ATT_V_Draft_Lease_YPG.pdf

LEASE NO. _______________________

DEPARTMENT OF THE ARMY

LAND LEASE

YUMA PROVING GROUND

YUMA COUNTY, ARIZONA

THIS LEASE, made on behalf of the United States, between the SECRETARY OF THE

ARMY, hereinafter referred to as the Secretary, and________________________

________________________, a corporation duly organized and existing under and by virtue of the laws of the state of _____________ with principal offices at ____________ hereafter referred to as the Contractor/Lessee.

WITNESSETH:

That the Secretary, by the authority of Title 10, United States Code, Section 2667, and pursuant to that certain U.S. Defense Logistics Agency - Energy (DLA-E) Contract between the

Defense Logistics Agency, hereinafter referred to as the Agency, and the Contractor/Lessee, dated ___________, Contract Number ________, hereinafter called the Contract, hereby leases to the Contractor/Lessee the land, identified in Exhibit A, attached hereto and made a part hereof, hereinafter referred to as the premises, in order to fulfill the Contractor/Lessee’s obligations under the Contract for the design, construction, operation, maintenance, replacement, rehabilitation, and development of two privately-owned, privately operated Automated Fuel

Dispensing Facilities and one bulk facility at Yuma Proving Ground, Arizona.

THIS LEASE is granted subject to the following conditions:

1. TERM

Said Premises are hereby leased for a term of five (5) years, beginning_______, 2013 and ending ________, 2018. The Secretary in his sole discretion shall have the right to offer Lessee at five (5) year intervals an option to extend the lease term. Said term extensions will not exceed a total term of twenty (20) years.

2. CONTRACT-LEASE RELATIONSHIP

a. The Lease and the Contract shall not merge. In the event that the terms and conditions of this Lease conflict with the terms and conditions of the Contract, the terms and conditions of the Contract shall prevail. A default under the Contract shall constitute a default under this

Lease. Unless otherwise specified in this Lease, any and all Government rights and remedies as set forth in the Contract and in this Lease will be available to the Government on a cumulative basis to enforce the provisions of this Lease.

LEASE NO. __________________ DRAFT

YUMA PROVING GROUND, AZ

b. This Lease shall not be terminated by the Secretary prior to the termination of the

Contract, except in accordance with Condition on COMPLIANCE, DEFAULTS, CLOSURE, REVOCATION AND TERMINATION of this Lease. Termination of the Contract will result in termination of the Lease, in accordance with condition on COMPLIANCE, DEFAULTS, CLOSURE, REVOCATION AND TERMINATION Termination of the Lease will result in termination of the Contract.

3. CONSIDERATION

The consideration for this Lease is the operation and maintenance of the Premises and the construction, operation, maintenance, management, renovation, replacement, rehabilitation and development of the facilities and improvements by the Contractor/Lessee. As used in this Lease the term "replacement" shall be construed to mean the replacement in whole or in part of any structure or improvement so worn or damaged by any cause as to no longer adequately serve its designed function with normal maintenance. As used in this Lease the term "rehabilitation" shall mean to restore in whole or in part any structure or improvement to a good and useable condition.

4. NOTICES

All correspondence and notices to be given pursuant to this Lease shall be addressed, if to the Contractor/Lessee, to ______________________ and, if to the Secretary, to the District

Engineer, U.S. Army Engineer District, Ft. Worth, Attention: Chief, Real Estate Division, Ft.

Worth, TX, or as may from time to time otherwise be directed by the parties. Copies of correspondence and notices will also be furnished to the Installation Commander, and to the

Contracting Officer, DLA-E ____________________, or their designated representatives.

Notice shall be deemed to have been duly given if and when enclosed in a properly sealed envelope, addressed as aforesaid and deposited postage prepaid, Certified mail, return receipt requested, in a post office regularly maintained by the United States postal Service.

Correspondence originating from the Installation Commander, District Engineer or Contracting

Officer, DLA-E, will be copy furnished to the other two parties.

5. AUTHORIZED REPRESENTATIVES

Except as otherwise specifically provided, any reference herein to “Secretary”, “District

Engineer”, or “said officer” shall include their duly authorized representatives. Any reference to

“Contractor/Lessee” shall include any subleases, assignees, transferees, successors and their duly authorized representatives.

6. SUPERVISION BY THE INSTALLATION COMMANDER

The use and occupation of the Premises shall be subject to the general supervision and approval of the Installation Commander, hereinafter referred to as “said officer”, and to such rules and regulations as may be prescribed from time to time by said officer through the

Contracting Officer covering the operation, security, access, or other aspects of the mission of the

Installation.

7. TRANSFERS, ASSIGNMENTS, SUBLEASES

a. Without prior permission in writing from the District Engineer, and notice to the

Contracting Officer, DLA-E, and the Installation Commander, the Contracting/Lessee shall neither transfer nor assign this Lease or a controlling interest therein (including, without limitation, mergers, consolidations, reorganizations, or other business combinations), nor sublet the Premises, or any part thereof, nor grant any interest, privilege, or license whosoever in connection with this Lease, nor shall this Lease be assignable or transferable by process of operation of law including, but not limited to, insolvency proceedings, bankruptcy, or intestacy, or in any other manner whatever.

(1) Failure to comply with this condition or the procedures described herein shall constitute a material breach of this lease for which this Lease may be revoked immediately by the

District Engineer, with notice sent to the Contracting Officer and Installation Commander, and the Secretary shall not be obligated to recognize any right of any person or entity to an interest in this lease or to own or operate the facilities authorized thereunder acquired in violation hereof.

(2) The Contractor/Lessee shall advise the person(s) or entity proposing to enter into a transaction described in Subsection a. above that the District Engineer, Contracting Officer, and

Installation Commander shall be notified and that the proposed transaction is subject to review and approval by the District Engineer in his sole discretion. The Contractor/Lessee shall request in writing the District Engineer’s approval of the proposed transaction and shall promptly provide the District Engineer all relevant documents related to the transaction, and such additional documentation and information as shall be requested by the District Engineer, including the name (s) and qualifications of the person(s) or entity involved in the proposed transaction.

(3) The Contractor/Lessee may allow independent private service companies to enter and conduct business on the Premises for the benefit of the Contractor/Lessee’s tenants on an as-called basis without a formal sublease or license agreement, provided that the service is occasional and incidental to the Contractor/lessee’s operation. These arrangements are not subject to the approval requirements of subcondition a. above.

b. The District Engineer, in exercising discretion to approve or disapprove transfer, assignments, or subleases, may consider the following factors without limitation: the financial and management qualifications of the individuals or entities that would thereby obtain a controlling interest in the facilities or services authorized hereunder, the experience of such individuals or entities with similar operations, and the ability of such individuals or entities to operate the Premises and provide the services required hereunder.

c. The term “controlling interest” shall mean an interest beneficial or otherwise, which by virtue of ownership interest in the Lessee or otherwise entitles a party to exercise substantial managerial influence over the operations of the Contractor/Lessee. By way of example only, and not be way of limitation, the following shall be deemed to constitute controlling interests: (I) ownership of 50% or more of the interests in Lessee, regardless of the type of entity: (ii) if Lessee is either a general partnership or limited partnership, any general partner; (iii) if Lessee is a limited partnership, a limited partnership interest which exceeds 49% of the limited partnership interests in Lessee; (iv) if Lessee is a limited liability company, its manager or managing member. The District Engineer will determine at the request of interested parties whether or not an interest in a Lease constitutes a controlling interest within the meaning hereof.

d. The Contractor/Lessee may not enter into any agreement with any entity or person, except employees of the Contractor/Lessee, to exercise substantial management responsibilities for the operation authorized hereunder or any part thereof without the prior written approval of the Installation Commander.

8. COST OF UTILITIES

The Contractor/Lessee shall pay the cost, as determined by the Officer having jurisdiction over the Premises, of producing and/or supplying any utilities and other services furnished by the government or through government-owned facilities for the use of the Contractor/Lessee’s proportionate share of the cost of operation and maintenance of the government-owned facilities by which such utilities or services are produced or supplied. The Secretary shall be under no obligation to furnish utilities or services. Payment shall be made in the manner prescribed by the

Officer having such jurisdiction over the Premises, in accordance with a Utility Contract which will be entered into by the Contractor/Lessee prior to execution of this lease.

9. MORTGAGE OF PREMISES

a. No mortgage shall be executed, and no bonds, shares of stock, or other evidence of interest in, or indebtedness upon the assets of the Contractor/Lessee, including this Lease, shall be issued, except for the purposes of installing, enlarging, refinancing or improving equipment and facilities and only then with the prior approval of the Secretary. In the event of default on such approved mortgage, encumbrance, or such other indebtedness, or of other assignment, transfer, or encumbrance, the creditor or any assignee thereof shall succeed to the interest of the

Contractor/Lessee in such assets but shall not thereby acquire operating rights or privileges.

Such operating rights or privileges shall be subject to disposition by the District Engineer.

b. The Secretary reserves the right to require as a condition of its approval of a

Mortgagee, that the Mortgagee execute a subordination, Attornment and Non-Disturbance

Agreement or similar agreement in a form reasonably acceptable to the Secretary which shall govern the relationship between the Secretary and such Mortgagee.

10. APPLICABLE LAWS AND REGULATIONS

a. Contractor/Lessee shall comply with all applicable Federal, state, county and municipal laws, ordinances and regulations wherein the Premises are located.

b. Any and all taxes imposed by the state or its political subdivisions upon the property or interest of the Contractor/Lessee in the Premises shall be paid promptly by the

Contractor/Lessee. If and to the extent that the Premises owned by the United States and hereby leased to the Contractor/Lessee are later made taxable by State or local governments under an

Act of Congress, such taxes shall be paid by the Contractor/Lessee.

c. The Contractor/Lessee agrees to pay any and all taxes, levies, rates, assessments or like charges (collectively called “Impositions”) relating to the Contractor/Lessee’s property, use, occupancy, or development of the Premises, such as property taxes, sales and use taxes, licenses and permit fees, fines, penalties, or other like governmental charges, and any and all other government levies, taxes, fees, encumbrances, assessments or charges, whether foreseen or unforeseen, general or special and ordinary or extraordinary.

11. CONDITION OF PREMISES

a. The Contractor/Lessee acknowledges that it has inspected the Premises, knows its condition, and understands that the same is leased without any representations or warranties whatsoever except as may be explicitly stated in the Contract and without obligation on the part of the United States to make any alterations, repairs, or additions thereto.

b. Prior to execution of this Lease, the Officer having jurisdiction and the

Contractor/Lessee shall jointly conduct an inventory and condition survey of the Premises, to include the environmental condition. The inventory and condition survey of the Premises will be documented in a survey report (Premises Survey) prepared by the Officer having jurisdiction and signed by the duly authorized representatives of both parties and attached as Exhibit _____ to this Lease. The Premises Survey will refer to and incorporate the Preliminary Assessment

Screening PAS) dated_____________,prepared by the Army, as well as other environmental reports, and other environmental conditions that may not be specifically identified in the PAS.

The Contractor/Lessee hereby acknowledges receipt of the Premises Survey and the PAS. A

Preliminary Assessment Screening (PAS) documents the known history of the Premises, in accordance with the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9601 et. seq., as amended, with regard to the storage, release or disposal of hazardous substances thereon. Upon expiration, revocation or relinquishment of the

Lease, the Officer having jurisdiction and the Contractor/Lessee will jointly conduct a close-out survey, to include both the Premises and the improvements. In addition, an updated PAS shall be prepared by the Contractor/Lessee, at Contractor/Lessee’s expense. The Officer having jurisdiction will prepare a close-out report based upon the close-out survey and updated PAS.

All significant variances from the initial Premises Survey and any required environmental restoration shall be clearly documented in the close-out report. The close-out report and survey will constitute the basis for settlement by the parties for any leased property shown to be damaged, contaminated or destroyed during the lease term and restoration of the Premises as required under this Lease. Any such requirements will be completed by the Contractor/Lessee in accordance with the condition on RESTORATION.

c. The Contractor/Lessee acknowledges that it has reviewed the PAS and other environmental reports prior to accepting this Lease. The Contractor/Lessee has inspected, is aware of, and accepts the physical condition and environmental status of the property “as is” on this date and deems it to be safe for the intended use.

12. PROTECTION OF PROPERTY

The Contractor/Lessee shall keep the Premises in good order and in a clean, sanitary and safe condition by and at the expense of the Contractor/Lessee. The Contractor/Lessee shall be responsible for any damage that my be caused to property of the United States by the activities of the Contractor/lessee under this Lease, and shall exercise due diligence in the protection of all property located on the premises against fire, casualty or damage from any and all other causes.

Any property of the United States damaged or destroyed by the Contractor/Lessee incident to the exercise of the privileges herein granted shall be promptly repaired or replaced by the

Contractor/Lessee to a condition satisfactory to said officer, or at the election of said officer, reimbursement made therefor by the Contractor/Lessee in an amount necessary to restore or replace the property to a condition satisfactory to said officer.

13. INSURANCE

a. At the commencement of the Lease, the Contractor/Lessee shall obtain, from a reputable insurance company, or companies, liability insurance in an amount not less than that which is commercially prudent, reasonable and consistent with sound business practices. In no event shall such liability insurance be less than $1,000,000 for persons or claims arising from any one incident with respect to bodily injuries or death occurrence, suffered or appeared to have been suffered by any person or persons resulting from the operations of the Contractor/Lessee under the terms of this Lease. The minimum amount of liability insurance coverage is subject to revision by the District Engineer every three years or upon renewal or modification of this Lease.

b. The insurance policy or policies shall be of comprehensive form of contract and shall specifically provide protection appropriate for the types of facilities, services and activities involved.

c. At all times during the term of this Lease, the Contractor/Lessee shall procure and maintain at the Contractor/Lessee’s cost a standard fire and extended coverage insurance policy or policies on the premises to the full insurable value thereof. Such insurance policy shall provide that in the event of loss thereunder, the proceeds of the policy or policies, at the election of said Officer, shall be payable to the Contractor/Lessee to be used solely for the repair, restoration or replacement of the Premises damaged or destroyed, and any balance of the proceeds not required for such repair, restoration or replacement shall be paid to the Finance and

Accounting Officer, Ft. Worth District. If said Officer does not elect by notices in writing to the insurer within sixty (60) days after said Officer receives notice of the damage or destruction occurs to have the proceeds paid to the Contractor/Lessee for the purposes hereinabove set forth, then such proceeds shall be paid to the Finance and Accounting Officer, Ft. Worth District, provided however that the insurer, after payment of any proceeds to the Contractor/Lessee in accordance with the provision of the policy or policies, shall have no obligation or liability with respect to the use or disposition of the proceeds by the Contractor/Lessee. Nothing herein contained shall be construed as an obligation upon the Secretary to repair, restore or replace the

Premises or any part thereof.

d. The Contractor/Lessee shall purchase and maintain any other type of insurance which is commercially reasonable and prudent for the type of business activity conducted on the

Premises. Neither the failure to purchase, nor the purchase of, such insurance shall in any way relieve the Contractor/Lessee of liability to the United States.

e. Any and all insurance required to be maintained by lessee under this lease shall be at

Lessee’s sole cost and expense, shall be issued by an insurance company, or companies, which are licensed to do business in the state in which the Premises is located and which are reasonably acceptable to the Secretary. On or before the execution of the Lease, and thereafter immediately following a renewal, the Lessee shall provide or shall require that the insurance company give the

District Engineer thirty (30) days written notice of any non-renewal, cancellation or change in such insurance. The District Engineer may at his option require closure of any or all of the premises during any period from which the Lessee does not have the required insurance coverage or may obtain at Lessee’s sole cost and expense the required insurance coverage from such companies and at such rates as he determines, and Lessee shall promptly reimburse the

Government for any and all costs of obtaining such insurance following the Government's demand for repayment.

14. RIGHT TO ENTER

The right is reserved to the United States, its officers, agents, and employees to enter upon the Premises at any time and for any purpose necessary or convenient in connection with

Government purposes; to make inspections; and/or to make any other use of the lands as may be necessary in connection with Government purposes, and the Contractor/Lessee shall have no claim for damages on account thereof against the United States or any office, agent, or employee thereof. Except in the case of emergencies, as determined in the sole discretion of the

Government, the Government shall enter the Premises only following reasonable notice to lessee and the affected tenants and during normal business hours.

15. HOLD HARMLESS AND INDEMNITY

a. The Lessee agrees to assume all risks of loss or damage to property and injury or death to persons by reason of or incident attributable or incident to the condition or state of repair of the Leased Premises or to its possession and/or use of the Leased Premises or the activities conducted under this Lease. The Lessee expressly waives all claims against the United States of

America for any such loss, damage, personal injury or death caused by or occurring as a consequence of such condition, possession and/or use of the Leased Premises by the Lessee, or the conduct of activities or the performance of responsibilities under this lease by the Lessee.

The Lessee further agrees to indemnify and hold harmless the United States of America, the

Army, its officers, agents and employees, from and against all suits, claims, demands or actions, liabilities, judgments, costs and attorneys' fees arising out of, or in any manner predicated upon, personal injury, death or property damage resulting from, related to, caused by or arising out of the possession and/or use of the Leased Premises by the Lessee. The Army will give the Lessee notice of any claim against it covered by this indemnity as soon after learning of such claim as practicable.

16. RESTORATION

a. That title to all improvements placed or constructed on the Leased premises by the contractor/lessee shall, during the term of this Lease, remain with the contractor/lessee, but shall not be removed, replaced or altered without the prior written approval of said officer. At the revocation, termination, or expiration of the Lease, the Contractor/Lessee shall vacate the

Premises, remove its personal property therefrom and perform any restoration identified by the close-out Report and Survey of the condition of the Premises, including any environmental restoration. Title to all buildings, structures, facilities, including all equipment and installed fixtures, and any alterations, additions, replacements, or renovations thereto, then located on the

Premises, shall, with the Premises, automatically revert and/or be transferred to the United States and shall be vacated and surrendered by the Contractor/Lessee to the District Engineer and shall become the sole and absolute property of the United States, without compensation to the

Contractor/Lessee. To further effectuate such transfer, the Contractor/Lessee agrees, upon request, to deliver to the District Engineer any deeds, assignments, or other instruments of conveyance as the District Engineer shall deem necessary to evidence such reversion of title to the United States. For purposes of carrying out the provisions of the Condition, the

Contractor/Lessee hereby irrevocably constitutes and appoints the District Engineer its true and lawful attorney-in-fact with full power of substitution, to execute, acknowledge, and deliver any such instruments in the name and on behalf of the Contractor/Lessee. This power of

Attorney-in-fact is, and shall be deemed to be, coupled with an interest and irrevocable.

b. Further, the Contractor/Lessee, at no cost to the Government, will remove any structure determined by the Government to be in such condition as to be uneconomically repairable and restore the Premises to the satisfaction of the Government. Subject to any other terms and conditions of the Contract or this Lease, the Contractor/Lessee shall have the right to use any monies remaining in any reserve or escrow account held pursuant to the Lease or

Contract to fulfill its obligation under this condition. The availability of funds or lack of funds available in such accounts, shall not relieve the Contractor/Lessee from its responsibility to comply with this condition on RESTORATION. In the event that the Contractor/Lessee shall fail or neglect to remove its property and restore the Premises, then, at the option of the

Government, the property shall either become the property of the Government without compensation therefor, or the Government may cause the property to be removed and no claim for damages against the United States or its officers or agents shall be created by or made on account for such removal and restoration work. The Contractor/Lessee or the holder of the

Contract Reserve Account shall also pay on demand any sum which may be expended by the

United States after the expiration, revocation, or termination of this Lease in restoring the

Premises. If, however, the Lease is terminated by the Government as set out in the condition on

COMPLIANCE, DEFAULTS CLOSURE, REVOCATION AND TERMINATION,

subcondition e(2) or e(3), then, subject to appropriations, the Government shall negotiate a just and equitable settlement with the Contractor/Lessee.

17. NON-DISCRIMINATION

The Contractor/Lessee shall not discriminate against any person or persons or exclude any person or persons from participation in the Contractor/Lessee’s operations, programs or activities conducted on the leased premises, because of race, color, religion, sex, age, handicap or national origin. The Contractor/Lessee will comply with the Americans with Disabilities Act and attendant

Americans with Disabilities Act Accessibility Guidelines (ADAAG) published by the Architectural and Transportation Barriers Compliance Board.

18. SUBJECT TO EASEMENTS

This Lease is subject to all existing easements, or those subsequently granted as well as established access routes for roadways and utilities located, or to be located, in the Premises, provided that the Proposed grant of any new easement or route will be coordinated with the

Contractor/Lessee, and easements will not be granted which will, in the opinion of the District

Engineer, interfere with the use of the Premises by the Contractor/Lessee.

19. SUBJECT TO MINERAL INTERESTS

This Lease is subject to all outstanding mineral interests. As to federally-owned mineral interests, it is understood that they may be included in present or future mineral leases issued by the Bureau of Land Management (BLM) which has responsibility for mineral development on federal lands. The Secretary will provide lease stipulations to BLM for inclusion in said mineral leases that are designed to protect the Premises from activities that would interfere with the

Contractor/Lessee’s operations or would be contrary to local law.

20. COMPLIANCE, DEFAULTS, CLOSURE, REVOCATION AND TERMINATION

a. The Contractor/Lessee is charged at all times with full knowledge of all the limitations and requirements of this Lease and the Contract, and with the necessity for correction of deficiencies, and with compliance with reasonable requests by the District Engineer and the

Installation Commander. This Lease may be revoked in the event that the Contractor/Lessee violates any of its terms and conditions and continues and persists in such non-compliance, or fails to obtain correction of deficiencies by any sublessees or licensees.

b. In addition to the rights of revocation for non-compliance, the District Engineer, upon discovery of any hazardous conditions within the area covered by the Lease that presents an immediate threat to health and/or danger to life or property, will so notify the Contractor/Lessee and will require that the affected part or all of the Premises be closed to the public and the individual tenants until such condition is corrected and the danger to the public eliminated.

c. In addition to other specific Conditions of this Lease, each of the following events shall be a default by Contractor/Lessee and deemed to place Contractor/Lessee in non-compliance with this Lease:

(1.) Abandonment of the Premises, or the improvements now existing or later constructed on the Premises, where such abandonment continues for a period of ten (10) days after notice by Lessor to Contractor/Lessee.

(2.) Attachment or Other Levy. If any or all of the Premises or any right or interest of Contractor/Lessee in the Premises is subjected to attachment, execution or other levy, or to seizure under legal process which is not released within thirty (30) days.

(3.) Insolvency: Bankruptcy. An assignment by Contractor/Lessee for the benefit of creditors, or the filing of a voluntary or involuntary petition by or against Contractor/Lessee under any law for the purpose of adjudicating Contractor/Lessee a bankrupt; or for extending time for payment, adjustment or satisfaction of Contractor/Lessee's liabilities; or reorganization, dissolution, or arrangement on account of, or to prevent bankruptcy or insolvency; unless, in case of involuntary actions only, such actions, proceedings, and all consequent orders, are dismissed, vacated or terminated within thirty (30) days.

d. The Contractor/Lessee will be notified of any non-compliance, which shall be in writing or shall be confirmed in writing, giving a period of time in which to correct the non-compliance. Failure to satisfactorily correct any substantial or persistent non-compliance within the specified time is grounds for closure of all or part of the Premises, temporary suspension of operation, or revocation of the Lease, after notice in writing of such intent

(Termination or Revocation Notice), with the United States having the right to re-enter and assume possession of the Premises. In acting upon future requests by the Contractor/Lessee to extend the Lease, expand the Premises, modify authorized activities, or assign the Lease, the

Government shall take into consideration the Contractor/Lessee's past performance and compliance with the Lease terms.

e. The Government may revoke or terminate this Lease in whole or in part as set out above or in the event: (1) the Contract is terminated in accordance with its terms, or; (2) during any national emergency declared by the President or Congress, the Secretary of the Army determines that a termination is necessary or; (3) the Secretary of the Army determines that termination of the Lease is required for military purposes or is necessary in the interest of national defense. Contractor/Lessee will be given thirty days prior written notice by the District

Engineer in the event this Lease is revoked or terminated in accordance with this condition, except for clause (2) above where advance notice to the Contractor/Lessee shall not be required.

In lieu of revocation for violation of the terms and conditions of this Lease, the Government may exercise any legal remedy available under the provisions of the Contract.

21. PROHIBITED USES

a. The Contractor/Lessee shall not permit gambling on the Premises or install or operate, or permit to be installed or operated thereon, any device which is illegal; or use the Premises or permit them to be used for any illegal business or purpose. There shall not be conducted on or permitted upon the Premises any activity which would constitute a nuisance.

b. Occupying any lands, buildings, vessels or other facilities within the Premises for the purpose of maintaining a full or part-time residence is prohibited, except for employees, residing on the Premises for security purposes, if authorized by the Installation Commander.

c. The Contractor/Lessee shall not sell, store or dispense, or permit the sale of beer or other intoxicating liquors on the Premises without prior written request and approval of the

Installation Commander.

d. The Contractor/Lessee shall not construct or place any structure, improvement or advertising sign or allow or permit such construction or placement without prior written approval of the Installation Commander.

22. NATURAL RESOURCES

The Contractor/Lessee shall conduct no mining operations, remove no sand, gravel, or kindred substances from the ground, commit no waste of any kind, nor in any manner substantially change the contour or condition of the Premises except as set forth in the Contract or authorized in writing by the District Engineer.

23. DISPUTES CLAUSE

a. Except as provided in the Contract Disputes Act of 1978 (41 U.S.C. 601-613) (the

Act), all disputes arising under or relating to this Lease, but not the Contract, shall be resolved under this clause and the provisions of the Act.

b. “Claim” , as used in this clause, means a written demand or written assertion by the

Lessee seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of Lease terms, including without limitation any obligation to engage in environmental removal or restoration activities, or to pay a sum certain in the event that Lessee fails or neglects to remove its property and to restore the premises; or other relief arising under or relating to this Lease. A claim arising under this Lease, unlike a claim relating to this Lease, is a claim that can be resolved under a lease clause that provides for the relief sought by the Lessee.

However, a written demand or written assertion by the Lessee seeking the payment of money exceeding $100,000 is not a claim under the Act until certified ass required by subparagraph c.

(2) below. The request may be converted to a claim under the Act, by this clause, if it is disputed either as a liability or amount or is not acted upon in a reasonable time. A dispute arising under or relating to the Contract is not a claim as defined by this clause and shall be resolved as provided under the Contract.

c. (1) A claim by the Lessee shall be made in writing and submitted to the District

Engineer for a written decision. A claim by the Government against the lessee shall be subject to a written decision by the District Engineer.

(2) For Lessee claims exceeding $100,000, the Lessee shall submit with the claim a certification that—

(i) the claim is mad in good faith; and

(ii) supporting data are accurate and complete to the best of the Lessee’s knowledge and belief; and

(iii) the amount requested accurately reflects the Lease adjustment for which the Lessee believes the Government is liable.

(3) (i) If the Lessee is an individual, the certificate shall be executed by the individual.

(ii) If the Lessee is not an individual, the certification shall be executed by—

(A) a senior company official in charge of the Lessee’s location involved; or

(B) an officer or general partner of the Lessee having overall responsibility of the conduct of the Lessee’s affairs.

d. For Lessee claims of $100,000 or less, the District Engineer must, if requested in writing by the Lessee, render a decision within 60 days of the request. For Lessee-certified claim over $100,000, the District Engineer must, within 60 days, decide the claim or notify the

Lesser of the date by which the decision will be made.

e. The District Engineer’s decision shall be final unless the lessee appeals or files a suit as provided in the Act.

f. At the time a claim by the Lessee is submitted to the District Engineer or a claim by the Government is presented to the Lessee, the parties, by mutual consent, may agree to use alternative means of dispute resolution. When using alternate dispute resolution procedures, any claim, regardless of amount, shall be accompanied by the certificate described in paragraph c(2) of this clause, and executed in accordance with paragraph c(3) of this clause.

g. The Government shall pay interest on the amount found due and unpaid by the

Government from (1) the date the district Engineer received the claim (Properly certified if required), or (2) the date payment otherwise would be due, if that date is later, until the date of payment. 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 District

Engineer 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.

h. The Lessee shall proceed diligently with the performance of the lease, pending final resolution of any request for relief, claim or action arising under the Lease, and comply with any decision of the District Engineer.

24. ENVIRONMENTAL PROTECTION

a. The Contractor/Lessee will use all reasonable means available to protect the environment and natural resources, and where damage nonetheless occurs from activities of the

Contractor/Lessee, the Lessee shall be liable to restore the damaged resources. The

Contractor/Lessee shall not discharge waste or effluent from the Leased Premises in such a manner that the discharge will contaminate streams or other bodies of water or otherwise become a public nuisance. The Contractor/Lessee must obtain approval in writing from said officer before any pesticides or herbicides are applied to the Leased Premises.

b. The Contractor/Lessee shall be responsible for obtaining and paying for any environmental or other permits required for its operations under the Lease, independent of any existing permits.

c. The Government's rights under this Lease specifically include the right for

Government officials to inspect, upon reasonable notice, the Leased Premises for compliance with environmental, safety, and occupational health laws and regulations, whether or not the

Government is responsible for enforcing them. Such inspections are without prejudice to the right of duly constituted enforcement officials to make such inspections. The Government normally will 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. The Lessee shall have no claim on account of any entries against the United

States or any officer, agent, employee, or contractor thereof.

d. The Lessee shall have a plan approved by the Said Officer for responding to hazardous waste, fuel and other chemical spills prior to commencement of operations on the Leased

Premises, which approval shall not be unreasonably withheld or delayed. Such plan shall be independent of (installation name) and, except for initial fire response and/or spill containment, shall not rely on use of installation personnel or equipment. Should the Army provide any personnel or equipment, whether for initial fire response and/or spill containment, or otherwise on the request of the Lessee, or because the Lessee was not, in the opinion of the Army, conducting timely cleanup actions, the Lessee agrees to reimburse the Secretary for its costs. The plan may be developed in phases as sublease activities are identified. Sublessees shall provide to the Lessee a plan to cover their activities and portion of the Leased Premises prior to commencement of operations on the subleased portion, which will be incorporated by the Lessee into the overall plan.

e. The Lessee shall not conduct or permit its sublessees to conduct any subsurface excavation, digging, drilling, or other disturbance of the surface without the prior written approval of the Said Officer.

25. HISTORIC PRESERVATION

The Contractor/Lessee shall not remove or disturb, or cause or permit to be removed or disturbed, any historical, archeological, architectural or other cultural artifacts, relics, remains or objects of antiquity. In the event such items are discovered on the Premises, the

Contractor/Lessee shall immediately notify said officer and protect the site and the material from further disturbance until said officer gives clearance to proceed.

26. SOIL AND WATER CONSERVATION

The Contractor/Lessee shall maintain, in a manner satisfactory to said officer, all soil and water conservation structures that may be in existence upon said Premises at the beginning of or that may be constructed by the Contractor/lessee during the term of this Lease, and the

Contractor/Lessee shall take appropriate measures to prevent or control soil erosion within the

Premises. Any soil erosion occurring outside the Premises resulting from the activities of the

Contractor/Lessee shall be corrected by the Contractor/lessee as directed by the said officer.

27. COVENANT AGAINST CONTINGENT FEES

The Contractor/lessee warrants that no person or selling agency has been employed or retained to solicit or secure this Lease upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or established commercial or selling agencies maintained by the Contractor/Lessee for the purpose of securing business. For breach or violation of this warranty, the Secretary shall have the right to annul this

Lease without liability or, in its discretion, to require the Contractor/Lessee to pay, in addition to the Lease rental or consideration, the full amount of such commission, percentage, brokerage, or contingent fee.

28. 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 benefits to arise therefrom. However, nothing herein contained shall be construed to extend to any incorporated company if this lease is for the general benefit of such corporation or company.

29. SEVERAL CONTRACTOR/LESSEES

If more than one Contractor/Lessee is named in this lease the obligations of said

Contractor/Lessees herein contained shall be joint and several obligations.

30. BANKRUPTCY PROVISIONS

a. Waiver of Automatic or Supplemental Stay. In the event of the filing of any voluntary or involuntary petition under the U.S. Bankruptcy Code (the "Bankruptcy Code") by or against

Contractor/lessee (other than an involuntary petition filed by or joined in by the Secretary), the

Contractor/Lessee shall not assert, or request any other party to assert, that the automatic stay under & 362 of the Bankruptcy Code shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of Lessor to enforce any rights it has by virtue of this Lease, or any other rights that the Secretary has, whether now or hereafter acquired, against any party responsible for the debts or obligations of the Secretary under this Lease. Further, Contractor/Lessee shall not seek a supplemental stay or any other relief, whether injunctive or otherwise, pursuant to & l05 of the Bankruptcy Code or any other provision therein to stay, interdict, condition, reduce or inhibit the ability of the Secretary to enforce any rights he has by virtue of this Lease against any party responsible for the debts or obligations of Lessor under this

Lease. The waivers contained in this paragraph are a material inducement to the Secretary's willingness to enter into this Lease and Contractor/lessee acknowledges and agrees that no grounds exist for equitable relief which would bar, delay or impede the exercise by the secretary of the Secretary's rights and remedies against Contractor/Lessee or any party responsible for the debts or obligations of the Secretary under this Lease.

b. Bankruptcy Acknowledgment. If any or all of the Premises or any interest in the premises becomes property of any bankruptcy estate or subject to any state or federal insolvency proceeding, then the Secretary shall immediately become entitled, in addition to all other relief to which the Secretary may be entitled under this lease, to obtain (I) an order from the Bankruptcy

Court or other appropriate court granting immediate relief from automatic stay pursuant to & 362 of the Bankruptcy Code so to permit the Secretary to pursue his rights and remedies against

Contractor/Lessee as provided under this Lease and all other rights and remedies of the Secretary at law and in equity under applicable state law, and (ii) an order from the Bankruptcy Court prohibiting Contractor/lessee's use of all "cash collateral" as defined under & 363 of the

Bankruptcy Code. In connection with such Bankruptcy Court orders, Contractor/Lessee shall not contend or allege in any pleading or petition filed in any court proceeding that the Secretary does not have sufficient grounds for relief from the automatic stay. Any bankruptcy petition or other action taken by the Contractor/Lessee further admits that the Secretary would have just cause for relief from the automatic stay in order to take such actions authorized under state law.

31. MODIFICATIONS

This Lease and Contract No.________ contain the entire agreement between the parties hereto, and no modification of this agreement, or waiver, or consent hereunder shall be valid unless the same be in writing, signed by the parties to be bound or by a duly authorized representative and this provision shall apply to this condition as well as all other conditions of this Lease.

32. DISCLAIMER

The Contractor/lessee shall obtain any permit or license which may be required by

Federal, state, or local statute in connection with the use of the Premises. It is understood that the granting of this lease does not preclude the necessity of obtaining a Department of the Army permit for activities which involve the discharge of dredge or fill material or the placement of fixed structures in the waters of the United States, pursuant to the provisions of Section 10 of the Rivers and Harbors Act of 3 march 1899 (33 U.S.C.

&403), and Section 404 of the Clean Waters Act (33 U.S.C. &1344).

33. TAXES

Any and all taxes imposed by the State or its political subdivisions upon the property or interest of the lessee in the premises shall be paid promptly by the lessee.

THIS LEASE I is s not is subject to Title 10, United States Code, Section 2662, as amended.

IN WITNESS WHEREOF, I have hereunto set my hand by authority of the Secretary of the

Army, this____day of____________, _____.

Signature_____________________________

THIS LEASE is also executed by the Contractor/Lessee this____day of ________, ____.

Signature____________________________

CORPORATE CERTIFICATE

I, ______________________________________, certify that I am the Secretary of

____________________ Corporation, that __________________________________ who signed the foregoing lease on behalf of the corporation was then _____________________________ of the corporation. I further certify that said officer was acting within the scope of powers delegated to this officer by the governing body of the corporation in execution said lease.

SIGNATURE:_________________________

DATE:______________________________

(SEAL)

ACKNOWLEDGMENT

STATE OF ARIZONA

COUNTY OF YUMA

Before me a Notary Public in and for the State of Arizona, County of Yuma, personally appeared, _________________________________ to me known to be the identical person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that he/she executed the said instrument by authority of the Secretary of the Army for the purpose herein expressed as the act and deed of the United States of America.

GIVEN under my hand and seal, this ______ day of ________________________, 1998.

NOTARY PUBLIC

My Commission Expires:

LEASE CONDITIONS

The standard format for a general purpose lease is figure 8-B-3 in ER 405-1-12. All deviations from the standard general purpose lease format are identified below in BOLD adjacent to the appropriate condition.

1. TERM REVISED

2. CONTRACT-LEASE RELATIONSHIP NEW CONDITION AS REQUIRED BY CERE-

MM

3. CONSIDERATION REVISED AS REQUIRED BY CERE-MM

4. NOTICES

5. AUTHORIZED REPRESENTATIVES

6. SUPERVISION BY THE INSTALLATION COMMANDER

7. TRANSFERS, ASSIGNMENTS, SUBLEASES REVISED SAME AS PPV LEASE

FORMAT

8. COST OF UTILITIES

9. MORTGAGE OF PREMISES REVISED AS REQUIRED BY CERE-MM

10. APPLICABLE LAWS AND REGULATIONS

11. CONDITION OF PREMISES REVISED SAME AS PPV LEASE FORMAT, THE PAS

CLAUSE IS INCLUDED IN THIS CONDITION.

12. PROTECTION OF PROPERTY

11. INSURANCE REVISED SAME AS PPV LEASE FORMAT

12. PROTECTION OF PROPERTY

13. INSURANCE REVISED SAME AS PPV LEASE FORMAT

14. RIGHT TO ENTER

15. HOLD HARMLESS AND INDEMNITY REVISED COMBINED PPV LEASE FORMAT

WITH BRAC LEASE FORMAT

16. RESTORATION REVISED AS REQUIRED BY CERE-MM

17. NON-DISCRIMINATION

18. SUBJECT TO EASEMENTS

19. SUBJECT TO MINERAL INTERESTS

20. COMPLIANCE, DEFAULTS, CLOSURE, REVOCATION AND TERMINATION

REVISED AS REQUIRED BY CERE-MM

21. PROHIBITED USES

22. NATURAL RESOURCES

23. DISPUTES CLAUSE

24. ENVIRONMENTAL PROTECTION REVISED AS REQUIRED BY CERE-MM -BRAC

LEASE FORMAT

25. HISTORIC PRESERVATION

26. SOIL AND WATER CONSERVATION

27. COVENANT AGAINST CONTINGENT FEES

28. OFFICIALS NOT TO BENEFIT

29. SEVERAL CONTRACTOR/LESSEES

30. BANKRUPTCY PROVISIONS REVISED SAME AS PPV LEASE FORMAT

31. MODIFICATIONS

32. DISCLAIMER

33. TAXES REVISED

Reviewed for legal sufficiency by: ____________________________ Date: ______________

(Documentation of legal review for outgrants with deviations from standard format is required by

ER 405-1-12 paragraph 8-77)

This sheet should be filed in the official lease file behind the original outgrant document.