CACO_Armstrong-Dune-Shack_RFP_Attachment-A_Sample-Lease_final.pdf

Attachment A: Sample Lease

LEASE

between

UNITED STATES OF AMERICA

UNITED STATES DEPARTMENT OF THE INTERIOR

NATIONAL PARK SERVICE

and

[INSERT NAME OF LESSEE HERE]

for the Premises known as

ARMSTRONG DUNE SHACK

NPS Lease# L-CACOARM-27 ii

Table of Contents Attachment A: Sample Lease

Section 1. DEFINITIONS

1.1. Additional Rent

1.2. Alterations

1.3. Applicable Laws

1.4. Annual Rent

1.5. Assignment

1.6. Commencement Date

1.7. Construction Documents

1.8. Encumbrance

1.9. Expiration Date

1.10. Fixtures

1.11. Force Majeure

1.12. Hazardous Materials

1.13. Hazardous Materials Occurrence

1.14. Historic Property

1.15. Improvements

1.16. Initial Improvements

1.17. Interest Rate

1.18. Inventory and Condition Report

1.19. Lease Term

1.20. Lease Year

1.21. Notice of Default

1.22. NPS 28

1.23. Park Area

1.24. Part 18

1.25. Personal Property

1.26. Pre-existing Hazardous Materials

1.27. Premises

1.28. Preservation Maintenance Plan

1.29. Rent

1.30. Secretary’s Treatment Standards

1.31. Sublease

1.32. Termination Date

iii

Section 2. LEASE OF PREMISES

2.1. Lease of Premises; Reservation of Rights

2.2. Waiver of Claims

2.3. Easements

2.4. Ownership of the Premises

2.5. Historic Property

Section 3. ACCEPTANCE OF THE PREMISES

3.1. “As Is” Condition of the Premises

3.2. Lessee’s Due Diligence

3.3. Inventory and Condition Report

Section 4. LEASE TERM AND ABANDONMENT

4.1. Lease Term

4.2. Abandonment

Section 5. RENT

5.1. Net Lease and Rent Payments

5.2. Annual Rent

5.3. CPI Adjustment

5.4. Percentage Rent

5.5. Rent Reconsideration

5.6. Excusal of Rent

5.7. Rent Offsets

Section 6. USES OF PREMISES

6.1. Authorized Uses

6.2. Changes to Authorized Uses

6.3. Compliance with Applicable Laws

6.4. Prohibited Uses

6.5. Site Disturbance

6.6. Protection of Cultural and Archeological Resources

6.7. Signs

6.8. Permits and Approvals

6.9. Alterations

Section 7. RECORDS AND AUDITS

Section 8. INITIAL IMPROVEMENTS BY LESSEE

Section 9. CONSTRUCTION APPROVAL

9.1. In General

iv

9.2. Delay Caused by a Force Majeure

9.3. Utilities During Construction

9.4. Site Inspection

9.5. Approval of Construction

9.6. Construction Documents

9.7. General Scope of Lessor’s Review

9.8. Changes to Approved Construction Documents

9.9. Special Considerations for Historic Property

9.10. Evidence of Adequate Funds

9.11. Notice to Proceed

9.12. Construction Completion Procedures

9.13. Lessor’s Right to Utilize Construction Documents

Section 10. MAINTENANCE AND REPAIR

10.1. Lessee’s Responsibilities

10.2. Maintenance Plan

10.3. Preservation Maintenance Plan

10.4. Maintenance Reserve Account

Section 11. UTILITIES

Section 12. HAZARDOUS MATERIALS

Section 13. INSURANCE AND INDEMNIFICATION

13.1. Insurance During the Lease Term

13.2. Insurance Requirements Modification

13.3. Disposition of Insurance Proceeds

13.4. Inadequate Insurance Coverage

13.5. Indemnification of Lessor

Section 14. DAMAGE OR DESTRUCTION

14.1. Damage or Destruction; Duty to Restore

14.2. No Termination; No Effect on Rental Obligation

Section 15. LIENS

15.1. No Power in Lessee to Create

15.2. Discharge of Liens by Lessee

15.3. No Consent or Request by Lessor

Section 16. ASSIGNMENTS AND ENCUMBRANCES

16.1. Assignments

16.2. Encumbrances

v

16.3. Transfer Premium

Section 17. DEFAULTS AND LESSOR’S REMEDIES

17.1. Termination for Default

17.2. Bankruptcy

17.3. No Waiver

17.4. Lessor’s Right to Cure Defaults

Section 18. SURRENDER AND HOLDING OVER

18.1. Surrender of the Premises

18.2. Holding Over

Section 19. NONDISCRIMINATION AND EMPLOYMENT LAWS

Section 20. NOTICES

Section 21. GENERAL PROVISIONS

EXHIBIT A: Inventory and Condition Report

EXHIBIT B: Insurance Requirements

EXHIBIT C: Maintenance Plan

EXHIBIT D: Preservation Maintenance Plan

EXHIBIT E: Lease Premises Map

THIS LEASE (Lease) is entered into by and between the United States of America (Lessor), acting through the National Park Service (NPS), an agency of the United States Department of the Interior, and (Lessee).

WITNESSETH THAT:

WHEREAS, the NPS administers Cape Cod National Seashore (Park Area) as a unit of the National Park System in accordance with the NPS Organic Act, Act of Aug. 25, 1916, ch. 408, 39 Stat. 535, codified as amended in scattered sections of 54 U.S.C.; other laws applicable generally to units of the National Park System; and any laws applicable specifically to Cape Cod National Seashore;

WHEREAS, the Park Area contains property that has been determined suitable for leasing under Part 18 of Title 36 of the Code of Federal Regulations;

WHEREAS, the Lessor has determined that the use and occupancy of the property that is made available under this Lease is consistent with the Park Area’s General Management Plan, the 2012 Dune Shack Historic District Preservation and Use Plan/Environmental Assessment/Assessment of Effect, and the requirements of Part 18 of Title 36 of the Code of Federal Regulations; and

WHEREAS, the Lessee desires to lease the property on the terms and conditions set forth in this Lease.

NOW THEREFORE, in consideration of their mutual promises, the Lessor and the Lessee hereby agree as follows:

Section 1. DEFINITIONS

In this Lease, the following terms (whether appearing in the singular or plural form) have the following definitions:

1.1. Additional Rent means all forms of Rent required by this Lease other than the Rent required by Section 5.

1.2. Alterations means any construction, modifications, rehabilitation, reconstruction, or restoration of the Premises, or installation of Fixtures thereto, other than Initial Improvements. Alterations do not include minor repairs such as replacing individual shingles or panes of glass. Please refer to the Quick User’s Guide to Dune Shack Maintenance for guidance of the types of repairs that can be performed without Park approval.

1.3. Applicable Laws means all present and future law or legal authority, including statutes, ordinances, regulations, and administrative or judicial orders or determinations, enacted, promulgated, or issued by federal, state, or local governmental entities or agencies having lawful jurisdiction over the Premises or the Lessee, that apply to and govern the Premises or the Lessee’s activities on the Premises.

1.4. Annual Rent means the annual fixed rent to be paid to the Lessor by the Lessee under Section 5 of this Lease.

1.5. Assignment means the transfer, whether it is direct or indirect, voluntary or by operation of law, of the Lessee’s leasehold estate or the Lessee’s rights under this Lease in whole or part. Such transfer may be designated as a sale, conveyance, or assignment. The sale, conveyance, or assignment (including by consolidation, merger, or reorganization) of a controlling interest in the Lessee (if such entity is a corporation), or any sale or other transfer of a controlling interest in the partnership interests (if such entity is a partnership), whether in a single transfer or in a series of related transfers, and whether directly or by sales or transfers of underlying partnership or corporate ownership interests, is an Assignment. For a corporate entity, the term “controlling interest” means an interest, beneficial or otherwise, of sufficient outstanding voting securities or capital of the Lessee so as to permit exercise of managerial authority over the actions and operations of the Lessee. For a partnership, limited partnership, joint venture, limited liability company, or individual entrepreneur, “controlling interest” means the beneficial ownership of the capital assets of the Lessee so as to permit exercise of managerial authority over the actions and operations of the Lessee.

1.6. Commencement Date means the first day of the Lease term as stated in Section 4 of this Lease.

1.7. Construction Documents means all drawings, plans, specifications, or other documents that describe a proposed Improvement to the Premises in sufficient detail to enable the Lessor to approve construction of the Improvement.

1.8. Encumbrance means the direct or indirect, voluntary or by operation of law, encumbrance, pledge, mortgage, or other hypothecation of the Lessee’s leasehold estate, some or all of the Lessee’s interests or rights under this Lease, or the Premises themselves.

1.9. Expiration Date means the last day of the Lease Term as stated in Section 4 of this Lease.

1.10. Fixtures means items of personal property of independent form and utility necessary for the basic functioning of the Premises that are affixed to and considered to be an irremovable part of the Premises such that title is with the Lessor as real property once installed. Fixtures do not include removable trade fixtures.

1.11. Force Majeure means an act, event, or condition that can be neither anticipated nor controlled and that objectively prevents the Lessee from performing one or more of its obligations under this Lease. The term “Force Majeure” does not include any act, event, or condition that the Lessee reasonably may anticipate or control; it does not include market conditions, economic conditions, or the Lessee’s financial inability to perform its obligations under this Lease; and it does not include changes in Applicable Laws, except that the Lessor may determine that it includes an order issued by a governmental entity with jurisdiction over the Premises that prevents the Lessee’s use or occupancy of the Premises for the authorized purposes set forth in Section 6.1 of this Lease.

1.12. Hazardous Materials means any material or other substance: (a) that requires investigation, correction, or abatement under Applicable Laws; (b) that is or becomes defined as a hazardous waste, hazardous substance, pollutant, or contaminant, under Applicable Laws; (c) that is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic, or otherwise hazardous, and is or becomes regulated under Applicable Laws; (d) that contains gasoline, diesel fuel or other petroleum hydrocarbons; (e) that contains polychlorinated biphenyls (PCBs), asbestos or urea formaldehyde foam insulation; or (f) that contains radon gas. The term Hazardous Materials as used in this Lease includes Pre-existing Hazardous Materials unless otherwise stated in a particular provision of this Lease.

1.13. Hazardous Materials Occurrence means any use, treatment, keeping, storage, sale, release, disposal, migration, transport, or discharge of any Hazardous Materials from, on, under, or into the Premises or other Park Area property that occurs during the Lease Term.

1.14. Historic Property means building(s) and land located within the boundaries of the Park Area that are part of a pre-historic or historic district or site included on, or eligible for inclusion on, the National

Register of Historic Places.

1.15. Improvements means permanent additions to the Premises that increase its value or utility or enhance its appearance, regardless of who makes the additions. The term “Improvements” includes both Alterations and Initial Improvements.

1.16. Initial Improvements means any construction, modification, rehabilitation, reconstruction, or restoration of the Premises, or installation of Fixtures thereto, that the Lessee is required to make upon commencement of this Lease in accordance with Section 8.

1.17. Interest Rate means the percentage of interest charged based on the Current Value of Funds to the United States Treasury that is published annually in the “Federal Register” or successor publication.

1.18. Inventory and Condition Report means the document attached to this Lease as Exhibit A that describes (a) the Personal Property owned by the Lessor that is made available to the Lessee for the Lessee’s use and (b) the condition of the Premises, including Personal Property owned by the Lessor, as of the Commencement Date.

1.19. Lease Term means the term of this Lease as stated in Section 4 of this Lease.

1.20. Lease Year means a year of the Lease Term. The first Lease Year will commence on the Commencement Date and will end on the expiration of the twelfth full calendar month following thereafter. Each subsequent Lease Year will commence on the next day following the expiration of the preceding Lease Year and will end on the expiration of the twelfth full calendar month following thereafter or on the last day of the Lease Term, whichever occurs first.

1.21. Notice of Default means an instrument in writing from the Lessor to the Lessee providing notice of that the Lessee is in default of the Lease.

1.22. NPS 28 means the National Park Service document entitled “Cultural Resource Management Guideline,” which is hereby made a part of this Lease by reference.

1.23. Park Area means Cape Cod National Seashore.

1.24. Part 18 means Part 18 of Title 36 of the Code of Federal Regulations.

1.25. Personal Property means all furniture, trade fixtures, equipment, appliances, supplies, inventory, and any other movable things subject to ownership placed in or on the Premises that are neither permanently attached to nor form a part of the Premises.

1.26. Pre-existing Hazardous Materials means Hazardous Materials (including storage tanks) that existed in, on, or under the Premises or other lands or waters within the Park Area prior to the Commencement Date of this Lease.

1.27. Premises means the real property of the Park Area that is described in Section 2 of this Lease, including all Improvements thereon as of the Commencement Date and all Improvements made to the Premises during the term of this Lease by either party. For the purposes of this Lease, “Premises” also includes any Personal Property owned by the Lessor that is made available to the Lessee for the Lessee’s use under this Lease.

1.28. Preservation Maintenance Plan means a document that sets forth a plan for the Lessee’s repair and maintenance of Historic Property.

1.29. Rent means the rent to be paid to the Lessor by the Lessee, as described in Section 5 of this Lease, and any Additional Rent this Lease may require.

1.30. Secretary’s Treatment Standards means the Secretary of the Interior’s Treatment Standards for Historic Property, codified at 36 C.F.R. pt. 68, which are hereby incorporated into and made a part of this Lease by reference.

1.31. Sublease means an agreement under which the Lessee transfers to a person or entity (a Sublessee) the right to possession to a portion or all of the Premises.

1.32. Termination Date means the date when this Lease is terminated or cancelled in accordance with its terms prior to the Lease’s Expiration Date.

Section 2. LEASE OF PREMISES

2.1. Lease of Premises; Reservation of Rights

(a) The Lessor hereby leases to the Lessee, and the Lessee hereby leases from the Lessor, upon and subject to the covenants and agreements contained in this Lease, the Premises described as follows:

The historic property identified as the “David and Connie Armstrong Shack” on the National Register of Historic Places, a.k.a. the “Armstrong Shack”. The site of the Armstrong Shack is southwest of CACO Tract #08-8647 and is located at the east end of the Peaked Hill Bars Historic District in the town of Truro, Massachusetts, about 0.8 miles northwest of High Head Road. The shack is a two-story building, constructed of a balloon frame set on wood posts sunk into the slope of the dune and bolted to concrete slabs below grade. It has a roughly square 21 x 22-foot plan with a small 7-foot-wide ell at the west end of the south (rear) elevation. A Lease Premises Map is included as Exhibit E.

(b) Subject to all Applicable Laws and all easements, rights-of-way, liens or other encumbrances, or other matters of public record affecting the Premises;

(c) Excepting and reserving to the Lessor the right, at reasonable times and, except in case of emergency, following advance notice to the Lessee, (i) to enter onto the Premises, or to authorize other governmental entities, public or private utilities, or persons to enter upon the Premises, when necessary to administer this Lease or the Park Area, or (ii) to restrict access to or close the Premises to protect public health or safety or Park Area resources; and

(d) Excepting and reserving exclusive rights to all oil, gas, hydrocarbons, and other minerals in, under, or on the Premises and ownership of any current or future water rights appurtenant to the Premises.

(e) The Lessor has the right to possess and utilize keys necessary to access all areas of the property, to ensure Lessor’s access in the case of emergency, or to restrict access to or close the Premises to protect health, safety, or Park Area resources. Lessor will notify Lessee at least 24 hours in advance of Lessor’s need to access or enter, to the extent practical. The Lessee will not add or alter locks required to access the property without prior authorization from the Lessor.

2.2. Waiver of Claims

The Lessee hereby waives all claims for damages for any injury or inconvenience to or interference with the Lessee’s use and occupancy of the Premises, any loss of occupancy or quiet enjoyment of the Premises, or any other loss occasioned by the Lessor’s exercise of its rights under this Lease or by the Lessor’s actions to manage or protect the Park Area’s resources and visitors.

2.3. Easements

The Lessee may not grant any type of easement or right-of-way affecting the Premises. The Lessor may grant such rights-of-way for utilities as the Lessee may require in connection with the use and occupancy of the Premises.

2.4. Ownership of the Premises

This Lease does not vest in the Lessee any fee interest in the Premises or Improvements thereon. Title to the Premises and Improvements at all times is with, and will remain solely with, the Lessor.

2.5. Historic Property

The Premises (or portions of the Premises) are Historic Property.

Section 3. ACCEPTANCE OF THE PREMISES

3.1. “As Is” Condition of the Premises

The Lessee agrees to lease the Premises in their existing “as is” condition and acknowledges that in entering into this Lease, the Lessee does not rely on, and the Lessor does not make, any express or implied representations or warranties as to any matters, including any characteristics of the Premises or Improvements thereon, the suitability of the Premises for the intended use, the likelihood of deriving trade from or other characteristics of the Park Area, the economic or programmatic feasibility of the Lessee’s use and occupancy of the Premises, or Hazardous Materials on or in the vicinity of the Premises.

3.2. Lessee’s Due Diligence

Prior to entering into this Lease, the Lessee, in the exercise of due diligence, has made a thorough, independent examination of the Premises and all matters relevant to the Lessee’s decision to enter into this Lease, and the Lessee is thoroughly familiar with all aspects of the Premises and is satisfied that they are in an acceptable condition and meet the Lessee’s needs.

3.3. Inventory and Condition Report

In the exercise of its due diligence, the Lessee has reviewed the Inventory and Condition Report (Exhibit A) and acknowledges that it is complete and accurate.

Section 4. LEASE TERM AND ABANDONMENT

4.1. Lease Term

The Lease Term will be a period of ten years (10) years commencing on (Commencement Date) and expiring on (Expiration Date) or ending on such earlier date as this Lease may be terminated in accordance with its terms (Termination Date.

If the Lessor chooses to continue to lease the Premises for the same or similar use after the Expiration

Date, Lessor may begin the process of selecting a Lessee for the next Lease Term before the expiration of the current Lease Term to allow for an orderly transition from the Lessee to a successor Lessee or, in the event the successor Lessee is the same as the current Lessee, to allow for uninterrupted occupancy.

Nothing herein shall be construed as binding the Lessor to release a Request for Proposals or select a Lessee for any successor lease by any particular date.

4.2. Abandonment

The Lessee must utilize the Premises for a minimum of ten (10) days each Lease Year between the Friday before Memorial Day through Labor Day. If it fails to do so, the Lessor may determine that the Lessee is in default of this Lease for abandoning the Premises. Occupancy is not required if the Lessor determines it is infeasible because of the construction of Improvements or a Force Majeure.

Section 5. RENT

5.1. Net Lease and Rent Payments

(a) All Rent will be absolutely net to the Lessor without any abatement, deduction, counterclaim, set-off or offset, except as may be provided for in accordance with the terms of this Lease. The Lessee must pay all costs, expenses, charges, and impositions of every kind and nature relating to the Premises, including all taxes and assessments.

(b) The Lessee must pay all Rent payments electronically or by other means as directed by the Lessor.

Interest at the Interest Rate will automatically accrue on overdue Rent payments in accordance with Applicable Laws. The Lessor may also impose penalties for late Rent payments in accordance with Applicable Laws.

5.2. Annual Rent

During the Lease Term, the Lessee must pay to the Lessor Annual Rent for the Premises in the aggregate annual amount of ($ ) (as adjusted for CPI if provided below) payable in advance in four equal quarterly installments. Rent for Quarter 1 of Lease Year 1 is due upon commencement of the Lease. Rent for Quarter 1 of Lease Years 2 through 10 will be due on the first day of [tbd], or 15 days after receiving notice of the CPI adjusted rent amount, whichever is later. For all Term Years, rent for Quarter 2 is due on the first day of [tbd]; rent for Quarter 3 is due on the first day of [tbd]; rent for Quarter 4 is due on the first day of [tbd].

5.3. CPI Adjustment

The Annual Rent will automatically increase effective as of the beginning of the second Lease Year and annually thereafter during the Lease Term to reflect the proportionate cumulative increase in the CPI, if any, during the previous Lease Year. For purposes of this section, CPI means the United States Department of Labor, Bureau of Labor Statistics, Consumer Price Index for all Urban Consumers (CPI- U): Northeast Region, or if such index is no longer published, a successor or substitute index designated by the Lessor, that shows changes in consumer prices in the locale of the Park Area.

5.4. Percentage Rent

Not applicable.

5.5. Rent Reconsideration

5.6. Excusal of Rent

In the event of a Force Majeure, the Lessor may excuse the Lessee from its obligation to pay Annual Rent for a period of time that the Lessor deems appropriate under the circumstances.

5.7. Rent Offsets

The Lessor will offset rent for Approved Costs of completed Initial Improvements incurred by the Lessee in accordance with the requirements of this Lease. The method and timing of such Rent Offsets will be agreed to by the Lessor and the Lessee provided that no Rent Offsets may be made in the absence of such an agreement.

The Lessee shall have no right or claim of compensation of any nature from the Lessor in the event of a termination, assignment, or expiration of this Lease in circumstances where the Approved Costs of Initial Improvements have not been applied by the Lessee to offset Annual Rent as of the date of such termination, assignment or expiration of this Lease.

Section 6. USES OF PREMISES

6.1. Authorized Uses

The Lessee may use the Premises only for the following purposes:

Lessee may use the dune shack for private occupancy, in accordance with federal, state and local law. The dune shack must be maintained and operated as a traditional dune shack. Lessee may not sublet the Premises, except as provided in Section 16.1, infra, nor may Lessee use the Premises as a vacation rental or other short-term rental property. Short-term access to the dune shacks for the purpose of artistic and educational programming (e.g., artist residencies, interpretive visitations, etc.) and/or other short-term usage by the general public is facilitated through NPS Partner not-for-profit organizations. To ensure usage remains consistent with authorized private occupancy, the Lessees may not solicit, offer, facilitate or operate similar programming or overnight stays for the general public at the Leased property without prior written approval from the Lessor.

The use and occupancy of the Premises shall be subject to the general supervision and approval of the Superintendent of Cape Cod National Seashore and to such reasonable rules and regulations regarding ingress, egress, safety, sanitation, and security as may be prescribed by him/her from time to time.

• Vehicular access to the property shall be from the closest point of park entry and in accordance with Cape Cod National Seashore off-road vehicle regulations. Vehicular entry to the Historic District is restricted to authorized vehicles and users of some areas require a key to the gated over sands corridor. Key issuance/replacement, changes to the lock, and other gate policy is determined by the Superintendent of Cape Cod National Seashore.

• Vehicular access to the shack will be permitted but not guaranteed. The Lessee may propose new routes as dune conditions change; construction of new routes shall be conditional upon the Superintendent’s prior written approval.

• Lessees will report to the NPS as soon as practical, all accidents involving personal injury other than minor first aid, and all property damage and fires occurring within the structures covered by this lease.

• Lessees will report any break-in or criminal activity to the NPS upon discovery or as soon thereafter as is practical.

• Before any motorized equipment authorized for construction is transported across non-leased NPS property, the Lessee shall notify the park via e-mail at CACO_Leasing@nps.gov, Monday through Friday, at least 24 hours in advance.

6.2. Changes to Authorized Uses

The Lessee may not use the Premises for a purpose other than the purposes described in Section 6.1 above without the Lessor’s prior written approval. The Lessor may, but is not obligated to, approve a requested change to authorized uses only if the Lessor has determined that the proposed use is consistent with all Applicable Laws, including Part 18 and the Park Area’s General Management Plan, and that the use will not have an adverse impact on the Lessor’s ability to manage and protect the Park Area’s resources and visitors.

6.3. Compliance with Applicable Laws

The Lessee must comply with all Applicable Laws in its use and occupancy of the Premises.

6.4. Prohibited Uses

In no event may the Premises be used for any purpose that is not permissible under Part 18 or, even if so permissible, may be dangerous to life, limb, property, or public health; that in any manner causes or results in a nuisance; that is of a nature that it involves substantial hazard, such as the manufacture or use of explosives, chemicals or products that may explode; that otherwise harms the health or welfare of Park Area resources or visitors; or that results in any discharge of Hazardous Materials in, on, or under the Premises.

• The dune shacks shall not be used for livestock, horses, storage of vehicles, trailers, etc.

• Because of the proximity of all of the dune shacks to potential sites of nesting shorebird colonies, unleashed/unrestrained dogs and cats are not permitted. For the safety of your pet and the protection of native wildlife, the Lessee and their guests are encouraged not to bring a pet to the shack. Pets are otherwise subject to conditions and prohibitions detailed in Code of Federal Regulations (CFR) 36

• No trailer, RV, or mobile home shall be placed, used, or maintained on the premises.

• The Lessee may not operate a business or commercial enterprise from the premises.

• The Lessee shall not conduct any activities which would unreasonably interfere with the public enjoyment or protection of wildlife of the national seashore, such as hosting large parties or gatherings, musical events or other noisy or intrusive activities, as determined by the Superintendent. Special events, such as wedding ceremonies and receptions, are generally subject to NPS approval and must be in accordance with federal, state, or local regulations. Reference the Cape Cod National Seashore Special Use Permit website for applicable details:

https://www.nps.gov/caco/planyourvisit/special-use-permits.htm

• The Lessee or its guests or invitees may not create new paths, trails or roads for vehicles or pedestrians.

• The Lessee is responsible for leaving the area clean and free of litter.

• Garbage burial or any other on-site disposal is not permitted. Lessee must provide and use animal-proof garbage cans that fully contain all garbage, compost, or recycling, as applicable.

• All waste, including compost, must be disposed of at an authorized site outside of the Cape Cod

National Seashore at reasonable intervals, as determined by the Superintendent, and is not mailto:CACO_Leasing@nps.gov https://www.nps.gov/caco/planyourvisit/special-use-permits.htm permitted to accumulate onsite. Reference the NPS “Leave No Trace Seven Principles” policy for additional guidance: https://www.nps.gov/articles/leave-no-trace-seven-principles.htm

The Lessee shall respect the NPS integrated pest management policy. This lease does not authorize the use of pesticides, herbicides, rodenticides, fertilizers or any other substance or mixture that is used in any manner to destroy, repel, or control the growth of any viral, microbial, plant or animal pest. All prospective users of a pesticide, herbicide, rodenticide, fertilizer, or similar pest management application in the park must submit a use request to the Lessor for pre-approval. Requests will be reviewed on a case-by-case basis, taking into account environmental effects and other relevant considerations. Personal insect repellants that Lessee personally obtains and uses to meet personal needs or to apply to personally owned pets does not require prior approval by the park. There should be no unauthorized storage of hazardous materials on the premises, including volatile products, pesticides, herbicides, rodenticides, and fertilizers.

6.5. Site Disturbance

The Lessee may not cut any timber or remove any other landscape features of the Premises such as shrubs, bushes, or beachgrass without the Lessor’s prior written approval. The Lessee may not conduct mining or drilling operations, remove sand, gravel, or similar substances from the ground, or commit waste of any kind on the Premises. The Lessee may remove poison ivy. Lessee’s use of herbicides or similar pest management applications to remove poison ivy is subject to the NPS integrated pest management policy described in Section 6.4 and requires submission of a Use Request form to the Lessor for pre-approval. Requests to use herbicides or similar pest management applications will be reviewed on a case-by-case basis, taking into account environmental effects and other relevant considerations.

6.6. Protection of Cultural and Archeological Resources.

The Lessee must ensure that no ground disturbance is undertaken without prior approval from the Lessor.

All of the lands of Cape Cod National Seashore are federally protected to ensure preservation of potential archeological resources. Only minor hand-shoveling of wind-blown sand for maintenance of shack and grounds is allowed without prior approval. Protected sites and archeological resources within the Park Area are not to be disturbed or damaged by the Lessee except in accordance with Applicable Laws and only with the prior written approval of the Lessor. Discoveries of any archeological resources by the Lessee must be promptly reported to the Lessor. The Lessee must cease work or other disturbance, which may impact any protected site or archeological resource until the Lessor may grant approval to continue upon such terms and conditions as the Lessor deems necessary to protect the site or resource.

6.7. Shorebird Protective Measures

In accordance with the Superintendent’s Compendium, Park management reserves the right to implement emergency road, trail, or area closures on a temporary basis to protect shorebirds. If Park staff determine that shorebirds are nesting, roosting, staging, migrating, or otherwise occupying space on the Premises or within the beach habitat adjacent to any dune shack, Park staff will put in place protective fencing, markers, and signage to close off the affected area. All dune shack lessees, guests, or contractors are strictly prohibited from entering these areas during the time the closures are in effect. The park will issue an annual letter to each dune shack lessee with current shorebird information and updates relevant to dune shack occupancy and use. Violations of this shorebird policy will be referred to the park’s Visitor and Resource Protection Law Enforcement Rangers.

6.7. Signs

https://www.nps.gov/articles/leave-no-trace-seven-principles.htm

The Lessee may not post signs on the Premises of any nature without the Lessor’s prior written approval.

The Lessor’s approval, if given, will specify the type, size, and other appropriate conditions concerning its display. The Lessor may post signs on the Premises as appropriate for the administration of the Park Area.

6.8. Permits and Approvals

Except as otherwise may be provided in this Lease, the Lessee is solely responsible for obtaining, at its expense, any permit or other governmental action necessary to permit its activities under this Lease.

6.9. Alterations

The Lessee may not make any Alterations of any nature to the Premises without the Lessor’s prior written approval. This includes landscaping or the planting of gardens due to the potential to alter wildlife food habits or introduce or spread non-native species within the historic landscape.

Section 7. RECORDS AND AUDITS

The Lessee must provide the Lessor and its agents and affiliates, including the Comptroller General of the United States, access to all books and records relating to the Premises and the Lessee’s use of the Premises under this Lease for the purpose of conducting audits to verify the Lessee’s compliance with the terms and conditions of this Lease for any of the five (5) preceding Lease Years. The Lessee must keep and make available to the Lessor these books and records at a location on the Premises or within the locale of the Park Area. Section 9.13, below, separately requires Lessee to maintain and deliver to the Lessor all architectural, engineering, and other drawings, plans, specifications, and studies relating to the Premises.

Section 8. INITIAL IMPROVEMENTS BY LESSEE

As a condition of this Lease and in accordance with Section 9 below, the Lessee must commence and engage diligently in the construction of the following Initial Improvements in accordance with Construction Documents approved by the Lessor. The Lessee must commence the construction of the Initial Improvements by and must complete construction by :

[Describe the Initial Improvements to be constructed. The description should be as detailed as possible and include a completion schedule or phasing schedule where applicable.]

[The following Initial Improvements will be required: Disconnect the current black-water waste system; install incinerating toilet, composting outhouse or similar self-containing waste alternative that meets current federal, state or local regulations, subject to pre-approval by the NPS. NPS will seek to minimize ground disturbance in the Peaked Hill Bars Historic District and sensitive dune areas.]

Section 9. CONSTRUCTION APPROVAL

9.1. In General

The Lessee may undertake Improvements to the Premises only with the Lessor’s prior written approval and only at the Lessee’s sole expense. The Lessee must undertake and complete all Improvements in strict accordance with all Applicable Laws and approved Construction Documents, and must ensure that all work is performed in a good and workmanlike manner and with materials of at least the quality and standard of materials used in comparable facilities in the locale of the Park Area. To ensure compliance with this requirement, the Lessee must designate a construction manager who will be the Lessor’s principal point of contact for the project and who must be physically present at the work site or readily available during all ongoing work. The Lessee must, upon request, furnish the Lessor a copy of any contract with the Lessee’s general contractor, architects, or consultants. The Lessor may restrict access to or close part or all of the Premises during the construction of Improvements if the Lessor determines that doing so is necessary to protect public health or safety or Park Area resources.

Improvements made by the Lessee without the Lessor’s prior written approval as described in this section are prohibited. In the event any non-compliant Improvements are made by the Lessee, the Lessor may terminate this Lease for default and require the Lessee to remove the non-compliant Improvements at the Lessee’s sole expense.

9.2. Delay Caused by a Force Majeure

The Lessee will not be considered in default for a delay in the completion of Improvements that the Lessor determines is caused by a Force Majeure. If the Lessor determines that the completion of Improvements is delayed by a Force Majeure, the Lessor and the Lessee will execute an amendment to this Lease granting the Lessee an additional period of time to complete the Improvements equal to the period of the delay caused by the Force Majeure.

9.3. Utilities During Construction

In the preparation of proposed Construction Documents, the Lessee must review plans for the location of existing utilities that may be affected by any Lessee Improvements. The Lessee must obtain all necessary utility plans and permits from the appropriate public utility companies.

9.4. Site Inspection

At any time during the performance of work on Improvements to the Premises, the Lessor’s inspector or representative may inspect or observe ongoing work or the work site. Notwithstanding the foregoing, the Lessor is not responsible for supervising or overseeing ongoing work or ensuring the safety of the work site. During the performance of all work on Improvements, the Lessee must maintain on the Premises a copy of the current, annotated Construction Documents for inspection by the Lessor.

9.5. Approval of Construction

Before commencing construction of any Improvements to the Premises, the Lessee must obtain the Lessor’s written approval of the proposed Improvements. The Lessee’s request for the Lessor’s approval of the proposed Improvements must be in writing and must include:

(a) proposed Construction Documents;

(b) if required by the Lessor, evidence of the availability of funding for the Improvements;

(c) documentation that required construction insurance is in effect; and

(d) other information as required by the Lessor.

9.6. Construction Documents

The proposed Construction Documents submitted to the Lessor must be complete and must show all material elements of the proposed Improvements to the Lessor’s satisfaction. When the proposed Construction Documents are approved by the Lessor, they will become an exhibit to this Lease without further action by either party.

9.7. General Scope of Lessor’s Review

The Lessor will not approve proposed Construction Documents unless it has determined that the proposed Improvements are appropriate for the Park Area and consistent with all Applicable Laws, including Part 18 and the Park Area’s General Management Plan. The Lessor’s approval of the proposed Improvements is subject to any required compliance with the National Environmental Policies Act (NEPA, 42 U.S.C. §§ 4321 et seq.) and Section 106 of the National Historic Preservation Act (54 U.S.C. § 306108).

9.8. Changes to Approved Construction Documents

Any material changes to the approved Construction Documents and any deviations in actual construction from these documents are subject to the Lessor’s prior written approval under the procedures stated in this Section. If the Lessor approves the proposed changes, the Lessor will issue the Lessee a written change order that will become an exhibit to this Lease without further action by either party.

9.9. Special Considerations for Historic Property

If proposed Improvements relate to Historic Property, the Lessor will not approve proposed Construction Documents unless it has determined that they comply with the Secretary’s Treatment Standards; NPS 28;

and any conditions that may be imposed on the Improvements through compliance with other Applicable Laws, including NEPA and Section 106. Depending on the nature of the work, proposals for dune shack maintenance and repair may also require significant review and consultation before maintenance or repair work can begin. See Exhibit D – Quick User’s Guide to Dune Shack Maintenance and Repair.

9.10. Evidence of Adequate Funds

As a condition to the approval of the construction of Improvements, the Lessee must demonstrate to the Lessor’s satisfaction with appropriate documentation that it has available to it funds adequate to undertake and complete the project in accordance with all terms and conditions of the approved Construction Documents.

9.11. Notice to Proceed

The Lessee may not commence construction of the Improvements until the Lessor has issued a written notice to proceed as evidence of its approval of the Construction Documents. The notice to proceed will contain terms and conditions for construction of the Improvements that the Lessor deems necessary and appropriate.

9.12. Construction Completion Procedures

Upon completion of the Improvements, the Lessee must submit to the Lessor (in formats specified by the Lessor):

(a) a notice of completion;

(b) if requested by the Lessor, satisfactory evidence of the payment of all expenses, liabilities, and liens arising out of or in any way connected with the Improvements;

(c) a complete set of “as built” drawings showing all revisions and substitutions during the construction period, including field changes and the final location of all mechanical equipment, utility lines, ducts, outlets, structural member, walls, partitions and other significant features of the Improvements; and

(d) any modifications to the Inventory and Condition Report (Exhibit A) as of the completion of the Improvements.

Upon the Lessor’s approval of the completion of the Improvements, the Lessor will issue a “Certificate of Occupancy” or similar document authorizing the Lessee to occupy the Premises.

9.13. Lessor’s Right to Utilize Construction Documents

Upon expiration or termination of this Lease, the Lessee must assign and deliver to the Lessor as the Lessor’s sole property all architectural, engineering, and other drawings, plans, specifications, and studies relating to the Premises. In order to assure the Lessor that it will have the legal right to use such drawings, plans, specifications, and studies, the Lessee must include in its agreements with the architects, engineers, and other professionals who prepared such items and who have any proprietary rights with respect to such items (including the rights to use thereof in connection with the Premises) provisions whereby the Lessee and the Lessor will have the right to use such materials in connection with the Premises. In furtherance and not in limitation thereof, the Lessee (referred to below as the “Owner”) must include in such agreements the following provisions:

The drawings, plans, specifications, and studies prepared by the Architect for this Project (“Documents”) are instruments of the Architect’s service and, unless otherwise provided in writing, the Architect will be deemed the author of these Documents and will retain all common law, statutory, and other reserved rights, including the copyright. For the purpose of completing this Project or for any other purpose, the Architect and its consultants hereby (i) grant to Owner and the National Park Service an irrevocable, fully paid-up, perpetual, worldwide license to copy and use such Documents for completion of this Project or for any other purpose and (ii) consent to the use by Owner and the National Park Service, and of the modification by other design professionals retained by Owner or the National Park Service, of the Documents. The Architect will have no responsibility or liability to the Owner or the National Park Service with respect to any modification to the Documents made by the Owner or National Park Service or any other design professional retained by the Owner or National Park Service. Furthermore, except where the Architect is found to be liable for such claim, damage or loss, the Owner will hold Architect harmless from any such claim, damage or loss arising out of the modification of the Documents by Owner or the National Park Service or another design professional. The Owner and the National Park Service are permitted to retain copies, including reproducible copies, of the Documents for information and reference in connection with the use and occupancy of the Project.

Notwithstanding the foregoing, the Architect acknowledges and consents to the use and ownership by the National Park Service, or its designees or assignees, of said Documents in accordance with the Lease between the Owner (as the Lessee) and the National Park Service (as the Lessor) for the Premises leased to the Lessee, and the Architect agrees to deliver copies of the Documents to the National Park Service upon written request from the National Park Service, provided that the National Park Service agrees to pay the Architect’s reasonable duplication expenses. The Architect represents and warrants that the Documents will not infringe or misappropriate the rights of any third party, and the Architect indemnifies and will defend and hold harmless the Owner and the National Park Service, and their officers, directors, employees, representatives, and agents from and against any lawsuit, legal proceeding, action, claim, cause of action, demand or liability that arises from any act or omission of the Architect or its officers, directors, employees, representatives, agents, or contractors related to any alleged violation, infringement, unauthorized use or misappropriation of any intellectual property of any third parties arising from or in conjunction with the use and ownership of the Documents.

Section 10. MAINTENANCE AND REPAIR

10.1. Lessee’s Responsibilities

The Lessee is solely responsible for the repair and maintenance of the Premises during the Lease Term.

This responsibility includes, without limitation:

(a) the performance of all repairs, maintenance, and replacement (whether structural or non-structural, foreseen or unforeseen, ordinary or extraordinary) necessary to maintain the Premises and the Improvements thereon in good order, condition, and repair in a manner consistent with the operation of comparable facilities in the locale of the Park Area and in compliance with all Applicable Laws;

(b) the replacement, as it becomes worn out or obsolete, of all Personal Property;

(c) housekeeping and routine and periodic work scheduled to mitigate wear and deterioration without altering the appearance of the Premises;

(d) the repair or replacement in-kind of broken or worn out elements, parts or surfaces so as to keep the existing appearance of the Premises;

(e) scheduled inspections of all building systems on the Premises;

(f) maintaining the grounds of the Premises in good condition, including snow fencing maintenance and avoidance or removal of unsightly storage or parking of materials, equipment, or vehicles; and

(g) paying to the proper authority, when and as the same become due and payable, all taxes and assessments imposed by federal, state, or local agencies applicable to the Premises or the Lessee’s activities on the Premises.

(h) the removal of any accreted sand or any raising or relocation of any structure due to environmental factors.

10.2. Maintenance Plan

The Lessee must submit a proposed Maintenance Plan to the Lessor within 30 (thirty) calendar days of the Commencement Date.The plan, when approved by the Lessor, will become an exhibit to this Lease without further action, and the Lessee must comply with its terms. An annual inspection and maintenance report on the condition of the structure shall be prepared by the Lessee and submitted to the Lessor on or before the fifteenth day of June of each year for the term of the Lease. The Lessor reserves the right, following advance notice to the Lessee, to access the premises and grounds annually or as the Superintendent may otherwise deem appropriate, to perform an independent property condition assessment. After consulting with the Lessee, the Lessor may make reasonable modifications to the plan from time to time to reflect changing maintenance and repair needs of the Premises.

10.3. Preservation Maintenance Plan

If the Premises (or any part of the Premises) are Historic Property, the Lessee must repair and maintain all portions of the Premises that are Historic Property through a Preservation Maintenance Plan prepared by the Lessee and approved by the Lessor as appropriate and consistent with the requirements of the Secretary’s Treatment Standards and NPS 28, as provided in the Quick User’s Guide to Dune Shack Maintenance and Repair (Appendix D).

10.4. Maintenance Reserve Account

Section 11. UTILITIES

At its sole expense the Lessee must make all arrangements with appropriate utility providers (including the Lessor, where applicable), for all utilities furnished to the Premises, including gas, electricity, other power, water, cable, telephone and other communication services, sewage, and waste removal. Any utility service provided by the Lessor will be subject to the Lessor’s established policies and procedures, including NPS Director’s Order #35B, for the provision of utility services.

Most dune shacks do not have access to commercial utilities. If not already present upon commencement of the lease, conventional utilities may not be extended to the property. Any alterations or additions to existing primitive utility systems (e.g., hand-pump wells, propane stoves, solar panels and outhouses) require approval by the Lessor.