ASBCA 61542

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Curtis Jue ) ASBCA No. 61542 ) Under Contract No. N624 73 l 1RP00035 ) APPEARANCE FOR THE APPELLANT: Mr. Curtis Jue APPEARANCES FOR THE GOVERNMENT: Craig D. Jens en, Esq. Navy Chief Trial Attorney Karrin H. Minott, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE PAGE ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT Mr. Curtis Jue (lessee or appellant) appeals the termination of his lease for agricultural purposes with the Department of the Navy (Navy or government). The government moves for summary judgment, asserting that it had the right to terminate the lease at any time. We have jurisdiction under the Contract Disputes Act, 41 U.S.C. §§ 7101-7109. The government's motion is granted. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 1. The Navy and the lessee executed Contract No. N62473 l 1RP00035 (lease) on December 16, 2010 (R4, tab 2 at 90). The lease provided the lessee use of approximately 358 acres of fannland onboard the Naval Air Station Lemoore, California, at an annual rent of $36,183.69, for the period beginning January 1, 201 L and ending on December 31, 2018 (id. at 69). 2. The lease included the following relevant clause: 12) TERMINATION BY GOVERNMENT: a) The GOVERNMENT shall have the right to terminate the LEASE, at any time, without prior notice, and regardless of any lack of breach by LESSEE of any of the terms and conditions of this LEASE. In the event of termination for any reason not involving a breach by LESSEE of the terms and conditions of the LEASE the GOVERNMENT shall make an equitable adjustment of  any advance rentals paid by the LESSEE hereunder. In the event that the GOVERNMENT shall elect to terminate this LEASE on account of the breach by LESSEE of any of the terms and/or conditions of this LEASE, no adjustment in advance rentals paid by LESSEE shall be made, and the GOVERNMENT shall be entitled to recover and LESSEE shall pay the GOVERNMENT: ( 1) The costs incurred in resuming possession of the LEASED PROPERTY. (2) The costs incurred in performing any obligation on the part of LESSEE to be performed hereunder. (3) An amount equal to the aggregate of all rents, Long Term Maintenance Obligation and charges assumed hereunder and not theretofore paid or satisfied, less the net rentals, if any, collected by the GOVERNMENT on the reletting of the LEASED PROPERTY, which amounts shall be due and payable at the time when such rents, obligations and charges would have accrued or become due and payable under this LEASE. (R4, tab 2 at 76) (Hereinafter referred to as clause 12)* 3. By letter dated June 21, 2017, the government provided the lessee a copy of an inspection report performed on the leased premises on May 22, 2017. The inspection report documented lack of compliance with various portions of the lease and provided 10 maintenance activities the lessee was advised to perform to cure the noted defects. (R4, tabs 25, 25.1, 25.2) 4. By letter dated August 7, 2017, the government issued a show cause notice to the lessee, citing inspections of the leased premises on July 21, 2017 and August 2, 2017, and alleging that prior-noted noncompliant conditions remained. The government informed the lessee that it was considering terminating the lease for default under clause 12 of the lease. The notice provided the lessee the opportunity to present in writing, any facts bearing on the noted non-compliance within 10 calendar * Although we grant the government's motion to dismiss, we express no opinion as to the government's monetary recovery as that is not before us. 2 days of receipt. (R4, tabs 26, 26.1, 26.2) Appellant received, but did not respond to, the notice (comp I. at 1). 5. By letter dated January 24.2018. the government issued a notice of termination for breach of lease to the lessee.