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HomeMy WebLinkAbout2019-12-09 20-026 Order 12/09/201920-026 12/09/2019 20-026 Airport Order 001-268 Title, Order Authorizing the City Manager to Execute an Agreement Between the City of Bangor and Bangor Airport Food Services, Inc. (BAFS) to Lease Buildings #266 and #268 for the Purposes of Operating an Airline In-flight Kitchen at Bangor International Airport (BGR) This Order authorizes the lease between the City of Bangor and Bangor Airport Food Services, Inc. (BAFS) for buildings #266 and #268 for the purposes of operating an airline in-flight kitchen at Bangor International Airport (BGR). Operating an in-flight kitchen in the airport environment is highly complex given safety and security regulations and the unpredictable traffic flows. There is also a significant investment in capital equipment required to properly perform services. Due to Bangor’s modest size, this operation would be very unlikely to generate any interest from national vendors that provide this type of service at other airports. The airport has been pleased with the service provided by the current vendor. BAFS has been a proactive business partner in recruiting and retaining the international transit business and has also made several investments in airport facilities, per the lease agreement. The rental rate for the in-flight kitchen is $28,190.00 per year. In addition to a 5 year term, the agreement includes a financial investment by the Lessee. This agreement shall be in final form as approved by City Legal. This Order supports the Council goals to ensure the viability and growth of air transit and air transportation to serve Bangor and the greater northern Maine region through BGR, as well as to promote job creation through attraction and retention of businesses. Airport Committee 12/02/2019 Recommend for passage Staff recommends approval. Consent 12/09/201920-026 CITY OF BANGOR ORDER 12/09/2019 20-026 Sprague Authorizing the City Manager to Execute an Agreement Between the City of Bangor and Bangor Airport Food Services, Inc. (BAFS) to Lease Buildings #266 and #268 for the Purposes of Operating an Airline In-flight Kitchen at Bangor International Airport (BGR) WHEREAS, the City of Bangor, Maine is the owner of an airport located in Bangor, County of Penobscot, State of Maine, commonly known as Bangor International Airport; and WHEREAS, the City of Bangor and Bangor Airport Food Services, Inc. desire to enter into an agreement to lease buildings #266 and #268 for the purposes of operating an airline in-flight kitchen at Bangor International Airport (BGR); and WHEREAS, it would be advantageous to both parties to renew this agreement. NOW, THEREFORE, BE IT ORDERED BY THE CITY COUNCIL OF THE CITY OF BANGOR, That Catherine M. Conlow, City Manager, is hereby authorized on behalf of the City of Bangor to execute a lease with Bangor Airport Food Services (BAFS) for buildings #266 and #268 for the purposes of operating an airline in-flight kitchen at Bangor International Airport (BGR). Said lease agreement will run for five (5) years, and includes a financial investment by the Lessee. This agreement shall be in final form as approved by City Legal. 20-026 DECEMBER 9, 2019 AGREEMENT OF LEASE THIS AGREEMENT OF LEASE, executed in duplicate, this _ day of _ , 2019, by and between: City of Bangor, a municipal corporation duly Organized 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 sometimes referred to as "Lessor") /_10107 BAFS INC., a corporation organized and existing under the laws of the State of Maine, and having a regular place of business at 61 Florida Avenue, Bangor, Maine (hereinafter referred to as "Lessee") WITNESSETH: 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 Maine (hereinafter sometimes referred to as the "Airport"); and WHEREAS, by an agreement dated January 1, 1997 the parties agreed to lease Buildings #266, #268 and a parcel of land which abuts and is situated between such buildings for the purposes of operating an airline catering and food service facility; and WHEREAS, the above said agreement will terminate on December 31, 2019; and WHEREAS, the parties have agreed to replace the existing lease with a new lease. NOW, THEREFORE, the parties do mutually agrees as follows: PREMISES ARTICLE I 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 into 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 Avenue 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 Avenue: Bangor International Airport, Bangor, Maine, said Buildings to be leased to contain a total of 20,525 square feet. ARTICLE II TERM 20-026 DECEMBER 9, 2019 TO HAVE AND TO HOLD the demised premises unto the Concessionaire for the term of five (5) years commencing January 1, 2020 and terminating on December 31, 2025. Provided that Lessee is not in default of the terms and conditions of this lease, the Parties may negotiate to renew the Lease, for an additional five (5) year period. ARTICLE III COMPUTATION OF ANNUAL RENTAL A. The minimum rent to be paid by Lessee to Lessor during the term of this Lease shall be Twenty -Eight Thousand One Hundred and Ninety ($28,190.00) Dollars per year. Minimum rent shall be paid monthly in advance on the first day of each and every month in the amount of Two Thousand Three Hundred and Fifty Dollars ($2,350.00). 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 out pursuant to subparagraph (E) hereof, in accordance with the following schedule: 5.5% of the first $250,000 of annual Gross Sales that exceed $1 million, 6.6% of the next $ 250,000 of Gross Sales that exceed $1.25 million, and 8% of all Gross Sales in excess of $1.5 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 for delivery to aircraft at Bangor International Airport, but shall not include, however, any sums collected, charged and/or paid out for any equipment, handling / service charges, liquor handling charges, sales and/or excise taxes imposed by any duly constituted governmental authority and charges for pure services. 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 commencement of the Lessee's fiscal year. Simultaneously with the submission of such reports for each accounting period, the Lessee shall pay to the Lessor any percentage rent that may be due for such 20-026 DECEMBER 9, 2019 cumulative period less any percentage rent previously paid. Within 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 rent 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 Lessee may set such payments off against the next ensuing installments of minimum and percentage rent. E. If during the term of this Lease or any extension hereof, the premises or any portion thereof or the Airport itself is closed for a period in excess of five consecutive days by action of any public authority for any reason other than weather, the annual minimum rental herein shall be forgiven by 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 term's "year" and "quarter" may, at the option of the Lessee, be adjusted to the accounting periods of the Lessee's fiscal year. F. Lessee shall pay all rentals herein required, 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 (1.5%) per cent per month to the date of payment. INVESTMENT In recognition of the new lease term, the Lessee agrees to make investment to the facility or equipment, or fixtures of not less than $100,000. Lessee understands the Lessor is currently undertaking an Airport Master Plan study. The Parties agree to negotiate in good faith on necessary improvements. ARTICLE IV RIGHT 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 ninety (90) days after receipt of such statement to Lessee of such objection. Unless within ninety (90) days after receipt by Lessee of such notice of objection, Lessee shall satisfy the Lessor with respect to such statement thus complained of, the Lessor shall have the privilege of 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 20-026 DECEMBER 9, 2019 and shall give him access to all books of account and other 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 Lessee shall 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 manner 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. ARTICLE V USE, OCCUPANCY AND ALTERATIONS TO PREMISES. A. Lessee shall have the right to use, occupy and maintain the demised premised herein leased in a reasonably businesslike, careful, clean, and non -hazardous manner for the purposes of operating an inflight dining and services facility which includes, an onboard duty free storage and packing, aircraft servicing products, foreign waste processing, and as a food, beverage and related products production and storage facility, and for no other purposes whatsoever without the prior written consent of the Lessor. No retail sale of products shall be conducted on the premises. B. Lessee shall not use, occupy or maintain said premises in any manner as to violate any municipal, State, federal laws 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 Banair 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, and the right of access to utility systems located on premises, for inspection. For purposes of this paragraph, "reasonable notification" shall include any actual notification to date of inspection, "reasonable times" shall mean any time during Lessee's regular business hours, or during normal weekday business hours if Lessee shall cease operations or shall maintain other than normal business hours. Lessor reserves the right to effect emergency repairs to any utility systems located on the demised premises at any time, without prior notice or with such notice as is reasonable given the nature of the emergency concerned, and to have access for this purpose. E. Lessee shall have the right to make alterations and improvements to the premises as it may choose, subject to the prior written approval of the Airport Manager, which shall not by unreasonably withheld, and provided that such alterations, additions and 20-026 DECEMBER 9, 2019 improvements do not weaken the structural integrity of the buildings, nor 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. Lessee 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 (c) erect signs on the leased premises, provided that such signs comply with the city's sign ordinance and applicable F.A.A. Regulations. ARTICLE VI HAZARDOUS WASTE Lessee hereby covenants and agrees that it shall not, during the term of this Lease, including any extension or renewal hereof, permanently place, cause to be placed, deposit or discharge any hazardous waste upon the demised premises, or upon any other portion of Lessor's Bangor International Airport, and further expressly agrees that it shall indemnify Lessor from any and all costs, expense or liability, of whatever kind or nature, incurred by the Lessor in detecting, evaluating, removing, treating, disposing of or otherwise responding to any hazardous waste placed or deposited in violation of this Article. Lessee hereby covenants and agrees that it shall not, during the term of this Lease, including any extension or renewal hereof, violate any local, state or Federal regulation, ordinance or statute pertaining to hazardous waste or hazardous material and further expressly agrees that it shall indemnify Lessor from any and all costs, expense or liability, of whatever kind or nature, incurred by the Lessor for any such violation. Such costs shall by deemed to include, without limitation, Lessor's costs of defending any suit filed by any person, entity, agency, or governmental authority; paying any fines imposed in settling any damage claims; complying with any order by a court of competent jurisdiction directing the Lessor to take remedial action with respect to such waste; and of all associated attorney's fees and costs. For the purposes of this Article, the term "hazardous waste" shall be deemed to include every substance now or hereafter designated as a hazardous waste under any provision of State or Federal law. However, it is understood the Lessee does process foreign waste from international arriving aircraft and sea vessels under the guidelines and inspection of the United States Department of Agriculture. Lessee's obligations under this Article shall be deemed to survive the expiration or termination of this lease. ARTICLE VII LIABILITY AND PROPERTY DAMAGE INSURANCE 20-026 DECEMBER 9, 2019 The Lessee, during the entire term of this Lease, or any extension thereof, including any holdover tenancy following regular expiration or early termination hereof, shall maintain, at its sole expense, insurance in the type and amount shown below with companies authorized to do business in the State of Maine for the protection of Lessor against any and all liability, including wrongful death, against all claims, losses, costs 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, clients, employees and agents and arising from Lessee's use of the demised premises or any part or portion thereof: • Commercial general liability insurance with a minimum limit of $1,000,000.00 combined single limit per occurrence and $2,000,000.00 in the aggregate; and • Workers' compensation and employer's liability insurance with a minimum limit of $500,000.00 per occurrence (if applicable). Lessee shall cause to be furnished to the Lessor, at the time of execution of this Lease, evidence in the form of certificates of insurance of the existence in force of the insurance required hereunder. Said certificates shall name Lessor as an additional insured and loss payee. Lessee shall cause to be furnished to the Lessor replacement certificates of insurance whenever the insurance policies are renewed. Lessor shall be notified prior to any changes or discontinuances of coverage. Lessor agrees to promptly notify Lessee in writing of the existence or filing of any claim, demand or action arising out of an occurrence covered hereunder of which Lessor has knowledge, and to cooperate with Lessee in the investigation and defense thereof. The minimum insurance coverage required under this Article shall be deemed to be automatically adjusted whenever the Maine State Legislature shall increase the Lessor's maximum liability beyond such minimums for personal injury, wrongful death or property damage claims brought under the Maine Tort Claims Act. In the event of such an increase, the minimum insurance coverage required shall be no less than the amounts required herein or no less than the Lessor's maximum liability for such claims under the Maine Tort Claims Act, whichever is greater. Lessor shall maintain comprehensive liability insurance coverage for the building, but shall not be held responsible for any harm or damage caused by an "act of god," including, but not limited to, unusual wind storms, floods, earthquakes, and snow/ice storms. Lessee shall provide the Lessor with an annual Certificate of Insurance (COI) which shall be sent to the following address: Bangor International Airport Attn: Airport Director 287 Godfrey Boulevard Bangor, Maine 04401 ARTICLE IX 110111AAAWIM 20-026 DECEMBER 9, 2019 During the term of this Lease and during any extensions or renewals hereof, including any holdover tenancy following regular expiration or early termination hereof, Lessee shall defend, indemnify, save and hold Lessor, and its inhabitants, officers, employees and agents completely harmless from and against any and all liabilities, losses, suits, claims, costs, expenses, judgments, fines or demands arising by reason of injury to or death of, or asserted by, any person or persons, including Lessee's agents, clients, invitees or employees, 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 Lease and/or the use, occupancy, conduct, or management of the demised premises or the acts or omissions of Lessee's officers, clients, agents, employees, contractors, subcontractors, licensees, or invitees, except to the extent such injury, death, or damage is caused by the negligent acts or omissions of the Lessor, its agents, employees, clients or invitees. The Lessee shall give to Lessor reasonable notice of any such claim or actions. The Lessee shall also use counsel reasonably acceptable to Lessor in carrying out its obligations under this Article. During the term of this Lease and during any extensions or renewals hereof, including any holdover tenancy following regular expiration or early termination hereof, Lessee further expressly agrees that it will defend, indemnify, save and hold Lessor harmless from any and all claims made or asserted by the Lessee's agents, servants or employees arising out of the Lessee's activities under this Lease. For this purpose, Lessee hereby expressly waives any and all immunity it may have under Maine's Workers Compensation Act in regard to such claims made or asserted against Lessor by Lessee's agents, servants or employees. For this purpose, Lessee further expressly waives any charitable immunity it may have under applicable law as to any and all claims of any person made or asserted against Lessor arising out of Lessee's use and occupancy of the demised premises or other activity of Lessee under this Lease. The indemnification provided under this Article shall extend to and include any and all costs incurred by the Lessor to answer, investigate, defend and settle all such claims, including but not limited to Lessor'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 the Lessee's agents, invitees, licensees, clients, servants or employees against Lessor in regard to claims made or asserted by such persons. In exercising the rights granted under this Lease, Lessee shall at all times be regarded as an independent entity conducting its own business and operations and shall not at any time act, 20-026 DECEMBER 9, 2019 hold itself out, or purport to act as an agent, contractor, co-partner, joint venture or employee of Lessor. ARTICLE IX RULES, REGULATIONS AND LAWS 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 demised premises. In addition, Lessee shall obey and observe all reasonable orders, rules and regulations of the Airport Manager not inconsistent with this Lease or with the aforesaid rules and regulations which are uniform, and apply to all Lessees, 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 the Airport, or as otherwise 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 or 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 342.4' MSL to an infinite height together with the vibrations, fumes, dust, fuel particles and all other effects that may be caused by the operation of aircraft landing at, or takeoff from, or operating at or on the Airport and Lessee does hereby fully waive, remise and release any right or 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 takeoff from or operating at or on the Airport. ARTICLE X DAMAGE BY FIRE OR OTHER CASUALTY Lessor is not required to insure the demised premises against loss by fire and the extended coverage 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 building 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 20-026 DECEMBER 9, 2019 decision. In the event the damages are of such extent as to reasonably prevent 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's obligation to pay rent as hereinabove provided shall terminate upon receipt of such notice by the Lessor and surrender of the premises by the Lessee. ARTICLE XI NOISE CLAIMS 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 XII TAXES 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 governmental privileges of exemption from taxation on the demised premises, or 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 way prohibit the Lessee form exercising its rights under the law to contest the amounts of such taxes, assessments, charges or fees. Lessee also waives all rights under 36 M.R.S.A. § 556 to retain taxes paid by it out of rentals established under this lease. ARTICLE XIII ANTIDISCRIMINATION The parties hereto hereby covenant not to discriminate against any employee or applicant for employment to be employed in the performance of this Agreement, with respect to his or her hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment because of his or her race, color, religion, national origin or ancestry, or because of his or her age except where based on a bona fide occupational qualification and to require a similar covenant on the part of any subcontractor employed in the performance of this Agreement. In addition, the Concessionaire covenants in accordance with Title VI of the Civil Rights Act of 1964 and Part 15 of the Federal Aviation Regulations, that the Concessionaire will not, on the grounds of race, 20-026 DECEMBER 9, 2019 color or national origin, discriminate, or permit discrimination, against any person or group of persons in any manner, and the Concessionaire is granted the right to take such action as the United States may direct to enforce this covenant. This agreement is subject to the requirements of the U.S. Department of Transportation's regulations, 49 CFR part 23, subpart F. The Concessionaire agrees that it will not discriminate against any business owner because of the owner's race, color, national origin, or sex in connection with the award or performance of any concession agreement covered by 49 CFR part 23, subpart F. The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy, as the recipient deems appropriate. Compliance with American's with Disability Act (ADA): Concessionaire acknowledges that, pursuant to the ADA, programs, services, and other activities provided by Concessionaire, whether directly or through a contractor, must be accessible to the disabled public. Concessionaire shall provide the services specified in this agreement in a manner that complies with the ADA and any and all other applicable Federal, State and Local disability rights regulations. Concessionaire agrees not to discriminate against disabled persons in the provision of services, benefits or activities provided under this agreement and further agree that any violation of this prohibition on the part of the Concessionaire, its employees, agents, or assigns shall constitute material breach of this agreement. The Concessionaire agrees to include the above statements in any subsequent concession agreements that it enters and cause those businesses to similarly include the statements in future agreements. INFORMATION REGARDING DISADVANTAGED BUSINESS ENTERPRISE PARTICIPATION Within thirty (30) days following the end of each calendar quarter, Concessionaire shall report to the Airport Concession Disadvantage Business Enterprise Liaison (ACDBEL) the dollar value of goods and services purchased from Disadvantaged Business Enterprises. Reporting shall be in such form as deemed required by the ACBDEL. ARTICLE XIV COVENANTS OF QUIET ENJOYMENT The Lessee, subject to the terms and provisions of this Lease on payment of the rent, and observing, keeping and performing all the terms and provisions of the lease on its part to be observed, dept and performed, shall lawfully, peaceably and quietly have, hold, occupy and enjoy the demised premises during the term hereof without hindrance or rejection by the Lessor or any other persons. 10 ARTICLE XV LIENS 20-026 DECEMBER 9, 2019 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' materialman'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. ARTICLE XVI MAINTENANCE AND REPAIRS: ASBESTOS ADJUSTMENT (A) Lessee shall, at its sole expense and cost, throughout the term hereof or any extension, deep and maintain the demised premises including building fixtures, equipment, doors, windows, passageways, interior and exterior paint surfaces, 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. (B) The phrase "reasonable wear and tear" used in 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 disrepair; 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. Lessor shall, at its sole expense be responsible for maintenance and repairs to the premises. Lessor shall, at its sole expense and cost, throughout the term hereof or any extension, be responsible for the repair and removal of any asbestos in the demised premises. Lessor assumes all liability with regard to said asbestos, excepting any claim arising from Lessee's negligence. ARTICLE XVII UTILITIES 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. All new utility fixtures shall be installed and maintained by the Lessee. Lessee is responsible for all snow and trash/rubbish removal. ARTICLE XVIII 11 20-026 DECEMBER 9, 2019 REMOVAL OF PROPERTY 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. Any removable personal property that may be financed, erected or installed by Lessee from time 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. Any such property not so removed within ninety (90) days from the date of termination 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. C. In the event Lessee shall fail to remove any non -permanent improvements or other personal property within thirty (30) days from the date of termination or final expiration of this lease, Lessor shall be entitled to recover from the Lessee, Lessor's reasonable costs incurred in removing or disposing of such non -permanent improvements or personal property. In such event, there shall be deducted from Lessor's costs the fair value to the Lessor actually realized from sale, use or other disposition of the particular improvements or personal property concerned. ARTICLE XIX OTHER CATERING SERVICES At any time during the term of this agreement or any extension thereof of this Lease, the lessor shall not enter into a lease or other agreement with third parties concerning or covering the operation of Inflight dining and services at or on the Airport. However, the Lessor may terminate this agreement under the conditions referred to in Article XXI of this agreement. Any airline, scheduled or non — scheduled, which desires to build its own commissary facilities to serve its own airline exclusively shall be free to do so under terms and conditions set by the Lessor. ARTICLE XX UNITED STATES RIGHTS It is understood and agreed that title to the demised premises is in the city of Bangor, provided, however, that the demised premises are a part of Bangor International Airport and this Lease is specifically made subject to nay 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 12 20-026 DECEMBER 9, 2019 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 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 as shall have been incurred and accrued prior to the exercise of said option. ARTICLE XXI TERMINATION It is covenanted and agreed that: A. By Lessee: (1) If the Lessee shall neglect or fail to pay the rent or other charges payable hereunder and such default shall continue for a period of ten (10) days after written notice thereof by Lessor; or (2) If Lessee shall neglect of 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 of failure; or (3) If the estate hereby created shall be taken on execution or by other process of law; or (4) If any assignment shall be made of the property of the Lessee for the benefit of creditors or (5) If a receiver, guardian, conservator, or trustee in bankruptcy 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 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 whole and repossess the same as of the Lessor's former estate, and expel the Lessee and 13 20-026 DECEMBER 9, 2019 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 the several installments of rents and other charges reserved as they would, under the terms of this Lease, become due if this Lease had not been terminated, or if the Lessor had not entered or reentered as aforesaid. Notwithstanding 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 damages hereunder, Lessor agrees to make every reasonable effort to secure subsequent Lessees, at a rental equal to the prevailing local rate for the demised premises. 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 Lessor: 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 be kept and observed by it and such 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 is 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 contained in said notice. ARTICLE XXII ATTORNEY'S FEE 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 notice that it is in violation thereof. 14 20-026 DECEMBER 9, 2019 In the event Lessor employs its City Solicitor or an assistant solicitor to collect rents or otherwise protect Lessor's interests 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 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 XXIII ASSIGNMENT, SALE AND SUBLETTING 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. Lessee shall have the right to assign this Lease to any corporation with which it may have become merged, consolidated, or otherwise associated, or to any corporation or holding company having the controlling interest in the Lessee, or to any corporation which may be a subsidiary of the Lessee. In no event, however, shall the Lessee named herein be relieved from any obligations under this Lease by virtue of any such assignment or subletting. ARTICLE XXIV WAIVER Failure on the part of the either party to complain of any action or non -action 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 be 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 unnecessary the Lessor's consent or approval to or of any subsequent similar act by the Lessee. ARTICLE XXV 15 20-026 DECEMBER 9, 2019 NOTICES 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: City Manager, City of Bangor, City Hall, 73 Harlow Street, Bangor Maine, 04401 with a copy to Airport Director, Bangor International Airport, 289 Godfrey Boulevard, Bangor, Maine 04401; and notices to Lessee, are to be sent by registered or certified mail, return receipt requested, postage prepaid, addressed to: BAFS INC., 61 Florida Avenue, Bangor, Maine, 04401; or to such other respective addresses as the parties may designate to each other in writing from time to time. ARTICLE XXVI INVALIDITY OF PARTICULAR PROVISIONS If any term or provision of this Lease or the application thereof to any person or circumstances to any extent, be invalid or unenforceable, the remainder of this Lease or the application of such terms and provisions to persons or circumstances other than those to which it 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. ARTICLE XXVII CONSTRUCTION The headings appearing in the Lease are intended for convenience and reference only, and not to be considered in construing this Lease. Nothing contained herein shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship 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 shall be deemed to create any relationship between the parties here to other than the relationship of landlord and tenant. GOVERNING LAW ARTICLE XXVIII 16 20-026 DECEMBER 9, 2019 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. ARTICLE XXIX AMENDMENT 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 XXX EXECUTION OF AGREEMENT 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 of this Agreement, and this Agreement a valid and binding document on the part of the Lessor and is fully enforceable in all of its terms and conditions by the Lessee. B. Lessee 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, 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 part of the Lessee, and 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 first written above. 17 CITY OF BANGOR BY: Catherine M. Conlow City Manager Date: BAFS INC. BY: Allon Fish Owner & President Date: IN 20-026 DECEMBER 9, 2019 IN CITY COUNCIL DECEMBER 9,2019 CO 20-026 PASSED CITY CLEFA