STEWARTSVILLE POSTAL PROPERTIES, LLC

LEASE AGREEMENT

PSBCA No. 6309

APPEARANCE FOR APPELLANT
Dennis J. Francis, Esq.

APPEARANCE FOR RESPONDENT
Barbara H. Cioffi, Esq.

OPINION OF THE BOARD

Appellant, Stewartsville Postal Properties, LLC, appeals a contracting officer’s final decision issued by Respondent, United States Postal Service, denying its claim for well construction costs, and for additional rent under a lease for the Stewartsville, New Jersey Main Post Office.[1]  We conclude that Appellant is not entitled to recover for the well construction costs but is entitled to recover for additional rent.

FINDINGS OF FACT

            1.         On March 26, 2008, the parties entered into a lease for the Stewartsville, New Jersey Main Post Office (Stewartsville MPO), under which Appellant would construct at its expense a post office on land Appellant owned, and lease it to Respondent for 15 years at an annual rent of $187,109 (Stipulations (Stip.) 8-9; Appeal File Tab (AF) 1; Hearing Transcript pages (Tr.) 18-20).

            2.         The lease included a construction rider, with the following relevant provisions:

            The Landlord will be responsible for site conditions including but not limited to subsurface or unknown physical conditions of an unusual nature differing materially from those ordinarily encountered.

(AF 1 at page 10, ¶ 1 (b)). 

            Said building shall be completed to the satisfaction of the Postal Service no later than 180 days after written Notice to Proceed with Construction is given by the Contracting Officer.  It is hereby agreed by all parties to this Lease that the fixed term and rent will commence the first day following acceptance of the completed building by the Postal Service.  Said commencement date will be inserted in the Lease by the Contracting Officer, and a copy of the Lease, with the inserted commencement date, shall be sent to the landlord.

(AF 1 at page 10, ¶ 1 (e)). 

            The landlord is, without additional expense to the Postal Service, responsible for:  identifying and complying with zoning requirements, if applicable, obtaining, and paying for, any necessary licenses and permits required for privately owned buildings, and complying with any applicable federal (sic) state, and municipal laws, codes, and regulations, in connection with the performance required under or related to this contract.

(AF 1 at page 11, ¶ 6 (a)). 

            The landlord must give the Contracting Officer at least thirty (30) days advance written notice of the date the work will be fully completed and ready for acceptance inspection and tests . . .

(AF 1 at page 12, ¶ 9 (e)).  The lease further provided that “A Certificate of Occupancy is required before acceptance” (AF 1 at page 14). 

            3.         The lease included a Maintenance Rider, with the following relevant provision:

            If the demised premises or any portion thereof are damaged or destroyed by fire or other casualty, Acts of God, of a public enemy, riot or insurrection, vandalism, or are otherwise determined by the Postal Service to be unfit for use and occupancy, . . . the Postal Service will require the Landlord to rebuild or repair the premises as necessary to restore them to tenantable condition to the satisfaction of the Postal Service. . . . The Postal Service, acting through the Contacting Officer, may proportionately abate the rent for any period the premises, or any part thereof, are determined by the Postal Service to have been rendered untenantable, or unfit for use and occupancy, by reason of such condition.

(AF 1 at page 15, ¶ 4). 

            4.         The lease included a Utilities, Service and Equipment Rider, which provided that Respondent pays all recurring fuel charges and all recurring electrical bills (AF 1 at page 21).  A tax rider required Respondent to reimburse Appellant for real estate taxes paid by Appellant (AF 1 at page 17). 

            5.         On July 9, 2008, Respondent issued a notice to proceed to Appellant.  The notice to proceed identified a 180-day construction period as specified in the lease, thereby contemplating completion of the building in January 2009.  (AF 13; Tr. 35).

            6.         The lease required Appellant to provide a potable water system, which Appellant intended to provide by means of a well to be drilled on its property (AF 1 at page 22; Tr. 196).

            7.         On August 13, 2008, Appellant prepared a final Schedule of Values, which estimated costs for various construction tasks.  One line item was marked “Well,” with a $19,500 “allowance.”  (AF 12[2]; Tr. 27-29, 33).  This Schedule of Values updated one or more previous schedules, which are not in the record (Tr. 28-29, 75-76).  The Schedule of Values is not incorporated into the lease, and Respondent did not negotiate or approve the figures.  Prior to agreeing to the rental rate proposed by Appellant, Respondent may have considered the Schedule of Values to determine whether the rent was fair and reasonable (Tr. 124, 137-138, 197-98, 213-14).

            8.         Appellant applied for various permits to construct the Stewartsville MPO.  A new state regulatory authority, pursuant to the New Jersey Highlands Water Protection and Planning Act, proved to be an obstacle to completion of the project that Appellant had not anticipated.  One or more permitting and approval authorities delayed issuing permits or approvals until the Highlands authority approved the project.  However, Appellant was unable to engage the Highlands authority in a productive dialog.  Appellant eventually initiated litigation against state authorities to compel approvals and permits, and argued that the project was exempt from the Highlands authority by virtue of the federal supremacy of the United States Postal Service.  (Tr. 39-44, 81-82, 109, 147).

            9.         By March 2009, Appellant had completed construction, but certain permits and approvals remained outstanding because of the Highlands authority’s inaction (Tr. 44-45, 160). 

            10.       A lease amendment was signed by Appellant’s principal on March 9, 2009, and by Respondent’s contracting officer on March 11, 2009 (AF 2 at page 30).

            11.       The lease amendment recited that it “refers to the Lease accepted by the United States Postal Service . . . under date of 3/16/09 . . .” (AF 2 at page 28).

            12.       The lease amendment provided:

            In response to communication with both the Lessor and the New Jersey Department of Environmental Protection, there are currently several unresolved regulatory issues involving the State of New Jersey Highland regulation and the Warren County Soils Commission that impact the demised premises.  In response to the dialogue between all parties it is the mutual understanding that the Lessor is, without additional expense to the Postal Service, solely responsible for the timely resolution of the issues impacting the demised premises to the satisfaction of the official regulating agencies.

            As a condition of the acceptance of this facility by the U.S. Postal Service, the Lessor agrees to indemnify and hold harmless the Postal Service and its officers, agents, representatives and employees from all claims, loss, damage, actions, causes of action, expense and/or liability, including the cost of defense, resulting from, brought for, or on account of the New Jersey Department of Environmental Protection, the Warren County Soils Commission and/or any other official regulating agency involved.

            In the event the resolution of the outstanding issues require the demolition and removal of the demised premises, the Lessor agrees to either provide and relocate at no cost, the Post Office to a facility equivalent to the demised premises or transfer the unencumbered title (with the exception of the above referenced issues) of the demised premises to the U.S. Postal Service at which time the U.S. Postal Service will pay the Lessor the full remaining rental balance on the base fifteen (15) year term less any and all rents paid to date in a lump sum fashion.  Selection of one of the two alternatives presented above, shall be the sole and binding decision of the U.S. Postal Service.

            (AF 2 at page 29).   

            13.       The contracting officer intended to accept the building as of March 16, 2009, and he authorized the moving of postal equipment into the building in anticipation of beginning operations there on March 24, 2009 (Tr. 84, 111, 166, 191).

            14.       Respondent paid Appellant rent for the period between March 16 and March 21, 2009, while it used the building in preparation to opening to the public (Tr. 49-53, 68-69, 89-90, 99, 142, 144, 146-47, 167-68, 184; AF 15).   Respondent intended to use the post office despite the lack of approval from the Highlands authority, and despite the lack of a certificate of occupancy (Tr. 147, 154-55, 161, 177-78).  Respondent’s intention to begin operations in the Stewartsville MPO on March 24, 2009 was publicized in local newspapers (Tr. 84, 111, 191).

            15.       On March 20, 2009, in the litigation previously initiated by Appellant (see Finding 8), the Superior Court of New Jersey issued a temporary injunction against Appellant requiring it not to permit Respondent to occupy the Stewartsville MPO for the purpose of conducting business, without the approval of the Warren County Soil Conservation District or until further order of the court.  The temporary injunction did not directly order Respondent to act or to refrain from acting in any way, and Respondent was not a party in the case.  Stewartsville Postal Properties, LLC v. Warren County Health Dept. and Warren County Soil Conservation District, Docket No. WRN-C-16023-08 (Order to Show Cause With Temporary Restraints, March 20, 2009).  The temporary injunction resulted from an ex parte application by the Warren County Soil Conservation District.  The court ordered Appellant to appear on May 8, 2009, to answer the Order to Show Cause.  (AF 25).

            16.       The court ordered the Warren County Soil Conservation District to serve a copy of its Order immediately by fax to counsel for Respondent, and the contracting officer was informed of the temporary injunction on March 20 (AF 25; Tr. 56-57, 187-88).

            17.         Because of the temporary injunction, Respondent did not begin operations in the post office as planned, and it stopped paying rent to Appellant as of March 21, 2009 (Tr. 54, 112-113, 148-49, 152, 167, 185).

            18.       On April 8, 2009, the director of Watershed Management of the New Jersey Department of Environmental Protection, which apparently represented the Highlands authority, sent a letter to Appellant, concluding that the Stewartsville MPO was not subject to the New Jersey Highlands Water Protection and Planning Act based on the Supremacy Clause of the U.S. Constitution (AF 16; Tr. 60-63).  The contracting officer received a copy of that letter from Appellant (Tr. 173). 

            19.       Respondent did not resume rent upon receipt of the April 8, 2009 letter because the temporary injunction remained in effect (Tr. 175-76).

            20.       Counsel for the Warren County Soil Conservation District and counsel for Appellant agreed to a Consent Order, on May 13 and 14 respectively, to cancel the temporary injunction.  On May 21, 2009, the Superior Court of New Jersey executed and issued the Consent Order, which modified its March 20 Order, and rescinded the temporary injunction.  The Consent Order recited that the Warren County Soil Conservation District had withdrawn its objection to postal operations being conducted at the Stewartsville MPO (AF 27; Tr. 64, 115). 

            21.       Upon receipt of the court’s May 21, 2009 Consent Order, the contracting officer believed that the Stewartsville MPO once again was ready for postal occupancy, and that no further action by Appellant was needed (AF 4 at 37; Tr. 115, 186, 190).

            22.       Appellant’s principal and the contracting officer discussed an appropriate rent re-commencement date, but did not reach agreement.  On June 15, 2009, Respondent re-commenced paying rent, and the contracting officer unilaterally inserted that date into Respondent’s copy of the lease as the lease commencement date.  (Tr. 67-68, 74, 95-96, 100, 105, 131, 180; but see Tr. 116, 180, 182).

            23.       Respondent moved into the Stewartsville MPO and began operations there in July 2009.  A certificate of occupancy was not issued for the property.  (Tr. 73-74, 117, 177-79).

            24.       On January 26, 2010, Appellant filed a $59,362.73 claim with the contracting officer.  The claim consisted of:  $44,598.81, for rent at the leasehold rate, from March 18, 2009, until June 15, 2009; $119.19 for reimbursement of real estate taxes for the same period; $114.98 for gas for the same period; $685.65 for electricity for the same period; and $13,863.74 for Appellant’s costs to construct a well on the property that exceeded the $19,526.60 cost that Appellant had anticipated.  (AF 8).

            25.       On March 2, 2010, the contracting officer denied Appellant’s claim in its entirety, and on March 6, 2010, counsel for Appellant transmitted a letter to the contracting officer appealing the final decision (AF 9-10).

DECISION

            This appeal presents two issues.  First, Appellant seeks recovery of $13,863.74, for its cost to construct a well on the property.  Appellant argues that it allocated $19,526.60 to drill the well, including an unstated amount for an allowance for unexpected expenses or conditions, but alleges that it actually expended $33,390.34 to construct the well due to a necessity to drill deeper than expected (Finding 24).  Second, Appellant seeks recovery of $44,598.81, for rent during the period between March 18, 2009, when Appellant asserts Respondent breached the lease as amended by unilaterally ceasing the payment of rent, until June 15, 2009, when Respondent re-commenced rent payments.  Appellant also seeks costs for real estate taxes and utilities during that period.  (Finding 24). 

            We deny Appellant’s well construction cost claim, and sustain its additional rent claim, as explained below.

            Well Construction Claim.

            The lease required Appellant to provide water service and Appellant intended to do so by drilling a well on its property (Finding 6).  Appellant maintains that its estimated cost to drill the well was approved by Respondent, but it exceeded that cost because the well had to be drilled deeper than Appellant expected.  Appellant argues that designating the Schedule of Values entry for the well as an “allowance” of $19,500, established Respondent’s obligation to pay all costs of the well in excess of that amount (see Finding 7).  We reject Appellant’s claim.

            The lease did not include a differing site conditions or changes clause that could result in recovery were Appellant able to prove the required underlying factual conditions.  To the contrary, the lease expressly allocated the risk of such unexpected increased costs to Appellant, placing responsibility on Appellant “for site conditions including but not limited to subsurface or unknown physical conditions of an unusual nature differing materially from those ordinarily encountered.”  (Finding 2).  In Berry and Clay, Inc., PSBCA No. 4995, 04-2 BCA ¶ 32,633, the Board concluded that, in the absence of a differing site conditions or changes clause, “Appellant was responsible for the expense of dealing with adverse site conditions,” and that, as here, the contract “made explicit Appellant's responsibility for site conditions.”  Id., at 161,469.

            Designation of the well cost as an “allowance” on the Schedule of Values does not provide a basis for departing from this principle.[3]  The Schedule of Values was not incorporated into the lease, and Respondent did not negotiate or approve the schedule (Finding 7).  In Annuity Investment Properties, Inc., PSBCA No. 5045, 05-2 BCA ¶ 33,045, the Board rejected a similar argument:

            Appellant argues that Respondent's acceptance of its offer that included an estimate breakdown of $8,500 for cut/fill reflects the parties' agreement that Appellant's responsibility for fill was limited to $8,500. This argument is negated by all of the caveats in the solicitation . . . Respondent's acceptance of Appellant's offer cannot be read to be a guarantee by Respondent that Appellant would not be liable for costs in excess of the cut/fill line item in its estimated cost breakdown.

Id., at 163,776 (citations to record omitted).

            The lease allocated responsibility to Appellant for subsurface conditions that increased its construction costs over what it may have expected.  Appellant has not identified, much less proved, any basis for shifting to Respondent that explicit contractual allocation of responsibility.  Appellant’s well construction cost claim is denied.

            Rental Claim.

            Appellant contends that Respondent expressly accepted the completed building on March 16, 2009, obligating it to pay rent in accordance with the lease.  It argues that Respondent confirmed this acceptance by amending the lease, and by commencing the contemporaneous payment of rent.  Appellant argues that Respondent then breached the lease, as amended, by ceasing the payment of rent six days later.

            Respondent argues that it did not accept the building until June 15, 2009, when the contracting officer inserted that date into the lease as the lease commencement date.  It maintains that the June 15, 2009 rent re-commencement date was agreed to by the parties, and that the delay between the May 21, 2009 lifting of the temporary injunction and the June 15, 2009 re-commencement of rent was necessary to allow Respondent sufficient time to prepare to open the Stewartsville MPO to the public. 

            Alternatively, Respondent argues that if the Board were to credit Appellant’s position that the lease amendment constituted an acceptance of the lease, it was misled by Appellant and its acceptance therefore should be excused.  Respondent also argues that it “dis-accepted” any acceptance evinced in the lease amendment, which it also urges lacked consideration.  Respondent further contends that the temporary injunction against Appellant issued by the New Jersey Superior Court prevented it from occupying the post office, and justified its cessation of rent payments based on two theories.  First, Respondent argues that it was permitted by a Maintenance Rider provision to abate the rent for the period in question during which it had determined that the property was unfit for use or occupancy.  Second, Respondent argues that it was constructively evicted by the temporary injunction.  Finally, Respondent argues that Appellant’s failure to have secured a certificate of occupancy excuses its obligation to pay rent.  We agree with Appellant.

            We are asked to determine the appropriate date for commencement of rent, which is a fact-specific inquiry informed by contract interpretation.  We look primarily to the terms of the lease, as amended, for guidance. 

            The lease obligated Respondent to pay rent commencing the first day after it accepted the completed building (Finding 2).  We conclude that Respondent’s contracting officer accepted the completed building when he amended the lease to that effect, and specifically indicated in the lease amendment that the lease was “accepted by the United States Postal Service . . . under date of 3/16/09 . . .”[4] (Finding 11). 

            Our conclusion that Respondent accepted the completed building in March 2009 triggering its obligation to pay rent, is corroborated in several ways.  First, acceptance of the lease effective March 16, 2009 was the contracting officer’s intention (Finding 13).  Second, Respondent began paying rent in accordance with that acceptance, effective March 16, 2009 (Finding 14).  Third, Respondent’s contracting officer executed the lease amendment, which we find to have committed Respondent to pay rent (Finding 10).  Fourth, Respondent began using the building (Findings 13-14).  Fifth, the lease amendment itself recites that it amends the lease “accepted by” Respondent on March 16, 2009 (Finding 11).           

            Further, the lease amendment was signed by the parties with the knowledge that necessary permits and approvals had not been issued by state and local authorities (Finding 14).  Those obstacles comprised the entirety of the subject matter of the lease amendment, and we agree with Appellant that Respondent’s acceptance of the building was not conditioned on the subsequent receipt of such approvals (Finding 12).  Indeed, the lease amendment itself contemplated what could happen if the approvals never were obtained, including the potential demolition of the building (id.). 

            The parties expend considerable effort arguing over the meaning and intent of the lease amendment.  We must harmonize the entirety of the lease as amended so as to give a reasonable meaning to each of its provisions.  See, e.g., Bay Shipbuilding Co. v. Department of Homeland Security, CBCA No. 54, 07-2 BCA ¶ 33,678. 

            The first paragraph of the lease amendment acknowledges that Respondent was aware of several unresolved regulatory issues involving the Highlands authority and the Warren County Soils Commission.  While the lease amendment retains Appellant’s preexisting contractual obligation to resolve such issues at its expense, it is plain that Respondent was aware of continuing problems in this regard, and amended the lease with the conscious acceptance of the risk that regulatory issues could affect its leasehold interest. 

            When harmonized with the lease amendment’s introductory statement that Respondent “accepted” the lease “under date of” March 16, 2009, we interpret the second paragraph of the lease amendment to confirm Respondent’s acceptance of the post office, without any conditions other than that there stated.  The paragraph recites a “condition of [that] acceptance” only of Appellant’s agreement to indemnify Respondent from damage it may incur because of action taken by the regulatory authorities.[5] 

            The third paragraph of the lease amendment provides a remedy to Respondent in the event that the risk it assumed by use of the post office despite the regulatory concerns were to result in the demolition of the building.  The remedy includes its option to cause the property’s title to be transferred to Respondent, in exchange for the remaining rental balance of the base term, less rent previously paid to Appellant.  The remedy in the third paragraph contemplates that rent will have been paid to Appellant based on the acceptance evinced in the lease amendment.

            Reading these three paragraphs together with the introductory proviso, we conclude that Respondent accepted the post office with the knowledge of and acceptance of the risk that eventually was encountered.  The parties’ amendment  to the lease transferred that risk to Respondent, albeit subject to indemnification for damages by Appellant.  Cf. Leibherr Crane Corp. v. United States, 810 F.2d 1153, 1157 (Fed. Cir. 1987) (a party undertaking a conscious gamble with known risks assumes the risk of its deliberative choice).

            Respondent’s argument that it was misled into signing the amendment by material misrepresentations by Appellant concerning the severity of the remaining regulatory obstacles is rejected for lack of proof.  Respondent was aware of the regulatory problems, recited the problems in the lease amendment in broad terms with no mention of their severity or lack of severity, and accepted the building nonetheless.  The amendment was written in broader terms than merely expressing a concern with the Highlands authority, speaking to Respondent’s communications with the New Jersey Department of Environmental Protection, and to “several” unresolved regulatory issues “currently” involving the Highland regulation and the Warren County Soils Commission.  The amendment itself contemplated a potential situation serious enough that the building might be demolished.  Respondent did not demonstrate that the contracting officer relied on any representation by Appellant in determining to accept the lease and addendum, and Respondent has failed to persuade us that it was misled by Appellant.  See William H. Houser, PSBCA No. 2466, 90-1 BCA ¶ 22,504.  Respondent’s argument that it is entitled to void any obligation it incurred due to the lease amendment is rejected.  See Cecil B. Waldrip, PSBCA No. 1244, 84-2 BCA ¶ 17,500.[6]

            Respondent also argues that the lease amendment lacked consideration because Appellant was already obligated to secure the regulatory approvals.  However, reading the amendment as a whole, among other obligations there recited, Appellant’s agreement to indemnify Respondent and its agreement to sell the property to Respondent on stated terms should such a sale become necessary provide ample consideration.

            Our conclusion that Respondent accepted the building effective March 16, 2009, notwithstanding the outstanding regulatory issues, is only part of our task, however.  We next must determine whether the amended lease permitted Respondent to stop paying rent effective March 21, 2009 (Finding 17) due to the temporary injunction issued on March 20, 2009 (Findings 15-17). 

            Respondent also argues that it was entitled to abate the rent during the effective period of the temporary injunction because it had determined that the property was unfit for use or occupancy as contemplated by the Maintenance Rider.  That argument is rejected for the same reasons explained above in that any such ability was modified by the more specific lease amendment to the contrary.  Moreover, the Maintenance Rider‘s rent abatement provision applies to damage or casualty rendering the property unfit for use as a postal facility.  See, e.g., J. Leonard Spodek, Wisconsin Postal Holdings, PSBCA No. 4243, 02-1 BCA ¶ 31,705.[7]   Under these circumstances, rental abatement under the Maintenance Rider was unavailable.

            Similarly, we reject Respondent’s argument that it was constructively evicted from the post office because of the temporary injunction.[8]  Constructive eviction requires that acts or omissions by Appellant rendered the premises unfit for the purpose leased or deprived Respondent of beneficial enjoyment of the premises.  See Oscar Narvaez Venegas, ASBCA No. 49,291, 98-1 BCA ¶ 29,690, recon. dismissed, 98-2 BCA ¶ 29,887; David Kwok, GSBCA No. 7933, 90-1 BCA ¶ 22,292, aff’d, 918 F.2d 187 (Fed. Cir. 1990).  Respondent has not identified any action or inaction by Appellant between that acceptance and the issuance of the temporary injunction causing the post office to become unfit for occupancy, nor any provision of the lease, as amended, that Appellant violated.  See Moreland Corp. v. United States, 76 Fed. Cl. 268, 284-85 (2007).  Moreover, Respondent accepted the lease with knowledge of the regulatory problems and, as discussed above, accepted the risk that interference with its occupancy could result from the “several unresolved regulatory issues.”

            Respondent’s argument that re-commencement of rent as of June 15, 2009 was the result of an agreement by the parties has been rejected as a matter of fact (Finding 22).  Similarly, Respondent’s argument that the contracting officer’s insertion of “June 15, 2009” into Respondent’s copy of the lease controls as the lease commencement date is rejected.  Insertion of that date was a unilateral act by Respondent, is inconsistent with the lease amendment, and is not binding on Appellant (Finding 11).

            Finally, Respondent’s argument that the lack of a certificate of occupancy excuses its obligation to pay rent also is rejected.  Although the lease required a certificate of occupancy before acceptance (Finding 2), Respondent’s contracting officer accepted the building with the knowledge that such a certificate had not been issued.  Respondent has waived that requirement.  See, generally, Gresham and Co., Inc. v. United States, 470 F.2d 542, 554 (Ct. Cl. 1972).  This conclusion is supported by Respondent’s current continuing occupancy and payment of rent in the absence of a certificate of occupancy (Finding 23).

            Having concluded that Respondent was responsible to pay rent without interruption, we examine the calculation of that rent.  Appellant seeks rent between March 18, 2009, and June 15, 2009.  However, Respondent paid rent through March 21, 2009 (Finding 17).  Accordingly, rent is due starting from March 22, 2009.  Rent re-commenced on June 15, 2009, and so, Appellant is entitled to rent from March 22 through June 14, a period of 85 days.  The annual $187,109 rent (Finding 1) equates to a daily rental rate of $512.63 ($187,109  ÷ 365).  Eighty-five days at the stated rate equates to $43,573.37, to which we find Appellant is entitled.

            Appellant also seeks reimbursement of real estate taxes, electricity and gas utility bills for the same period (Finding 24).  However, Appellant has not presented tax bills or demonstrated that real estate taxes have been paid for the period in issue.  Nor has Appellant presented utility bills allocated to the period in question, nor introduced any specific testimony in that regard.  We deny these elements of Appellant’s claim for lack of proof.

CONCLUSION

            Appellant’s claim for well construction costs is denied.  Appellant’s claim for an earlier rent start date is granted.  Appellant is entitled to rent in the amount of $43,573.37, representing rent at the leasehold rate for the 85-day period that Respondent improperly failed to pay Appellant, and to interest thereon under the Contract Disputes Act from January 26, 2010.  Appellant’s claim for additional real estate taxes and utilities is denied.  Accordingly, the appeal is denied in part and sustained in part.

Gary E. Shapiro
Administrative Judge
Board Member

I concur:
William A. Campbell
Administrative Judge
Chairman

[1] The Board’s accelerated procedures, 39 CFR § 955.13(b), apply to this appeal.  We address both entitlement and quantum (April 20, 2010 Order).  A hearing was conducted in Newark, New Jersey.

[2] Although marked as Appeal File Tabs, references to Tabs above 7 are to exhibits admitted at the hearing.

[3] The copy of the Schedule of Values in the record was dated well after Appellant’s submission of its proposal and Respondent’s acceptance thereof.  Appellant’s principal testified, and we assume for purposes of this argument, that a Schedule of Values with the same entry was submitted as part of Appellant’s original offer.

[4] We reject Respondent’s argument presented in its post-hearing brief that this statement was a typographical error.  We agree with Appellant that no evidence was introduced in support of such a position.

[5] No indemnity claim from Respondent is before us.

[6] This disposes of Respondent’s argument that it “dis-accepted” the lease.

[7]    The rent abatement provision appears in a separate rider addressing maintenance issues, is captioned “Maintenance Rider,” and by its plain terms addresses ”damage or destruction” by fire or other casualties that can result in a determination that the premises are untenantable or unfit for use.

[8] Respondent does not argue, however, that any such theory interfered with its occupancy between the date the temporary injunction was lifted and the date it resumed paying rent.