HomeMy WebLinkAbout1994-02-28 94-116 ORDERuum
pore 2-281194 on Item No. 24-116_
Item/Subject: B.A.C. Lease Amendment
Responsible Department: Airport
Commentary:
The purpose of this amendment is twofold: It provides for an
increase in the current rent (override) to the Airport
Department and it provides BAC with a final option to extend
its lease by three years, commencing on April 1, 1990. This
amendment recognizes BAC's investment in the upgraded facil-
ities in the International Arrivals Building and its planned
improvements for the Domestic Terminal facilities.
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94-116
Mtigudb ComeBw Shubert February, 28, 1994
CITY OF BANGOR
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Concession .. _. ... ....... ...
BY tM cap Caeava of 61a My of Bazaar.
ORDEnDa
TEAT Edward A. Barrett, City Manager, is hereby authori20d to
execute an amendment to the leaser dated July 1, 1987, with the B.A.C.
Company, a copy of which isn file in the office of the City Clerk.
This amendment would allowB.A.C. a final 3 year extension to its
lease, commencing on the first day of April of 1998, at a rent
to be negotiated with the Airport Department of the City of
Bangor. It also provides for an increase of the current rent,
retro -active to April 1, 1993.
X/9�44--116
Vane
IN CITY COONCIL /A Authorizing Execution of AmeuAment to B.A.C.
February 28+ 1994
p8 Airport Concession.
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(CITY CL ( nY
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94-116
AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE made this _ day of
1994, by and between:
THE CITY OF BANGOR, amcipal corporation duly
organized and existing under and by virtue of the
laws of the State of Maine, and located i
Penobscot County, Maine (hereinafter referred t0 as
"Lessor')
and
B.A.C., INC., a corporation duly organised and
existing under and by virtue of the laws of the
State of Maine, and having a principal place of
business in Bangor, Penobscot County, Maine
(hereinafter referred to as "Lessee")
W I T N E S S E T H:
WHEREAS, Lessor and Lessee are parties to a certain
"Agreement of Lease' dated July 1, 1987, under terms of which
Lessor has demised and Lessee has leased certain premises at
Lessor's Bangor international Airport, said premises being located
n the second floor of Lessor's Domestic Terminal Building at
Bangor International Airport; and
WHEREAS, Lessee desires to renew and extend the term of
said Agreement of Lease for an additional five year period, to
March 31, 1998, consistent with Lessee's option to renew as
provided in Article XV, Section 5 of said Agreement of Lease; and
WHEREAS, Lessee has given seasonable written notice to
Lessor of Lessee's desire to exercise sts option to r and has
otherwise satisfied the conditions set forth in said Article XV,
Section 5 for Lessee's exercise of said option; and
WHEREAS, the parties have reached agreement as to the
ental to be paid by Lessee during the renewal period, as provided
in said Article XV, Section 5;
NOW, THEREFORE, in consideration of the foregoing recitals
and for the purpose of extending and renewing the term of the
parties' Agreement of Lease datedJuly1, 1987 for an additional
five year period as provided in Article XV, Section 5 of said
Lease, subject to the terms and conditions hereinafter set forth,
the Lessor and Lessee hereby mutually agree that their Agreement of
Lease dated July 1, 1987 is hereby amended, with an effective date
of April 1, 1993, by substitution of the following revised Articles
94-116
IT, III, IX, and XV (5); and that said Agreement of Lease and all
provisions thereof shall otherwise remain in full farce and effect;
ARTICLE II
TERM
TO HAVE AND TO HOLD the demised premises unto the Lessee
for a term of five (5) years commencing on the first day of April.
1993, and expiring on the last day of March 1998; provided,
however, that the Lessee shall have the option to extend the term
of this Lease for an additional three (3) year period commencing on
the first day of April 1998 and expiring on the last day of March
2001, as provided in Article XV, Section 5 herein.
.ARTICLE III
RENT
Section 1. The Lessee covenants
ants and agrees to pay to the
s
Lessor percentage rent a a percent of the gross sales (as herein
defined) made at, in, on or from the demised premises during the
term hereof, as follows:
Beverage Sales (including Twelve percent (125) of gross
sales of alcoholic from April 1, 1993 to March
beverages) 31, 1998.
All other sales (including Twelve percent (128) of gross
food) sales from April 1, 1993 to
March 31, 1998.
The said percentage rent shall be due and payable monthly
within ten (10) days after the end of each month during the term
hereof.
The rent to be paid by Lessee during the option period
commencing April 1, 1998 will be negotiated by the Lessor and
Lessee. Failure to reach agreement as to the rent within o
hundred twenty (120) days prior to the end of the term ending March
31, 1998 shall give either the Lessor or the Lessee the right to
terminate this lease.
The phrase "gross sales", wherever used herein, is hereby
defined to mean the dollar aggregate of:
(a) the sales prices of all goods, wares and
merchandise sold, and the charges for all services
performed by the Lessee in, at, on or from the
demised premises, whether made for cash, on credit,
or otherwise, without reserve or deduction for
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inability of failure to collect, including but not
limited to, such sales and services, but excluding
commissions paid to bona fide third persons (i)
where the orders therefor originate at and are
accepted by the Lessee in the demised premises but
delivery or performance thereof is made from or at
any place other than the demised premises, (ii)
pursuant to mail, telegraph, telephone or other
similar orders received or filled at or from the
demised premises, (iii) by means of mechanical and
ether vending devices in the demised premises, (iv)
as a result of transactions originating upon the
demised premises, and/or (v) which the Leasee i
the normal and customary course of its operations
would credit or attribute to its business upon the
demise demised premises, or any part or parts
thereof; and
(b) all moneys or other things of value received by the
Lessee from its operations at, in, on or from the
demised premises which are
either included nor
excluded from gross sales by the other provisions
of this definition.
"Gross sales" shall not include the amount of any city,
county, state or federal sales, luxury or excise tax on such sales
which is both (a) added to the selling price or absorbed therein,
and (b) paid to the taxing authority by the Lessee. .
The phrase "gross sales" shall also include such groes
sales made by any subleases, concessionaire, licensee or otherwise
at, in, on or from the demised pre and such gross sales made
by sublessees, concessionaires, licensees or otherwise shall be
included in the reports hereinafter provided for.
The Lessee agrees within ninety (90) days after the annual
anniversary date of this Lease to cause a
statement of the gross
sales of the Lessee made at, in, on and/or from thedemised
premises for the previous twelve (12) months to be certified by its
regular accountant or any certified public accountant and a copy of
such statement certified by such accountant shall be delivered by
the Lessee to the Lessor within such ninety (90) day period.
The Lessee agrees to deliver to the Lessor, within ten (10)
days after the end of each month during the term hereof, a
statement signed by an executive of the Lessee showing gross sales
for the preceding month.
The Lessor shall have the right, at any time within ninety
(90) days after the close of such lease -year of the term hereof, to
audit all of the books of account, documents, records, returns,
paper and files of the Lessee relating to gross sales for any
lease -year, and the Lessee on request of the Lessor shall make all
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such matters available for such examination at the principal office
of the Lessee.
All statements deliverable by the Lessee to the Lessor
under this Lease shall be delivered to the place where rent is then
payable, or at such other place or places as the Lessor may from
time to time direct by written notice to the Lessee.
Computation of the annual percentage rent specified herein
shall be made separately with regard to the annual anniversary date
of the term hereof. It is further understood and agreed that the
Lessor shall in no event be construed or held to be a partner or
associate of Lessee in the conduct of Lessee's business, nor shall
the Lessor be liable for any debts incurred by the Lessee in the
conduct of the Lessee's business, but it is understood and agreed
that the relationship is and at all times shall remain that of
landlord and tenant.
ARTICLE IX
INDEMNITY AND PUBLIC LIABILITY
.INSURANCE
Section 1. General Indemnification. The Lessee acrees to
defend, indemnify and hold and save harmless the Lessor from and
against any and all claims of whatever nature arising from any
negligent act or omission of the Lessee or Lessee's contractors,
licensees, agents, servants or employees arising out of any
accident, injury, death or damage whatsoever caused to any person
or to the property of any person occurring during the term or any..
extension hereof in or about the Lessee's demised premises where
such accident, damage, death or injury is proximately caused by any
negligent act or omission on the part of the Lessee or Lessee's
contractors, licensees, agents, servants or employees,
- Section 2. Lessee's Waiver of Workers' Compensation
Immunity. Without limiting the general indemnification provided in
Section 1 above, Lessee hereby expresslyagreesthat it will
defend, indemnify and hold and save the City of Bangor harmless
from any and all claims made or asserted by Lessee's agents,
servants or employees arising out of or in connection with Lessee's
activities under this Lease, including employment-related claims.
For this purpose, Lessee hereby expressly waives any and all
Immunities it may have under Maine's Workers Compensation Act or
other provisions of law in regard to such claims made or asserted
against the Lessor by Lessee's agents, servants or employees. The
indemnification provided under this paragraph shall extend to and
include any and all costs incurred by the City of Bangor to answer,
investigate, defend and settle all such claims, including butnot
limitedto the City of Bangor's costs for attorneys fees, expert
and other witness fees, the cost of investigators, and payment in
full of any and all judgments rendered. in favor of Lessee's agents,
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94-116
servants or employees against the City of .Bangor in regard to
claims made or asserted by such agents, servants or employees.
Lessee shall indemnify the Lessor for all such costs
notwithstanding any immunity from liability or suit for such claims
Lessee may otherwise enjoy under Maine's Workers Compensation Act
or other provisions of law.
section 3. Public Liability and Property Damage
Insurance. The Lessee agrees to maintain in full force during the
term hereof a comprehensive policy of public liability and property
damage insurance, including motor vehicle coverage, under which the
Lessor and the Lessee are named as insureds, and under which the
insurer agrees to indemnify and hold the Lessor harmless from and
against all cost, expense and/or liability arising out of or based
upon any and all claims, accidents, injuries and damages mentioned
In Section 1 0£ this Article. Each such policy shall benon-
cancellable with respect to the Lessor within thirty (30) days'
written notice to the Lessor, and a duplicate original o
certificate thereof shall be delivered to the Lessor. The minimum
limits of liability of such insurance shall be One Million Dollars
($1,000,000) per occurrence.
Section 4. Lessee's Fixtures and Personal Prooertv. The
Lessee agrees tTuse and occupy the -demised premises at its own
risk; and that Lessor shall have no responsibility or liability for
any loss of or damage to fixtures or other personal property of the
Lessee.
Section 5. Miscellaneous Liabilities. The Lessee agrees
that the Lessor shall not be responsible or liable to the Lessee,
r to those claiming by, through or under the Lessee, for any loss
or damage that may be occasioned by or through the acts or
missions of persons occupying adjoining premises or any part of
the premises adjacent to or
connection with the premises demised
hereunder or any part of the building of which the demised premises
are a part, or otherwise, or for any loss or damage resulting to
the Lessee or those claiming by, through or under the Lessee, or
its or their property, form the bursting,stopping or leaking of
water, gas, sewer, or steam pipes.
ARTICLE XV
Miscellaneous PLOVisions
Section 5. Renewal. The Lessor hereby grants to the
Lessee an option to renew this Lease for an additional three (3)
year period, commencing on April 1, 1998, and ending March 31,
2001, upon the same terms and conditions, and subject to the
following:
1. This Lease shall be in effect and Lessee shall not
be in default at the time said option is exercised.
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2. The Lessee, prior to July 31, 1994, shall have
completed a renovation and improvement of its
facilities in the demised premises, said
renovations and improvements to be of a value of
not less than $150,000, with Lessee to provide
satisfactory evidence of the completion and
value of such renovations and improvements to
the Lessor's Airport Director no later than
August 31, 1994.
3. The parties shall have reached mutual agreement as to
the rental to be paid during said additional thxee-
year term.
4. Ownership of a majority interest in the Lessee shall
be in the same person or persons having a majority
interest as of the date of this agreement, or their
heirs.
The Lessee must exercise its option to renew this Lease in
writing addressed to the Lessor, in care
of its Airport Manager,
prior to. December 31, 2000. Failure to do so will terminate this
option, and the Lessor shall have the right to enter the demised
premises during the remainder of the un expired term of this Lease
for the purpose of showing the same toprospective Lessees.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment to Lease the day and year first written above.
Witness
Witness
CITY OF BANGOR
By
Title
H.A.C., INC.
By
Title
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STATE OF MAINE
Penobscot, as.
94-116
1993
Then personally appeared the above-named ,
n his capacity as and acknowledged the
foregoing instrument to be his free act and deed in his said
capacity, and the free act and deed of said body corporate.
Before me,
Notary Public/Attorney-at-Law
Printed Name:
STATE OF MAINE
Penobscot, as.
1993
Then personally appeared the above-named ,
in his capacity as and acknowledged the
foregoing instrument to be his free act and deed in his said
capacity, and the free act and deed of said corporation.
Before me,
Notary Public/Attorney-at-Lew
Printed Name:
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