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HomeMy WebLinkAbout2007-04-09 07-136 ORDERCOUNCIL ACTION Item No. Date: Apr69,2007 Item/Subject: Authorizing the City Manager/and or Airport Director to Execute a (Ease with American Eagle for Dock 11. Responsible Department: Airport Commentary: American Eagle has occupied Dock 11 since December 2, 2000 when they assumed the lease then held by Business Express. They do aircraft maintenance In the Hangar and employ approximately sixty people. They are cunentiy operating on a month-to-month basis The Airport has negotiated a one year lease with 4, one year renewals. American Eagle has agreed to pay the Airport $112,300 annually which is the fair market rate for this facility. Rebecca L. Hupp Department Head Manager's Comments: This has been reviewed and is recommended by the Transportation and Infmsnaemre Committee. &ba? � �, iknu� City Manager Associated Information: Lease; Memo from Airport Director Budget Approval: City Solicitor Introduced for X Passage _—Hirst Reading _ Referral Page of_ 07 136 A gnwtocovmiwr Palmer April 9, 2007 C CITY OF BANGOR (TITLE.) : Order, Authorizing the City Manager and/or the Airport Director to Execute a Lease with American Eagle for Dock 11. WHEREAS, American Eagle has occupied Dock 11 (Building 462) since December 2, 2000 when they assumed the lease then held by Business Express; and WHEREAS, American Eagle does aircraft maintenance In the hangar and employs approximately sixty (60) people; and WHEREAS, American Eagle Is currently operating on a month-to-month basis and the Airport has negotiated a one year lease with 4, one year re7:ewals; and WHEREAS, American Eagle has agreed to pay the Airport $112,300 annually which Is the fair market rate for this facility; NOW, THEREFORE, BE IT ORDERED BY THE CITY COUNCIL OF THE CITY OF BANGOR That the City Manager and/or Airport Director is authorized to execute a lease agreement for Dock 11 With American Eagle. IN CITY COUNCIL April 9. 2007A"% Pue # 07-136 TY CLeRe $ v B (IPPL81e e_ry w vM/Or the AlportFDirector to �A execute It AeLease with A..gi¢J tv Cvuneilvr� 4 07 136 BGR � AIaeoar To: Transportation and Infrastructure Committee CC: Edward A. Barrett, City Manager From: Rebecca L Hupp, Airport Director Date: 4/4/2B0] Re: tease with American Eagle for Dods 11 American Eagle Airlines has occupied Dock I I (Building 462) since December 2, 2000 when they assumed the lease held by Business Express The hangar is used for aircraft maintenance and American Eagle employs apli mtlmately sixty (60) people at this location. The previous lease expired and they are currently operating on a month-to-month basis as they have been unable to commit to a long-term lease due to financial and budget constraints. One issue identified by American Eagle regarding the hangar is the high cost to heat the facility. In order to address this concern, improve our fadlity and provide an incentive to our tenant, the Airport included, and the CM CouMl approved, $280,000 in this years budget to Install insulation in the hangar if American Eagle would sign a new lease. The Airport has negotiated a one year lease with 4, one year renewals at a rate of $112,000 annually. While the Airport would rpt be able to mo ver the Cost of the Insulation over only a one year term, American Eagle has agreed to repay the Airport 6.7% of the budgeted amount of the insulating project for each year of the renewal period if they do not mew. The insulation project will have benefit to the Airport even if the hangar is vacated. The engineers estirtRte drat insulating the hangar will result In a 20% annual savings in fuel oil consumption. A copy of the proposed lease is attached for your considembon. It has been reviewed and approved by Legal. The Airport requests the Committee recommend this item far approval by Council. I look forward to discussing this wird you in greater detail at the committee meeting. 07 136 INDENTURE OF LEASE THIS INDENTURE OF LEASE, executed this day of , 2006, by and between: CITY OF BANGOR, a municipal corporation organized and existing under and by virtue of the laws of the Stale of Maine, and having its principal offices at 73 Harlow Street, Bangor, Marrs (hereinafter referred to as "Lessoe'); AMERICAN EAGLE AIRLINES, INC., a Delaware Corporation with its principal place of business in, Fort Worth, TX (hereinafter sometimes referred to as "Lessee") WITNESSETH: WHEREAS, the Cly of Bangor is the owner of an airport commonly known as "Bangor International Airport", formerly known as Dow Air Force Base, located in the City of Bangor, County of Penobscot, State of Maine (hereinafter sometimes referred to as the'Airocrt"); and WHEREAS, Lessee desires to lease certain premises at the Airport for purposes of maintenance, repair, and servicing of airoraft, air-ortented equipment, and pads used by the Lessee and Its legally registered affiliates; NOW, THEREFORE, the parties do mutually agree as follows: ARTICLE I - PREMISES The Lessor, for and in consideration of the rams to be paid and Me obligations to be performed by Lessee as hereinafter provided, does hereby demise and -lease unto Lessee, and Me Lessee does hereby take and hire, upon and subject to the terms and conditions hereinafter expressed the following described premises in its present physical condition: Building #462, also known as Dock 11, located at 40 Wyoming Ave., approximately 38,550 sq. ft. and the land appurtenant thereto, located at Bangor International Airport, Bangor, Maine, said property further described in Exhibit "A" to this Agreement, attached hereto." ARTICLE II - TERM TO HAVE AND TO HOLD the demised premises unto the Lessee for a period commencing April 1, 2007, arm ending March 31, 2008 initial tern), with four 136 , mcanEagawwaaa,Im.. one year renewal options. Lessee shall notify Lessor 45 days priorto the end of the initial term, and subsequent anniversaries, whether the annual renewal option will be exercised. Should the annual renewal option not be exercised, Lessee is responsible for the following hangar Improvement costs: Option not renewed beginning for the April 1, 2008 term =$76,800 due March 31, 2008 Option not renewed beginning for the April 1, 2009 term = $57,800 due March 31, 2009 Option not renewed beginning for the April 1, 2010 term = $38,400 due March 31, 2010 Option not renewed beginning for the April 1, 2011 term = $19,200 due March 31, 2011 ARTICLE III - COMPUTATION OF ANNUAL RENTAL April 1, 2007 through March 31, 2008 - $2.9131 per square foot per annum for a total of ONE HUNDRED TWELVE THOUSAND THREE HUNDRED ($112,300), paid monthly in the amount of NINE THOUSAND THREE HUNDRED FIFTY-EIGHT DOLLARS AND THIRTY-THREE CENTS ($9,358.33). During the following annual renewal Options, the monthly rental rate will be determined as follows: The monthly lease payment of the previous period plus, The product of monthly lease payment of the previous period multiplied by the annual percentage change In the Consumer Price Index, the All Items expenditure category, for the period March 2006 to March 2008. The annual percentage change is calculated by subtracting the value of the index on March 2006, from the value of the index on March 2008 and dividing the remainder by the value of the index on March 2006. The annual percentage change will be the percent resulting from the above calculation but In no case greater than seven (7%) percent. The lens "Consumer Price Index' is the "monthly unadjusted Consumer Price Index for All Urban Consumers (CPI -U)' published by the United State Department of Labor, Bureau of Labor Statistics. In the event that the CPI -U index should cease to be published during the term of this lease, the rental adjustment for the period shall be calculated as stated above by reference to the annual percentage change in any substitute Index published by the U.S. Dept. of Labor or other reliable source which adhodtatively represents the annual charge in urban consumer prices in the Untied States. Page 2 M 17 Am cenF99P nesIm. A. In the event that Lesse and Lessor agree to an extension of this lease as described in Article II Tenn, the monthly rental rate for the period April 1, 2011 through March 31, 2013 will be determined as follows: The monthly lease payment of the previous period plus, The product of monthly lease payment of the previous period multiplied by the annual percentage change in the Consumer Price Index, the All Items expenditure category, for the period March 2008 to March 2011. The annual percentage change is calculated by subtracting the value of the index on March 2008, from the value of the index on March 2011 and dividing the remainder by the value of the index on March 2008. The annual percentage change will be the percent resulting from the above calculation but in no case greater than ten and one-half (10.5%) percent. B. During the period April 1, 2013 to March 31, 2018 the monthly rental rate will be determined as follows: The monthly lease payment of the previous period plus, the product of monthly lease payment of the previous period multiplied by the annual percentage change in the Consumer Price Index, the All hems expenditure category, forthe period March 2011 to Mamh 2013. The annual percentage change is calculated by subtracting the value of the !Max on March 2011, from the value of the index on March 2013, and dividing the remainder by the value of lite index on March 2011. The annual percentage change will be the percent resulting from the above calculation but in no case greater than seven (7%) percent. The tens "Consumer Price Index is the "monthly unadjusted Consumer Price Index for All Urban Consumers (CPI -U)' published by the United States Department of Labor, Bureau of Labor Statistics. In the event that the CPI -U index should cease to be published during the term of this lease, the rental adjustment for the period shall be calculated as stated above by reference to the annual percentage change in any substitute Index published by the U.S. Dept. of labor or other reliable source which authoritatively represents the annual change in urban consumer prices in the United States. C. Lessee shall pay all rentals herein required, without prior demand therefor, in lawful money of the United States, at the address of the Lessor as set forth herein or at such other reasonable places as the Lessor may designate. Late payments shall be subject to an additional interest charge of one and one-half per cam (1.5%) per month to the date of payment. Page 3 of 11 aagraMx lu. 07 136 ARTICLE IV - USE, OCCUPANCY AND ALTERATIONS TO PREMISES A. Lessee shall have the right to use, occupy and maintain the premises herein described in a reasonably businesslike, careful, clean, and reasonably safe manner for the purposes of repair, maintenance and servicing of aircraft, aironisnted equipment and parts used by Lessee or its legally registered affillates, and for no other purposes whatsoever without the prior written consent of the Lessor whose consent shall not be unreasonably withheld. No retail sale of products or services shall be conducted on the premises. B. Lessee shall not use, occupy or maintain said premises in any manner as to violate any municipal, state, or federal law or regulation, and, in particular, regulations of the Federal Aviation Admininrimtion relating to the operation of Bangor International Airport as a public airport. C. Lessee shall make a good faith effort to inform its employees and visitors of the rules and regulations of the Bangor International Airport and shall cooperate in every way with the Airport Manager to insure that such rules and regulations are obeyed. D. Lessee shall have the right to make alterations and improvements to the premises as it may choose, subject to the prior written approval of the Airport Manager and provided that such ateretions, additions and improvements do not weaken the structural integrity of the building, nor decrease is functional quality, appearance or value, and further provided that any such work shall be tion entirely at the Lessee's own expense and will include returning disrupted surfaces to a serviceable and attractive condition. E. Lessee shall have the right to erect signs on the leased premises subject to the prior written approval of the Airport Manager, provided that such signs comply with the City's Sign Ordinance and applicable F.A.A. Regulations. F. Lessor, through its agents, shall have at all reasonable times the right, upon reasonable notification tc the Lessee, to go on and inspect the premises with an authorized representative of the Lessee, and the right of access to utility systems located on the demised premises for the purposes of maintenance, repair, correction, or inspection. For purposes of this paragraph, "reasonable notification" shall include any actual notification to the Lessee or its agent not less than one business day prior to the date of inspection.'Reasonable times'shall mean any time during Lessee's regular business hours, or during normal weekday business hours t Lessee shall cease operations or shall maintain other than normal business hours. Lessor reserves the right tc effect emergency repairs to any utility systems located on the demised premises at any time, without prior notice or with such notice as is reasonable given the nature of the emergency concemed, and to have access for this purpose. G. Parties acknowledge that the property is used as an aircraft maintenance facility and as such, the lessee is required to perform engine run -ups. Lessee is prohibited from performing engine run -ups at all times in the maintenance Page 4 u117 07 136 American Eagb Abbm& ftw. hangar area. Engine ran -ups are allowed in the blast fence area on the heavy duty ramp from 6:00 am to 10:30 p.m. precisely. The Lessor reserves the right to change these hours at a later time, however, changing of the hour limitations curtained herein, solely in the domain of the Airport Directors office, will, at the Lessee's option, immediately terminate the lease. Permission to conduct engine run -ups at any other time must be obtained from the Airport Manager whose permission will not be unreasonably withheld. Such permission to be granted only under hardship conditions as determined solely by the Airport Manager. Engine run -ups performed under hardship conditions will be done only in the hammerhead area of Runway 15 unless directed otherwise by Airport Management, and a written report explaining the conditions which required the ran -up to be perfumed outside of the normally allowed time period must be submitted to the Airport Manager by 10:00 am of the day after which the ran -up occurred. ARTICLE V - HAZARDOUS WASTE Lessee hereby covenants and agrees that tl 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 Lessors Bangor International Airport, in contravention of any local, state or Fedeml regulation, ordinance or statute pertaining ro ha Mous waste. Lessee hereby covenants and agrees that it shall rot, 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 The term 'lessee's hazardous materials' shall mean Flammable explosives, radioactive materials, hazardous materials, hazardous waste, hazardous or toxic substances or matter, oil or other petroleum products, asbestos, chemical pollutants or materials in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Sec. - 9601, at seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C. Sec. 801, et seq.), the Resource Conservation and Recovery Act, as amended (42 U.S.C. Sac. 691, et sm.). applicable Maine statutes or any similar federal, state or local law, or in the regulations adopted and publications promulgated pursuant thereto, or any other substances or materials constituting a hazard, peril or threat to the health of persona, animals, or plant life and used, placed, stored or disposed of upon the demised premises by Lessee its contractors, customers, licensees, agents, servants or employees; but the tum "Lessees hazardous materials" shall not include any such materials used, placed, stored or disposed of upon the demised premises by the Lessor, its agents, servants or employees, or by a third party other than contractors, customers or licensees of the Lessees. ARTICLE VI - LIABILITY AND PROPERTY DAMAGE INSURANCE The Lessee during the entire tens of this Agreement, or any extension thereof, shall maintain, at its sole expense, insurance of the following types with rage 5 of 1] 07 136 Anreriran Ea&AnMnes, Im 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 o property whether resulting from ads, 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 each occurrence Property Damage - $1,000,000.00 each occurrence Aircraft Public Liability Insurance $50,000,000 per accident Aircraft Property damage Insurance $10,000,000 per accident Fire Damage $700,000 each occurrence Lessor shall hot 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. Leasee shall cause to be furnished o the Lessor eNdence in the form of certificates of insurance of the existence and continuance In force of the insurance required hereunder. Lessor shall be notified of any changes or dismminuances 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 evert of such an Increase, the minimum insurance coverage required shall be no less than the Lessor's maximum liability for such claims under the Maine Tort Claims Act. ARTICLE VII • INDEMNITY A. General Indemnification - Lessee shall defend, indemnity, 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 Ntia 6 of 17 07 136 Amvrcan EaO N'Mm; Ire. all reasonable costs for investigation and defense thereof (including but not limited to attomeys' fees, court costs, and expert witness fees), of any nature whatsoever arising out of or incident to this agreement and/or the use, occupancy, conduct, or management 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 me negligence of Me Lessor. The Lessee shall give to Lessor reasonable notice of any such claims or actions. The Lessee shall also use counsel reasonably acceptable to Lessor in carrying out its obligations under this Article. Lessee's obligations under this paragraph shall be deemed to survive expiration or termination of this Agreement. B. Lessee's Waiverof 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 expressl. all costs incurred by the City of Bangor to answer, investigate, defend and settle all such claims, including but not limited W 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. C. Indemnification with Respect to Hazardous Materials: Without limiting the Lessees' General Indemnication provided in Paragraph A shove, Lessee hereby represents and warrardsto: 1. Forward to Lessor, upon request, copies of any and all nor privileged notices, correspondence, warnings, guidelines, or other written materials hereafter received from, or given to, any governmental authority in connection with Lessee's hazardous materials and Meir relationship to the demised premises; 2. Conduct and complete at its own expense, all investigations, studies, sampling and testing, and all remedial, removal, and other actions necessary to clean up and remove all Lessees hazardous materials in, under, upon, from, or affecting the demised premises and resulting from Lessee's operations on the demised premises, to the extent required by and in accordance with all applicable federal, state, and local laws, regulations, Holes, and ordinances, and policies, and In accordance with orders and directives of any federal, state, or local governmental authority. 3. Defend, indemnify, and hold harmless Lessor, its employees, agents, officers and directors, from and against any and all claims, demands, penalties, fines, liabilities, settlements, damages, costs, Page 7 of 17 07 136 a can Eat asxnaa Inc or expenses (including without limitation, reasonable attorney, engineering and consultant fees, investigation, testing and-, court costs, and litigation expenses), unless caused by the negligence of the Lessor-, arising out of or in any way related to: a. the discovery, presence, disposal, release, or threatened release of Lessee's hazardous materials within, under, upon, from or into the dismissal premises, and to the axiom resulting from Lessee's operations on the demised premises; b. any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to Lessees hazardous materials, which concent the demand premises, and to the extent resulting from Lessee's operations on the demised premises; C. any legal action brought or threatened before any court or agency, settlement reached, or government order relating to Lessee's hazardous materials which concern the demised premises, and to the extent resulting from Lessee's operations on the demised premises; and/or d. any violation by Lessen of laws, orders, regulations, requirements, or demands of government authorities now in effect or in effect at any time in the future, which are based upon or in any way related to Lessee's hazardous materials which concent the demised promises. 4. Lessee's obligations under this paragraph shall be deemed to survive the expiration or termination of this Lease. ARTICLE VIII - DAMAGE BY FIRE OR OTHER CASUALTY Lessor Is not required to Insure the demised premises against loss by fire and the extended coverage usual in such insurance. In the event of destruction or damage of buildings owned by Lessor on the demised premises, or to any part thereof, and as often as the improvements shall be damaged by fire or other casualty, Lessor shall have the night, but rwt the obligation to rebuild and repair the building for occupancy. If Lessor elects not to rebuild and repair, it shall so notify Lessee within thirty (30) days or more expeditiously d possible of its decision. In the event the damages are of such extent as to reasonably prevent Lessee from operating within the demised premises, then Lessee shall have the right to terminate this Lease and shall notify Lessor within the aforementioned time period, and Lessee's obligation to pay rent as herein above provided shall terminate upon receipt of such notice by the Lessor and surrender of the premises by the Lessee. ARTICLE IX - RULES, REGULATIONS AND LAWS ~Can Eayre Wv Ao-m 07 136 A. The premises herein leased are located upon the property of the Lessor and commonly known as Bangor International Airport. Therefore, the Lessee hereby agrees to obey and to cause all personnel employed by the Lessee to obey all municipal ordinances, and all State and Federal miss, regulations, or laws pertaining tc the operation of said Airport and Lessee's use and occupancy of the demised premises. In addition, Lessee shall obey and observe all reasonable orders, miss and regulations of the Aimed Manager not inconsistent with this Lease or with the aforesaid miss and regulations which are uniform, and which apply equally to all tenants, invitees and users of the Airport and their employees. B. Further, it is understood and agreed that 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 th rause 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 Almon and Lessee does hereby fully waive, remise and release any right or cause of action which it may now have or Mich it 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 faking -off from or operating at or on the Airport. The Lessee specifically agrees to make no claims in any form for damages or reimbursements against the Lessor or against the United States Government for any reason or cause resulting from noise generated from Airport uses. C. Lessee will not use or permit or suffer the use of the leased property In such a manner as to create electrical interference with radio communication between any installation upon the Airport and aircraft, or as to make it difficult for flyers to distinguish between Airport lights and others, or as to impair visibility in the vicinity of the Airport, or as otherwise to otherwise endanger the landing, taking off or maneuvering of aircraft. ARTICLE X - NONDISCRIMINATION Lomas for itself, its personal representatives, successors in interest and assigns, and as part of the consideration hereof, does hereby covenant and agree that: (t) no person or group of persons on the grounds of race, color, age, sex, handicap, or national origin, or in any other manner prohibided by law, shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the Lessee's use or occupancy of said demised premises; (2) in the construction of all Improvements, buildings, structures, on, over or under such land and the furnishing of services thereon, no person or group of persons on the grounds of race, color, age, sex, handicap, or national origin or in any other manner prohibited by law, shall be excluded from participation in, denied the benefits of, or be otherwise subjected to unlawful discrimination in the Lessee's use or occupancy of the demised premises; and (3) Lessee shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Cade of Federal Regulations, Department of Transportation, Pape 9 of 17 07 136 A vuln Eagle 0.44ree, ho Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally -Assisted Programs of the Department of Transportation - Efec dation of Title VI of the Civil Rights Act of 1914, and as said regulations may be amended. In the event of breach of any of the above nondiscrimination covenants, the Lessor shall have the right, after failure of Lessee to rectify such breach within thirty (30) days after receipt of notice from Lessor, to terminate this Lease. Provided, however, that Lessor shall not have the right to terminate the Lease under this Article with respect to any complaint of discrimination which is pending final resolution or adjudication before any agency or court of the State of Maine or the United States. ARTICLE XI - COVENANT OF QUIET ENJOYMENT The Lessee, subject to the terms and provisions of this lease on payment of the rent, and observing, keeping and perforning all the terms and provisions of the lease on its pad 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 rejectlon by the Lessor or any other persons. ARTICLE XII • LIENS The Lessor and the Lessee agree that each will promptly discharge, either by payment or by fling of the necessary bond or otherwise any mechanics', materialmen's or other liens against the demised premises, or against any buildings, structures or improvements located thereon, 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 Lessee, respectively. ARTICLE X111- MAINTENANCE AND REPAIRS (A) Lessee shall, at im sola expense and cost, throughout the term hereof or any extension, keep and maintain the fixtures in the demised premises including electrical fodures, mechanical systems located within and servicing exclusively the demised premises, and plumbing fixtures, doors, windows, floor and floor coverings, ceilings, walls, and interior paint surfaces, in goad order and repair, and in tenantable condition, damage by accidental fire and casualty and responsible wear and tear, as defined in the Article excepted. Lessee will also be responsible for cleaning of the demised premises, snowplowing and rubbish removal. (B) Lessor shall, at Its sola expense and cost, throughout the term hereof or any extension, keep and maintain the following in the demised premises; the building's major structural components; roof, structural walls, foundation, operating systems, including heating, plumbing, and electrical systems except fixtures as described in (A) above, exterior paint surfaces, in good order and repair, and in tenantable condition, damage by accidental fire and casualty and reasonable wear and tear, as defined in this Pape 10 of 17 A��nEa .wa e, 07 136 Article excepted. Lessor will also be responsible for maintenance of parking areas and landscaping. (C) The phrase "reasonable wear and teal' as used in Paragraphs A and 8 of this Article as an exception to the obligations of the parties shall not be construed to relieve the padies of their responsibility for providing repairs of a routine and regular nature which may from time to time be necessary within their respective areas of responsibility, 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. ARTICLE XIV - UTILITIES Lessee shall pay the cost of all utilities furnished and consumed on the demised premises, including electricity, gas, fuel oil, water and sewer user fees. Lessee accepts all utility fixtures as they now exist. ARTICLE XV - REMOVAL OF PROPERTY A. Ownership of permanent improvements to the demised premises, which may from time to time be made by Lessee that are affixed to the property and are an integral pad of the operating systems of the structure as opposed to movable personal property, shall automatically vest in the Lessor as a consideration of the lease and rental schedule. B. Any movable personal property that may be located, erected or installed on the demised premises by Lessee from time to time during the tern of this Lease shall remain the property of the Lessee, and, upon termination or expiration of this Lease, Lessee shall have the right to remove the same from the demised premises within thirty (30) days of said termination. Any such property not so removed within thirty (30) days from the date of termination, shall become the property of the Lessor to be disposed of in such way as the Lessor may deem fit In th event Lessee elects to remove said non -permanent improvements and other personal property, the demised premises shall be returned as near as possible to their original condition existing at the commencement of this Lease, damage by accitlental fire and casualty and reasonable wear and tear excepted. C. In the event Lessee shall fall to remove any iron -permanent Improvements or other personal property within thirty (30) days from the date of lamination or final expiration of this Lease, Lessor shall be entitled to recover from the Lessee Lessofa reasonable costs Incurred in removing or disposing of such non- permanent improvements or personal property. In such event, there shall be deducted from Lessor's costs the fair value to the Lessor actually realized from sale, use or other disposition of the particular improvements or personal property concemed. Page 1101] American Eagb Mimi 1c 07 136 ARTICLE XVI - Subject to the provisions contained In Article XV, the Lessee shall, upon the termination of this Lease, surrender the quiet and peaceable possession of the dammed promises. ARTICLE XVII- 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 that 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 orother existing Agreement in orto the leased premises. Should the United States of America or any agency thereof exercise any such rights in or to said premises, the exercise of such right or rights shall rot be considered to be a breach by the Cty of any covenant or obligation hereunder. If the exercise of such right or rights by the United States of America or any agency thereof makes impractical in Lessee's sole opinion Lessee's intended use of said premises, then Lessee shall have the right, at its sole 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 XVIII - TERMINATION It is covenanted and agreed that: (I) If the Lessee shall neglect or fail to pay the rent or other charges payable hereunder and such default shall continue for a period of ten (10) days after written notice thereof by Lessor, or (2) U Lessee shall neglect or fail to perform or observe any of the other camnards, terms, provisions, or conditions on is 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 Lesser, or if such covenants, terns, provisions or conditions cannot be performed or observed within said thirty (30) day period, t Lessee 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 THEN, IN ANY OF SAID CASES OUTLINED ABOVE (notwithstanding any license of any former breach of covenant or waiver of the benefit hereof or consent in a former instance), the Lessee 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 Lessee Page 12 of 17 Amery n EeglaAMrws, lnc. 07 136 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. Upon such entry, this Lease shall terminate, and the Lessee shall be liable to pay as rent, amounts equal to the several installments of rams and other charges reserved as would have become due under this Lease 0 this Lease had not been terminated or f the Lessor had not entered or reentered as aforesaid. Notwithstanding the foregoing, Lessee's liability shall not exceed the difference, R any, between the rental which would have been due haft there been no such termination, and the amount being received by Lessor as rent tram any new tenant or occupant of said premises. In order to mitigate Lessee's damage hereunder, Lessor agrees to make every reasonable effort to secure subsequent tenants, at a rental equal to the then prevailing local rate for Me demised premises. ARTICLE XIX -ATTORNEY'S FEE The Lessee shall pay to the Lessor a reasonable attorneys fee in the event the Lessor employs an attorney to collect any rents due hereunder and secures a judgment in connection with collection of said rent, or legal process is levied upon the interest of the Lessee in this Lease or in said premises, or in the event Lessee violates any of Me terms, mrdidons or covenants on the part of the Lessee hemin contained, provided also that Lessee shall have failed to promptly correct the violation of any term, condition or covenant after receipt of notice that R is in violation thereof. In the evert Lessor employs its City Solicitor or an assistant solicitor far collect rents or otherwise protect Lessors interests under this Lease, "reasonable attorneys fees under Mis Article shall mean the reasonable cost of services provided by Lessors Solicitor or assistant solicitor, at the rate charged for similar services by private attorneys in the Bangor area. ARTICLE XX - ASSIGNMENT, SALE AND SUBLETTING The Lessee shall not at any time assign, sell, convey or transfer this Lease or any interest therein, or sublease or sublet or rent the premises, or any part thereof, without the prior written consent of the Lessor. In the event of an approved sublease, all provisions of this Lease shall extend to, bind and inure to the benefit of not only the Lessor and Lessee but also their successors and assigns. Lessee shall have the right to assign this Lease to any corporation with which it may have become merged, consolidated, or otherwise associated, or M any corporation or holding company having Me controlling interest in the Lessee, or to any corporation which may be a subsidiary of the Lessee. In no event, however, shall the Lessee named herein be relieved from any obligations under this Lease by virtue of any such assignment or subletting. ARTICLE XXI -AUTHORITY TO ENTER INTO AGREEMENT Page 13 of 17 07 136 A tiff nEa AWnea, 1m. The Lessor hereby represents and warrents 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 of Bangor City Manager renders this agreement a valid and binding document on the part of the Lessor and that the same is fully enforceable in all of its terms and conditions by the Lessee. Lessee hereby represents and warrants that It has taken all necessary procedural and legal steps as required under all state, local and federal laws and regulations, and all necessary corporate action to authorize the execution of this agreement by its undersigned corporate officers and that upon such execution this agreement is a valid and binding document on the part of the Lessee and is fully enforceable in all of its terms and conditions by the City of Bangor. ARTICLE XXII - NOISE CLAIMS The Lessee specifcally agrees to make no claims in any forth for damages or reimbursements to the Lessor or to the United Stales Government for any reason or cause resulting from noise generated from airport uses. ARTICLE XXIII - WAIVER Failure on the pan of the Lessor to complain of any action or nonaction on the part of the Lessee no matter how long the same may continue, shall never be deemed to be a waiver by the Lessor of any of Lessors rights hereunder, Further. itis covenanted and agreed that no waiver at any time of any of the provisions hereof by Lessor, shall be construed as a walver of any other 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 Lessee requiring the Lessors consent or approval shall not be deemed to waive or render unnecessary the Lessors consent or approval of any subsequent similar act by the Lessee. ARTICLE XXW - NOTICES Notices to the Lessor provided for in this Lease shall be sufficient if sent by registered or certified mail, return receipt requested, postage prepaid to: City Manager City of Bangor City Hall 73 Harlow Street Bangor, Maine 04401 with a copy to Airport Manager, Bangor International Airport, 289 Godfrey Boulevard, Bangor, Maine 04401. Page 14 N 17 AmsdcB FA ANllres,, Inc. 07 136 Notices to Lessee, am to be sent by registered or candied mail, return receipt requested, postage prepaid, addressed to: American Eagle Airlines, Inc. Manager Corporate Real Estate PO Box 619616 4333 Amon Carter Blvd Mail Drop 6494 Fort Worth TX 76155 or to such other respective addresses as the parties may designate to each other in writing from time to time. ARTICLE XXV - INVALIDITY OF PARTICULAR PROVISIONS If any tens or provisions of this Lease or the application thereof to any person or circumstances is hereafter determined to be to any extent invalid or unenforceable, the remainder of this Lease or the application of such terms and previsions to persons or circumstances other than those to which it is held invalid or unenforceable shall not be affected thereby and such teen and prevision of this Lease shall be valid and be enforceable to the fullest extent permitted by law. ARTICLE XXVI - CONSTRUCTION The headings appearing in the Lease are intended for convenience and reference only, and rot to be considered in construing this Lease. ARTICLE XXVII - NO PARTNERSHIP OR JOINT VENTURE CREATED Nothing contained herein shall be deemed or construed as creating the relationship of principal and agent or of partnership or of joint venture between the parties, it being understood and agreed that neither the method of computation of rent nor any other provision contained herein nor any acts of the parties shall be deemed to create any relationship between the parties other than the relationship of landlord and tenant. ARTICLE )XVIII - 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. ARTICLE XXIX- MEMORANDUM OF LEASE Page 15 of lT 07 136 Amcilcan EagMAMlnec, IK'. The parties agree not to record this lease; however, upon request of either, the other shall prepare and execute a Memorandum of Lease in a form suitable for recording at the Penobscot Maine Registry of Deeds, as evidence of Lessee's interest in the premises demised herein. ARTICLE XXX -AMENDMENT TO LEASE This lease contains all the terms and oond'Rions between the parties hereto and no alteration, amendment or addition hereto shall be valid unless in writing and signed by both parties hereto. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year written above. CITY OF BANGOR Date: Witness: AMERICAN EAGLE AIRLINES, INC. Date: Witness: By: Edward A. Barred Its City Manager Page 10 of 17