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HomeMy WebLinkAbout2019-12-09 20-028 Order 12/09/201920-028 12/09/2019 20-028 Airport Order 001-001 Title, Order Authorizing the City Manager to Execute a Lease and Concession Agreement with GAREDC, Inc. at the Bangor International Airport This Order authorizes the City Manager to execute a lease and concession agreement with GAREDC, Inc., d/b/a The Grasshopper Shop, to operate the gift shop concession at the airport. The airport was advised by Stellar Partners, that they will not continue to operate following the end of their current term, December 31, 2019. For that reason, airport staff approached current lease holders about renting additional space both pre and post security. Under the new terms, GAREDC agrees to lease 2040 sf to operate pre and post security gift shop operations. The proposed term of the lease will be for 5 years and GAREDC agrees to pay the airport 5% of gross sales. Additionally, Garedc agrees to invest no less than $25,000 for concessions pre and post security. This agreement shall be in final form as approved by City Legal. 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 12/09/201920-028 CITY OF BANGOR ORDER 12/09/2019 20-028 Fournier Authorizing the City Manager to Execute a Lease and Concession Agreement with GAREDC, 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, GAREDC, Inc. d/b/a The Grasshopper Shop, wishes to operate a gift shop in the domestic terminal at Bangor International Airport; and WHEREAS, the City and GAREDC wish to enter into a lease agreement outlining the terms and conditions for the rental of approximately 2,040 sq. ft., located in the second level of the Domestic Terminal Building, located at the Bangor International Airport; and WHEREAS, GAREDC agrees to invest not less than $25,000 WHEREAS, this leased space will be used exclusively for gift shop purposes by The Grasshopper Shop. 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 agreement between the City of Bangor and GAREDC, Inc. d/b/a The Grasshopper Shop, for the rental of approximately 2,040 sq. ft., located in the second level of the Domestic Terminal Building at Bangor International Airport. Said lease agreement will run for five (5) years. Rent for this space will be calculated as 5% of gross sales over a twelve month period. This agreement shall be in final form as approved by City Legal. 20-028 DECEMBER 9, 2019 INDENTURE OF LEASE THIS INDENTURE OF LEASE, executed in duplicate, this _ day of , 20_ by and between: CITY OF BANGOR, a body politic and corporate 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 ("Lessor") AND Garedc, Inc., d/b/a The Grasshopper Shop, a body corporate, duly organized and existing under and by virtue of the laws of the State of Maine, and having a place of business at Bangor International Airport in said Bangor, County of Penobscot, State of Maine ("Concessionaire" or "Lessee") WITNESSETH: WHEREAS, the City of Bangor is the owner of an airport commonly known as "Bangor International Airport", formerly known as Dow Air Force Base, and located in the City of Bangor, County of Penobscot, State of Maine (hereinafter sometimes referred to as the "Airport"); and WHEREAS, Concessionaire desires to lease certain premises at the Airport for purposes of operating a "Gift Shop" for apparel, souvenirs and travel related items such as electronics; and WHEREAS, both Parties deem it advantageous to operate this concession at the Airport and to grant and lease unto the Concessionaire the area and rights and privileges set forth; and NOW, THEREFORE, the parties do mutually agree as follows: ARTICLE I PREMISES The Lessor, for and in consideration of the rents to be paid and the obligations to be performed by Concessionaire as hereinafter provided, does hereby demise and lease unto Concessionaire, and the Concessionaire does hereby take and hire, upon and subject to the terms and conditions hereinafter expressed, the following described premises, in its present physical condition, located at Bangor International Airport (hereinafter sometimes referred to as the "Airport"), viz: Rooms # 221, 222, 223 and 224, approximately 2,040 sq. ft., located in the second level of the Domestic Terminal Building designated as "The Grasshopper Shop", as further shown on Exhibit "A" attached hereto. ARTICLE II TERM 20-028 DECEMBER 9, 2019 TO HAVE AND TO HOLD the demised premises unto the Concessionaire for the term of five (5) years commencing January 1, 2020 and terminating on December 31, 2025. Provided that Lessee is not in default of the terms and conditions of this lease, the Parties may negotiate to renew the Lease, for an additional five (5) year period. In recognition of the new lease term, the Lessee agrees to make investments to the facility or equipment, or fixtures of not less than $25,000. Lessee understands the Lessor is currently undertaking an Airport Master Plan study. Through this study, the business model and location for pre and post security concessions will be identified. Further, the Lessee agrees to provide and operate a gift shop retail concession pre and post airport security, as requested by the lessor. The lessee and lessor can come to agreements on the times of operation of pre and post security gift shop concessions based on flight departure and arrival schedules. ARTICLE III COMPUTATION OF ANNUAL RENTAL The Concessionaire hereby accepts said grant of a concession and the premises herein leased subject to the terms and conditions contained herein, and does hereby covenant and agree to pay the Lessor the following: A. As rental, Concessionaire shall pay during each twelve (12) month period to Lessor a percentage of Concessionaire's gross sales from said premises in accordance with the following schedule: Annualized Gross Sales: Fee Percentage: $1 - $250,000 = 5% $250,001- $500,000 = 7.5% $500,001- $750,000 =10% +$750,001 =15% B. "Gross Sales" as herein used is defined to mean the entire amount of the actual charged sale price of all articles, products and services sold, vended, and otherwise dispensed by the Concessionaire from the premises, but shall not include, however, any sums collected, charged and/or paid out for sales and/or excise taxes imposed by any duly constituted governmental authority. Furthermore, gross sales shall not include the amount for refunds made, or claims paid by the Concessionaire for lost or damaged merchandise. C. Concessionaire shall pay all rentals herein required, without prior demand therefore, in lawful money of the United States, at the address of the Lessor as set forth herein or at such other reasonable places as the Lessor may designate. Late payments 20-028 DECEMBER 9, 2019 shall be subject to an additional interest charge of eight (8%) per cent per month to the date of payment. D. Concessionaire will pay to the City the rental which shall be computed for the twelve (12) month period beginning January 1, 2020 and each and every twelve (12) month period thereafter or until the end of the lease term. In any one twelve (12) month period, Concessionaire will pay on a monthly basis the appropriate percentage as rental for every accrued dollar of gross sales. Payment of said monthly rental shall be made to the City no later than the 20th day of the following month. ARTICLE IV RECORDS AND AUDIT The Concessionaire shall keep separate and accurate records of the gross sales covering all the business done or transacted on or from the leased premises. Concessionaire agrees that the Lessor shall have the right at reasonable times to examine and audit such records. Each source of income shall be documented by cash register tapes and/or serially -numbered tickets or receipts. The concessionaire agrees to submit to the Airport Director within ten (10) days after each month's operation a statement of gross sales for said month. If Lessor objects to any statement which the Concessionaire is required to submit to Lessor under the terms of this agreement, Lessor shall give notice within thirty (30) days after receipt of such statement to the Concessionaire of such objections. Unless within twenty (20) days after the receipt by the Concessionaire of such notice of objection, the Concessionaire shall satisfy Lessor with respect to such statement thus complained of, Lessor shall have the privilege of having an audit made, at its expense, of the account books and records pertaining to the operation of the concession by the Concessionaire. Such audit shall be made by certified public accountants in good standing to be selected by the Lessor. The Concessionaire shall render all reasonable assistance to such accountants and shall give them access to all books of account and other records that may be necessary to enable such accountants to make a full and complete audit. The Lessor's objection to any statement submitted by the Concessionaire shall not in any way impair Concessionaire's obligation to pay the rentals based on the statement submitted. Lessor's acceptance of such payment shall in no manner constitute a waiver of any right under this agreement or a waiver of the right to receive any "additional rental" ultimately determined to be owed to Lessor by Concessionaire. ARTICLE V USE, OCCUPANCY AND GRANT OF CONCESSION A. Concessionaire shall have the right to use, occupy and maintain the demised premises herein leased in a reasonably businesslike, careful, clean, and non -hazardous manner for the purposes of operating the concession as defined as a Gift Shop for the sale of apparel, souvenirs, books, newspapers, magazines and other items as listed in section E below, and for no other purposes whatsoever without the prior written consent of the Lessor. 20-028 DECEMBER 9, 2019 The Concessionaire agrees that during the term of this lease the concession hereby granted shall be open, equipped, operated and sufficiently staffed by qualified personnel at all times as the Airport Director may direct or as public need and demand require. The Concessionaire shall furnish all labor, services, materials, supplies and equipment necessary to maintain, in a clean, orderly and inviting condition satisfactory to the Airport Manager, all premises used and occupied by the Concessionaire together with a fifteen foot area immediately surrounding same as affected by said operations. The Airport Directorwill cooperate with the Concessionaire and will advise him whenever possible when large crowds or unusual circumstances that may affect the concession are expected at the Airport. B. Concessionaire shall not use, occupy or maintain said premises in any manner as to violate any municipal, state, federal law or regulation, and, in particular, regulations of the Federal Aviation Administration relating to the operation of Bangor International Airport as a public airport. C. Concessionaire shall make a good faith effort to inform its employees and visitors of the rules and regulations of the Bangor International Airport and shall cooperate in every way with the Airport Director to insure that such rules and regulations are obeyed. D. Lessor, through its agents, shall have at all reasonable times the right, upon reasonable notification to the Concessionaire, to go on and inspect the premises with an authorized representative of the Concessionaire, and the right of access to utility systems located on the demised premises for the purposes of maintenance, repair, correction, or inspection. E. The Lessor hereby grants to the Concessionaire the privilege and right to sell, serve and dispense in or at the premises herein leased the following: apparel, souvenirs, books, newspapers, magazines, toiletries, health & beauty products, and travel related items such as electronics and any additional items as approved by the Airport Director. F. Except with the prior expressed written approval of the Airport Director, Concessionaire shall not sell any food or beverage items or install or operate any coin -activated vending machines or devices of nature, kind or type in or about the airport. G. Lessee understands the Lessor is currently undertaking an Airport Master Plan study. Through this study, the business model and location for pre and post security concessions will be identified. Further, the Lessee agrees to provide and operate a gift shop retail concession pre and post airport security, as requested by the lessor. The lessee and lessor can come to agreement on the times of operation of pre and post security gift shop concession based on flight departure and arrival schedules. ARTICLE VI ALTERATIONS TO PREMISES 20-028 DECEMBER 9, 2019 The Concessionaire covenants that it shall not make, or permit to be made, any alterations to the premises herein leased without the prior expressed written consent of the Airport Director. 20-028 DECEMBER 9, 2019 ARTICLE VII 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. 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 INDEMNITY ARTICLE VIII 20-028 DECEMBER 9, 2019 During the term of this Lease and during any extensions or renewals hereof, including any holdover tenancy following regular expiration or early termination hereof, Lessee shall defend, indemnify, save and hold Lessor, and its inhabitants, officers, employees and agents completely harmless from and against any and all liabilities, losses, suits, claims, costs, expenses, judgments, fines or demands arising by reason of injury to or death of, or asserted by, any person or persons, including Lessee's agents, clients, invitees or employees, or damage to any Property, including all reasonable costs for investigation and defense thereof (including but not limited to attorneys' fees, court costs, and expert witness fees), of any nature whatsoever arising out of or incident to this Lease and/or the use, occupancy, conduct, or management of the demised premises or the acts or omissions of Lessee's officers, clients, agents, employees, contractors, subcontractors, licensees, or invitees, except to the extent such injury, death, or damage is caused by the negligent acts or omissions of the Lessor, its agents, employees, clients or invitees. The Lessee shall give to Lessor reasonable notice of any such claim or actions. The Lessee shall also use counsel reasonably acceptable to Lessor in carrying out its obligations under this Article. During the term of this Lease and during any extensions or renewals hereof, including any holdover tenancy following regular expiration or early termination hereof, Lessee further expressly agrees that it will defend, indemnify, save and hold Lessor harmless from any and all claims made or asserted by the Lessee's agents, servants or employees arising out of the Lessee's activities under this Lease. For this purpose. Lessee hereby expressly waives any and all immunity it may have under Maine's Workers Compensation Act in regard to such claims made or asserted against Lessor by Lessee's agents, servants or employees. For this purpose. Lessee further expressly waives any charitable immunity it may have under applicable law as to any and all claims of any person made or asserted against Lessor arising out of Lessee's use and occupancy of the demised premises or other activity of Lessee under this Lease. The indemnification provided under this Article shall extend to and include any and all costs incurred by the Lessor to answer, investigate, defend and settle all such claims, including but not limited to Lessor's costs for attorneys' fees, expert and other witness fees, the cost of investigators, and payment in full of any and all judgments rendered in favor of the Lessee's agents, invitees, licensees, clients, servants or employees against Lessor in regard to claims made or asserted by such persons. In exercising the rights granted under this Lease, Lessee shall at all times be regarded as an independent entity conducting its own business and operations and shall not at any time act, hold itself out, or purport to act as an agent, contractor, co-partner, joint venture or employee of Lessor. ARTICLE IX RULES, REGULATIONS AND LAWS 20-028 DECEMBER 9, 2019 A. The premises herein leased are located upon the property of the Lessor commonly known as Bangor International Airport. Therefore, the Concessionaire hereby agrees to obey and observe, and to cause all personnel employed by the Concessionaire to obey and observe, all municipal ordinances, and State and Federal laws pertaining to the operation of said Airport and Concessionaire's use and occupancy of the demised premises. In addition, Concessionaire shall obey and observe all reasonable orders, rules and regulations of the Airport Director not inconsistent with this Lease or with the aforesaid rules and regulations, which are uniform, and apply to all tenants, invitees and users of the Airport and their employees. B. Concessionaire will not use or permit or suffer the use of the leased property in such manner as to create electrical interference with radio communication between any installation upon the Airport and aircraft, or as to make it difficult for flyers to distinguish between Airport lights and others, or as to impair visibility in the vicinity of the Airport, or as otherwise to endanger the landing, taking off or maneuvering of aircraft. Further, Lessor retains a right for the passage of aircraft ("aircraft" being defined as any contrivance now known or hereafter invented, used or designed for navigation of or flight in the air) by whomsoever owned and operated, in the airspace above the property above 342.4' MSL to an infinite height together with the right to cause in all airspace above the property such noise, vibrations, fumes, dust, fuel particles and all other effects that may be caused by the operation of aircraft landing at, or taking -off from, or operating at or on the Airport and Concessionaire does hereby fully waive, remise and release any right or cause of action which they may now have or which they may have in the future against Lessor due to such noise, vibrations, fumes, dust, fuel particles, and all other effects that may be caused by the operation of aircraft landing at or taking -off from or operating at or on the Airport. ARTICLE X NOISE CLAIMS The Concessionaire specifically agrees to make no claims in any form for damages or reimbursements to the Lessor or to the United States Government for any reason or cause resulting from noise generated from airport uses. ARTICLE XI TAXES The Concessionaire agrees to pay, when due, any and all taxes and/or assessments, fees or charges of any kind whatsoever, as may be imposed during the term hereof, or any extension of the term of this lease, by any governmental authority upon the demised premises, including Concessionaire's leasehold interest therein, any structures or improvements thereon, or any personal property located therein. Concessionaire further agrees that it does hereby waive any and all rights or privileges of exemption from taxation 20-028 DECEMBER 9, 2019 on the demised premises, or Concessionaire's leasehold interest therein, or on any buildings, structures, or improvements thereon, or on any personal property located therein; provided, however, nothing herein shall in any way prohibit the Concessionaire from exercising its rights under the law to contest the amounts of such taxes, assessments, charges or fees. ARTICLE XII NONDISCRIMINATION A. 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 American's with Disability Act (ADA): Concessionaire acknowledges that, pursuant to the ADA, programs, services, and other activities provided by Concessionaire, whether directly or through a contractor, must be accessible to the disabled public. Concessionaire shall provide the services specified in this agreement in a manner that complies with the ADA and any and all other applicable Federal, State and Local disability rights regulations. Concessionaire agrees not to discriminate against disabled persons in the provision of services, benefits or activities provided under this agreement and further agree that any violation of this prohibition on the part of the Concessionaire, its employees, agents, or assigns shall constitute material breach of this agreement. 20-028 DECEMBER 9, 2019 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. B. INFORMATION REGARDING DISADVANTAGED BUSINESS ENTERPRISE PARTICIPATION Within thirty (30) days following the end of each calendar quarter, Concessionaire shall report to the Airport Concession Disadvantage Business Enterprise Liaison (ACDBEL) the dollar value of goods and services purchased from Disadvantaged Business Enterprises. Reporting shall be in such form as deemed required by the ACBDEL. ARTICLE XIII COVENANTS OF QUIET ENJOYMENT The Concessionaire, subject to the terms and provisions of this lease on payment of the rent, and observing, keeping and performing all the terms and provisions of the lease on its part to be observed, kept and performed, shall lawfully, peaceably and quietly have, hold, occupy and enjoy the demised premises during the term hereof without hindrance or rejection by the Lessor or any other persons. ARTICLE XIV LIENS The Lessor and the Concessionaire agree that each will promptly discharge (either by payment or by filing of the necessary bond or otherwise) any mechanics', materialmen's or other liens against the demised premises, which liens may arise out of any payment due for labor, services, materials, supplies or equipment which may have been furnished to or for the Lessor or the Concessionaire, respectively. ARTICLE XV MAINTENANCE AND REPAIRS (A) Lessee shall, at its sole expense and cost, throughout the term hereof or any extension, keep and maintain the demised premises including building fixtures, equipment, operating systems, roof and structure, doors, windows, passageways, interior and exterior paint surfaces, in good order and repair, and in tenantable condition, damage by accidental fire and casualty and reasonable wear and tear, as provided for in this Agreement, excepted. (B) Lessor is responsible for repair and replacement of the building's major structural components: roof, walls, foundation, operating systems, exterior paint surfaces, parking areas, grounds, and landscaping, as a result of, or on account of normal obsolescence. (C) The phrase "reasonable wear and tear" used in Paragraph A of this Article as an exception to the obligations of the Lessee shall not be construed to relieve Lessee 20-028 DECEMBER 9, 2019 of the responsibility for providing repairs of a routine and regular nature which may from time to time be necessary, nor of the obligation to provide maintenance to the demised premises of a nature and degree ordinarily sufficient to prevent damage, breakdown, failures, malfunctions or disrepairs; nor shall any exception or special provision of this Agreement be construed to mean that Lessor would be required to carry out maintenance and repairs to the premises, except as indicated in Article (B) above. /_1:i1to] 4W kyj UTILITIES The Lessor at its expense shall supply the cost of all heat, electricity, and water consumed on the demised premises. The Concessionaire shall be responsible for all other utility charges including sewer, stormwater user fees and telephone service. Concessionaire accepts all utility fixtures as they now exist. All new utility fixtures shall be installed and maintained by the Concessionaire. ARTICLE XVII REMOVAL OF PROPERTY Upon the termination or expiration of this Lease, the improvements and other personal property erected or located upon the demised premises by the Concessionaire shall remain the property of the Concessionaire, and the Concessionaire shall have the right to remove the same from the demised premises within thirty (30) days from the date of termination of said lease. Any such property not so removed within said thirty (30) days shall become the property of the Lessor to be disposed of in such way as it may deem fit. In the event the Concessionaire elects to remove said improvements and other personal property, the buildings and land appurtenant thereto shall be returned to as near as possible its condition as at the commencement of the Lease, ordinary wear and tear excepted. ARTICLE XVIII UNITED STATES RIGHTS It is understood and agreed that title to the leased premises is in the City of Bangor, provided, however, that the leased premises are a part of Bangor International Airport and this lease is specifically made subject to any rights the United States of America or any agency thereof may have under any regulation, law, deed or other existing Agreement in or to the leased premises and may exercise in regard to said premises, and should the United States of America or any agency thereof exercise any such right or rights in or to said premises, the exercise of such right or rights shall not be considered to result in a breach by the City of any covenant or agreement hereunder. In the event that the United States of America or any agency thereof exercise any such right or rights in or to said premises, and the exercise of such right or rights makes impractical in the Concessionaire's sole discretion Concessionaire's intended use of said premises, then Concessionaire shall have the right, at its option, to terminate this Agreement without further obligation to the Lessor except for such obligations as shall have been incurred and accrued prior to the exercise of said option. ARTICLE XIX TERMINATION It is covenanted and agreed that: 20-028 DECEMBER 9, 2019 (1) If the Concessionaire shall neglect or fail to pay the rent or other charges payable hereunder and such default shall continue for a period of ten (10) days after written notice thereof by Lessor; or (2) If Concessionaire shall neglect or fail to perform or observe any of the other covenants, terms, provisions, or conditions on its part to be performed, or observed, and such neglect or failure shall continue for a period of thirty (30) days after written notice thereof by Lessor, or if such covenants, terms, provisions or conditions cannot be performed or observed within said thirty (30) day period, if Concessionaire fails to diligently prosecute the curing of such neglect or failure; or (3) If the estate hereby created shall be taken on execution or by other process of law; or (4) If the Concessionaire shall be declared bankrupt or insolvent according to law; or (5) If any assignment shall be made of the property of the Concessionaire for the benefit of creditors; or (6) If a receiver, guardian, conservator, or trustee in bankruptcy or other similar officer shall be appointed to take charge of all or any substantial part of the Concessionaire's property by a Court of competent jurisdiction; or (7) If a petition shall be filed for a reorganization of the Concessionaire under provisions of the Bankruptcy Act now or hereafter enacted; or (8) If the Concessionaire shall file a petition for such reorganization or for arrangements under any provision of the Bankruptcy Act now or hereafter enacted, Then, in any of the said cases (notwithstanding any license of any former breach of covenant or waiver of the benefit hereof or consent in a former instance), the Concessionaire may be considered in default hereunder, and the Lessor lawfully may, immediately or at any time thereafter, and without demand or notice, enter into and upon the said premises or any part thereof, in the name of the whole and repossess the same as of the Lessor's former estate, and expel the Concessionaire and those claiming through or under it and remove its or their effects (forcibly if necessary) without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant, and upon entry as aforesaid, this Lease shall terminate, and the Concessionaire covenants and agrees to pay and 20-028 DECEMBER 9, 2019 shall be liable for the days originally fixed herein for the payment thereof, amounts equal to the several installments of rents and other charges reserved as they would, under the terms of this Lease, become due if this Lease had not been terminated or if the Lessor had not entered or reentered as aforesaid. Notwithstanding the foregoing, Concessionaire's liability shall not exceed the difference, if any, between the rental which would have been due for such month had there been no such termination, and the amount being received by Lessor as rent from occupants of said premises. In order to mitigate Concessionaire's damage hereunder, Lessor agrees to make every reasonable effort to secure subsequent tenants, at a rental equal to the prevailing local rate for the demised premises. ARTICLE XX ATTORNEY'S FEE The Concessionaire shall pay to the Lessor a reasonable attorney's fee in the event the Lessor employs an attorney to collect any rents due hereunder and secures a judgment in connection with collection of said rent, or to protect the interest of the Lessor in the event Concessionaire is adjudged a bankrupt, or legal process is levied upon the interest of the Concessionaire in this Lease or in said premises, or in the event Concessionaire violates any of the terms, conditions or covenants on the part of the Concessionaire herein contained, provided that Concessionaire fails to promptly correct the violation of any term, condition or covenant after receipt of notice that it is in violation thereof. Lessor will pay to Concessionaire a reasonable attorney's fee if Concessionaire employs an attorney in the event the Lessor violates any of the terms, conditions or covenants on the part of the Lessor herein contained, provided said Lessor fails to promptly correct the violation of any term, condition or covenant after receipt of notice that it is in violation thereof. 0:1111414 :1:11 ASSIGNMENT, SALE AND SUBLETTING The Concessionaire shall not at any time assign, sell, convey or transfer this Lease or any interest therein, or sublease or sublet or rent the premises, or any part thereof, without the prior written consent of the Lessor. All provisions of this Lease shall extend to, bind and inure to the benefit of not only the Lessor and Concessionaire but also their successors and assigns. In no event shall the Concessionaire named herein be relieved from any obligations under this Lease by virtue of any assignment or subletting. ARTICLE XXII AUTHORITY TO ENTER INTO AGREEMENT The Lessor hereby represents and warrants that it has taken all necessary procedural and legal steps as required by federal, state and local laws and regulations for the purpose of authorizing the execution of this agreement and that execution of this agreement by the City Director renders this agreement a valid and binding document on the part of the City of Bangor and is fully enforceable in all of its terms and conditions by the Concessionaire. 20-028 DECEMBER 9, 2019 Concessionaire hereby represents and warrants that it has taken all necessary procedural and legal steps as required under all state, local and federal laws and regulations, and all necessary corporate action to authorize the execution of this agreement by its officers and that upon such execution of this agreement is a valid and binding undersigned corporate document on the part of the Concessionaire and is fully enforceable in all of its terms and conditions by the City of Bangor. ARTICLE XXIII OPTION TO EXTEND The option to extend provided for by this Article shall be exercised, if at all, as follows and not otherwise: Not less than ninety (90) days before the natural termination of the initial term herein provided for, either Party shall notify the other Party in writing of its election to lease the demised premises for the said additional term, whereupon the parties hereto shall proceed to negotiate between themselves for the purpose of fixing a rental for the said additional extension period. If, upon the expiration of sixty (60) days from and after the date of such notice, the parties hereto shall have failed to agree in writing as to the rental to be paid by the Concessionaire to the Lessor during such additional extension period, then each of the parties hereto shall select an arbitrator to determine the amount of rental, and if the two arbitrators cannot agree, then the two arbitrators shall select a third arbitrator and the findings of the two of the three arbitrators thus selected shall be final and binding upon both parties hereto. Provided, however, that if Concessionaire shall be in default of this lease as provided in Article XIX hereof on the date notice of renewal is given or required under this Article, then Concessionaire's option to extend may, in Lessor's sole discretion, be deemed terminated, and the provisions of this Article granting such an option be of no effect. ARTICLE XXIV WAIVER Failure on the part of the Lessor to complain of any action or non -action on the part of the Concessionaire no matter how long the same may continue shall never be deemed to be a waiver by the Lessor of any of Lessor's 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 of the provisions hereunder, and that a waiver at any time of any of the provisions hereof shall not be construed at any subsequent time as a waiver of the same provisions. The approval of Lessor of any action by the Concessionaire requiring the Lessor's consent or approval shall not be deemed to waive or render unnecessary the Lessor's consent or approval to or of any subsequent similar act by the Concessionaire. ARTICLE XXV Notices to the Lessor provided for in this Lease shall be sufficient if sent by registered or certified mail, return receipt requested, postage prepaid to: City Manager, 20-028 DECEMBER 9, 2019 City of Bangor, City Hall, 73 Harlow Street, Bangor, Maine 04401 with a copy to: Airport Manager, Bangor International Airport, 287 Godfrey Blvd., Bangor, ME 04401; and notices to Concessionaire are to be sent by registered or certified mail, return receipt requested, postage prepaid, addressed to: ; or to such other respective addresses as the parties may designate to each other in writing from time to time. ARTICLE XXVI 1►19_\I1011WK91aaFA:11[sill Wil :ia ti0E-1Eel 0P If any term or provisions of this Lease or the application thereof to any person or circumstances to any extent be invalid or unenforceable, the remainder of this Lease or the application of such terms and provisions to persons or circumstances other than those to which it is held invalid or unenforceable shall not be affected hereby and such term and provision of this Lease shall be valid and be enforceable to the fullest extent permitted by law. le\ 41r41I W.E.E1/11 CONSTRUCTION The headings appearing in the Lease are intended for convenience and reference only, and are not to be considered in construing this Lease. Nothing contained herein shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the parties hereto, it being understood and agreed that neither the method of computation of rent nor any other provision contained herein or any acts of the parties hereto shall be deemed to create any relationship between the parties hereto other than the relationship of landlord and tenant. ARTICLE XXVIII 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. W:II[a]4 WIV14E1 AMENDMENT TO LEASE This lease contains all the terms and conditions between the parties hereto and no alteration, amendment or addition thereto shall be valid unless in writing and signed by the party against whom enforcement may be sought. 20-028 DECEMBER 9, 2019 IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year written above. CITY OF BANGOR: BY: Catherine M. Conlow Its: City Manager Date GAREDC, Inc.: BY: Gary Co -Wallis Its: Owner & President Date IN CITY COUNCIL DECEMBER 9,2019 CO 20-028 PASSED CITY CLE