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:
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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
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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.
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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
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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:
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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.
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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.
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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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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GATE 3 PBB & HOLDING AREA
Clint:
BANGOR INTERNATIONAL
AIRPORT
287 Godfrey Boulevard
Bangor, ME 04401
t. 207.992.4600
f. 207.945.3607
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Bedlard, NH 03110
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687 Stillwater Ave
Did Tawn, ME 04468
1.207.827.8001
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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
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SECOND FLOOR KEY PLAN
A-100
IN CITY COUNCIL
DECEMBER 9,2019
CO 20-027
PASSED
,4-
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