Exhibit 10.2(a)
FACILITIES USE AGREEMENT
This Facilities Use Agreement Number M67004-99-C-0022, (the "Agreement") is
made and entered into as of this 12th day of April, 1999 by and between the
Marine Corps Logistics Base, Albany, Georgia (the "Government") and United
Defense LP (the "Contractor") (hereinafter collectively referred to as the
"Parties").
RECITALS
WHEREAS, the Government is the owner of certain real property located in
the County of Xxxxxxxxx, State of Georgia, more particularly described in
Schedule A, attached hereto and incorporated herein by reference (the
"Property"): and
WHEREAS, the Government desires to provide the Property to the Contractor,
and the Contractor desires to use the Property for the purpose of performing
services for the Government in connection with the Amphibious Assault Vehicle
(AAV) Reliability, Maintainability, Sustainability/Rebuild to Standard program;
and
WHEREAS, providing the Property will facilitate the Government's
procurement of essential services and promote the national defense; and
WHEREAS, providing the Property will support the Government's industrial
preparedness programs and is in the public interest,
NOW THEREFORE, in consideration of the mutual promises and conditions set
forth herein, the Government and the Contractor hereby agree as follows:
I. PROVISION OF PROPERTY
---------------------
A. Provision. The Government hereby provides the Property to the
---------
Contractor and the Contractor hereby agrees to use the Property in
accordance with the terms and conditions set forth in this Agreement.
B. Use of Property. The Contractor is authorized to occupy and use the
---------------
Property in performance of the requirements in Contract M67854-98-C-
2075, which was awarded by the Marine Corps Systems Command (the
Contract"), and for such other uses as authorized by the Government.
C. Term, Option to Extend, and Termination. Notwithstanding any provision
---------------------------------------
to the contrary herein or in the FAR, the term of this Agreement shall
be for a period commencing on the date first written above and ending
on 31 December 2002. However, the parties hereto may by mutual written
agreement, extend the use of the Property under this Agreement beyond
31 December 2002 to permit completion of the contract or subsequent
related contracts. Furthermore, notwithstanding the Government's
absolute right to terminate this Agreement at any time, the Government
will, to the extent practicable, provide the Contractor with 180 days
advance written notice prior to terminating this Agreement.
D. Rent. As provided in FAR 52.245-9(a), the Contractor shall have no
----
obligation to pay any rent to the Government provided the Contractor
only performs work under the Contract.
E. Annual Review. The Parties agree that they will periodically review
-------------
this Agreement (but not less than annually) to ensure that it
continues to meet their respective needs.
II. SPECIAL PROVISIONS.
------------------
A. Reasonable Access for Contractor. The Government agrees to permit the
--------------------------------
Contractor reasonable access to the Property and to place no
unreasonable encumbrance upon the free use and enjoyment of the
Property by the contractor's personnel, authorized visitors, or any
other individuals having a reasonable need to enter the Property.
B. Provision of Utilities and Support Services. The Government shall make
-------------------------------------------
available to the Contractor, on a reimbursable basis, the following
utilities and services in connection with the Contractor's use of the
Property, and the Parties hereto shall enter into a separate agreement
concerning the Government's provision of such utilities and services
and the Contractor's payment therefor.
Water Electricity
Sewage Natural Gas
Miscellaneous Maintenance Entomology Services
Building Maintenance Refuse Collection
Emergency Ambulance Service Hazardous Waste Disposal
In addition to the foregoing, the Government shall make available to
the Contractor, at no cost, the following services in connection with
the Contractor's use of the property:
Security Fire Protection
Safety Intra-base Mail
Guard Service (Gate)
C. Parking. The Government agrees to provide the Contractor with ten
-------
parking spaces adjacent to the Property as indicated in Schedule B. In
addition, the Government will provide the Contractor with access to
additional parking in close proximity to the Property.
D. Installations, Arrangements, Rearrangements, Modifications and
--------------------------------------------------------------
Construction. The Contractor may, at its own expense, construct or
------------
install any fixed improvements, structural alterations or
modifications, or install such capital equipment on the Property as
may be necessary to perform its obligations under the Contract. This
shall include, but is not limited to, bringing utilities to the
Property and providing for the separate metering thereof, making
architectural/ structural, mechanical, electrical, or other
renovations or alterations to the Property; and, making improvements
(including stabilization and drainage) to any open storage areas. The
Parties acknowledge and understand, however, that at the expiration or
earlier termination of this Agreement, the Contractor may remove any
capital equipment that it provided and installed on the Property to
perform its obligations under the Contract. However, if the Contractor
removes any such capital equipment then the Contractor agrees to
restore that portion of the Property vacated by said equipment to a
condition such that the Property may once again be used for its
original purpose as a storage warehouse.
E. Periodic Inspections. The Government reserves the right to perform
--------------------
periodic preventive maintenance, fire protection and other inspections
of the Property. This shall include, but not be limited to, the
Government's right to perform environmental compliance and explosive
safety inspections.
F. Contracting Officer's Representative. The Contracting Officer shall
------------------------------------
designate in writing a Contracting Officer's Representative
(hereinafter "COR") to insure that the Parties comply with the terms
and conditions of this Agreement.
G. Condition of Property. The Government makes no warranty, express or
---------------------
implied, regarding the condition or fitness for use of the Property.
H. Compliance with Laws.
--------------------
1. General. The Contractor, at its own expense, shall conduct its
-------
activities on the Property in compliance with all applicable
laws, regulations, rules, orders, decrees, permits and
agreements, including without limitation those promulgated by the
Department of Defense or any division or related agency thereof,
and including without limitation those which relate to health,
safety, environmental protection, waste disposal, and water and
air quality with respect to the use of the Property and the
rights granted hereunder (all of which are hereinafter referred
to as the "Requirements"). Further, the Contractor
shall conduct its activities in compliance with all requirements
to which the Government may be subject with respect to the
Property. The Parties agree that to the extent existing
Requirements are changed or new Requirements are imposed during
the term of this Agreement, both parties retain the right to seek
an equitable adjustment or other appropriate change under the
Contract as may be permitted by law.
2. Cooperation in Obtaining Permits. The Contractor shall, at its
--------------------------------
own expense, obtain any and all permits, licenses, and other
authorizing documents as may be necessary for the use and
possession of the Property, provided the Government cooperates
with and gives its best efforts to the Contractor to the extent
reasonably necessary for the contractor to obtain such permits,
licenses, and other authorizing documents. Hazardous waste may be
disposed of under MCLB Albany's Environmental Protection Agency
identification number on a reimbursable basis.
3. Government Disapproval of Contractor Actions. If the Government
--------------------------------------------
fails to reasonably approve or allow any action that the
Contractor has identified as reasonably required to meet its
obligations under this section then the Contractor shall be
relieved of its obligations pursuant to this section for such
action and any resulting conditions arising from the failure to
take such action.
I. Environmental Investigation and Remediation.
-------------------------------------------
1. Potential for Contamination and Intent to Apportion Liability.
-------------------------------------------------------------
The Parties acknowledge that environmental contamination may
currently exist on the Property and they hereby express their
mutual intent that the purpose of this section is to determine,
to the extent possible, the source(s) of any such contamination.
Specifically, while the Contractor has agreed herein to comply
with all applicable laws, the Parties agree that it is not their
intent to require the Contractor to clean up or otherwise
remediate any contamination which may exist on or in the vicinity
of the Property as of the effective date of this Agreement.
2. Contractor Responsibilities. The Contractor shall be responsible
---------------------------
for addressing and correcting (to the extent required by
applicable laws and regulations) any environmental pollution,
contamination and/or damage to the Property occurring after the
effective date of this Agreement and resulting from the
Contractor's use and/or possession of the Property on or after
the effective date of this Agreement, regardless of whether (a)
such pollution, contamination or damage is discovered before or
after the expiration or termination of this Agreement, or (b)
corrective or response actions continue or are required to begin
after the expiration or termination of this Agreement.
The Contractor's obligations pursuant to this paragraph do not
extend to any acts of the United States or its agents. The
Contractor is not an agent of the United States for purposes of
this exclusion.
3. Environmental Baseline Surveys (EBS). The Government has, at its
------------------------------------
own expense, conducted an initial EBS that is appended to this
Agreement and incorporated herein as Schedule C. The Parties
acknowledge that this EBS accurately describes the environmental
condition of the Property as of the effective date of this
Agreement. At the conclusion of this Agreement, the Governmental
shall promptly, but no later than six months, conduct another EBS
at its own expense to determine the environmental condition of
the Property at the time the Contractor vacates the Property. A
copy of this final EBS will be furnished to the Contractor upon
completion of the survey.
4. Reservation of Rights. Notwithstanding any other provision of
---------------------
this Agreement, the Contractor and the Government hereby reserve
any and all rights and defenses available under law or any other
contract between the Parties that may apply to any liability to a
third party, including without limitation other federal, state or
local governmental agencies, relating to or arising from
environmental conditions existing on, emanating from, or relating
to the Property on the effective date of this Agreement. Nothing
in this Agreement shall be construed to abrogate any such rights
and defenses.
J. Environmental Indemnification. As of the effective date of this
-----------------------------
Agreement, the Contractor shall indemnify, defend and hold the
Government harmless against any and all claims, demands, judgments,
administrative actions, enforcement actions and lawsuits against the
Government alleging environmental pollution, contamination, damage to
property, personal injury or death and/or violation of any
environmental, health or safety law, regulation, permit, order, decree
or agreement resulting from, or attributable to, the actions or
omissions of the Contractor, its employees, agents, subcontractors and
suppliers, during all periods of time that the Contractor has the use
or possession of the property. The Contractor's obligation pursuant to
this section shall continue regardless of whether such allegations are
made before or after the expiration or termination of this Agreement.
The Contractor's obligations pursuant to this section do not extend to
acts of the United States or its agents. The Contractor is not an
agent of the United States for purposes of this exclusion. The
contractor shall be relieved of its obligations pursuant to this
section for any conditions arising from environmental compliance or
remediation activities which the Contractor has proposed to undertake
and the Government has unreasonably disapproved or disallowed to be
taken on the Property.
K. Indemnification for Third Party Non-Environmental Claims. As of the
--------------------------------------------------------
effective date of this Agreement, the contractor shall indemnify,
defend and hold the Government harmless against all claims for
personal injury or death to any and all persons and for damage to
property of the Contractor or any and all other persons arising from
the Contractor's use or possession of this Property, provided that
indemnification for all claims involving environmental pollution or
contamination shall be governed by the section of this Agreement
titled "Environmental Indemnification."
III. MISCELLANEOUS PROVISIONS.
------------------------
A. Headings. The section headings of this Agreement are inserted for
--------
reference purposes only and do not affect the terms and provisions
hereof.
B. Industrial Mobilization. The Property shall not be subject to or be
-----------------------
made part of any industrial mobilization requirements planning unless
otherwise agreed to in writing by the Parties.
C. Notices. Except as otherwise provided in this Agreement, any notice
-------
required or permitted to be given hereunder shall be delivered
personally or sent by mail with postage prepaid to the following
addresses or to such other places as may be designated by the Parties
from time to time.
For the Contractor: For the Government:
Contracting Officer (Code 891)
Marine Corps Logistics Bases
X.X. Xxxxxx 00000
Xxxxxx, Xxxxxxx 00000
D. Incorporation by Reference of FAR and DFARS Contract Clauses. This
------------------------------------------------------------
Agreement incorporates the following FAR and DFARS clauses by
reference, pursuant to FAR 52.252-03, with the same force and effect
as if they were given in full text.
FAR REF NO. CLAUSE TITLE CLAUSE DATE
----------- ------------ -----------
52.203-1 Definitions OCT 1995
52.203-3 Gratuities APR 1984
52.203-5 Covenant Against Contingent Fees APR 1984
52.203-7 Anti-Kickback Procedures JUL 1995
52.211-15 Defense Priority and Allocation Requirements SEP 1990
52.215-2 Audit and Records - Negotiations AUG 1996
Alternate I (JAN 1997)
52.215-8 Order of Precedence - Uniform Contract Format OCT 1997
52.217-9 Option to Extend the Term of the Contract MAR 1989
52.222-3 Convict Labor AUG 1996
00-000-00 Labor Standards for Construction Work - FEB 1988
Facilities Contracts
52.288-5 Insurance - Work on a Gov't Installation JAN 1997
Workmen's Compensation - $100,00
Comp. Gen'l Liability - $ 500,000 pers. Injury
$1,000,000 prop. Damage
Comp. Auto Liability - $200,000 per person
$500,000 bodily injury
$ 20,000 prop. damage
52.232-21 Limitation of Cost (Facilities) APR 1984
52.233-1 Disputes-Alternate I (DEC 1991) OCT 1995
52.237-2 Protection of Government Buildings, APR 1984
Equipment and Vegetation
52.242-1 Notice of Intent to Disallow Costs APR 1984
52.242-13 Bankruptcy JUL 1995
52.242-16 Stop Work Order - Facilities AUG 1989
52-243-2 Changes - Cost-Reimbursement AUG 1987
Alternative IV (APR 1984)
52.245-1 Property Records APR 1984
52.245-8 Liability for the Facilities JAN 1997
52.245-9 Use and Charges APR 1984
52.245-11 Government Property (Facilities Use) APR 1984
52.246-10 Inspection of Facilities APR 1984
52.249-13 Failure to Perform APR 1984
52-249-1 Termination for Convenience of the APR 1984
Government (Services)
00-000-00 Excusable Delays APR 1984
52.252-2 Clauses Incorporated by Reference FEB 1992
DFARS REF NO. CLAUSE TITLE CLAUSE DATE
------------- ------------ -----------
252.301-7000 Contracting Officer's Representative DEC 1991
E. Counterparts. This agreement may be signed in counterparts.
------------
IN WITNESS WHEREOF, the Parties hereto have executed by this Agreement as
of the date first set forth above.
FOR UNITED DEFENSE LP FOR MARINE CORPS LOGISTICS BASE
ALBANY, GEORGIA
By /s/ Xxxxxxx Xxxxxxxx By /s/ Xxxxx X. Xxxx
-------------------------- --------------------------
Xxxxxxx Xxxxxxxx XXXXX X. XXXX
Colonel, U.S. Marine Corps
Title Division Controller Title Commanding Officer
arine Corps Base, Albany, GA
By /s/ X. X. Xxxxxxxx, Xx.
-------------------------
X. X. XXXXXXXX, XX.
Colonel, U.S. Marine Corps
Title Program Manager, AAV
By /s/ Xxxxx X. Xxxxxxx
-------------------------
XXXXX X. XXXXXXX
Title Contracting Officer (Code 891)
Schedule A - Government Furnished Property
(As shown on attached map)
Building 1121, Bay 4 42,600 Square Feet
Rail Siding at Building 1,000 Linear Feet
Parking Spaces (10) Adjacent to Building
