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EXHIBIT 10.52
DEPARTMENT OF THE AIR FORCE
Headquarters Air Force Space Command
Xxxxxxxxxx Air Force Base
LEASE NO. SPCVAN-2-94-0001
THIS LEASE, made between the Secretary of the Air Force, of the first part, and
Astrotech Space Operations, L.P. of the second part, WITNESSETH:
The secretary of the Air Force under the authority of Xxxxx 00, Xxxxxx Xxxxxx
Code, Section 2667 (10 U.S.C. 2667) has determined that the land and facilities
hereby leased is not excess property, as defined by 40 U.S.C. 472; is not for
the time needed for public use; and leasing it will be advantageous to the
United States and in the public interest. This lease is also entered into in
furtherance of the purposes of the Commercial Space Launch Act of 1984 (PL
98-575) and the Commercial Space Launch Act Amendments of 1988 (PL 100-657).
Therefore, for the consideration set out below and by means of this Lease
Agreement, the Air Force leases the land and facilities or property, described
in Attachment A, attached hereto and made a part hereof, to the party of the
second part, called the "lessee".
THIS LEASE is granted subject to the following conditions:
1. Term. This lease shall be for a term of 20 years, beginning on 1 October
1993 and ending on 30 September 2013.
2. Use of Leased_Premises. The lease shall be for the use of land and
facilities located at Xxxxxxxxxx Air Force Base (VAFB), CA, upon which lessee
shall build facilities or refurbish existing government facilities, in support
of government and commercial launches.
3. Commercialization Agreement. The Department of the Air Force/Astrotech Space
Operations Commercialization Agreement, including Annex B for Astrotech Space
Operations, L.P. Programs between the 30th Space Wing and Astrotcch Space
Operations, L.P. (hereafter "Commercialization Agreement") is hereby
incorporated into this Lease Agreement as Attachment B. Each time the
Commercializatlon Agreement is revised, it shall supersede its predecessor and
be incorporated into this Lease Agreement. In the event of any inconsistency
between the provisions of the Lease Agreement and the Commercialization
Agreement, the terms of the Lease Agreement shall take precedence. Other
supporting documents such as Joint Operating Procedures (JOPs), if entered
into, will be subordinate to both of the above documents.
4. Consideration.
(a) In consideration for the lease of these premises, the lessee shall
perform all maintenance, protection, repair, or restoration of the premises,
and any improvements now or to be constructed on them; and pay an annual
rental of $35, 000, payable in the amount of $8,750 quarterly in advance on 1
October, 1 January, 1 April and 1 July of each year. Payments shall be made
payable to the Treasurer of the United States and forwarded by the lessee
direct to Accounting and Finance, Commercial Services, XXX-XX Xxxxxxxxxx/FS,
1031 California Suite A 000, Xxxxxxxxxx Xxx Xxxxx Xxxx, Xxxxxxxxxx
00000-0000, DSH 276-4964.
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(b) Lessee shall pay to the United States on demand any sum which may have
to be expended after the expiration, revocation, or termination of this lease in
restoring the premises to the condition required by Condition 19.
5. Government Representatives and Their Successors. Except otherwise
specifically provided, any reference herein to "Commander, 30SPW" or "said
officer" shall mean the Commander, 30th Space Wing, or his duly appointed
successors and his authorized representatives.
6. Extension of Lease. Subject lease may be extended with agreement of both
parties. So long as Lessee satisfactorily complies with the terms and
conditions of this Lease Agreement, Lessee shall be given the opportunity for
such extension(s). Agreements to renew subject lease will not exceed a term
of five years per renewal agreement. In order to support Lessee's commercial
requirement to contractually commit up to three (3) years in advance to
provide services to its customers utilizing the property that is the subject
of this lease, extension of subject lease shall permitted up to three (3)
years prior to expiration date of subject lease or subsequent extension.
7. Revocation or Termination by the Government
(a) This lease may be revoked by the Deputy Assistant Secretary of the
Air Force (Installations) or higher authority at any time upon the failure of
the lessee to comply with the terms of this lease. Prior to the revocation,
the lessee must be informed, in writing, by the said officer of the terms
with which the lessee is not complying and afforded a sixty (60) day period
to return to compliance with the provisions of the lease. If the lessee does
not return to compliance within the time allotted, the lessee shall vacate
the premises within 90 days thereafter. Lessee shall be liable for additional
rental costs for this 90-day period and for any costs incurred by the United
States in removing lessee from said premises and restoring the premises to
the condition that existed on the date this lease was executed.
(b) The lease may be terminated by the Deputy Assistant Secretary of the
Air Force (Installations) or higher authority in the event of a national
emergency declared by Congress or the President, declared or undeclared war
involving the United States, or if the Deputy Assistant Secretary determines
that the paramount interest of rational defense requires it. If the lease Is
terminated by the Government without fault of the lessee, the lessee may
request the Government pay the unamortized depreciation of any improvements
which have been made to the premises by the lessee. The Government will act
in good faith to seek appropriated funds for such purpose, and if authorized
by appropriate Government officials, negotiate fair and reasonable
compensation for any such unamortized depreciation.
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8. Termination by Lesee. This lease may be terminated by the lessee at
any time by giving the said officer at least sixty (60) days notice in
writing. No money or other consideration paid or due to the Government
up to the date of termination shall be refunded.
9. Assignment. The lessee shall not:
(a) transfer or assign this leave or any property on the leased
premises, except to a corporate affiliate or to a successor entity which is
involved in space exploration and development activities substantially similar
to those of Astrotech at Xxxxxxxxxx AFB, without permission in writing from
said of f icer;
( b ) sublet any part of the premises or property on it without
permission in writing from said officer; or
(c) grant any other form of interest, privilege, or license in
connection with this lease without permission in writing from the said officer.
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10. Condition of Premises. The lessee has inspected and knows the condition
of the leased property. It is understood that it is leased without any
representation or warranty by the Government concerning its condition, and
without obligation on the part of the Government to make any alterations,
repairs, or additions.
11. Maintenance of Property. Subject to the limitations of Condition 19
hereof with respect to the restoration of the property, all portions of the
leased property, including any existing improvements contained in the area
described in Attachment A or improvements built by lessee, shall be
maintained, protected, repaired, or restored to good order and condition by
and at the expense of the lessee.
12. Repair of Damage. Any property of the United States on the leased
premises or elsewhere which is damaged or destroyed by occurrences arising
out of the use of the leased premises shall be promptly repaired or replaced
by the lessee to the satisfaction of the said officer. In lieu or such repair
or replacement the lessee shall, if so required by the said officer, pay to
the United States money in an amount sufficient to compensate for the loss.
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13. Entry By Government. The United States, its officers, agents,
employees, and contractors may enter upon the leased premises at any
time, upon reasonable notice, for the purpose of inspection and
inventory of property of the United States and when otherwise deemed
necessary for the protection of the interests of the Government. The
lessee shall have no claim on account of such entries against the
Government or any officer, agent, employee, or contractor thereof
provided, however, that nothing in this lease shall affect the
Government's liability arising under the Federal Tort Claims Act, 28
U.S.C. 2671 et seq.
14. Liability and Indemnification.
(a) Lessee agrees to assume all risks of loss or damage to property and
injury or death to persons by reason of the activities conducted under
this lease, except for such loss or damage and injury or death which
results from the reckless disregard or willful misconduct of the
Government or its agents or as provided in Condition 13 hereof. Lessee
expressly waives all claims against the Government for any such loss,
damage, personal injury or death occurring as a consequence of the
conduct of activities or the performance of lessee's responsibilities
under this lease. Lessee further agrees to indemnify, save, hold
harmless, and defend the Government against all suits, claims or actions
of any sort resulting from, related to, or arising out of lessee's
activities conducted or services furnished in connection with this
lease.
(b) Lessee shall carry adequate liability and indemnity insurance acceptable
to Commander, 30th Space Wing, to protect the Government against claims
for bodily injury or death and for damage to property resulting from the
operations of the lessee under the terms of this lease. The Government
shall be a named insured under the policy, and the insurer shall have no
right of subrogation against the Government.
(c) The lessee shall procure and maintain, at its cost, a standard fire and
extended coverage insurance policy or policies on the leased property to
the full insurable value thereof. Such policy shall provide, as a
minimum, for prompt restoration of the property to its condition at the
date this lease is signed without cost to the Government. Coverage
providing for repairing or rebuilding lessee's improvements is optional
with the lessee.
(d) All terms and conditions regarding liability and indemnification set out
in the current Commercialization Agreement, as set forth in Attachment
B, or as modified by the parties, which are not in conflict with above
provisions, shall apply.
15. Compliance with Applicable Laws.
(a) Lessee will comply with the provisions of all applicable federal, state,
and local laws, regulations, and standards, and including those
provisions concerning the protection and enhancement of environmental
quality and pollution control and abatement.
(b) Lessee shall comply with all applicable laws, ordinances, and
regulations of the State of California and Santa Xxxxxxx County with
regard to construction, sanitation, licenses or permits to do business,
and all other matters.
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(c) This clause does not constitute a waiver of Federal Supremacy or
sovereign immunity. Only laws and regulations applicable to the
premises under the Constitution and statutes of the United States are
covered by this clause,
(d) The said officer and the Air Force do not, by reason of this lease,
assume the responsibility for enforcement of the foregoing statutes,
ordinances or regulations. Enforcement remains the sole responsibility
of the authorities duly constituted for the purpose of such enforcement.
16. Review and Approval of Construction Plans.
(a) All plans for construction, modification, or additions by lessee must be
approved in writing by the said officer or his delegate before the
commencement of any construction project. In addition, the designs for
all lessee connections to VAFB utilities will comply with DOD/USAF
construction standards and be subject to 30SPW review and approval.
DOD/USAF construction standards are available through the office of the
VAFB Base Civil Engineer.
(b) The Air Force review process for either a construction project or a
utility connection will be completed within 30 days of receipt of plans
and specifications. Approval will not be unreasonably withheld.
(c) All construction shall be in accordance with the approved designs and
plans and without cost to the Government. The lessee shall not proceed
with excavation or construction until it receives written authorization
from the said officer.
(d) All matters of ingress, egress, contractor haul routes, construction
activity and disposition of excavated material, in connection with the
lease herein granted, shall be coordinated with the said officer. A11
excavation and construction activity shall be accomplished during
periods (including hours of the day) acceptable to the said officer.
17. Utilities.
(a) If the Government agrees to provide them, specific arrangements for
utilities will be included in a separate Operating Agreement.
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(b) The lessee shall pay direct costs incurred by the United States in
producing and/or supplying any utilities.
18. Taxes.
(a) The lessee shall pay to the proper authority on a timely basis all
applicable taxes, assessments, and similar charges relating to the leased
premises or facilities or operations thereon which, at any time during the
term of this lease or any extensions, may be imposed on the lessee's interest
in the leased premises pursuant to 10 U.S.C. 2667(e).
(b) Should Congress enact a law making the Government's interest in the
leased premises taxable by state or local governments (i.e., waive sovereign
immunity to taxation), the lease shall be re negotiated to allocate the cost
of the tax.
19. Vacation of Premises.
(a) On or before the date of expiration of this lease, or its final
extension, or of its termination by the lessee, the lessee shall vacate the
premises, remove its property (including improvements and personal property)
and restore the premises to the condition that existed on the date this lease
was executed, except as the Government may exercise its rights under
Paragraph (c) below.
(b) If the lease is revoked under Paragraph 7(a) hereof, the lessee
shall vacate the premises, remove its property (including any improvements
and personal property}, and restore the premises to the condition described
in Paragraph 19(a) above within 90 days or such longer time as the said
officer may direct, except as the Government may exercise its rights under
Paragraph (c) below.
(c) The Government may, at its option, accept title to some or all of
the lessee's property or improvements in lieu of restoration. The Government
shall have a reasonable time, extending at least until the end of the next
annual session of Congress, to obtain any authorization by law that may be
needed to exercise the right to acquire such property or improvements.
(d) If the lessee fails to remove its property and restore the premises
by the required date, and the said officer declines to take title to the
property, the said officer may cause the property to be removed and the
premises restored at the expense of the lessee. No claim for damages against
the United States or its officers, agents, or contractors shall be created by
or made on account of such removal and restoration work.
20. Disputes.
(a) Except as otherwise provided in this lease, any dispute concerning a
question of fact arising under this lease which is not disposed of by
agreement shall be decided by the said officer. Said officer shall reduce the
decision to writing and mail or otherwise furnish a copy to the lessee. The
decision of the said officer shall be final and conclusive unless, within 30
days from the date of receipt of such copy, the lessee mails or otherwise
furnishes to the said officer a written appeal addressed to the Secretary of
the Air Force. The decision of the Secretary or his duly authorized
representative for the determination of such appeals shall be final and
conclusive unless determined by a court of competent jurisdiction to have
been fraudulent, or capricious, or arbitrary, or so grossly erroneous as
necessarily to imply bad faith, or not supported by substantial evidence.
In connection with any appeal proceeding under this condition, the lessee
shal1 be afforded an opportunity to be heard and to offer evidence in support
of its appeal. Pending final decision of a dispute hereunder, the lessee
shall proceed diligently with the performance of the lease in accordance with
the said officer's decision.
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(b) This clause does not preclude consideration of legal questions in
connection with decisions provided for in Paragraph (a) above, provided that
nothing in this clause shall be construed as making final the decision of any
administrative official, representative, or board on a question of law.
21. Rules and_Regulations. The use and occupation of the leased premises
shall be subject to the general supervision and approval or the said officer
and to such reasonable rules and regulations as may be prescribed by him or
her from time to time.
22. Notices. All notices to be given pursuant to this lease shall be
addressed, if to the lessee, to:
President
Astrotech Space Operations, L.P.
00000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxxxx, XX 00000-0000
if to the
Government,
to:
Commander
30th Space Wing
000 Xxxxxxxx Xxx., Xxxxx 0
Xxxxxxxxxx XXX, XX 00000-0000
or as may from time to time be directed by the parties. Notice shall be
deemed to have been duly given if and when enclosed in a properly sealed
envelope or wrapper, addressed as aforesaid, and personally delivered or sent
certified mail, return receipt requested.
23. General Provisions.
(a) The 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 bona fide established commercial
or selling agencies maintained by the lessee for the purpose of
securing business. For breach or violation of this warranty, the
Government shall have the right to annul this lease without liability
or in its discretion to require the lessee to pay, in addition to the
lease rental or consideration, the full amount of such commission,
percentage, brokerage, or contingent fee.
(b) 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 to arise
therefrom. Nothing, however, herein contained shall be construed to
extend to any incorporated company, if the lease be for the general
benefit of such corporation or company.
(c) Facilities Nondiscrimination.
(1) As used in this paragraph, The term "facility" means lodgings, stores,
shops, restaurants, cafeterias, restrooms, and any other facility of a
public nature in any building covered by, or built on land covered by,
this lease.
(2) The lessee agrees not to discriminate by segregation or otherwise
against any person because of race, color, religion, sex, or nationa1
origin in furnishing, or refusing to furnish, to such person the use of
any facility, including ALL services, privileges, accommodations, and
activities provided on the premises. This does not require the
furnishing to the general public the use of any facility customarily
furnished by the lessee solely to tenants or to Air Force military and
civilian personnel, and the guests and invitees of any of them.
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24. Environmental Compliance and Cleanup.
(a) The lessee agrees that from the effective date of this lease and during
the lessee's use and/or possession of leased premises, including during
any extension period, the lessee shall be the operator of the leased
premises and shall operate in compliance with all applicable federal,
state, and local environmenta1 laws, statutes, ordinances, and
regulations in effect at any time during the period of this lease. The
lessee further agrees that during the lessee's use and/or possession of
the leased premises, including any extension period, the lessee shall
not treat, store, dispose of, discharge, or release emissions, waste,
effluent, hazardous substances, or contaminates in such a manner that
such actions will unlawfully pollute or contaminate air, ground
(including subsurface strata), water (including ground water), or
become a public nuisance. The total responsibility for ensuring
compliance with the aforementioned laws, statutes, ordinances, and
regulations shall be the lessee's alone. The lessee shall obtain and
maintain, pursuant to the aforementioned laws, statutes, ordinances,
and regulations, such permits, licenses, or other authorizing documents
as may be required for the lessee's use and/or possession, The lessee
shall sign such permits, licenses, or other authorizing documents as
operator of the leased promises.
(b) During the initial lease period, and any extension period, the total
responsibility shall be the lessee's alone for the treatment, storage,
disposal of emissions, waste, effluent, hazardous substances, or
contaminants and for cleaning up or correcting any environmental
pollution, contamination, and/or damage to the leased premises
occurring on or after the effective date of this lease and resulting
from the lessee's use and/or possession on or after the effective date
of this lease. This responsibility shall exist even if said emissions,
waste, effluent, hazardous substances, pollution, damage, or
contamination are not discovered until after the date this lease
expires or is terminated. Furthermore, the leasee's responsibility
shall continue even if said treatment, storage, disposal, cleanup, or
correction operations continue or are required to begin after the date
this lease expires or is terminated.
(c) The lessee agrees that it shall reimburse, indemnify, hold harmless,
and defend the Government against any and all claims (including
equitable claims and tort claims), lawsuits or enforcement actions
concerning, or resulting from, any actual or alleged noncompliance or
violation of any laws, statutes, ordinances, or regulations, or any
actual or alleged environmental pollution resulting from, but not
limited to, the treatment, storage, disposal, discharge or release by
the lessee of emissions, waste, effluent, hazardous substances or
contaminants on the leased premises. The lessee's indemnification of
the Government herein shall include all claims, lawsuits, or
enforcement actions brought by either private citizens (including, but
net limited to, individuals, corporations, businesses, etc.) or any
governmenta1 agency. The lessee's responsibility under this provision
shall continue even if such pollution is not discovered, or said
claims, lawsuits, or enforcement actions are not brought, until after
this lease expires or is terminated.
(d) This lease does not change the parties' respective rights, liabilities,
and responsibilities regarding environmental cleanup or compliance with
environmenta1 laws, statutes, ordinances, and regulations with respect
to actions that occurred prior to the effective date of this lease.
25. Reporting to Congress. This lease is not subject to 10 U.S.C
2662(a).
IN WITNESS WHEREOF, I have hereunto set my hand by authority of the
Secretary of the Air Force this _____day of _______________1993.
By:
Title:
THIS LEASE is also executed by the lessee this ____day of _______________ 1993.
By: XXXXXXX X. XXXX
Title: President, Astrotech Space Operations, L.P.
Signed and sealed in the presence of:
(1)
(2)
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ATTACHMENT A TO LEASE NO. SPCVAN-2-94-0001
DESCRIPTION OF LAND AND FACILITIES
LEASED
BY
DEPARTMENT OF THE AIR FORCE
TO
ASTROTECH SPACE OPERATIONS, L. P.
The land and facilities leased by the Department of the Air Force to
Astrotech Space Operations, L.P. under this Lease Agreement, as shown in
Figure 1-1, are comprised of:
(1) The approximately 59 acre deactivated magazine storage bunker site,
which is located along the southwest side of Tangair Road and accessed via
Red Road. VAFB is currently demolishing and removing, at Government expense,
all existing bunkers and buildings within the fenced area of this site.
Approximately one-half of this demolition and removal project has been
completed. The remainder of the project will be accomplished subsequent to
execution of this Lease Agreement without any expense to lessee. Subject to
the review and approval process set forth in Condition 16 of this Lease
Agreement, a first phase of construction by lessee is planned for a portion
of the area which has already been cleared.
(2) Building 1028, which is located on the southeast side of Red Road
immediately outside the fenced area described in Paragraph (1) above. Since
Building 1028 was scheduled to be demolished and removed as part of the VAFB
funded project described in Paragraph (1) above, upon the expiration or
termination of this Lease Agreement, lessee hereby agrees to demolish and
remove Building 1028 as part of restoration of the leased premises pursuant
to Condition 19 of this Lease Agreement.
