October 8, 2021

PSBCA Nos. 6822 & 6839

JOHNSON INVESTORS LIMITED PARTNERSHIP v. UNITED STATES POSTAL SERVICE

APPEARANCE FOR APPELLANT: Alvin S. Nathanson, Esq., Scott A. Schlager, Esq., Nathanson & Goldberg, PC

APPEARANCE FOR RESPONDENT: Joseph B. Fray, Esq., United States Postal Service Law Department

OPINION OF THE BOARD ON MOTIONS FOR SUMMARY JUDGMENT

Johnson Investors Limited Partnership, Appellant, has appealed two decisions by the contracting officer denying payment for the cost of sewer connection services to the Hollywood Hills Post Office, in Hollywood, Florida, which it leased to United States Postal Service, Respondent. The City of Hollywood enacted an ordinance requiring that all properties stop using septic systems and connect to the new, centralized sanitary sewer system. 
Both parties filed motions for summary judgment. This case presents two issues. First, whether the cost for connecting to the sewage system is maintenance or a capital improvement. Because we conclude it is a capital improvement, we rule in favor of the Postal Service. 
The second issue is liability for an assessment issued by the City for the sewer system. We conclude that Johnson Investors must pay the assessment, but that it is entitled to reimbursement from the Postal Service for the amount it actually pays.

FINDINGS OF FACT

1.       The Postal Service leased the building housing the Hollywood Hills Station Post Office in Hollywood, Florida from Johnson Investors for an initial term of July 1, 2013, through June 30, 2018 (RAF at 16-30).¹
2.       The Postal Service exercised a renewal option for five years to extend the lease term from July 1, 2018, through June 30, 2023 (RAF at 16-30).
3.       The lease included several clauses and addendums specifying the responsibilities of Johnson Investors and the Postal Service regarding the condition of the premises, namely: (1) Maintenance Rider; (2) Applicable Codes and Ordinances; (3) Maintenance Rider, USPS Responsibility (Partial); (4) Tax Rider, Reimbursement of Paid Taxes; and (5) Utilities, Services & Equipment Rider (RAF at 16-30).
4.       The Maintenance Rider provided:
The Postal Service is responsible for any necessary maintenance of the septic systems, including lateral fields, during the continuance of the lease. The Postal Service is also responsible for any inspections of these systems required by governing bodies. The Postal Service is responsible for maintenance of the septic system, including any necessary pumping and cleaning of the septic system. The Postal Service is not responsible for restoration of the septic system at the end of the lease.

(RAF at 19, emphasis added).
5.       According to the Applicable Codes and Ordinances clause of the general conditions to the lease:
The Landlord, as part of the rental consideration, agrees to comply with all codes and ordinances applicable to the ownership and operation of the building in which the rented space is situated and to obtain all necessary permits and related items at no cost to the Postal Service. When the Postal Service or one of its contractors (other than the Landlord) is performing work at the premises, the Postal Service will be responsible for obtaining all necessary and applicable permits, related items, and associated costs.

(RAF at 21, emphasis added). 
6.       The Maintenance Rider, USPS Responsibility (Partial) provided, in pertinent part:
1. The Postal Service shall maintain the demised premises (including repair and replacement of items, if necessary), except for those items specifically made the responsibility of the Landlord in Paragraph 3 below. The responsibility of the Postal Service as stated herein will be fulfilled at such time and in such manner as the Postal Service considers necessary to keep the demised premises in proper condition.
2. The term “demised premises” as used in this rider includes the premises described in the Lease, the improvements and appurtenances to such premises and all equipment and fixtures furnished, or to be furnished, by the Landlord under this Lease.
3. During the continuance of the Lease, the Landlord is responsible for maintenance of, repairs to, and, if necessary, replacement of:
b.       All structural elements, including but not limited to: the foundation; column supports, bearing walls, floors, not including floor covering.
c.       All parts of the roof system including, but not limited to: the roof covering, flashing and insulation; roof beams, joists, and deck; and gutters and downspouts. The Postal Service will be responsible for regular cleaning of gutters and downspouts connected to the outer edge (i.e., the eaves area) of the roof.
f.        Damage from fire or other casualties, unless such casualties were caused by the negligence of employees or agents of the Postal Service.
g.       Items of repair performed by the Postal Service due to the failure of any element for which the Landlord is responsible.
(RAF at 24, emphasis added).²
7.       In the Tax Rider, Reimbursement of Paid Taxes, the lease agreement
held:
a. Definitions
Real Property Taxes, as used in this clause, shall mean those taxes, including Ad Valorem taxes, special assessments, fees and charges, that are assessed against any or all taxable real property appearing on the assessment roll or list in a taxing authority’s jurisdiction and that are identified by a taxing authority for the support of government activities within its jurisdiction, whether such activities are general or specific. Real Property Taxes also include administrative charges or fees imposed by a taxing authority for the support of its tax assessment and collection activities.
b. The Landlord agrees to pay all taxes of any kind, including Real Property Taxes, and charges and fees of every kind and nature levied on the demised premises.
c. The Postal Service will reimburse Landlord for paid Real Property Taxes [. . .] only under the following terms: . . .
3. Reimbursement will be made only for paid taxes, less the maximum discount allowed by the taxing authority for prompt or early payment, regardless of whether Landlord actually received any such discount. . . .
5. In order to qualify for reimbursement, the tax bill as issued by the taxing authority must pertain only to the demised premises, and to no other real property.
6. Landlord must provide copies of the front and back of the complete tax bill issued by the taxing authority, along with satisfactory proof of payment, Satisfactory proof of payment shall be (i) a receipt for payment shown on the face of the tax bill, (ii) a copy of the front and back of the canceled payment check, (iii) statement from a lender verifying payment of the tax, or (iv) other documentation satisfactory to the Postal Service. . . .
(RAF at 26, emphasis added).
8.       According to the Utilities, Services & Equipment Rider:
6. SEWER
Not applicable. . . .
The Postal Service acknowledges and agrees that in addition to the above listed systems and equipment any and all other systems and equipment serving the Premises are furnished in their existing “as is” condition as of the date of this lease. Landlord is not responsible for any maintenance, repair, or replacement of any systems or equipment.
(RAF at 29, emphasis added).
9.       On April 30, 2020, the City of Hollywood notified Johnson Investors that it “must connect to the City of Hollywood’s sanitary sewer system within 90 days or by July 29, 2020” to comply with state and local laws (RAF at 4).
10.     To comply with the state and local laws, Johnson Investors needed to pay a contractor to perform the plumbing work to connect to the City’s sewer system. Johnson Investors also was required to pay a refundable $830 guarantee of payment deposit for sewer service; a $17,040 reserve capacity charge for its service from the sewer treatment plant; and a $100 processing fee before receiving a permit to initiate the plumbing work (RAF at 4).
11.     On July 31, 2020, Johnson Investors submitted a claim to the contracting officer for a final decision for the $830 guarantee of payment, the $17,040 sewer reserve capacity charge, and the $100 processing fee, as well as the cost of the plumbing work, which Johnson Investors estimated “to be at least $69,500 and possibly more” (RAF at 2).
12.     Johnson Investors asserted that these costs were the Postal Service’s responsibility, citing the clauses and addendums for maintenance, taxes, and utilities, detailed above (RAF at 2).
13.     On August 4, 2020, the contracting officer issued a final decision denying the claim (RAF at 13-14). 
14.     In denying the claim, the contracting officer noted that Johnson Investors had not provided a sum certain for the cost of the sewer connection, but determined, nevertheless, that the Postal Service was not responsible for any of the costs because the sewer modifications were required by the City code and were Johnson Investor’s responsibility under the Applicable Codes and Ordinances clause of the lease (RAF at 13-14).
15.     Johnson Investors timely appealed the denial of this claim, which we docketed as PSBCA No. 6822.
16.     During the pendency of that appeal, Johnson Investors submitted a second claim to the contracting officer on October 7, 2020, wherein it provided a sum certain for the total cost of $117,261 for the assessed fees and plumbing work (RAF at 33-36).
17.     Johnson Investors reasserted its position that the Postal Service was responsible for paying all the costs to connect to the City sewer system. Johnson Investors also requested a decision from the contracting officer regarding the interpretation of the lease, citing caselaw that any ambiguity should be construed against the Postal Service as the drafter of the lease. (RAF at 33-36).
18.     On November 19, 2020, the contracting officer denied this claim, determining that the lease unambiguously required payment for the sewer connection by Johnson Investors. The contracting officer also explained that none of the costs had been paid by Johnson Investors and presented to the Postal Service for reimbursement pursuant to the Tax Rider, Reimbursement of Paid Taxes. (RAF at 38-40).
19.     Johnson Investors timely appealed the denial of this claim, which we docketed as PSBCA No. 6839. We then consolidated PSBCA Nos. 6822 and 6839.

DECISION

Jurisdiction – Monetary and Nonmonetary Claims
After the record had closed, and because the record was not clear, the Board asked the parties whether Johnson Investors had actually incurred costs by connecting the Post Office to the City sewer system. In response, the parties belatedly reported that the work had not yet been done. We therefore asked the parties, sua sponte, to address whether we had jurisdiction. The Postal Service argues that we do not have jurisdiction because Johnson Investors (1) has not submitted a monetary claim that is ripe for judgment because it has not incurred the costs, (2) the Board may not order equitable relief, and (3) the Board may not issue advisory opinions.
The part of the claim for construction costs to connect to the sewer system is based on estimates for future work. As relevant here, estimated future costs can support a claim under the Contract Disputes Act. Daewoo Eng’g and Constr. Co. v. United States, 557 F.3d 1332, 1336 (Fed. Cir. 2009)(holding that the fact that not all costs listed in a certified claim have been incurred does not prevent it from being construed as a claim). That decision comported with many earlier cases with analogous holdings. For example, the ASBCA has held that the fact that a claim included estimated costs did not invalidate a claim certification. Mary Lou Fashions, ASBCA No. 29318, 84-2 BCA ¶ 17,483; see also J.S. Alberici Constr. Co., ENGBCA No. 6179, 97-1 BCA ¶ 28,639 and cases cited therein; 11 No. 4 Nash and Cibinic Rep. ¶ 18 (April 1997)(describing the standard practice of submitting equitable adjustment claims based on estimated costs because all costs have not yet been incurred). We therefore hold that we have jurisdiction over the claim for the cost to connect to the City sewer system even though no costs have been incurred yet.
We make the same holding for the taxes and fees that might be owed to the City of Hollywood. As constituted in the claim, the costs are properly quantified estimates of costs owed to the City, but that have not yet been incurred. We will address this issue in more detail later in connection with our overall discussion.

Motion for Summary Judgment
Summary judgment will be granted if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Finley v. United States Postal Service, PSBCA No. 6606, 17-1 BCA ¶ 36,676 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)); Fed. R. Civ. Pro. 56. A party seeking summary judgment bears the initial burden of informing the Board of the basis for the motion and of identifying those portions of the record that the moving party claims will demonstrate the absence of a genuine dispute of material fact. Celotex, 477 U.S. at 323. Similarly, the moving party is entitled to summary judgment when the nonmoving party carries the ultimate burden of proof but has failed “to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322. Where both parties have moved for summary judgment, the Board applies this standard to both parties and evaluates each motion on its own merits. Indus. Door Contractors, Inc. v. United States, 79 Fed. Cl. 413, 419 (2007), aff'd, 287 F. App'x 105 (Fed. Cir. 2008).
As to the issues before the Board, Johnson Investors argues that it is entitled to summary judgment because the lease, in light of the rules of contract interpretation, unambiguously places responsibility for the sewer connection costs on the Postal Service. In the alternative, Johnson Investors believes that even if we were to find the lease is ambiguous on that question, the ambiguity must be construed against the Postal Service as the drafter of that document.
The Postal Service argues that the language of the lease’s codes and ordinances clause unambiguously holds Johnson Investors responsible for the costs of connecting to the sewer system. 
We agree with both parties that there is no genuine dispute of material fact and that the appeal can be decided on summary judgment. Varilease Tech. Grp., Inc. v. United States, 289 F.3d 795, 798 (Fed. Cir. 2002)(holding that issues of contract interpretation are generally amenable to summary judgment).  

Contract Interpretation
We will treat the lease as a contract and will use the rules of contract interpretation to determine its meaning. Carlos Valdes and Dulce Valdes v. United States Postal Service, PSBCA No. 6761, 20-1 BCA ¶ 37,680. When interpreting a disputed contract provision, we first determine whether the provision is ambiguous. An ambiguous provision is one that is susceptible to more than one reasonable interpretation. Premier Off. Complex of Parma, LLC v. United States, 916 F.3d 1006, 1011 (Fed. Cir. 2019); see also McAbee Const., Inc. v. United States, 97 F.3d 1431, 1434–35 (Fed. Cir. 1996). “To show an ambiguity it is not enough that the parties differ in their respective interpretations of a contract term”; rather, both interpretations must be reasonable for there to be an ambiguity. Id. (quoting Metric Constructors, Inc. v. National Aeronautics & Space Admin., 169 F.3d 747, 751 (Fed. Cir. 1999)). “When the contractual language is unambiguous on its face, our inquiry ends and the plain language of the Agreement controls.” Id. (quoting Coast Fed. Bank, FSB v. United States, 323 F.3d 1035, 1040–41 (Fed. Cir. 2003)).
Johnson Investors argues that the contract, when read as a whole and giving meaning to all its parts, unquestionably places responsibility for the costs of connecting to the City sewer system on the Postal Service. Alternatively, Johnson Investors asserts that even if the contract is ambiguous, the ambiguity must be construed against the Postal Service as the drafter of the lease. Under either scenario, Johnson Investors believes it is entitled to compensation for its costs. We disagree. As explained below, the contract is not ambiguous, and contrary to Johnson Investors’ assertions, the plain language of the lease places responsibility for the costs of connecting to the City sewer system on it as the landlord.
Our analysis begins by restating the general rule applicable to substantial alterations or improvements ordered by public authorities: the landlord is liable for the costs of the alterations or improvements unless the terms of the lease and the surrounding circumstances, taken together, establish that the parties intended to impose liability for those costs on the tenant. Charles and Lily Hendlish, PSBCA No. 3661, 96-1 BCA ¶ 28,131. That holding is consistent with the general principles of contract and landlord/tenant law, which historically have limited the liability of tenants for substantial repairs in the absence of express language to the contrary:
In a variety of situations courts have exonerated tenants from paying for repairs or modifications called for by municipal or other governing authorities, or of a structural or substantial nature, on the ground that the parties to the particular leases could not be held to have contemplated such unforeseen and drastic contingencies.
Brooklyn Waterfront Terminal Corp. v. United States, 90 F. Supp. 943, 947 (Ct. Cl. 1950). 
We will therefore examine the terms of the lease and the surrounding circumstances to see if, in fact, the parties transferred responsibility for the cost of connecting to the City sewer system to the Postal Service. Johnson Investors, as the party seeking monetary recovery under its claim, has the burden of proof on that question. JM Carranza Trucking Co. v. United States Postal Service, PSBCA No. 6354, 14-1 BCA ¶ 35,776.  For convenience, we repeat the Applicable Codes and Ordinances clause:
The Landlord, as part of the rental consideration, agrees to comply with all codes and ordinances applicable to the ownership and operation of the building in which the rented space is situated and to obtain all necessary permits and related items at no cost to the Postal Service.
Here, there is no dispute that the City of Hollywood passed an ordinance requiring connection of the building to the new City sewer system. As between the landlord and the tenant, this clause unambiguously places the obligation to comply with that ordinance on Johnson Investors as the landlord.
Citing the Last Antecedent Rule, Johnson Investors, however, believes that this clause requires it to pay for only the “necessary permits and related items” because the modifying clause “at no cost to the Postal Service” only applies to that part of the sentence. According to Johnson Investors, the first part of the sentence referencing compliance with “all codes and ordinances,” does not require it to pay for the cost of connecting to the City sewer system. We have not, however, read the Applicable Codes and Ordinances clause in that restrictive way. Instead, we have applied the “at no cost to the Postal Service” language of the clause to both parts of the sentence. Custom Living, Inc., PSBCA No. 4888, 02-2 BCA ¶ 31,947 (holding the landlord responsible for the cost of modifications to comply with the local electrical code). We further note that the Last Antecedent Rule can be overcome by other indicia of meaning, Barnhart v. Thomas, 540 U.S. 20, 26 (2003). Here, the full context of the clause suggests that its only reasonable meaning requires a landlord to bear the full cost of complying with applicable codes and ordinances. And the rule is also generally not applicable to a grammatical construction where, as here, “[t]he modifying clause appear[s] ... at the end of a single, integrated list.” Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 344, n. 4 (2005). One treatise puts the point as follows: “When there is a straightforward, parallel construction that involves all nouns or verbs in a series,” a modifier at the end of the list “normally applies to the entire series.” Antonin Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 147 (2012).

Johnson Investors tries to further muddy the waters by overreading several other terms of the lease. As noted, Johnson Investors believes that reading these other clauses together leads to an unambiguously contrary interpretation from the one set out by the Applicable Codes and Ordinances clause. Or failing that, the terms, when taken together, create an ambiguity—which it believes would ultimately lead to a decision in its favor under the rule of contra preferendum. We have no quarrel with Johnson Investors’ argument that the contract must be read as a whole and that we must give meaning to all its parts. We merely disagree with Johnson Investors as to the meaning and relevance of those other clauses in the lease.
We begin with Johnson Investors’ reliance on the Maintenance Rider. Johnson Investors correctly states that Paragraph 1 of the Maintenance Rider places a general maintenance obligation, “including repair and replacement of items,” on the Postal Service. Johnson Investors also correctly notes that Paragraph 3 of Maintenance Rider lists several exceptions to that general obligation by listing specific items for which the general maintenance and repair obligation remains with the landlord. And finally, Johnson Investors also correctly points out that the septic system was not mentioned in this list. Johnson Investors, however, incorrectly interprets this language and leaps to the conclusion that the omission of the septic system from the list of exceptions can mean only one thing: the Postal Service was obligated to “repair and replace” the septic system by connecting the building to the municipal sewer system. We disagree and do not believe that is a reasonable interpretation of the Maintenance Rider. Instead, we conclude that Johnson Investors has misunderstood the plain meaning of that clause, specifically the meaning of the words “maintenance,” “repair,” and “replace.”
The unreasonableness of Johnson Investors’ interpretation of these words is evinced by both their lay and legal definitions. In layman’s terms, to “maintain” something is to keep it “in an existing state (as of repair, efficiency, or validity), or to “preserve [it] from failure or decline.” ³ In contrast, “repair” means “to restore by replacing a part or putting together what is torn or broken,” ⁴ and “replace” means “to restore to a former place or position; to take the place of especially as a substitute or successor; or to put something new in the place of.”⁵ The definition of “replace” is further clarified to mean “a filling of a place once occupied by something lost, destroyed, or no longer usable or adequate.” 
As for the legal definitions, Black’s Law Dictionary (11th ed. 2019) defines “maintenance” as “the care and work put into property to keep it operating and productive; general repair and upkeep.” “Repair” means “to restore to a sound or good condition after decay, waste, injury, partial destruction, dilapidation, etc.; to fix (something broken, split, or not working properly),” while a “repair-and-replace provision” is defined as “a contractual clause providing that a product's defect will be remedied by repairing or replacing the defective part or product.” Id.
Here, the connection to the City’s sewer system does not involve keeping the existing septic system functioning, restoring it to sound, good condition, or remedying any defective parts of it. Notably, there is no evidence that the existing septic system is inoperable or defective, but merely that it no longer complies with local ordinances and codes. Simply put, the Postal Service has no obligation under the Maintenance Rider for the maintenance (including repair and replacement) of something that did not exist when the parties signed the lease and that only comes into existence because of a local ordinance.
We next turn to Johnson Investors’ reliance on the Utilities, Services, & Equipment Rider. Johnson Investors correctly states that this clause has the words “not applicable” next to the paragraph for “Sewer.” Johnson Investors then wants to pair that language with the Maintenance Rider to show that it, as the landlord, is not responsible for the repair or replacement of the sewer system. Here again, Johnson Investors’ reading of the lease is unreasonable.
The Utilities, Services & Equipment Rider notifies the Postal Service that several systems (heating, air conditioning, electrical, lighting, and water) are being furnished in their existing “as is condition.” Johnson Investors is generally correct that this clause, when read together with the Maintenance Rider, allocates responsibility for these systems to the Postal Service. Here again, however, Johnson Investors’ interpretation fails to reasonably read the terms of the lease. Perhaps most importantly, Johnson Investors argues that the terms “septic system” and “sewer system” are interchangeable because they serve the same function. However, the fact is that the building had an operational septic system when the lease was signed. Any obligations assumed by the Postal Service when the lease was signed were only applicable to the existing septic system. The sewer system, on the other hand, did not exist when the lease was signed. Hence, it was listed as “not applicable” on the Utilities, Services & Equipment Rider. The plain meaning of the Utilities, Services & Equipment Rider, as it relates to the sewer system, is nothing more or less than a statement that it did not exist when the lease was signed. It has no bearing on which party might have to pay for the installation of a sewer system under a possible future situation such as this one. Again, that possibility is addressed by the Applicable Codes and Ordinances Rider.⁶  
Johnson Investors also argues that the sewer system and the septic system performed the same function. Thus, according to Johnson Investors, the connection to the City sewer system is nothing more than a replacement (of the function) of the septic system, leading to the Postal Service’s financial responsibility under the Maintenance Rider.
Johnson Investors’ assertion that the two systems perform the same function and therefore the connection is nothing more than a replacement that is the Postal Service’s responsibility under the Maintenance Rider is also inconsistent with prevailing landlord–tenant principles. As noted above, in Brooklyn Waterfront Terminal, the court held that as a general rule tenants should be excused from substantial structural repair costs. Based on our review of the lease terms and the attendant circumstances of this case, the sewer connection is best described as a capital improvement expense, rightfully borne by the lessor, as opposed to a routine maintenance expense reasonably assumed by a lessee.
In distinguishing between capital improvements and repair expenses, the Tax Court has applied the “put versus keep” test:
The test which normally is to be applied is that if the improvements were made to “put” the particular capital asset in efficient operating condition, then they are capital in nature. If, however, they were made merely to “keep” the asset in efficient operating condition, then they are repairs and are deductible.
Moss v. Comm'r, 831 F.2d 833, 835 (9th Cir. 1987) (quoting Estate of Walling v. Comm’r, 373 F.2d 190, 192-93 (3d Cir.1967). Here, because connecting to the City sewer system was new work, the installation was putting the system in operating condition rather than routine maintenance (such as pumping the septic tank), which would have merely kept the premises in operating condition. Indeed, the “put versus keep” test is consistent with the plain meanings of “maintenance,” “repair,” and “replacement” discussed above. Johnson Investors’ interpretation, on the other hand, is strained and requires an unnatural reading of those terms.
Moreover, the Maintenance Rider, which addresses only the septic system, said that “the Postal Service is not responsible for restoration of the septic system at the end of the lease,” strongly suggesting the parties’ intention to limit the Postal Service’s liability for capital expenses related to the existing septic system (RAF at 19). Everything considered, Johnson Investors’ interpretation that the Postal Service should pay for the new connection to the City sewer system falls outside the zone of reasonableness. See NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004).⁷
Johnson Investors cites Kerin v. United States Postal Service, 116 F.3d 988 (2d Cir. 1997) as an analogous case. There, the lessor was not responsible for maintaining a sewer system due to an ambiguity and the exclusion of unarticulated obligations in a lease that was drafted by the Postal Service. However, Kerin is distinguishable because the parties’ dispute focused on differing and reasonable interpretations of a lease clause requiring the lessor to “furnish and pay for sewerage service.” As discussed above, we find only one reasonable interpretation of the lease terms here, thereby precluding the need for any further analysis of ambiguity in this appeal.
We are similarly unpersuaded by Johnson Investors’ argument that the canon of expressio unius est exclusio alterius absolves it of responsibility for the cost of the sewer connection. That canon states that to express or include one thing implies the exclusion of the other, or of the alternative. See Monroe M. Tapper and Assoc., PSBCA 349, 77-2 BCA ¶ 12,639. Under Johnson Investors’ interpretation, when the Postal Service excluded some specific items from its responsibility under the Maintenance Rider, it necessarily conceded that it is responsible for everything else that was not specifically excluded. We do not agree that this canon of interpretation helps Johnson Investors in this appeal. See Schlafly v. Saint Louis Brewery, LLC, 909 F.3d 420, 425 (Fed. Cir. 2018)(specific facts can override the canon).
As the Supreme Court has held, the canon “is only a guide, whose fallibility can be shown by contrary indications that adopting a particular rule or statute was probably not meant to signal any exclusion of its common relatives.” United States v. Vonn, 535 U.S. 55, 65 (2002). That logic applies here. The canon is inapplicable because the Utilities, Services & Equipment Rider unambiguously assigns responsibility to Johnson Investors for the cost of the sewer connection. The clause providing that “Landlord is not responsible for any maintenance, repair, or replacement of any systems or equipment” is “Not applicable” to the sewer system.
Nothing in the Maintenance Rider or the other clauses cited by Johnson Investors overrides or confuses this result. Thus, when we interpret the lease and consider it as a whole, harmonizing all its parts, there is no ambiguity. Premier Off. Complex of Parma, LLC v. United States, 916 F.3d 1006, 1011 (Fed. Cir. 2019). Application of expressio unius est exclusio alterius here, however, would effectively require us to ignore that reasonable interpretation. And Johnson Investors’ suggested application of the canon is also defeated by its own misinterpretation of maintenance, repair, and replacement in the context of this lease.⁸

Special Tax Assessment
In the City’s letter notifying Johnson Investors of the requirement to connect to its new sewer system, it also identified several additional fees associated with the connection. Specifically, Johnson Investors was required to pay a refundable $830 guarantee of payment deposit for sewer service; a $17,040 reserve capacity charge for its service from the sewer treatment plant; and a $100 processing fee (RAF at 4). Johnson Investors included these fees in both claims to the contracting officer. The claim was denied rather vaguely in the first final decision as a part of the expenses to comply with the City’s ordinance. In the second final decision, this claim was seemingly denied only because no evidence was presented that the fees had been paid to warrant reimbursement (RAF at 13-14, 38-40).
According to the Tax Rider, Reimbursement of Paid Taxes, real property taxes include:
Ad Valorem taxes, special assessments, fees and charges, that are assessed against any or all taxable real property appearing on the assessment roll or list in a taxing authority’s jurisdiction and that are identified by a taxing authority for the support of government activities within its jurisdiction, whether such activities are general or specific. Real Property Taxes also include administrative charges or fees imposed by a taxing authority for the support of its tax assessment and collection activities. (RAF at 26). Additionally, Black’s Law Dictionary (11th ed. 2019) defines a tax as “a charge, usu[ally]. monetary, imposed by the government on persons, entities, transactions, or property to yield public revenue. Most broadly, the term embraces all governmental impositions on the person, property, privileges, occupations, and enjoyment of the people, and includes duties, imposts, and excises.” 
In previously determining responsibility for the payment of real estate taxes between lessors and the Postal Service, we have consistently relied on the language of the applicable tax riders and whether the disputed taxes, special assessments, or fees were clearly encompassed in the lease terms. See Appeal of S.S. Silberblatt, Inc. & Oakland Assocs., PSBCA No. 1245, 89-1 BCA ¶ 21, 268 (precluding lessor’s reimbursement for special assessments unrelated to a type that formerly would have been funded out of the ad valorem general real estate taxes), aff’d, S.S. Silberblatt Inc. v. United States, 888 F.2d 829 (Fed. Cir. 1989). Alternatively, we also have considered what the parties mutually intended to include for tax reimbursement at the time of the lease execution. Id. Unlike Silberblatt, where the tax rider addressed only “general real estate tax bills,” here, the Tax Rider, Reimbursement of Paid Taxes is much broader and specifically includes reimbursement for paid real property taxes of not only ad valorem taxes but also special assessments, fees, and charges, based upon certain procedural conditions, such as copies of the complete tax bill and satisfactory proof of payment. Indeed, in its Motion for Summary Judgment, the Postal Service does not seem to dispute that the deposit for sewer service, reserve capacity charge, and processing fee are reimbursable as real property taxes. Rather, it asserts that Johnson Investors “is not entitled to reimbursement for fees and charges which it has not paid” or properly presented under the lease.
The Tax Rider, Reimbursement of Paid Taxes unambiguously encompasses the reserve capacity charge and the processing fee. Johnson Investors may submit the reserve capacity charge and processing fees using the process in the Tax Rider, Reimbursement of Paid Taxes which encompasses these costs. Conversely, we find that if the $830 guarantee of payment deposit was part of Johnson Investors’ claim, it is not entitled to that amount because the fee is eligible for a refund from the City of Hollywood.

ORDER

The Postal Service’s motion for summary judgment is granted, in part. Johnson Investors, not the Postal Service, is responsible for the cost of connecting the Hollywood Hills Station Post Office to the City sewer system. Johnson Investors’ motion for summary judgment on that same issue is denied.
As to the part of the claim for the reserve capacity charge and processing fee, we hold that those costs are reimbursable under the Tax Rider, Reimbursement of Paid Taxes. The record, however, does not include evidence that these charges have been paid by Johnson Investors or presented to the Postal Service for reimbursement. We, therefore, deny this part of Johnson Investor’s motion.

Peter F. Pontzer, Administrative Judge, Board Member

I concur: Alan R. Caramella, Administrative Judge, Chairman
I concur: Dian M. Mego, Administrative Judge, Board Member

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