Draft Lease_.pdf

LEASE NO. DACA63-5-20-0047

U.S. GOVERNMENT

10 USC 2661

FACILITY LEASE

PRIVATELY OWNED PROPERTY

BETWEEN

AND

THE UNITED STATES OF AMERICA

TAX ID#: DUNS #:

THIS LEASE (“Lease”) made and entered into this day of 2020, by and between , whose address is , whose interest in the property hereinafter described is that of owner, hereinafter called “Lessor”, and the UNITED STATES OF AMERICA, hereinafter called the “Government”:

WITNESSETH: The parties hereto for the considerations hereinafter mentioned, covenant and agree as follows:

Lessor hereby leases to the Government, the following described premises:

Approximately rentable square feet located at , which is shown in Exhibit “A”, Floor Plan, more particularly described in Exhibit “B”, Legal Description, attached hereto and made a part hereof, to be used for Government purposes.

TO HAVE AND TO HOLD the said Leased Premises with their appurtenances for a one-year firm term lease, with four ( 4 ) one-year option periods, with the term beginning (“Lease Commencement Date”) and ending on (“Lease Expiration Date”), subject to termination rights as hereinafter set forth (the “Term”). The Lessee shall provide written notice to the Lessor of the Lessee’s intent to renew this lease at least days 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.

1. For purposes of this Lease, “Lease Year” shall mean the twelve (12) month period commencing on the Lease Commencement Date or Amended Lease Commencement Date, as applicable, and each subsequent twelve (12) month period thereafter during the Term. The

Government shall pay Lessor annual Rent (defined as Base Rent plus Operating Expenses)

$ for each Lease Year.

The date that rent commences hereunder (“Rent Commencement Date”) shall be the Lease

Commencement Date or the Amended Lease Commencement Date, as provided in

Paragraph 2. Rent shall be payable monthly in arrears. Payment of Rent shall be made by electronic funds transfer and shall be payable to , by: U. S. Army Corps of

Engineers, USACE Finance Center, Attn: CEFC AO, 5720 Integrity Drive, Millington, Tennessee

38054-5005.

(a) Operating Expenses: Beginning with the second Lease Year and each Lease

Year thereafter, upon request the Government agrees to settle actual increases or decreases in real estate taxes and operating expenses for the calendar year in which

Lease Year commences. The Government will not reconcile operating expenses for the first lease year. Any reconciliation will be made via a supplemental agreement provided that the increase or decrease shall be not less than $150.00. Such request shall be in writing and received by the Government no later than 90 days from the end of the lease year for which payment is requested. If no reconciliation request is received from the Lessor within the 90 day period, the Lessor’s right to reconcile the previous lease year’s operating costs will be waived. No payment will be made until the

Lessor has furnished to the Government copies of proof of payment

(invoices/receipts/canceled checks) or, at the Government’s option, a certified statement for the applicable calendar year to support such increased costs (exclusive of any forfeited discount, penalties, and interest assessed, levied, and charged against the Leased Premises), for the purpose of a comparison of the costs for the year for which payment is requested with the costs reflected by the Operating Cost Base Rate.

In order to support a payment for increased costs, documentation relating to each item specified above must be submitted, not just the item for which an increase is claimed.

The Government reserves the right to request documentation for all preceding lease years of the Lease. If it is determined that for any calendar year a decrease was experienced, the Government shall have the right to recover any overpayment for that calendar year from the Lessor by lump sum payment or by adjusting the monthly rental payment.

Consideration for any period of the Lease that is less than the full 12-month calendar year will be prorated.

(b) Contingency: The Government’s obligation and legal liability for payment of the

Rent provided under this Lease during the Term hereof is expressly contingent upon the appropriation by Congress of the funds required to meet such obligation. The

Government represents that Congress has appropriated funds required to meet the

Government’s obligations for Rent for the first Lease Year and the Government’s portion of the cost of construction of the Tenant Improvements. The Government shall request the inclusion of payment of Rent hereunder, in its budget requests during each Lease

Year for the balance of the Term. If Congress fails to appropriate the required funds, the

Government shall terminate this Lease in accordance with Paragraph 2 foregoing.

2. If the Government fails to occupy any portion of the Leased Premises or vacates the

Leased Premises in whole or in part prior to expiration of the term of the Lease, the Operating

Expenses will be reduced by that portion of the costs per ANSI/BOMA Office Area square foot of

Operating Expenses not required to maintain the Leased Premises in a good and tenantable condition. Said reduction shall occur after the Government gives sixty (60) calendar days prior notice to Lessor and shall continue in effect until the Government occupies the Lease Premises, or portion thereof as the case may be, or the Lease expires or is terminated as provided herein.

The Government shall continue to be responsible for increases in the Operating Cost Base Rate, as adjusted hereunder. If the Government vacates all or any portion of the Leased Premises, Lessor shall have the right to market (advertise, sign, show) the vacant space and to procure new subleases, provided the Government shall have the right to approve any sublease of its space, which approval shall not be unreasonably withheld or delayed.

3. Lessor shall furnish to the Government, as part of the rental consideration, the following:

(a) Facilities and janitorial services as specified in, Exhibit “C” (“Utilities and Facility

Services”);

(b) Maintenance in accordance with Clause No. 14 of the attached General Clauses.

(c) All utilities, including water and sewer services and electricity as more particularly set forth in Exhibit “C”.

(d) Payment to third parties for real estate taxes and insurance premiums with respect to the Leased Premises.

4. Any notice under the terms of this Lease given by the Government or Lessor shall be in writing and shall be either (a) delivered personally to the party being notified, or (b) delivered by certified mail, return receipt requested, postage prepaid, and, if to the Government, shall be addressed to the District Engineer, United States Army Engineer District, Fort Worth, ATTN:

CESWF-RE-A, P.O. Box 17300, Fort Worth, Texas 76102 0300, and if to Lessor, shall be addressed to .

5. (a) It is agreed that the Lessor, acting by and through a contractor appointed by Lessor, shall have the right to perform alterations requested by the Government during the Term, provided that the price, performance and other terms and conditions are customary and reasonable.

If the Lessor elects not to perform the alterations or if the Government does not agree that the Lessor’s proposal is customary and reasonable, the Lessor will grant immediate approval, which approval shall be conditioned upon the Lessor’s reasonable approval of plans and specifications to be provided by the Government and Lessor’s approval of the Government’s contractor, and further provided that the Government’s contractor agrees in writing to comply with such building rules and regulations as are being promulgated by Lessor at the time of the Government’s request for the Government to make alterations.

(b) It is agreed by and between the parties hereto that, prior to the commencement of work on any alterations being made for the Government in the Sublease Premises, the parties shall agree upon which, if any, part of such alterations will become the property of the Government. Thereafter, upon acceptance of the alterations by the Government, ownership of such alterations as were agreed by the parties as belonging to the Government shall in fact be the property of the Government, and the Government may either remove such alterations or leave same in place.

6. (a) On or before the expiration or other termination of this Sublease, the Government shall leave the Sublease Premises in a clean and safe condition and the Sublease Premises shall be left in good order and repair, fair wear and tear, alterations, repairs, improvements and casualties covered by insurance excepted.

(b) If the Government shall fail or neglect to remove its property and restore the Sublease

Premises, then, at the option of the Lessor, the property shall either become the property of the Lessor without compensation therefor, or the Lessor may cause the property to be removed and no claim for damages against the Lessor or its officers or agents shall be created by or made on account of such removal and restoration work.

7. In the event of change of ownership of the leasehold interest of Lessor in the Sublease Premises, Lessor agrees to notify the Government as soon as possible of the change of ownership and further agrees to furnish the Government a copy of the assignment, or other proof of ownership transfer, within thirty (30) days of the effective date of said change of ownership. Failure by Lessor to provide requested documents within said (30) days may result in the delay of rental or other payments due under this Sublease until such time that proof of ownership transfer is provided to the Government.

8. No Member of or Delegate to Congress, or Resident Commissioner, shall be admitted to any share or part of this Lease contract, 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.

9. The Government may, by written notice to Lessor, terminate the right of 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 Lessor, or any agent or representative of Lessor to any officer or employee of the Government 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 leases; 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. In the event this Lease is terminated as provided above, the Government shall be entitled (1) to pursue the same remedies against Lessor as it could pursue in the event of a breach of the Lease by Lessor, and (2) 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 than ten (10) times the costs incurred by Lessor in providing any such gratuities to any such officer or employee. The rights and remedies of the Government provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law under this Lease.

10. This Lease shall bind, inure to the benefit of, and be exercised by successors in interest of all parties.

11. At all times during the Lease term, Lessor shall maintain liability insurance in amounts which together with any excess liability coverage provided under blanket umbrella coverage by

Lessor shall be no less than $5,000,000.00 for claims arising from any one incident with respect to bodily injuries or death resulting therefrom, property damage, or both, suffered or alleged to have been suffered by any person or persons while on or about the Building. The liability insurance policy shall insure the hazards of the Building and operations conducted in and about the Building. Each policy will provide that any losses shall be payable notwithstanding any act or failure to act or negligence of Lessor or the Government or any other person; provided that the insurer will have no right of subrogation against Lessor or Government, and be reasonably satisfactory to Lessor and the Government in all respects. Furthermore, Lessor shall maintain a standard fire and extended coverage insurance policy or policies on the Building. The amount of such policy shall be equal to the replacement cost of the Building.

12. The following are attached and made a part hereof as Exhibits:

a) General Clauses, GSA Form 3517B

b) Representatives and Certifications, GSA Form 3518

c) Exhibit A, Floor Plan

d) Exhibit B Legal Description of Real Estate

e) Exhibit C, Utilities and Facilities Services

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

Witness: LESSOR:

BY:

(Printed Name/Address of Witness)

Witness: THE UNITED STATES OF AMERICA

BY:

(Printed Name/Address of Witness) Real Estate Contracting Officer