a representation or warranty on the part of the Government regarding the environmental or physical condition of the Leased Premises, and the Government shall have no liability in connection with the accuracy or completeness thereof. In this regard the Lessee acknowledges and agrees that the

Lessee has relied, and shall rely, entirely on its own investigation of the Leased Premises in determining to enter into this Lease. A separate ECP (“Final ECP”) for the Leased Premises will be prepared and signed by the Parties, after the expiration or earlier termination of this Lease.

The Lessee, at the Lessee’s sole cost, using an environmental professional acceptable to the

Government, shall prepare the Final ECP in the format specified in Army Regulation 200-1, as amended, revised or replaced. The Final ECP will document the environmental conditions and matters on and affecting the Leased Premises on the Ending Date of the Lease as determined from the records and analyses reflected therein. The Final ECP will be used by the Government in determining whether the Lessee has fulfilled its obligations to maintain and restore the Leased

Premises to their condition at the Beginning Date under this Lease, including without limitation, Section 4 and Section 6.

SECTION 2—RENT, REIMBURSEMENTS, AND TAXES

2.01. Consideration.

2.01(a). Rent. [Specific Terms TBD] The Lessee shall provide to the Government annual Rent of __________ ($______) dollars for each year of the Term.

2.01(b). Proration of Rent. If the Term does not begin on the first day or end on the last day of a month, the Rent for that partial month shall be prorated by multiplying the monthly Rent by a fraction, the numerator of which is the number of days of the partial month included in the Term and the denominator of which is the total number of days in the full calendar month.

2.02. Reimbursements. (Subject to revisions based upon services that may be provided by the Installation) All sums other than Rent payable by the Lessee to the Government under this Lease, including but not limited to all items of reimbursement, such as reimbursement for police and fire protection services and water provided by the Government, if applicable, shall be collectively deemed reimbursements (“Reimbursements”). Any request by the Government to the Lessee for

Reimbursements under this Lease shall identify the expenses included in such reimbursement request, the terms of payment, and the account into which such Reimbursements must be paid.

The Lessee shall pay all Reimbursements when due without deduction or offset, unless specifically provided under this Lease.

2.03. Payments. All consideration due to the Government by the Lessee, including

Reimbursements, shall be paid:

(i) without advance notice, demand, offset, or deduction, and

(ii) when due.

All payments due hereunder shall be made by check, payable to the order of the Finance and

Accounting Office at c/o ___________________________________.

2.04. Penalty Charges.

2.04(a). Assessment of Penalty Charges. If the Lessee fails to fully pay any Rent or

Reimbursement within thirty (30) business days after it is due, the Lessee shall also pay:

(i) interest, consistent with the Debt Collection Act of 1982 (31 U.S.C. § 3717), as amended, from the due date at the rate prescribed by the Secretary of the Treasury for amounts past due to the federal government until paid in full;

(ii) an administrative charge to be determined by the Government to cover the costs of processing and handling delinquent debts; and

(iii) an assessment of an additional penalty charge equal to eighteen (18) percent per annum or the maximum then allowed by applicable law, whichever is less, on any portion of a debt that is more than ninety (90) days past due on the remaining unpaid balance, retroactive to the date originally due until paid.

2.04(b). Payment of Penalty Charges. All payments received will be applied first to any accumulated interest, administrative and penalty charges and then to any unpaid Rent or other payment balance. Interest will not accrue on any administrative or late payment penalty charges.

No interest or administrative charges shall be imposed by the Government on any late payment if the Lessee pays the amount due within thirty (30) days after receiving written notice from the

Government that such amount is past due and the amount thereof. This thirty (30) day period may be extended at the Government’s sole discretion. No penalty shall be imposed by the

Government on any late payment if the Lessee pays the amount due within ninety (90) days after receiving written notice from the Government that such amount is past due and the amount thereof. Notwithstanding the foregoing, the Government shall not impose any interest, administrative charge or penalty upon the Lessee while the Lessee, in good faith, is disputing the amount of the payment, so long as the Lessee pays to the Government any undisputed amount thereof.

2.05. Taxes.

(i) Before delinquency, the Lessee shall be responsible for paying all taxes, assessments and similar charges applicable to the Lessee during the Term of this Lease. The term

"taxes" as used in this Lease shall include all real property taxes on the improvements, the various estates in the improvements and the land, and any other taxes applicable to the

Lessee’s activities on the Leased Premises. The term "taxes" shall also include all personal property taxes levied on the property used in the operation of the improvements; taxes of every kind and nature levied and assessed in lieu of, in substitution for, or in addition to, existing or additional real or personal property taxes on the improvements, Leased

Premises, or personal property, whether or not now customary or within the contemplation of the Parties to this Lease.

(ii) If and to the extent the leased property comprising the Leased Premises is later made taxable by state or local governments under an Act of Congress, this Lease shall be renegotiated.

SECTION 3—REPRESENTATIONS, WARRANTIES, AND COVENANTS

3.01. Lessee’s Representations, Warranties, and Covenants. The Lessee hereby makes the following representations, warranties and covenants, solely for the benefit of the Government and its respective successors and assigns, as of the Beginning Date:

(i) During the Term of this Lease, the Lessee shall use the Leased Premises solely for the uses of the Leased Premises set forth in this Lease.

(ii) The Lessee is a duly organized, validly existing Corporation and in good standing under the laws of the state of ___________.

(iii) The person executing this Lease on behalf of the Lessee has the full right, power and authority to execute and deliver this Lease as the Lessee’s act and deed and to bind the

Lessee hereto. The Lessee has the full right, power and authority to obtain, and has obtained all necessary authorizations and consents, to enter into and perform its obligations under this Lease.

(iv) The Lessee has the full right, power and authority to obtain, and has obtained all necessary authorizations and consents, to enter into and perform its obligations under this

Lease;

(v) This Lease is a legal, valid and binding obligation of the Lessee, enforceable against the

Lessee in accordance with its terms.

(vi) The execution and delivery of this Lease by the Lessee will not result in a breach of the terms or provisions of, or constitute a default (or a condition that, upon notice or lapse of time, or both, would constitute a default) under its organizational documents or any indenture, agreement or obligation by which the Lessee is bound, and will not constitute a violation of any applicable laws.

(vii) The Lessee has not incurred, directly or indirectly, any obligation to pay any real estate commission, brokerage commission or finder’s fee to any agent, broker, salesperson or finder in connection with this transaction.

3.02. Government’s Representations, Warranties, and Covenants. The Government hereby makes the following representations, warranties and covenants, solely for the benefit of the

Lessee, and its respective successors and assigns hereunder, as of the Beginning Date:

(i) The Government has full right, power and lawful authority to enter into this Lease on behalf of the United States of America in accordance with the terms hereof and to grant the estate demised hereby, and the person executing this Lease on behalf of the Government has the full right, power and authority to execute and deliver this Lease and to bind the

Government hereto.

(ii) This Lease is a legal, valid and binding obligation of the Government, enforceable against the Government in accordance with its terms.

SECTION 4—ENVIRONMENTAL MATTERS

4.01. Lessee’s Compliance with Environmental Laws. The Lessee shall comply, at its sole cost and expense, with all Environmental Laws that are or may become applicable to the Lessee’s activities on the Leased Premises, including but not limited to all applicable federal, state, and local laws, regulations, and other requirements relating to occupational safety and health, the handling and storage of hazardous materials, and the proper generation, handling, accumulation, treatment, storage, disposal, and transportation of hazardous wastes. The Lessee shall at its own expense maintain in effect any permits, license or other governmental approvals relating to Environmentally and Safety Regulated Materials, if any, required for the Lessee’s use, and cause each sublessee, if any, to maintain in effect any such permits, license or other governmental approvals, if any, required for such sublessee’s use, of the Leased Premises. The Lessee shall be required to obtain its own U.S. Environmental Protection Agency Identification Number, if applicable. The Lessee shall make all disclosures required of the Lessee by any such

Environmental Laws, and shall comply with all orders, with respect to the Lessee’s and its sublessees’, employees’, agents’, contractors’ and invitees’ use of the Leased Premises, issued by any governmental authority having jurisdiction over the Leased Premises and take all action required by such governmental authorities to bring the Lessee’s and its sublessees’, employees’, agents’, contractors’ and invitees’ activities on the Leased Premises into compliance with all

Environmental Laws affecting the Leased Premises. All hazardous materials used on the Leased Premises by the Lessee shall be accompanied with appropriate Material Safety Data Sheets. The

Lessee shall submit copies of Material Safety Data Sheets to the Government and retain a copy of each Material Safety Data Sheet onsite in compliance with all Applicable Laws and Installation regulations. The Lessee shall not accumulate any hazardous wastes on site in excess of the time periods prescribed by Environmental Laws and all wastes leaving the Leased Premises will be manifested in accordance with Installation environmental programs and requirements.

4.02. Lessee’s Plans. Prior to commencement of activities on the Leased Premises, the Lessee shall have an Environmental Compliance Plan that describes, in detail, the environmental management and method of compliance by Lessee for its use and operation on the Leased

Premises, as well as a Spill Contingency Plan approved by the Installation that describes how Lessee will respond to hazardous waste, fuel, or other chemical spills as defined in Paragraph

4.03 below. Spill response must be in accordance with 40 CFR 300 and applicable state and local regulations. Such plan shall be independent of the Installation Spill Contingency Plan and, except for initial fire or emergency response and/or spill containment, shall not rely on the use of Installation personnel or equipment. Should the Installation provide any personnel or equipment, whether for initial fire response and/or spill containment, or otherwise on request of the Lessee, or because the Lessee was not, in the opinion of the Installation Commander or his or her designated representative, conducting timely cleanup actions, the Lessee shall reimburse the

Government for its response costs and hold the Government harmless for any activity during such response.

4.03. Required Government Approval. The Lessee must obtain written Government approval as required by 10 U.S.C. § 2692, prior to storing, treating, or disposing of any toxic or hazardous material on the Leased Premises. Toxic or hazardous material includes any material that is a “hazardous substance” under section 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9601(14), or designated a

“hazardous substance” by the U.S. Environmental Protection Agency under section 102 of

CERCLA, 42 U.S.C. § 9602. Toxic or hazardous material also includes any material that is explosive, flammable, or pyrotechnic. The Lessee shall ensure any subleases, licenses, rights of entry, or other use agreements the Lessee issues for the Leased Premises contain a similar requirement for obtaining prior Government written approval for the storage, treatment, or disposal of toxic or hazardous material on the Leased Premises. The Lessee shall be responsible for any violations of these requirements by its agents, sublessees, licensees, contractors or invitees, and any successor or successors in interest in or to any of the Leased Premises. The

Lessee shall be responsible for the cost of proper disposal of any hazardous waste generated by its agents, sublessees, licensees, contractors or invitees, and any successor or successors in interest in or to any of the Leased Premises in the event of failure by them to dispose of such wastes properly. If approval to store, treat, or dispose of toxic or hazardous material on the Leased

Premises is obtained, Lessee shall have a Hazardous Waste Management Plan approved by the Government and Lessee must also comply with the Installation’s Hazardous Waste Management

Plan.

4.04. Definitions.

4.04(a). Environmentally and Safety Regulated Materials. Notwithstanding Paragraph 4.03, the term “Environmentally and Safety Regulated Materials’’ means any substance that is at any pertinent time defined or listed in, or otherwise classified, designated, or regulated pursuant to, any Environmental Law as a hazardous substance, hazardous material, extremely hazardous substance, hazardous waste, hazardous chemical, infectious waste, toxic substance, toxic pollutant or solid waste, or any other legislative or regulatory formulation intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, toxicity, including, without limitation, friable asbestos and polychlorinated biphenyls and also including oil and petroleum, petroleum products, by-products and wastes, and by-products associated with the extraction, refining, or use of petroleum or petroleum products, whether or not so defined, listed, classified, designated or regulated in

“Environmental Laws’’, as defined in Paragraph 4.04(b) below.

4.04(b). Environmental Law. The term “Environmental Law’’ means any statute, law, act, ordinance, rule, regulation, order, decree, or ruling of any federal, state, interstate, and/or local governmental, quasi-governmental, legislative, administrative or judicial body, agency, board, commission or other authority applicable to the Lessee’s use of the Leased Premises relating to the protection of health and/or the environment or otherwise regulating and/or restricting the use, storage, disposal, treatment, handling, release, and/or transportation of Environmentally and

Safety Regulated Materials, including, without limitation, CERCLA, the Solid Waste Disposal Act, the Federal Water Pollution Control Act, the Clean Air Act, the Hazardous Materials

Transportation Act, the Toxic Substances Control Act, the Emergency Planning and Community

Right To Know Act, and the environmental control laws of the state of [TBD], each as now or hereafter amended, and all regulations promulgated thereunder.

4.05. Lessee’s Indemnification. The Lessee shall indemnify and hold harmless the Government, from any and all claims for damages, costs, expenses, liabilities, fines, or penalties, including the Government’s cost of defending against such claims, arising from or caused in whole or in part, directly or indirectly, by:

(i) the presence in, on, under, or about the Leased Premises or any discharge or release in or from the Leased Premises of any Environmentally and Safety Regulated Materials to the extent that any such presence, discharge, or release is caused by the Lessee’s activities, or the activities of any of the Lessee’s sublessees, employees, agents, contractors or invitees, or

(ii) The Lessee’s failure to comply with its covenants under this Section 4.

The indemnity obligations created by this Paragraph 4.05 shall include, without limitation, whether foreseeable or unforeseeable, any and all costs incurred in connection with any site investigation, and any and all costs for repair, cleanup, detoxification or decontamination, or other remedial action of the Leased Premises. This obligation shall survive the expiration or termination of this Lease, and the Lessee’s obligations hereunder shall apply whenever the

Government incurs costs or liabilities for the Lessee’s actions of the types described in this

Section 4.

4.06. Required Notices and Government’s Right of Inspection.

4.06(a). Required Notices. If at any time either Party shall become aware, or have reasonable cause to believe, that any Environmentally and Safety Regulated Materials have been released or have otherwise come to be located on or beneath the Leased Premises,…