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HomeMy WebLinkAbout1991-11-25 92-40 ORDERItem/Subject: Authorize the City Manager to execute a lease agreement with Custom Management Corp. for Buildings #266 and 1268 at Bangor International Airport. Department: Community and Economic Development (Morrison) Coerce Management Corp. provides airline catering and food service at Bangor International Airport. Since 1977 they have rented 20,525 sq. £t. of apace in Buildings $266 and #268. In December 1991 the lease will expire; however, a new lease has been negotiated which contains the following terms: Property: Buildings #266 6 #268. Term: Five years, January 1992 to December 1996. lease Rate: Minimum rental,- $22,500 annually, plus Percentage rent - 5.58 of groes sales between $1 million and $1.25 million; 6.6% of gross sales between $1.25 million and $1.5 million; 88 of groes sales over $1.5 million. Insurance: leasee. provides Comprehensive Public Liability, Comprehensive Property Damage, an umbrella policy, and workmen' Compensation Insurance. Maintenance and Repairs: Lessee is responsible for all maintenance and repairs. Utilities: Lessee is responsible for all utilities. The terms and conditions listed above are the same as in the previous lease. with Custom Management Corp. The BanAir Corp. has reviewed this lease and recommends its approval... Depar nt Bead Page 1 of 2 COUNCIL ACTION pate 11/25/91 Item No. 92-40 Item/Subject: Authorize the City Manager to execute a lease agreement with Custom Management Corp. for Buildings #266 and 1268 at Bangor International Airport. Department: Community and Economic Development (Morrison) Coerce Management Corp. provides airline catering and food service at Bangor International Airport. Since 1977 they have rented 20,525 sq. £t. of apace in Buildings $266 and #268. In December 1991 the lease will expire; however, a new lease has been negotiated which contains the following terms: Property: Buildings #266 6 #268. Term: Five years, January 1992 to December 1996. lease Rate: Minimum rental,- $22,500 annually, plus Percentage rent - 5.58 of groes sales between $1 million and $1.25 million; 6.6% of gross sales between $1.25 million and $1.5 million; 88 of groes sales over $1.5 million. Insurance: leasee. provides Comprehensive Public Liability, Comprehensive Property Damage, an umbrella policy, and workmen' Compensation Insurance. Maintenance and Repairs: Lessee is responsible for all maintenance and repairs. Utilities: Lessee is responsible for all utilities. The terms and conditions listed above are the same as in the previous lease. with Custom Management Corp. The BanAir Corp. has reviewed this lease and recommends its approval... Depar nt Bead Page 1 of 2 92-40 Aeognedb Comuiloe Seel, November 25, 1991 CITY OF BANGOR QITLEJ @rbgip--Apthcul zingthe. City Manager to sign ,a_-,je4ae .49reement with Custom Management Corp. By Ge Oily ('panel of Oft Of Beaver: (1RDERED, THAT the City Manager is hereby authorized and directed, on behalf of the City of Bangor, to erecute a lease, a copy of which is on file in the office of the City Clerk, with Custom Management Corp., for Buildings #266 and #268 at Bangor International Aliport. 92-kO 1 C R DER In City Connell Movember 25,1991 Title, 6" Motion to table until Mr. Bolduc Authorizing the City Manager to Sign Economic Director has an opportunity to read the lease to see whiCA party..............•.••••••.•.•••........•. p, is responsible for snow removal a Lease Agreement with Cast® Management tT Motion was passed - Cap .............................. Motion to take from the Table was passed this action was taken (Au after the last item on the agenda ,1,, gnwto was approved Mr. Boldue after reading the lease claimed respaability for show 0 I Councilman removal would be the lessee'a Order Passed 4ty C rk6� 9 a `fes pDIL' G[CORPORATION BANGOR AIRPORT CIVIC DEVELOPMENT CORPORATION do amlo Deraloom enc DePanmenl Banpr qty Hall &rigor. Maine G W01 M mot. Erik Stumpfel, Acting City Solicitor gob Ziegelaar, Airport Manager ✓Russell McKenna, City Clerk Prom: Stephen A. Boldu�c.Y(,¢ve Manager e Subjects Leaswith (Momrison) CGstm Management Corp. Date: December 61 1991 Enclosed for your records is a fully executed Lease Agreement with Custom Management Corp. for Building #266 and #268 at the Bangor International Airport. SAB/jp But. pc: Sally Burgess, Airport Dept. OPERATOR OF BANGOR FOREIGN TRADE ZONE NO. 6B Telephone: (201) 9#148#2. TELEX; BANAIR 9611007 INDENTURE OF LEASE ��pp THIS INDENTURE OF LEASE, executed in duplicate, thisxtth day of, October, 1991 by and between: CITY OF BANGOR, a corporation duly organised and existing under and by virtue Of the laws of the State of Maine, and having its principal offices at 73 Harlow Street, Bangor, Maine (hereinafter soma- tises referred to as 'Lessor --I LBA Custom Management Corporation, a corporation, duly organized and existing under and by virtue of the laws of the State of Pennsylvania, and having a place of business at Bangor International Airport in said Bangor, County of Penobscot, State of Maine (hereinafter sometimes referred to as "Lessee") W I T N E S S E T H• WHEREAS, the Lessor is the owner of an airport commonly known as -Bangor International Airport--, formerly known as Dow Air Force Base, and located in the City of Bangor, County of Penobscot, State of Ervine (hereinafter sometimes referred to as the "Airport -1); and WHEREAS, by an agreement dated January 1, 1978 the parties agreed to lease Buildings #266, #26B and a parcel of land which abuts and is situated between such buildings for the purposes of operating a airline catering and food service facility; and WHEREAS, the above said agreement will terminate on December 31, 1991; NOW, THEREPORE, the parties do mutually agree as follows: ARTICLB I fOM The Lessor, for and in consideration of the rents to be paid and the obligations to be performed by Lessee as hereinafter Provided, does hereby demise and lease unto Lessee', and the Lessee does hereby take and hire, upon and subject to the terms - and conditions hereinafter expressed, the following described Premises located at Florida Ave. in the City of Bangor, viz: Buildings $266 and #268 and a parcel of land which abuts and is situated between such buildings, located at Florida Ave., Bangor international Airport, Bangor, Maine, said buildings to be leased to contain a total of 20,525 square feet as Shown in Exhibit A. ARTICLB II THPH TO HAVE AND TO HOLO the demised premises unto the Lessee for the term of five (5) years commencing January. 1, 1992 and terminating on December 31, 1996. ART CL8 COMPMATIOB OF ANHIAL RE A. The minimum rent to be paid by Lessee to Lessor during the term of this lease shall be twenty-two thousand five hundred dollars ($22,500) per year. minimum rent shall be paid monthly in advance on the first day of each and every month in the amount of eighteen hundred seventy-five dollars (51,875.00). B. Percentage Rent - In addition to minimum rental, the Lessee shall pay to the Lessor each year a percentage of annual Gross Sales (as defined in subparagraph C hereof) except as may be set off pursuant to subparagraph (B) hereof, i accordance with the following schedule: 5.5% of the first $250,000 of annual Groes Sales that exceed $1 million, 6.6% of the neat $250,000 of Gross Sales and 88 of all Gross Sales in excess of $1-1/2 million. C. Gross Sales as herein used are defined to mean the entire amount of the actual cash received for all food, beverages and related products made on or from the premises but shall not include, however, any sees collected, charged and/or paid out for any equipment, handling charges, liquor handling charges, sales and/or excise taxes imposed by any duly constituted governmental authority and chargee for pure services. -2- D. Commencing promptly after the execution and delivery of this lease, the Lessee shall report to the Lessor within thirty (30) days at the end of each accounting period on the Gross Sales in such accounting period and cumulatively from the caomeroament of the Lessee's fiscal year. Simultaneously with the submission of such reports for each of the first 3 quarterly accounting periods, the Lessee shall pay to the Lessor any percentage rent that may be due for such cumulative period less any percentage rent previously paid. On or before the expiration of 120 days after each calendar year, Lessee shall Submit to the Lessor a statement of Gross Sales for the year previously terminated certified by its principal financial officer to be accurate and in accordance with standard practices of accounting. Simultaneously with the submission of such annual report, the Lessee shall pay to the Lessor the amount of percentage rent for such year less any payments of percentage ant previously made for such year. The Lessor shall repay to the Lessee, promptly after the submission of the annual report, any overpayments that the Lessee may have made to the Lessor; In the event the Lessor shall fail to make such payments, the Leasee may set such payments off against the cert ensuing installments of minimum and percentage rent. E. If during the term of this lease or any extension hereof, the premises orany portion thereof or the Airport itself is closed for a Period in excess s of five consecutive days by action of any public authority for any reason other than weather, the annual minimum rental herein shall be forgiven for such period in an amount determined by the ratio of the days closed to 365 applied to the annual minimum rent then in effect. Such amount shall be applied to the payment of the next monthly installment(s) of minimum rent due. The terms "year" and "quarter" may, at the option of the Lessee, be adjusted to the accounting periods of the Lessee's fiscal year. 1.V. --lessee shall.. pay all rentals hereinrequital, without prior demand therefor, in lawful money of the United States, at the address of the Lessor as set forth herein or at such other reasonable places as the Lessor may designate. Late payments shall be subject to an additional interest charge of one and One-half (1.58) per cent per month to the date of payment. RETICLE ry Blast of Audit A. If the Lessor objects to any annual statement which the Lessee is required to submit to the Lessor under the terms of this lease, the Lessor shall give notice within thirty (30) days after receipt. of such statement to Lessee Of such objection. Unless within thirty (30) days after receipt by Lessee of such notice of objection, Lessee shall satisfy the Lessor with respect -3- to such statement thus complained of, the Lessor shall have the privilege o£ having an audit made, at its expense, of the account books and records relating to the Gross Sales of the Lessee. The Lessee shall render all reasonable assistance to the auditor selected by the Lessor and shall give him access to all books of account and ether records that may be necessary to enable such auditors to verify such reports of Gross Sales. B. The Lessor's objection to any statement submitted by the Leaseeshall not in any way impair the Lessee's obligation to pay rent based on the statement submitted. The Lessor's acceptance of such payment shall in no nanner constitute a waiver of any right under this lease or a waiver of the right to receive any percentage rental ultimately determined to be owing to the Lessor by the Lessee. A. Lessee shall have the right to use, occupy and maintain the demised premises herein leased in a reasonably busineeslike, careful, clean, and non -hazardous manner for the purposes of operating a airline catering and food service facility, and for no other purposes whatsoever without the prior written consent of the Lessor. No retail sale of products or services shall be conducted on the premises. B. Lessee shall not use, occupy or maintain said - premises in any manxer as to violate any municipal, state, federal law or regulation, and, in particular, regulations of the Federal Aviation Administration relating to the .operation of Bangor International Airport as a public airport. C. Lessee shall make a good faith effort to inform its employees and visitors of the rules and regulations of the Bangor International Airport and shall cooperate in every way with the Executive Manager of the BaMlr Corp. and the Airport manager to insure that such rules and regulations are obeyed. D. Lessor, through its agents, shall have at all reasonable times the right, upon reasonable notification to the Lessee, to go on and inspect the premises with an authorized representative of the Lessee. -4- ARTICLEy USE. OCCUPANCY TERATIONS Ytl EBBS A. Lessee shall have the right to use, occupy and maintain the demised premises herein leased in a reasonably busineeslike, careful, clean, and non -hazardous manner for the purposes of operating a airline catering and food service facility, and for no other purposes whatsoever without the prior written consent of the Lessor. No retail sale of products or services shall be conducted on the premises. B. Lessee shall not use, occupy or maintain said - premises in any manxer as to violate any municipal, state, federal law or regulation, and, in particular, regulations of the Federal Aviation Administration relating to the .operation of Bangor International Airport as a public airport. C. Lessee shall make a good faith effort to inform its employees and visitors of the rules and regulations of the Bangor International Airport and shall cooperate in every way with the Executive Manager of the BaMlr Corp. and the Airport manager to insure that such rules and regulations are obeyed. D. Lessor, through its agents, shall have at all reasonable times the right, upon reasonable notification to the Lessee, to go on and inspect the premises with an authorized representative of the Lessee. -4- E. Lessee shall have the right to make alterations and improvements to the premises as it may choose, subject to the prier written approval of the Airport Manager and the Executive Manager of the EanA1L Corp., which shall not be unreasonably withheld, and provided that such alterations, additions and improvements do not weaken the structural integrity of the buildings, Our decrease its functional quality or value, and further provided that any such work shall be done entirely at the Lessee's own expense and will include returning disrupted surfaces to a serviceable and attractive condition. F. Leasee shall have the right to (a) fence, secure, grade and surface the demised premises; (b) install such additional outdoor lighting, including flood lighting, as Lessee deems necessary, provided that such outdoor lighting complies with applicable F.A.A. Regulations, and the right to (n) erect signs on the leased premises, provided that such signs comply with the City's Sign Ordinance and applicable F.A.A. Regulations. The Lessee during the entire term of this Agreement, or any extension thereof, shall maintain, at its expense, insurance of the following type with companies authorized to do business in the State of Maine for the protection of the Lessor , which shall be named as an additional insured against all claimer losses, coats or expenses arising out of injuries to persons whether or not employed by Lessee or damage to property whether resulting from acts, omissions. -negligence or otherwise of the Lessee, its directors, officers, employees and agents and arising from leases's use of the premises or any part of portion of the Airport. Comorehensive public lab'1' Bodily Injury $500,000 each occurrence Comprehensive ProyortV $500,000.00 each occurrence. umbrella $100000000.00 .. Workmens' Comnensation Insurance -5- Lessor shall not be required to provide insurance coverage and shall have no responsibility for the leasehold improvements or any property owned by the Lessee or thud parties as may be located within the leased premises. Lessee shall cause to be furnished to the Lessor evidence in the form of certificates of insurance of the existence and continuance in force of the insurance required hereunder. Lessee shall notify Lessor promptly of any changes or discontinuances of coverage. Awleb6 W1 zwsB iTY Lessee shall protect, defend and hold Lessor, and its inhabitants, officers, employees and agents completely harmless from and against any and all liabilities, losses, suits, claims Judgments, fines or demands arising by reason of injury or death of any person or damage to any property, including all reasonable costs for investigation and defense thereof (including but not limited to attorneys fees, court costs, and expert witness fees), of any nature whatsoever arising out of or incident to this agreement and/or the use or occupancy of the leased premises or the acts or omissions of Lessee's officers, agents, employees, contractors, subcontractors, licensees, or invitees, unless such injury, death, or damage is caused by the negligence of the Lessor. The Lessor shall give to Lessee reasonable notice of any such claims or actions. The Lessee shall also use counsel reasonably acceptable to Lessor in carrying out its obligations hereunder. Lessor shall protect, defend and hold Lessee , and its inhabitants, officers, employees and agents completely harmless from and against any and all liabilities, losses, suits, claims, Judgments, fines or demands arising by reason of injury or death Of any person or damage to any property, including all reasonable gists for investigation aM defense thereof (including but not limited to attorneys fees, court costs, and expert witness fees), arising out of any negligent acts or omissions of the Lessor's Officers, agents, employees, contractors, subcontractors, unless such injury, death, or damage is caused by the negligence of the Lessee . The Lessee shall give the Lessor reasonable notice of any such claims or actions. Nothing in this paragraph, however, shall be deemed to waive any immunity or limitation on liability under the Maine Tort Claims Act or otherwise existing as matter of law. -6- 1.1.ye(tla3'�4l1 A. The premises herein leased are located upon the Property of the Lessor and commonly known as Bangor International Airport. Therefore, the Lessee hereby agrees to obey and observe, and to cause all personnel employed by the Lessee to obey and observe, all municipal ordinances, and State and Federal laws pertaining to the operation of said Airport and Lessee's use and occupancy of the demised premises. In addition, Lessee shall obey and observe all reasonable orders, =lea and regulations of the Airport Manager notinconsistent with this Lease or with the aforesaid rules and regulations which are uniform, and apply to all Lessee, invitees and users of the Airport and their employees. B. Lessee will not use or permit or suffer the use of the leased property in such a manner as to create electrical interference with radio communication between any installation upon the Airport and aircraft, or as to make it difficult for flyers to distinguish between airport lights and others, or as to impair visibility in the vicinity of theAixport, orasotherwise to endanger the landing, taking off or maneuvering of aircraft. Further, Lessor retains a right for the passage of aircraft ('aircraft' being defined as any contrivance now known o hereafter invented, used or designed for navigation of or flight in the air) by whomsoever owned and operated, in the airspace above the property above 341.4' ML to an infinite height to- gether with the right to cause in all airspace above the property such noise, vibrations, fusee, duet, fuel particles and all other r effectsthat may be ceased by the operation of aircraft landing at, or taking -off from, or operating at or on the Airport and Lessee does hereby fully waive, remise and release any right o cause of action which they may now have or which they may have in the future against Lessor due to such noise, vibrations, fumes, dust, fuel particles, and all other effects that may be caused by the operation of aircraft landing at or taking -off from or operating at or on the Airport. OA1BIC.H BY FIRE OR 07HER O SUALTY Lessor does not insure the demised premises against loss by fire and the extended coverages usual in such insurance. In the event of destruction or damage of buildings owned by Lessor on the demised premises, or to any part thereof, and as often as the improvements shall be damaged, by fire or other casualty, Lessor shall have the right but not the obligation to rebuild and repair the Improvements for occupancy. If Lessor elects not to rebuild and repair, it shall so notify Lessee within thirty (30) days or more expeditiously if possible of its decision. Lessee shall then have the right, but not the obligation, to finance and rebuild and repair itself, and improvements shall be restored to -7- their state and condition prior to said fire or othercasualty, in accordance with plans approved by Lessor, and on a schedule of completion agreeable to both parties. In the event Lessee decides not to finance, rebuild and repair said damages itself, and damages are serious to the extent of preventing Lessee from operating within the demised premises, then Lessee shall have the right to terminate this Lease and shall notify Lessor within the aforementioned time period, and Lessee shall demolish all structures to frost wall level and remove all debris from said demolition from the demised premises. ARTICLE x NOIS MS The Lessee specifically agrees to make no claims in any form for damages or reimbursements to the Lessor or to the United States Government for any reason or cause resulting from noise generated from airport uses• ARTICLE xi TA%ES The Lessee agrees to pay, when due, any and all taxes and/or assessments, fees or charges of any kind whatsoever, as may be imposed during the term hereof, or any extension of the term of this lease, by any governmental authority upon the demised premises, including Lessee's leasehold interest therein, any structures, or improvements thereon, or any personal property located therein. it is expressly agreed that such taxes and assessments shall include all amounts levied as real estate taxes upon the demised premises by the Lessor acting in its govern- mental capacity. Lessee further hereby waives any and all rights or privileges of exemption from taxation on the demised premises, or Lessee's leasehold interest therein, or on any buildings, structures, or improvements thereon, or on any personal property located therein arising due to public ownership of the demised premises by the City of Bangor, or otherwise ; provided, however, nothing herein shall in any may prohibit the Lessee from exercising its rights under the law to contest the amounts of such taxes, assessments, charges or fees. -a- ARMCO 8II Lessee in the use and occupancy of the leased premises shall not on the grounds of race, color, or national. origin, knowingly and willfully discriminate or permit discrimination against any person or group of persons in any manner prohibited by law. ARTIM %III [w'�l"Ai LLJJ it The Lessee, subject to the terms and provisions of this lease on payment of the rent, and observing, keepingand' performing all the terms and provisions of the leason its part to be observed, kept and performed, shall lawfully, peaceably and quietly have, hold, occupy and enjoy the demised premises during the term hereof without hiMerance or rejection by the Lessor or any other persons. The Lessor and the Lessee agree that each will promptly discharge (either by payment or by filing of the necessary bond or otherwise) any mechanics', materialnes's or other liens against the demised premises, which liens may arise out of any payment due for labor, services, materials, supplies or equipment which may have been furnished to or for the Lessee or the Lessor, respectively. it 3"(uF�g (A) Lessee shall, at its sole expense and cost, throughout the term hereof or any extension, keep and maintain the demised premises including building fixtures, equipment, operating systems, roof and structure, doors, windows, passageways, interior and exterior paint surfaces, parking areas, grounds, and landscaping in good order and repair, and in tenantable condition, damage by accidental fire and casualty and reasonable wear and tear, as provided for in this Agreement excepted. _9� (B) The phrase "reasonable wear and team used i paragraph A of this Article as an exception to the obligations of the Lessee shall not be construed to relieve Lessee of the responsibility for providing repairs of a routine and regular nature which may from time to time be necessary, nor to provide maintenance to the demised premises of a nature and degree ordinarily sufficient to prevent damage, breakdown, failures, malfunctions or disrepairs; nor shall any exception or special provision of this Agreement -be construed to mean that Lessor would be required to carry out maintenance and repairs to the premises. ARTICLE INT MILITIES Lessee shall pay the cost of all utilities furnished and consumed on the demised premises, including electricity, gas, heat, water and sewer user fees. Lessee accepts all utility fixtures as they now exist. nil new utility fixtures shall be installed and maintained by the Lessee. Lessee is responsible for all snow and rubbish removal. ARTICLE E i aa'l@/iiTd A. Ownership of permanent improvements to the demised premises, which may from time to time be made by Lessee that are affixed to the property and are an integral part of the operating systems of the structures as opposed to removable personal property, shall automatically vest in the Lessor as a consideration of the lease and rental schedule. B. My removable personal property that may he financed, erected or installed by Lessee from Gime to time during the term of this Lease shall remain the property of the Lessee, and, upon termination or expiration of this Lease, Lessee shall have the right to remove the same from the demised premises within ninety (90) days of said termination. My such property not so removed within ninety (90) days from the date of tOcHUMAtiOn shall become the property of the Lessor to be disposed of in such way as it may deem fit. in the event Lessee elects to remove said improvements and other personal property, the buildings and land appurtenant thereto shall be returned to as near as possible their conditions as at the commencement of this Lease, damage by accidental fire and casualty and reasonable wear and tear excepted. -10- At any time during the term or any extension thereof of this lease, the Lessor SM11 be free to enter a lease or other agreement with third parties concerning or covering the operation of airline catering services at or on the Airport. The agreement between the Lessor and said third parties shall contain Provisions which will assure that the Lessee is not placed at a competitive disadvantage with respect to such third parties. Any airline, scheduled or non-scheduled, which desires to buildits Own commissary facilities to serve its own airline exclusively shall be free to do so under terms and conditions set by the Lessor. ARTICLE 8Ix UNITED STATES BIGHTS It is understood and agreed that title to the demised premises is in the City of Sangor, provided, however, that the demised premises are a part of Bangor international Airport and this lease is specifically made subject to any rights the United States of America or any agency thereof may have under any regulation, law, deed or other existing Agreement in or to the leased premises and may exercise in regard to said premises and should the United States of America or any agency thereof exercise any such right or rights in or to said premises, the exercise of such right or rights shall not be considered to result in a breach by the Lessor of any covenant or agreement hereunder. In the event that the United States of America or any agency thereof exercise any such right or rights in or to said premises, and the exercise of such right or rights makes Impractical in the Lessee's sole discretion Lessee's Intended use of said premises, then Lessee shall have the right, at its option, to terminate this Agreement without further obligation to the Lessor except for such obligations a shall have been incurred and accrued prior to the exercise of said option. ARTICIA II TERMINATION It is covenanted and agreed that: A. By Lessee: (1) If the Lessee shall neglect or fail to pay the rent o other charges payable hereunder and such default shall continue for a period of ten (10) daysafter written notice thereof by Lessor; or -11- (2) If Lessee shall neglect or fail to perform or observe any Of the other covenants, terms, provisions, or conditions on Its part to be performed, or observed, and such neglect or failure shall continue for a period of thirty (30) days after written notice thereof by Lessor, or if such covenants, terms, provisions or conditions cannot be performed or observed within said thirty (30) day period, if Lessee fails to diligently prosecute the curing of such neglect or failure; or (3) If the estate hereby created shall be taken on execution or by other process of law; or (4) If the Lessee shall be declared bankrupt or insolvent according tolaw; or (5) If any assignment shall be made of the property of the Lessee for the benefit of creditors; or (6) If a receiver, guardian, conservator, or trustee in baflcruptcy or other similar officer shall be appointed to take charge of all or any substantial part of the Lessee's property by a Court of competent jurisdiction; or (7) If a petition shall be filed for a reorganization of the Lessee under provisions of the 9an1cruptcy Act now or hereafter enacted; or (8) If the Lessee shall file a petition for such reorganization or for arrangements under any provision of the LaNcrvptcy Act now or hereafter enacted, than, in any of the said cases (notwithstanding any license of any former breach of covenant or waiver of the benefit hereof or consent in a former instance), the Lessee may be considered in default hereunder, and the Lessor lawfully may, Immediately or at any time thereafter, and without demand or notice, enter into and upon the said premises or any part thereof, in the name of the whale and repossess the same as of the Lessor; former estate, and expelthe Lessee and those claiming through or under it and remove its or their effects (forcibly if necessary) without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant, and upon entry as aforesaid, this Lease shall terminate, and the Lessee covenants and agrees to pay and shall be liable for the days originally fixed herein for the payment thereof, amounts equal to the several installments of rents and other charges reserved as they would, under the terms of this Lease, become due if this Lease bad not been terminated -12- or if the Lessor had not entered or reentered as aforesaid. Botwithstanding the foregoing, Lessee's liability shall not exceed the difference, if any, between the rental which would have been due for such month had there been no such termination, and the amount being received by Lessor as rent from occupants of said premises. In order to mitigate Lessee's damage hereunder, Lessor agrees to make every reasonable effort to e subsequent Lessees, at a rental equal to the prevailing local rate for the demised premises. (9) Upon any termination under this Article, the Lessee. shall vacate the Premises in accordance with the terms and conditions hereof and with all due speed; and within thirty (30) days after such termination, the Lessee shall pay to the Lessor all sums due from the Lessee to the Lessor hereunder prior to termination. B. By Lessorx This lease shall be subject to termination by the Lessee in the event of the happening of one or more of the following contingencies: (1) If the Lessee shall default in the performance of any of the conditions and covenants of this lease to he kept and observed by itandsuch default shall not be remedied within a period of thirty (30) days after written notification by the Lessee to the Lessor of the existence of such default. (2) If, at any time during the term of this lease, or any extensions thereof, the business volume, in the sole opinion of the Lessee as reasonably demonstrated to the Lessor by the Lessee s not of such volume as to be economically feasible and profitable, upon the giving by the Lessee to the Lessor of written notice of termination at least sixty (60) days prior to the date of termination contained in said notice. ARTICLE III ATTORtlBY's PEE The Lessee shall pay to the Lessor a reasonable attorney's fee in the event the Lessor employs an attorney to collect any rents due hereunder and secures a judgment in connection with collection of said rent, or legal process is levied upon the interest of the Lessee in this Lease or in said premises, or in the event Lessee violates any of the terms, conditions or covenants on the part of the Lessee herein contained, provided that Lessee fails to promptly correct the violation of any term, condition or covenant after receipt of notice that it is in violation thereof. -13- In the event Lessor employs its City solicitor or an assistant solicitor to collect rents or otherwise protect Lessor's £nterests under this Lease, 'reasonable attorneys fees" under this Article shall mean the reasonable value of services provided by Lessor's Solicitor or assistant solicitor at prevailing rates for private attorneys, services in the Bangor area. Lessor will pay to Lessee a reasonable attorney's fee if Lessee employs an attorney in the event the Lessor violates any of the terms, conditions or covenants on the part of the Lessee herein contained, provided said Lessor fails to promptly correct the violation of any term, condition or covenant after receipt of notice that it is in violation thereof. ARTICLE %III ASsInsmSw, sALfl Aw Soar flG The Lessee shall not at any time assign, sell, convey or transfer this Lease or any interest therein, or sublease or sublet or rent the premises, or any part thereof, without the Prior written consent of the Lessor. All provisions of this Lease shall extend to bind and inure to the benefit of not only the Lessor and Lessee but also their successors and assigns. In no event shall the Lessee named herein be relieved from any obligations under this Lease by virtue of any assignment or subletting. ARTICLE IIIA Failure on the part of the either party to complain of any action or non-actlon on the part of the other party no matter how long the same may continue, shall never be deemed to be a waiver by either party of any of either party's rights hereunder. Further, it is covenanted and agreed that no waiver at any time Of any of the provisions hereof by either party, shall be construed as a waiver of any other provisions hereof, and that a waiver at any time of any of the provisions hereof shall not he construed at any subsequent time as a waiver of the same Provisions. The approval of Lessor of any action by the Lessee requiring the Lessor's consent or approval shall not be deemed to waive or render uMecessary the Lessor's consent or approval to or of any subsequent similar act by the Lessor. -14- ARTICLE xIIV NOTCESS Notices to the Lessor provided for in this Lease shall be sufficient if sent by registered or certified mail, return receipt requested, postage prepaid to, Bao 6 Corp., C/O Dept. of Community and Economic Development, City Of Bangor, City Hall, 73 Harlow Street, Bangor, Maine, 04401; and notices to Lessee, are to be sent by registered or certified mail, return receipt requested, postage prepaid, addressed to: Custom management Corporation, 4121 Harrison Drive, Mobile, ht. 36609, or to such other respective addressed as the parties may designate to each other in writing from time to time. ARTICLE = �3 IDTTY OF P PRDVIS D_ If any tern or provisions of this Lease or the application thereof to any person or circumstances to any extent, be invalid r unenforceable, the remainder of this Lease or the application of such terms and provisions to persons or circumstances other than those towhichit is held invalid or unenforceable shall not be affected hereby and such term and provision of this Lease shall be valid and be enforceable tO the fullest extent permitted by law. NSTROCTION The headings appearing in the Lease are intended for convenience and reference only, and not to be considered in construing this Lease. Nohing contained herein shall be deemed or construed by the parties hereto, nor by any third party, as creating the relation- ship of principal and agent or of partnership or of joint venture between the parties hereto, it being understood and agreed that neither the method of computation of rent nor any other provision contained herein or any acts of the parties hereto shall be deemed to create any relationship between the parties hereto other than the relationship of landlord and Lessor. -15- GYVELAW This Lease shall be governed exclusively by the provisions hereof and by the laws of the State of Maine, as the same may from time to time exist. ve. NT TO LEASE This lease contains all the terms and conditions between the parties hereto and no alteration, amendment or addition thereto shall be valid unless in writing and signed by the party against whom enforcement may be sought. ARTICLE EEIB RBE lw OP AG ANT A. The Lessor hereby represents and warrants that it has taken all necessary procedural and legal steps as required under all state, local and federal laws and regulations whatsoever for the purpose of authorizing the execution at this Agreement, and that the execution of this Agreement by the City Manager renders this Agreement a valid and binding document on the part of the Lessor and is fully enforceable in all of its terms and condi- Ilona by the Lessee. E. Lessee hereby represents and warrants that it has taken all necessary and procedural and legal steps as required under all state, local and federal laws and regulations, and all necessary corporate action to authorize the execution of this Agreement by one of its officers and that the execution of this Agreement is a binding and legal document on the Lessee, is fully enforceable in all of its terms and conditions by the Lessor. IN WITNESS WHEREOF, the parties hereto have set their hands and Seals the day and year written above. WITNESS: CITY OF BJ/U/SWR its City Lty N. Manager WITNESS: �� /•//�� CUSTOM MANAGEMENT CORPORATION )2W44M(L'10 YLU9 /n BY: 3 Ti -16 t'