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HomeMy WebLinkAbout2019-12-09 20-027 Order 12/09/201920-027 12/09/2019 20-027 Airport Order 001-001 Title, Order Authorizing the City Manager to Execute a Lease and Concession Agreement with DMF, Inc. at the Bangor International Airport This Order authorizes the City Manager to execute a lease and concession agreement with DMF, Inc., d/b/a The Highlands Cafe & Post-Security Restaurant for the airport food/beverage concession at the airport. The current agreement expires on December 31, 2019 and the Airport would like to continue working with DMF, who has made several investments in the leased space. The proposed lease is for 5 years with an investment of $100,000 into the leased concession space that would include potential expansion into a portion of space vacated by a prior tenant. In exchange for the right and opportunity to operate this on-airport concession, DMF agrees to pay the airport 12% percent of gross sales. This agreement shall be in final form as approved by the Legal Department. This Order supports the Council goal to "Ensure the viability and growth of air transit and air transportation to serve Bangor and the greater northern Maine region through BGR." Airport Committee 12/02/2019 Recommend for passage Staff recommends approval. Consent 12/09/201920-027 CITY OF BANGOR ORDER 12/09/2019 20-027 Okafor Authorizing the City Manager to Execute a Lease and Concession Agreement with DMF, Inc. at the Bangor International Airport 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, DMF, Inc. desires to renew the lease agreement for the airport terminal food and beverage concession at Bangor International Airport (BGR); and WHEREAS, it would be advantageous to both parties to execute 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 the lease and concession agreement between the City of Bangor and DMF, Inc. to operate the food and beverage concession at Bangor International Airport. Said lease agreement will run for five (5) years. The rent is calculated as 12% of gross sales due each twelve month period. In addition, DMF agrees to invest $100,000 into airport concessions. This agreement shall be in final form as approved by City Legal. between: 20-027 DECEMBER 9, 2019 AGREEMENT OF LEASE THIS AGREEMENT OF LEASE made this day of______, 2019, by and 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 DMF 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: NOW, THEREFORE, the parties do mutually agree as follows: ARTICLE I PREMISES The Lessor, for and in consideration of the rents to be paid or 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 conditions hereinafter expressed, certain premises at Bangor International Airport, Bangor, Maine, designated for "DMF International, Inc." (hereinafter referred to as the "demised premises") reserving to the Lessor the right to place in the demised premises (in such a manner as to reduce to a minimum the interference with Lessee's use of the demised premises) utility lines, pipes, and the like, to serve premises other than the demised premises, and to replace and maintain and repair such utility lines, pipes and the like in, over and upon the demised premises as may have been installed in the building. Said premises are more particularly described in Exhibit A attached. ARTICLE II TERM. OPTION TO EXTEND 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 20-027 DECEMBER 9, 2019 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 The Lessee covenants and agrees to pay to the Lessor percentage rent as a percent of the gross sales (as herein defined) made at, in, on or from the demised premises during the term hereof, as follows: ITEM Beverage Sales (including Sales of alcoholic beverages) All other sales (including food) Not to include Lottery sales ANNUAL PERCENTAGE RENT Twelve percent (12%) of gross from January 1, 2020 to December 31, 2025 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 January 1, 2026 will be negotiated by the Lessor and Lessee. Failure to reach agreement as to the rent within one hundred twenty (120) days prior to the end of each term shall give either the Lessor or the Lessee the right to terminate this lease. of: The phrase "gross sales", wherever used herein, defined to mean the dollar aggregate 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 bad debt, 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, (iv) as a result of transactions originating upon the demised premises, and/or (v) which the Lessee in the normal and customary course of its operations would credit or attribute to its business upon the 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 neither included not excluded from gross sales by the other provisions of this definition. 20-027 DECEMBER 9, 2019 C. Considering Lottery tickets sale margins are less than twelve (12) percent, Lottery ticket sales will be exempt from "Gross sales" calculation and no rent will be paid on lottery ticket sales. "Gross sales" shall not include the amount of any city, county, state or federal sales, luxury or excise tax on such sales, lottery ticket 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 gross sales made by any sublessee, concessionaire, licensee or otherwise at, in, on or from the demised premises; and such gross sales made by sublessee, 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 the demised 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, papers and files of the Lessee relating to gross sales for any lease -year, and the Lessee on request of the Lessor shall make all 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. 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. Through this study, the business model and location 20-027 DECEMBER 9, 2019 for pre and post security concessions will be identified, and the Parties agree to negotiate in good faith on necessary improvements. Further, the Lessee agrees to provide and operate a food and beverage retail concession pre and post airport security, as requested by the lessor. ARTICLE IV CONSTRUCTION WORK Lessee is fully aware of the condition of the demised premises as they presently exist, and agrees to take the same on a strictly "as is" basis. It shall be the Lessee's obligation to finish the demised premises in every detail so as to prepare the same for use by the lessee, including, but without limitation, the installation of all its business equipment, fixtures, partitions, furniture and furnishings, floor and wall finish, light fixtures, etc. All of the same shall be in accordance with plans and specifications which shall require the prior written approval of the Lessor. ARTICLE V EMPLOYEE PARKING AREAS Lessee agrees to cause Lessee's employees to park their cars only on such areas as Lessor may from time to time designate as employee parking areas. ARTICLE VI UTILITIES, ETC. SECTION 1. The Lessee shall pay for all of its requirements for utilities such as electricity, gas, steam, water, sewerage and air conditioning, and will pay for the disposal of all of its waste in a manner satisfactory to meet the approval of Lessor's Airport Manager. SECTION 2. The Lessor shall adequately heat the demised premises at its own expense. ARTICLE VII USE OF PREMISES SECTION 1. It is understood, and the Lessee so agrees, that the demised premises, during the term hereof, shall be used and occupied by the Lessee only as a food and beverage retail operation and for no other purpose or purposes. Lessee may offer for sale medical related products. Lessee is also authorized to provide vending at various terminal locations, as designated by Airport Management. Lessee is not allowed to offer the following for sale: 20-027 DECEMBER 9, 2019 apparel, souvenirs, books, newspapers, magazines, toiletries, health & beauty products, and travel related items such as electronics and neck pillows. SECTION 2. Notwithstanding any other provisions of this lease, the Lessee covenants and agrees that it will not assign this lease or sublet (which term, without limitation, shall include granting of concessions, licenses and the like) the whole or any part of the demised premises without in each instance having first received the express written consent of the Lessor, and in any case where Lessor shall consent to such assignment or subletting, the Lessee named herein shall remain fully liable for the obligation of the Lessee hereunder, including, without limitation, the obligation to pay the rent and other amounts provided under this lease. ARTICLE VIII MAINTENANCE OF BUILDING. ETC. SECTION 1. The Lessor agrees to keep in good order, condition and repair, the interior ceiling, floor tiles or carpeting, and other interior portions of the demised premises (except exterior glass and glass windows), except for any damage thereto caused by any act or negligence of the Lessee, its employees, agents, licensees or contractors. The Lessor shall not be responsible to make any other improvements or repairs of any kind upon the demised premises, but this paragraph is not intended to refer to damage by fire or other insured risk to the demised premises, provision for which is hereinafter made. SECTION 2. Except as specifically herein otherwise provided, the Lessee agrees that, from and after the date that possession of the demised premises is delivered to the Lessee, and until the end of the term hereof, it will keep neat and clean and maintain in good order, condition and repair the demised premises and every part thereof, including, without limitation, the front of the demised premises and the exterior and interior portions of all doors, interior windows, plate glass surrounding the demised premises, all plumbing and sewage facilities within the demised premises, fixtures and interior walls, floors, ceilings, signs (including exterior signs where permitted) and all wiring, electrical systems, interior building appliances and similar equipment. The Lessee further agrees that the demised premises shall be kept in a clean, sanitary and safe condition in accordance with the laws of the State of Maine and Ordinances of the City of Bangor, and in accordance with all directions, rules and regulations of the Health officer, Fire Marshall, Building Inspector and other proper officers of the governmental agencies having jurisdiction thereof, except with respect to structural changes which may be required, unless such structural changes shall be required as a result of any alterations made by the Lessee or any use made of the demised premises by the Lessee which is more hazardous than the use as aforesaid or made necessary by the Lessee's particular use of the same. The Lessee shall not permit or commit any waste. 20-027 DECEMBER 9, 2019 SECTION 3. The Lessee shall not make any alterations, improvements and /or additions to the demised premises without first obtaining, in each instance, the written consent of the Lessor, and all such alterations shall be made in accordance with all applicable laws and in a good and workmanlike manner. Any and all alterations, additions, improvements and fixtures which may be made or installed by either the Lessor or the Lessee upon the demised premises and which in any manner are attached to the floors, walls or ceilings (including, without limitation, any linoleum, carpet, or other floor covering or similar character which may be cemented or otherwise adhesively affixed to the floor) shall remain upon the demised premises, and at the termination of this Lease shall be surrendered with the premises as a part thereof without disturbance, molestation or injury. However, the usual trade fixtures, furniture and equipment owned by the Lessee may be removed by the Lessee from the demised premises upon the termination of this Lease, if, but only if, the Lessee is not then in default hereunder. ARTICLE IX INDEMNITY AND PUBLIC LIABILITY AND PROPERTY DAMAGE INSURANCE Section 1 Liability and Property Damage Insurance 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. 20-027 DECEMBER 9, 2019 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 Section 2 Indemnity 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 20-027 DECEMBER 9, 2019 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, hold itself out, or purport to act as an agent, contractor, co-partner, joint venture or employee of Lessor. SECTION 3. Lessee's Fixtures and Personal Property. The Lessee agrees to use 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 4. Miscellaneous Liabilities. The Lessee agrees that the Lessor shall not be responsible or liable to the Lessee, or to those claiming by, through or under the Lessee, for any loss or damage that may be occasioned by or through the acts or omissions 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 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 its or their property, from the bursting, stopping or leaking of water, gas, sewer, or steam pipes. ARTICLE X LANDLORD'S ACCESS TO PREMISES SECTION 1. Lessor shall have the right to enter upon the demised premises at all reasonable hours for the purpose of inspecting or of making repairs to the same, or the building of which they are a part. If repairs are required to be made by the Lessee pursuant to the terms hereof, Lessor may demand that the Lessee make the same forthwith, and if the Lessee refuses or neglects to commence such repairs and complete the same with reasonable dispatch, after 20-027 DECEMBER 9, 2019 such demand, the Lessor may (but shall not be required to do so) make or cause such repairs to be made and shall not be responsible to the Lessee for any loss or damage that may accrue to its stock or business by reason thereof. If the Lessor makes or causes such repairs to be made, the Lessee agrees that it will forthwith, on demand, pay to the Lessor the cost thereof, and if it shall default in such payment, the Lessor shall have the remedies provided in Article XIV hereof. SECTION 2. For a period commencing ninety (90) days prior to the termination of this Lease, the Lessor may have reasonable access to the premises herein demised for the purpose of exhibiting the same to prospective tenants. ARTICLE XI INSURANCE SECTION 1. Lessee also agrees that it shall keep its fixtures, merchandise and equipment insured against loss or damage by fire with the usual extended coverage endorsements. It is understood and agreed that the Lessee assumes all risk of damage to its own property arising from any cause whatsoever, including, without limitation, loss by theft or otherwise. SECTION 2. The Lessee covenants and agrees that it will not do or permit anything to be done in or upon the demised premises or bring in anything or keep anything therein, which shall increase the rate of insurance on the demised premises or the building of which they are a part above the standard rate on said premises and building with a coffee shop and bar located therein; and the Lessee further agrees that in the event it shall do any of the foregoing, it will promptly pay to the Lessor on demand any such increase resulting therefrom, which shall be due and payable as additional rent hereunder. ARTICLE XII DAMAGE CLAUSE SECTION 1. In case during the term hereof the demised premises shall be partially damaged (as distinguished from "substantially damaged", as that term is hereinafter defined) by fire or other casualty, the Lessor shall forthwith proceed to repair such damage and restore the demised premises, or so much thereof as was originally constructed by the Lessor, to substantially their conditions at the time of such damage, but the Lessor shall not be responsible for any delay which may result from any cause beyond his reasonable control. 20-027 DECEMBER 9, 2019 SECTION 2. In case during the term hereof the demised premises shall be substantially damaged or destroyed by fire or other casualty, the risk of which is covered by Lessor's insurance, this Lease shall, except as thereinafter provided, remain in full force and effect and the Lessor shall, proceeding with all reasonable dispatch, repair or rebuild the demised premises, or so much thereof as was originally constructed by the Lessor, to substantially their condition at the time of such damage or destruction (subject, however, to zoning laws and building codes then in existence). But the Lessor shall not be responsible for any delay, which may result from any cause beyond his reasonable control. In case of substantial damage or destruction, as a result of a risk which is not covered by Lessor's insurance, the Lessor shall likewise be obligated to rebuild the demised premises, all as aforesaid, unless it promptly, after the occurrence of such event, gives written notice to the Lessee of its election to terminate this Lease. SECTION 3. In the event that the provisions of Section 1 or Section 2 of this Article XII shall become applicable, the minimum rent shall be abated or reduced proportionately during any period in which, by reason of any such damage or destruction, there is substantial interference with the operation of the business of the Lessee in the demised premises, having regard to the extent to which the Lessee may be required to discontinue its business in the demised premises, and such abatement or reduction shall continue for the period commencing with such destruction or damage and ending with the completion by the Lessor of such work of repair and/or reconstruction as the Lessor is obligated to do. Nothing in this section shall be construed to abate or reduce percentage rent. In the event of termination of this Lease pursuant to this Article, this Lease and the term hereof shall cease and come to an end as of the date of such damage or destruction. SECTION 4. The terms "substantially damaged" and "substantial damage" as used in this Article shall have reference to damage of such a character as cannot reasonably be expected to be repaired or the premises restored within ninety (90) days from the time that such repair or restoration work would be commenced. ARTICLE XIII EMINENT DOMAIN SECTION 1. If the demised premises, or such portion thereof as to render the balance (when reconstructed) unsuitable for the purposes of the Lessee, shall be taken by condemnation, right of eminent domain, or any other rights belonging to any governmental authority, either party, upon written notice to the other, shall be entitled to terminate this Lease, provided that such notice is given within thirty (30) days after the Lessee has been deprived of possession. 10 20-027 DECEMBER 9, 2019 Should any part of the demised premises be so taken or condemned, and should this Lease be not terminated in accordance with the foregoing provision, the Lessor covenants and agrees promptly after such taking or condemnation, and the determination of Lessor's award therein, to expend so much as may be necessary of the net amount which may be awarded to him in such condemnation proceedings in restoring the building of which the demised premises are a part to an architectural unit as nearly like their condition prior to such taking as shall be practicable. Should the net amount so awarded to the Lessor be insufficient to cover the cost of restoring the building of which the demised premises are a part as estimated by Lessor's architect, the Lessor may, but shall not be obligated to, supply the amount of such insufficiency and restore said premises as above provided, with all reasonable diligence, or terminate this Lease. Where the Lessee has not already exercised any right of termination accorded to it under the foregoing portion of this paragraph, the Lessor shall notify the Lessee of Lessor's election not later than ninety (90) days after the final determination of the amount of the award. SECTION 2. Out of any award for any taking of the Lessor's interest in the demised premised premises, in condemnation proceedings, or by (r)fight of eminent domain, the Lessor shall be entitled to receive and retain the amounts awarded for such demised premises and for Lessor's business loss. The Lessee shall be entitled to receive and retain any amounts, which may be specifically awarded to it in any such condemnation proceedings, because of the taking of its trade furniture or fixtures, and its leasehold improvements. ARTICLE XIV LESSOR'S REMEDIES SECTION 1. It is covenanted and agreed that if the Lessee shall neglect or fail to perform or observe any of the covenants, terms, provisions or conditions contained in theses presents and on its part to be performed or observed within thirty (30) days after notice of default, or such additional time as is reasonabl(y)e required to correct any such default (except for payment of rent, in which case said period of notice shall be ten (10) days), or if the estate hereby created shall be taken on execution or by other process of law, or if the Lessee shall be judicially declared bankrupt or insolvent according to law, or if any assignment shall be made of the property of the Lessee for the benefit of creditors, or if a receiver, guardian, conservator, trustee in involuntary 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, and such proceeding is not dismissed within sixty (60) days after it is begun, or if the Lessee shall file a petition for such reorganization, or for arrangements under any provisions of the Bankruptcy Act now or hereafter enacted and providing a plan for a debtor to settle, satisfy or extend the time for the payment of debts, then, and 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) , Lessor lawfully may, immediately, or at anytime thereafter, and without demand or notice, enter into and upon the said premises or any part thereof in the name of the whole and 11 20-027 DECEMBER 9, 2019 repossess the same as of its former estate, and expel the Lessee and those claiming through or under it and remove its or their effects (forcibly if necessary) without being deemed guilty of any manner of trespass, and 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. SECTION 2. The Lessor shall in no event be in default in the performance of any of its obligations hereunder and unless and until the Lessor shall have failed to perform such obligations within thirty (30) days or such additional time as is reasonably required to correct any such default after notice by the Lessee to the Lessor properly specifying wherein the Lessor has failed to perform any such obligation. ARTICLE XV 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. Lessee's obligations under this Article shall be deemed to survive the expiration or termination of this lease. MISCELLANEOUS PROVISIONS ARTICLE XVI 12 20-027 DECEMBER 9, 2019 SECTION 1. WAIVER Failure on the part of the either party to complain of any action or nonaction on the part of the other party no matter how long the same may continue, shall never be deemed to be a waiver by Lessor of any of its rights hereunder. Further, it is covenanted and agreed that no waiver at any time of any of the provisions hereof by Lessor, 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 as a waiver at any subsequent time of the same provisions. The consent or approval by Lessor to or any action by Lessee requiring Lessor's consent or approval shall not be deemed to waive or render unnecessary Lessor's consent or approval to or of any subsequent similar act by Lessee. No payment by Lessee, or acceptance by Lessor, of a lesser amount than shall be due from Lessee to Lessor shall be treated otherwise than as a payment on account. The acceptance by Lessor of a check for a lesser amount with an endorsement or statement thereon, or upon any letter accompanying such check, that such lesser amount is payment in full, shall be given no effect, and Lessor may accept such check without prejudice to any other rights or remedies which Lessor may have against Lessee. SECTION 2. MECHANICS' LIENS. Lessee agrees immediately to discharge (either by payment or by filing of the necessary bond, or otherwise) any mechanics', materialman's or other lien against the demised premises and/or the Lessor's interest therein, which liens may arise out of any payment due for, or purported to be due for, any labor, services, materials, supplies or equipment alleged to have been furnished to or for the Lessee in, upon or about the demised premises. SECTION 3. APPROVAL OF SIGNS AND IMPROVEMENTS. The Lessee hereby agrees that during the term of this Lease all signs and other means of identifying and advertising the Lessee's business in the Airport terminal facilities and any improvements made to the demised premises shall continue to be subject to the written approval of the Lessor and the architect designated by the Lessor. SECTION 4. HOURS OF OPERATION AND SERVICING INTERNATIONAL FLIGHTS. Except as hereinafter provided in this Section, the Lessee shall be open for business seven (7) days a week, as follows: o Pre security> morning open at least 90 minutes before the first domestic schedule departure — close at the last scheduled domestic departure time o Post security> morning open at least 90 minutes before any departure — temporarily close when the next domestic departure is more than 90 minutes away- close for the day at the last domestic boarding call. Recognizing that the Bangor International Airport will be servicing International and unscheduled domestic flights, it is hereby agreed that during the term of this lease, at the request of the Lessor's Airport Manager, or such other person as the Lessor may designate in the Airport Manager's absence, the Lessee will provide at any time of day or night such food and bar services as the Airport Manager or such designated person may require. The parties may agree to alter these times as public need and demand require. 13 20-027 DECEMBER 9, 2019 SECTION 5. INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of this Lease, or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term or provision to persons to circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to the fullest extent permitted by law. SECTION 6. PROVISIONS BINDING, ETC. Except as herein otherwise expressly provided, the terms hereof shall be binding upon and shall inure to the benefit of the successors and assigns of the Lessor and the Lessee. Each term and each provision of this lease to be performed by the Lessee shall be construed to be both a covenant and a condition. The reference contained to successors and assigns of Lessee is not intended to constitute a consent to assignment by Lessee, but has reference only to those instances in which Lessor may later give written consent to a particular assignment as required by Article VII hereof. SECTION 7. GOVERNING LAW. 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. SECTION 8. RECORDING Lessee agrees not to record the within Lease, but each party hereto agrees on request of the other, to execute a Short Form Lease in recordable form and complying with applicable Maine laws and reasonably satisfactory to Lessor's attorneys. In no event shall such document set forth the rental or other charges payable by Lessee under this lease; and any such document shall expressly state that it is executed pursuant to the provisions contained in this Lease, and is not intended to vary the terms and conditions of this Lease. SECTION 9. NOTICES Whenever by the terms of this Lease notice shall to may be given either to the Lessor or to the Lessee, such notice shall be in writing and shall be sent by registered or certified mail, postage prepaid: If intended for the Lessor, addressed to Airport Manager, in care of City Hall, 73 Harlow Street Bangor Maine, 04401 (or to such other address or addresses as may from time to time hereafter be designated by Lessor by like notice. If intended for the Lessee, Addressed to: General Manager, DMF International, Inc. 61 Florida Avenue, Bangor, Maine, 04401; (or to such other address or addresses as may from time to time hereafter be designated by Lessor by like notice). SECTION 10. WHEN LEASE BECOMES BINDING Employees or agents of Lessor have no authority to make or agree to make a lease or any other agreement or undertaking in connection herewith. The submission of this document for examination and negotiation does not constitute an offer to lease, or a 14 20-027 DECEMBER 9, 2019 reservation of, or option for, the premises, and this document shall become effective and binding as of January 1, 2020 upon the execution and delivery hereof by both Lessor and Lessee. All negotiations, considerations, representations and understandings between Lessor and Lessee are incorporated herein and may be modified or altered only by agreement in writing between Lessor and Lessee, and no act or omission of any employee or agent of Lessor shall alter, change or modify any of the provisions hereof. SECTION 11. PARAGRAPH HEADINGS. The paragraph headings throughout this instrument are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Lease. SECTION 12.LEASE SUPERIOR OR SUBORDINATE TO MORTGAGES. It is agreed that the rights and interest of Lessee under this Lease shall be subject and subordinate to any mortgages or deeds of trust that may hereafter be placed upon the development, and to any and all advances to be made thereunder, and to the interest thereof, and all renewals, replacements and extensions thereof, if the mortgagee or trustee named in said mortgages or deeds of trust shall elect by written notice delivered to lessee to subject and subordinate the rights and interest of Lessee under this Lease to the lien of its mortgage or deed of trust and shall agree to recognize this Lease of Lessee in the event of foreclosure if Lessee is not in default; that any mortgagee or trustee may elect to give the rights and interest of Lessee under this Lease priority over the lien of its mortgage or deed of trust. In the event of either such election, and upon notification by such mortgagee or trustee to Lessee to that effect, the rights and interests of Lessee under this Lease shall be deemed to be subordinate to, or to have priority over, as the case may be, the lien of said mortgage or deed of trust, whether this lease is dated prior to or subsequent to the date of said mortgage or deed of trust. Lessee shall execute and deliver whatever instruments may be required for such purposes, and in the event Lessee fails so to do within ten (10) days after demand in writing, Lessee does hereby make, constitute and irrevocably appoint Lessor as its attorney in fact and in its name, place and stead so to do. SECTION 13. ADDITIONAL SERVICES. It is understood that the Lessee is designated as the food and beverage service provider in the Airport terminal. The Lessor cannot enter into an agreement with any other food and beverage provider during the term hereof. However, during the term of this Lease or any renewal or renewals thereof, in the event the Airport Committee of the Bangor City Council (or such other body or committee representing the legislative body of the City of Bangor) makes a determination that there is a need for additional food and beverage service in the Airport terminal facilities, the Lessor shall notify the Lessee of such determination by certified mail, postage prepaid, to the Lessee at its address herein above specified. The Lessee shall have sixty (60) days from the date of receipt of such notice to respond by certified mail, postage paid to the Lessor's request. In the event the Lessee determines a sub contractor is required to 15 20-027 DECEMBER 9, 2019 meet the Lessor's request for additional services, the Lessee can make such an arrangement under Article VII section 2 of this agreement. SECTION 14. 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, 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 Americans 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 16 20-027 DECEMBER 9, 2019 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. SECTION 15. PRIOR AGREEMENTS CANCELLED. The parties mutually agree that, effective January 1, 2020, all prior agreements for the lease of said premises to the Lessee, are cancelled and all rights of the parties thereunder terminated except any pending rights of the Lessor to the payment of rent thereunder. Notwithstanding any provision herein contained, Lessor agrees that Lessee shall have the right to contest the amount of such taxes or assessments imposed upon the demised premises or any buildings, structures or improvements thereon. This Agreement shall bind and inure to the benefit of the parties hereto and their respective successors and assigns. WITNESS the execution hereof, under seal, in any number of counterpart copies, each of which counterpart copies shall be deemed an original for all purposes, as of the date and year first above written. CITY OF BANGOR: BY: Catherine M. Conlow Its: City Manager Date DMF, Inc.: BY: Allon Fish Its: Owner & President Date 17 "1 1127 DF,CF%MF,R 9, 21119 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 r iu_wgw��uw d— IUP 6 w -w' u�P d u m.n4wpr i .. i' ,ii7iE:i4.p U 6 W_W"mmN,..P B UJJtl WL ruu�w�p amu I W :w M I I W w tlI 1 �9 i II i38 Project BANGOR INTERNATIONAL AIRPORT GATE 3 PBB & HOLDING AREA Clint: BANGOR INTERNATIONAL AIRPORT 287 Godfrey Boulevard Bangor, ME 04401 t. 207.992.4600 f. 207.945.3607 Prim, CaneuBant, Civil & Stiudural Engineer: .YYOOBIS Pxa Executive Park Drive, Suite 205 Bedlard, NH 03110 t. 603.666.71 1 1 f. 603.666.7185 ArchitedlProjed Monogement 1lfNMJ( I Mr.Glq! 7a Franklin Street e�ie��� Bastan, MA 02110 t. 617.350.7900 (.617.350.0051 Mmhoniml, Eledriral, Plumbing, FP: Carpenter Associates 687 Stillwater Ave Did Tawn, ME 04468 1.207.827.8001 ..n CONFORMED SET ISSUED FOR CONSTRUCTION aaa Na.: 1121 mown av: KB (hedkeaBy EK 07.05.1018 sink. 1/16" — V-13" mmmn' ufi SECOND FLOOR KEY PLAN A-100 1 1 1 1 1 1 i r iu_wgw��uw d— IUP 6 w -w' u�P d u m.n4wpr i .. i' ,ii7iE:i4.p U 6 W_W"mmN,..P B UJJtl WL ruu�w�p amu I W :w M I I W w tlI 1 �9 i II i38 Project BANGOR INTERNATIONAL AIRPORT GATE 3 PBB & HOLDING AREA Clint: BANGOR INTERNATIONAL AIRPORT 287 Godfrey Boulevard Bangor, ME 04401 t. 207.992.4600 f. 207.945.3607 Prim, CaneuBant, Civil & Stiudural Engineer: .YYOOBIS Pxa Executive Park Drive, Suite 205 Bedlard, NH 03110 t. 603.666.71 1 1 f. 603.666.7185 ArchitedlProjed Monogement 1lfNMJ( I Mr.Glq! 7a Franklin Street e�ie��� Bastan, MA 02110 t. 617.350.7900 (.617.350.0051 Mmhoniml, Eledriral, Plumbing, FP: Carpenter Associates 687 Stillwater Ave Did Tawn, ME 04468 1.207.827.8001 ..n CONFORMED SET ISSUED FOR CONSTRUCTION aaa Na.: 1121 mown av: KB (hedkeaBy EK 07.05.1018 sink. 1/16" — V-13" mmmn' ufi SECOND FLOOR KEY PLAN A-100 IN CITY COUNCIL DECEMBER 9,2019 CO 20-027 PASSED ,4- CI Y CLE