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HomeMy WebLinkAbout2010-03-22 10-106 ORDERCOUNCIL ACTION Item No. 1 n 1 n Date: March 22, 2010 Item/Subject: ORDER, Authorizing the Bangor International Airport to enter into a Lease Agreement with DMF, International Inc for Airport's Coffee Shop and Lounge Concession Responsible Department: Airport Commentary: The proposed lease term for the Coffee Shop and Lounge is for five years with an option to extend for one additional five year term. The rental rate is 12% of gross sales. The lease requires a $100,000 investment in the facilities during the first five year term. As part of this agreement, the vendor has agreed to offer a food and beverage concession beyond security screening and make substantial investments in the facilities. Rebecca Hupp Department Head Manager's Comments: This has been reviewed by the Airport Committee and is recommended for approv Al, Interim City Manager Associated Information: Order, Lease Budget Approval: i4,-,qZ - Finance Director Legal Approval: Introduced for X Passage First Reading Referral ity Solicitor Page 1 of 1 Assigned to Councilor - Hawes March 22, 2010 CITY OF BANGOR (TITLE.) ORDER, Authorizing the Bangor International Airport to enter into a lease agreement with DMF, International Inc for Airport's Coffee Shop and Lounge Concession. WHEREAS, The City of Bangor owns and operates the Bangor International Airport; and WHEREAS, DMF, Inc has experience operating Airport Food Service Concessions; and WHEREAS, the Bangor International Airport and its customers have a need for this service; and WHEREAS, both parties desire to enter into a lease agreement; and WHEREAS, the terms of this agreement is in the best interest of the Airport; and WHEREAS, the terms of this agreement are advantageious to both parties. NOW, THEREFORE, BE IT ORDERED BY THE CITY COUNCIL OF THE CITY OF BANGOR, That the Bangor International Airport is authorized to enter into a lease agreement with DMF, International Inc for Airport's Coffee Shop and Lounge Concession, a draft copy of which is attached hereto. The lease shall be in a final form acceptable to the City Solicitor or Assistant City Solicitor. IN CITY COUNCIL March 22, 2010 Pa sed J DEPUTY CITY C1ffERK (TiTLEJ Aurhnriaing the Bangor International to enter into a Lease Agreement with DMF. International Inc for Airport's d Lounge Concession Assigned to Councilor G, between: 10 1C AGREEMENT OF LEASE THIS AGREEMENT OF LEASE made this day of , 2010, 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") AND DMF, International 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 Lessee for the term of five (5) years commencing January 1, 2010 and expiring on December 31, 2014, Provided, however, that 10 1C the Lessee shall have the option to extend the term of this Lease for; an additional five (5) year period commencing on the first day of January 1, 2015, and expiring on the last day of December, 2019. ARTICLE III COMPUTATION OF ANNUAL RENTAL .SECTION 1 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: RENT ITEM Beverage Sales (including Sales of alcoholic beverages) All other sales (including food) Not to include Lottery sales ANNUAL PERCENTAGE Twelve percent (12%) of gross from January 1, 2010 to December 31, 2014 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, 2015 and December 31, 2019 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. The phrase "gross sales", wherever used herein, defined to mean the dollar aggregate of. 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, 1© 10 �� (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. 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. 10 1CC 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 The Lessee agrees to make investment to the facility or equipment, or fixtures of not less than $100,000 during the initial five year term of this agreement. Further, the Lessee agrees to provide and operate a food and beverage retail mobile cart beyond security screening when requested by the lessor. The lessee and lessor can come to verbal agreements on the times of operation of post security food and beverage retail mobile cart based on flight departure and arrival schedules. 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. to 1CC 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. 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 to 1001 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. 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 Public Liability and property Damage Insurance The Lessee during the entire term of this Lease, or any extension thereof, shall maintain, at its sole expense, insurance of the following types with companies authorized to do business in the State of Maine, and for the protection of the City of Bangor, who shall be named as an additional insured 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 resulting from acts, omissions, negligence or otherwise of the Lessee, its directors, officers, employees and agents and arising from Lessee's use of the premises or any part or portion thereof. COMPREHENSIVE PUBLIC LIABILITY Bodily Injury $1,000,000.00 each occurrence Property Damage $1,000,000.00 each occurrence Umbrella 10 100 $10,000,000.00 Worker's Compensation Insurance Lessor shall not be required to provide insurance coverage and shall have no responsibility for any property owned by the Lessee or third parties which may be located on the demised premises, except negligence or other fault of the Lessor, its employees or agents. Lessee shall cause to be furnished to the Lessor evidence in the form of certificates of insurance of the existence and continuance in form of the insurance required hereunder. Lessor shall be notified of any changes or discontinuance of coverage. 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 for personal injury 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 in no less than the Lessor's maximum liability for such claims under the Maine Tort Claims Act. Section 2 Indemnity Lessee shall protect, defend and hold Lessor, and its inhabitants, officers, employees and agents completely harmless from and against any and all liabilities, losses, suits, claims, judgments, fines or demands arising by reason of injury or death of any person or damage to any property, including all reasonable costs for investigation and defense thereof (including but not limited to attorneys fees, court costs, and expert witness fees), of any nature whatsoever arising out of or incident to this agreement and/or the use or occupancy of the leased premises or the acts or omissions of Lessee's officers, agents, employees, contractors, subcontractors, licensees, or invitees, unless such injury, death, or damage is caused by the negligence of the Lessor. The Lessor shall give to Lessee reasonable notice of any such claims or actions. The Lessee shall also use counsel reasonably acceptable to Lessor in carrying out its obligations hereunder. Lessee's Waiver of Workers' Compensation Immunity — The Lessee hereby expressly agrees that it will defend, indemnify and hold the City of Bangor, its inhabitants, officers, employees and agents completely 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, the Lessee hereby expressly waives any and all (except fp or any negligenceL or other fault of the Lessor, its employees or agents) immunityit may have under the Maine Workers' compensation Act in regard to such claims made or asserted by the Lessee's agents servants or employees. The indemnification provided under this paragraph shall extend to and include any and all costs incurred by the City of Bangor to answer, Investigate, defend and settle all such claims, including but not limited to the City of Bangor'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, servants or employees against the City of Bangor in regard to claims made or asserted by such agents, servants, or employees. SECTION 3. Lessee's Fixtures and Personal Property. 1© 1Cs 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 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. 10 103 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. 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, io 100 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. 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 to l® leo,", 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 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 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 10 ico 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. ARTICLE XVI MISCELLANEOUS PROVISIONS 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. 12 10 lC 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, opening one (1) hour before the first scheduled airline flight and closing within one (1) hour after the last scheduled airline departure. 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. 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 the Airport 13 10 lc 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 reservation of, or option for, the premises, and this document shall become effective and binding as of January 1, 2010 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. 14 10 10 IS It is understood that the Lessee is designated as the food and beverage service provider in the Airport terminal. The Lessor can not 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 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. AFFIRMATIVE ACTION. If required by law the Lessee assures that it will undertake an affirmative action program as required by 14 CFR Part 152, Subpart E, to insure that no person shall on the grounds of race, creed, color, national origin, or sex be excluded from participating in any employment activities covered in 14 CFR Part 152, Subpart E. The Lessee assures that no person shall be excluded on these grounds from participating in or receiving the services or benefits of any program or activity covered by this subpart. The Lessee assures that it will require that its covered suborganizations provided assurances to the Lessee that they similarly will undertake affirmative action programs and that they will require assurances from their suborganizations, as required by 14 CFR Part 152, Subpart E, to the same effect. SECTION 15. PRIOR AGREEMENTS CANCELLED. The parties mutually agree that, effective January 1, 2010, 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. 15 Witness CITY OF BANGOR Title: BY: Witness Title: 16 DMF International, Inc. 10 les