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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. 4 G Manager's COMMON: -* 04kd A red�rJ a A�t� ai * d� AVOW F�fyio, aQy. ity MaugCr Associated Information: Oio�'r, 14ft Budget Approvm: r' . a w.am.a. Legal Approval: CirytWler , Introduced For geassage C&� Fira Reading page _of IJ Referral 94-116 Mtigudb ComeBw Shubert February, 28, 1994 CITY OF BANGOR � � �e;f.,_Au[hot>,fpg,,,F,MacuCa,ee-o£.Amendment. to. B.A.C.._..„ Alrpart 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. L (CITY CL ( nY Ws6 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 -2- 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 -3- 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, -4- 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. -5- 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 -6- 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: -7-