Draft Facility Lease.docx

Lease No. _________________

FACILITY LEASE

FOR PRIVATELY OWNED PROPERTY

LEASE BETWEEN

AND

THE UNITED STATES OF AMERICA

1. This LEASE, made and entered into this ____ day of _________ in the year of 20___, by:

address:

and whose interest in the property is that of the owner, hereinafter called the Lessor, and the UNITED STATES OF AMERICA, hereinafter called the Lessee.

In consideration for RENT the parties promise and agree as follows:

2. PROPERTY: The Lessor leases to the Lessee the following described property:

as shown in Exhibit “A”, attached and made a part of this agreement, to be used for the Lessee’s purposes.

3. LEASE TERM: The Lessee shall have the right to have and hold the said premises, or any portion thereof, for the period beginning ____________ through _____________. The Lessee shall have the right to renew this lease from year to year or for a lesser period of time, under the same terms, conditions, and consideration provided herein. The Lessee shall provide written notice to the Lessor of the Lessee’s intent to renew this lease prior to the expiration date of the current term, provided further, that the renewal of this lease is subject to adequate appropriations being made available from year to year for the payment of rentals. If the Lessee does not provide written notice to the Lessor of the Lessee’s intent to renew this lease prior to the expiration date of the current lease term, this lease will expire, with no further notice being required from the Lessee, at the end of the current lease term.

4. RENTAL: The Lessee shall pay the Owner at the following rate: _______________ per __________ at the ___________ of the month. Payment shall be made by the _____ day of the following month. Rent for a lesser period shall be prorated.

5. OWNERSHIP: The Lessor warrants that he is the rightful and legal owner of the property and has the legal right to enter into this lease. If the title of the Lessor shall fail, or it be discovered that the Lessor did not have authority to lease to the property, the lease shall terminate. The Lessor, the Lessor’s heirs, executors, administrators, successors, or assigns agree to indemnify the Lessee by reason of such failure and to refund all rentals, paid.

6. EXCLUSIVE USE: The Lessor shall not interfere with or restrict the Lessee, or its representatives in the use and enjoyment of the leased property, nor shall the Lessor erect any fence, wall, partition or any construction upon the leased, property except as otherwise agreed to in writing by the Lessee.

7. TERMINATION:

a. The Lessee may terminate this lease at any time in whole or in part, by giving ______ days notice in writing to the Lessor and no rental shall be due for payment after the effective date of termination. Said notice shall be the day after the date of mailing, or hand delivery. The monthly rental shall be adjusted in proportion with the reduction of space on the Partial Termination and shall be calculated based upon a pro rata unit of measure for the remaining lease area premises.

b. Termination in whole or in part shall be effective upon written notice, however, the parties may enter into a supplemental agreement to resolve certain issues arising from the tenancy and its termination, in whole or in part.

c. The Lessor has no termination rights.

8. SERVICES AND UTILITIES: The Lessor shall furnish to the Lessee, as part of the rental consideration, the following:

a. GENERAL: Lessor agrees to provide ingress, egress, hot and cold potable water, sewer, electricity, heating, cooling, trash/garbage removal, janitorial services and other services as further described below.

b. COMMON AREA MAINTENANCE: Lessor agrees to provide common area maintenance, which includes, but is not limited to, the maintenance of the parking lot, landscaping, snow removal, and maintenance of other common areas and fixtures.

c. HVAC SYSTEM: Lessor agrees to maintain and repair heating, ventilation, and air condition (HVAC) system, which includes the replacement of filters a minimum of every three (3) months. The system shall be capable of maintaining a minimum temperature of 20 degrees Celsius during the heating season and a maximum temperature of 26 degrees Celsius during the cooling season. HVAC must be appropriately balanced to ensure minimum deviation of temperature throughout the leased property regardless of outside temperature during the hours of operation specified in the lease.

d. LIGHTS: Lessor agrees to provide and replace light bulbs and/or fluorescent tubes, starters, and ballasts as required.

e. JANITORIAL/REST ROOM FIXTURES: Lessor agrees to provide satisfactory janitorial services, including supplies and equipment as shown in Exhibit “B” attached and made a part of this agreement.

f. PEST CONTROL: It is understood and agreed that the Lessor will be responsible to provide pest control measures and pesticides, which conform to the Lessor’s regulation, to keep the property free from pests and in a tenantable condition. It is intended that the Lessee will maintain the leased property in a clean and sanitary condition in conformance with normal standards of good housekeeping, and that the Lessor will provide and maintain the leased property in pest-free condition.

9. ALTERATION/RESTORATION/RELEASE OF LIABILITY: The Lessee shall have the right, during the existence of this lease, to make alterations, attach fixtures, and erect additions, structures, or signs, in or upon the property hereby leased, which fixtures, additions, or structures, so placed in, upon or attached to the said property shall be and remain the property of the Lessee and may be removed or left in place at the option of the Lessee. The Lessee shall surrender possession of the property upon the expiration or termination of this lease. The Lessor hereby releases and forever discharges the Lessee, its officers, employees and/or contractors from any and all liability, claims or demands for site restoration of the leased premises.

10. DAMAGES: The LESSEE shall not be responsible for combat or war related damages to the lease property. The LESSEE shall be liable only for damage resulting from negligence or misconduct of Lessee personnel. The Lessee shall not be liable for any loss, destruction or damages to the premises beyond the control and without the fault of negligence of the Lessee, including but not restricted to acts of nature, fire, lightning, floods or severe weather. The parties agree that any settlement of damages by the Lessee, if any, shall be done at termination of the lease and shall be subject to the availability of funds.

11. PROVIDING AND PAYMENT OF ALTERATIONS: It is understood and agreed that the Lessor will provide alterations to the property as per the attached Exhibit(s) “____”. For and in consideration of the subject alterations, the Lessee will make a one-time lump sum payment upon satisfactory completions and acceptance of the alterations by the Lessee, in the amount of ____________________. Ownership of said alteration will remain the property of the Lessee.

12. OCCUPANCY/DELAY: Occupancy will occur after satisfactory completion of alterations. In the event of delay, the effective and termination dates of the lease shall be changed by supplemental agreement. No rent shall accrue until alterations as described herein are completed to the Lessee’s satisfaction. Such satisfaction shall not be unreasonably withheld.

13. PROPERTY INVENTORY: As of the commencement date of this lease, a joint inventory and condition report of all personal property of the Lessor included in this lease, and also a joint physical survey and inspection report of the demised property shall be made, said reports to reflect the then present condition, and to be signed on behalf of the parties hereto.

14. EQUIPMENT AND UTILITIES: The Lessor warrants the mechanical equipment and utilities to be in good serviceable and operating condition. In particular, the Lessor warrants that the heating system of the leased property is adequate and sufficient to maintain a 20 degree Celsius temperature. If the heating, domestic hot water, electric, water, or gas systems prove to be inadequate, the Lessor agrees to correct the deficiencies at his expense. Futhermore, the Lessor warrants the mechanical equipment, utilities, and their respective systems comply with present safety norms. Should these norms be changed or modified, the Lessor will, at his expense, do whatever is necessary to comply with the new norms.

15. MAINTENANCE AND REPAIRS

a. The Lessor shall, at all times, maintain the leased property in good repair and tenantable condition. In the event the Lessor shall be absent or otherwise unavailable, he shall provide the LESSEE the name, address, and telephone number of a designated representative who will assume full responsibility for maintenance and repairs.

b. The Lessor shall be responsible to perform all maintenance and repairs, chich shall be performed in a timely manner. Scheduling of all maintenance and repairs shall be coordinated with the designated occupant representative of the LESSEE.

c. The LESSEE occupant representative will notify the Lessor of any emergency and request the Lessor to perform the necessary work. All emergency maintenance and repairs performed by the Lessor will be completed within 48 hours from the time of notification. Emergency maintenance and repairs include but are not limited to:

d. In the event the Lessor shall fail to perform emergency maintenance and repairs within 48 hours or to perform non-emergency maintenance and repairs within 5 days from the date notice is given by the Lessee, the Lessee may immediately perform or have performed such maintenance and repairs and deduct all costs thereof from the rental and other charges due or to become due under the terms of this lease.

16. TAXES: The Lessor accepts full and sole responsibility for the payment of all taxes and other charges of a public nature which may arise in connection with this lease or which may be assessed against the property. This includes registration of the lease and payment of related charges.

17. NOTICE: Any notice under the terms of this lease shall be in writing signed by a duly authorized representative of the party giving such notice, and if given by the Lessee shall be addressed to the Lessor at:

or by hand delivery to:

and if given by the Lessor shall be addressed to the Lessee at:

USACE

ATTN: CELRL-RE-M

Room 137 P.O. Box 59 Louisville, KY 40201-0059

18. LESSOR’S SUCCESSORS: The terms and provisions of this lease and the conditions shall bind the Lessor, and the Lessor’s heirs, executors, administrators, successors, and assigns.

19. COVENANT AGAINST CONTINGENT FEES: The Lessor warrants that no person or selling agency ahs been employed or retained to solicit or secure this lease upon an agreement or understanding for a commission, percentage, brokerage, or a contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Lessor for the purpose of securing business. For breach or violation of this warranty the Lessee shall have the right to annul this lease without liability or in its discretion to deduct from the lease price or consideration the full amount of such commission, percentage, brokerage, or contingent fee.

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

21. GRATUITIES:

a. The Lessee may, by written notice to the Lessor, terminate the right of the Lessor to proceed under this lease if it is found, after notice and hearing, by the Secretary of the Army or his duly authorized representative, that gratuities (in the form of entertainment, gifts, or otherwise) were offered or given by the Lessor, or any agent or representative of the Lessor, to any officer, or employee of the Lessee with a view toward securing a lease or securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing, of such lease; provided, that the existence of facts upon which the Secretary of the Army or his duly authorized representative makes such findings shall be in issue and may be reviewed in any competent court.

b. In the event this lease is terminated as provided in paragraph (a) hereof, the Lessee shall be entitled (i) to pursue the same remedies against the Lessor as it could pursue in the event of a breach of the lease by the Lessor, and (ii) as a penalty in addition to any other damages to which it may be entitled by law, to exemplary damages in an amount (as determined by the Secretary of the Army or his duly authorized representative) which shall be not less than three nor more that ten times the costs incurred by the Lessor in providing any such gratuities to an such officer or employee.

c. The rights and remedies of the Lessee provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under this lease.

22. EXAMINATION OF RECORDS: The Lessor agrees that any duly authorized representatives shall have the right until the expiration of three (3) years after final payment of the agreed rental, have access to and the right to examine any directly pertinent books, documents, paper and records of the Lessor involving transactions related to this lease.

23. MODIFICATION: No Change or modification of this lease shall be effective unless it is in writing and signed by both parties to this lease.

24. DISPUTES:

(a) This lease is subject to the Contract Disputes Act of 1978, as amended (41 USC 601-613).

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

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

(d) (1) A claim by the Lessor, shall be made in writing and, unless otherwise stated in this lease, submitted within 6 years after accrual of the claim to the Chief, Real Estate Division for a written decision. A claim by the Government against the Lessor shall be subject to a written decision by the Chief, Real Estate Division.

(2) (i) The Lessor shall provide the certification specified in paragraph (d)(2)(iii) of this clause when submitting any claim exceeding $100,000.

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

(iii) The certification shall state as follows: “I certify that the claim is made in good faith; that the supporting data are accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the lease adjustment for which the Lessor believes the Government is liable; and that I am duly authorized to certify the claim on behalf of the Lessor.”

(3) The certification may be executed by any person duly authorized to bind the Lessor with respect to the claim.

(e) For Lessor claims of $100,000 or less, the Chief, Real Estate Division must, if requested in writing by the Lessor, render a decision within 60 days of the request. For Lessor certified claims over $100,000, the Chief, Real Estate Division must, within 60 days, decide the claim or notify the Lessor of the date of which the decisions will be made.

(f) The Chief, Real Estate Division decision shall be final unless the Lessor appeals or files a suit as provided in the Act.

(g) If the claim by the Lessor is submitted to the Chief, Real Estate Division or a claim by the Government is presented to the Lessor, the parties, by mutual consent, may agree to use alternate dispute resolution (ADR). If the Lessor refuses an offer for ADR, the Lessor shall inform the Chief, Real Estate Division, in writing, of the Lessor’s specific reasons for rejecting the offer.

(h) The Government Shall pay interest on the amount found due and unpaid from (1) the date the Chief, Real Estate Division receives the claim (certified if required) or (2) the date payment otherwise would be due, if that date is later, until the date of payment. With regard to claims having defective certifications, as defined in FAR 33.201, interest shall be paid from the date the Chief, Real Estate Division initially receives the claim. Simple interest on claims shall be paid at the rate, fixed by the Secretary of the Treasury as provided in the Act, which is applicable to the period during which the Chief, Real Estate Division receives the claim and then at the rate applicable for each 6 month period as fixed by the Treasury Secretary during the pendency of the claim.

(i) The Lessor shall proceed diligently with performance of this lease, pending final resolution of any request for relief, claim, appeal or action arising under the lease and comply with any decision of the Chief, Real Estate Division.

25. GENERAL PROVISIONS: The General Provisions are attached and made a part hereof as Exhibit D. In the event the terms and conditions of the body of this lease and the terms and conditions of the General Provisions conflict with one another, then the terms and conditions of the body of this lease shall prevail.

26. PROCUREMENT AUTHORITY: The supplies and services to be obtained by this instrument are authorized by, are for the purpose set forth in and are chargeable to Procurement Authority Number quoted below, the available balance of which is sufficient to cover cost of same:

(Insert Procurement Number Here)

27. ADDITIONAL PROVISIONS:

IN WITNESS WHEREOF, the parties have subscribed their names as of the date first above written.

Witnesses: LESSOR:

THE UNITED STATES OF AMERICA

Veronica A. Hiriams Real Estate Contracting Officer Louisville District, Corps of Engineers

(IF LESSOR IS A CORPORATION, THE FOLLOWING CERTIFICATE SHALL BE EXECUTED BY THE SECRETARY OR ASSISTANT SECRETARY.)

I, ________________________________________________ certify that I am the

________________________________ (Assistant or) Secretary of the corporation named as Lessor in the attached lease that ___________________________ (Name of Official who signed the lease) who signed said lease on behalf of the Lessor, was then (Corporation Officer, i.e President, Vice President) of said corporation; that said lease was duly signed for and on behalf of said corporation by authority of its governing body, and is within the scope of its corporate powers.

(Corporate Seal)