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HomeMy WebLinkAbout2001-11-14 02-26 RESOLVEItem No. 02-16 Date: November 14, 2001 Item/Subject: RESOLVE, Ratifying Execution of Indenture of Lease with Maine Aviation historical Society Responsible Department: Legal Commentary: In 1999, the Airport Department, in cooperation with Stephen Bolduc, Executive Manager of Banair Corporation, had negotiated a lease agreement with Maine Aviation Historical Society for the use of Building #98 and surrounding land in the BIA complex for an aviation museum and exposition building Among the goals and objectives of the Society is to create and increase awareness of Maine's aviation heritage through the use of exhibits and educational programs for the general public. The Airport Committee had reviewed the terms of Ne lease and recommended approval at Its March 31, 1999 meeting. The Maine Aviation Historical Society executed the lease in August 1999, but Council approval was never obtained. This Resolve would approve the lease. Manager's Comments: tlry Manager Asanclabed lifomwtion: Lease gutlget Approval: � finance Director Legal Legal Approval: City Solicitor Introduced for GonseutAgend2 x Passage _First Reading Page i of 12 Referral 02-26 A Sllpmd to Councilor Parnhm Nwem6¢t 14, IOnI CITY OF BANGOR (TITLE.) Resolve, Ratifying Execution of Indenture Of Lease with Maine Aviation Historical Society ByB+e pry CxsgW of lyle City ofAvW..- RESOLlVWt THAT the action of Edward A. Barrett, City Manager, in executing an Indenture of lease between the City of Bangor and the Maine Aviation Historical Society for the operation of an aviation museum and exposition building in the BIA Complex is hereby ratif2d and confirmed. A copy of said Indenture of Lease is attached hereto. IH CPI[ CCUICIL November 14. 2001 Moifou for Passage Made and Seconded Passed CI # 02-26 R S 0 L V E (TITLE,) gatifying Htecutian of indenture of Lease w1th Mains, Aviation uistorieal Society Assigned to CouncllorE/AMJ Id A%� 02-26 1I:121321L1 ]lipli4 THIS INDENTURE OF LEASE, executed this K day of 1999, by and between: CITY OF BANGOR, a municipal corporation 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 referred to as "Lessor'); omp MAINE AVIATION HISTORICAL SOCIETY, a non-profit corporation organized and existing under the laws of the State of Maine, (hereinafter referred to as "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, located in the City of Bangor, County of Penobscot, State of Maine (hereinafter sometimes referred to as the "Airport'); and WHEREAS, Lessee wishes to lease buildings and land in the Bangor International Airport Complex for the operation of an aviation museum and exposition building; NOW, THEREFORE, the parties do mutually agree as follows: ARTICLE 1- PREMISES The Lessor, for and in consideration of the rents to be paid and the obligations to be performed by Lessee as hereinafter provided, does hereby demise and lease unto Lessee, and the Lessee does hereby take and hire, upon and subject to the terms and conditions hereinafter expressed the following described premises in His present physical condition - Building #98 and the adjacent land area All as shown on a plan attached hereto as Exhibit "A". ARTICLE II -TERM TO HAVE AND TO HOLD the demised premises unto the Lessee for a term of ten (10) years commencing ,1999. I 02-26 MaOe Hsr al Avialm Society August 1, 1999 The Lessee shall have the option to extend this Lease, with the consent of the Lessor, for a further term often (10)years,fmm , 2009, to .2019. 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, the Lessee shall notify the Lessor in writing of its intention not to have the lease extended as provided. In the absence of such notification, the Lessor will consider it to be the Lessee's intent to exercise ds option and extend this Lease whereupon the parties hereto shall proceed to negotiate between themselves for the purpose of fixing a rental for the said extension period. ARTICLE III - COMPUTATION OF ANNUAL RENTAL A. Minimum Rent: The minimum rent to be paid by Lessee to Lessor during the tens of this lease shall be one dollar ($1.00) per year. B. Percentage Rent: In addition to the Minimum Rent, the Lessee shall pay to the Lessor beginning in the sixth year of this lease five percent (5%) of annual Gross Sales, as defined in paragraph C hereof. C. Gross Sales as herein used are defined to mean the entire amount of the actual cash received for all food, beverages and related products sold on, or from, the demised premises. Gross Sales as herein used does not include ticket sales, memberships or donations. 0. Commencing promptly in the sixth year of this Lease Agreement, Lessee shall report to the Lessor within fifteen (15) days of the end of each month on the Gross Sales in such month. Simultaneously with the submission of the such report for each month, the Lessee shall pay the Lessor any percentage rent that may be due for such month. On or before the expiration of sixty (50) days after the sixth year of the Lease Agreement, and annually thereafter, Lessee shall submit to the Lessor a statement of Gross Sales for the year previously terminated certified by its principal financial officer to be accurate and in accordance with standard practices of accounting. Simultaneously with the submission of such annual report, the Lessee shall pay to the Lessor any amount of percentage rent due for such year in excess of the amounts previously paid. Furthermore, the Lessor shall repay to the Lessee, promptly after the submission of the annual report, any overpayments that the Lessee may have made to the Lessor. E. 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, on or before Page 2 02-26 Maine Hivorical Aviation Sorely August f, 1999 the fifteenth day of each calendar month. Late payments shall be subject to an additional interest charge of one and ane -half per card (1.5%) per month to the date of payment. ARTICLE IV - RIGHT OF AUDIT A. If the Lessor objects to any annual statement which the Lessee is required to submit to the Lessor under the tens of this Lease, the Lessor shall give notice within thirty (30) days after receipt of such statement to Lessee of such objection. Unless within thirty (30) days after receipt by Lessee of such notice of objection, Lessee shall satisfy the Lessor with respect to such statement thus complained of, the Lessor shall have the privilege of having an audit made, at its expense, of the account books and records relating to the Gross Sales of the Lessee. The Lessee shall render all reasonable assistance to the auditor selected by the Lessor and shall provide access to all books of account and other records that may be necessary to enable such auditors to verity such reports of Gross Sales. B. The Lessor's objection to any statement submitted by the Lessee shall not in any way impair the Lessee's obligation to pay rent based on the statement submitted. The Lessors acceptance of such payment shall in no manner constitute a waiver of any right under this Lease or a waiver of the right to receive any percentage rent ultimately determined to be owing to the Lessor by the Lessee. ARTICLE V - 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 constructing, operating and maintaining an aviation museum and exposition building. Said premises shall be used, occupied and maintained as an aviation museum and exposition building, and for no other purposes whatsoever without the prior written consent of the Lessor. B. The Lessee's museum collection shall include, within six (6) months of opening to the public, at least two (2) authentic and fully assembled aircraft in display condition. C. 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 Administration relating to the operation of Bangor International Airport as a public airport. D. 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 Page 3 02-26 Maine Histowal Aviation society August 1, 1999 cooperate in every way with the Airport Manager to insure that such miss and regulations are obeyed. E. Lessee shall have the tight to make alterations and improvements to the premises as it may choose, subject to the prior written approval of the Airport Manager, which shall not be unreasonably withheld, and provided that such alterations, additions and improvements do not weaken the structural integrity of the building, nor decrease its functional quality, appearance or value, and further provided that any such work shall be done entirely at the Lessee's own expense and will include returning disrupted surfaces to a serviceable and attractive condition. Such alterations and improvements shall be constructed and maintained in accordance with all applicable building, fire, and property maintenance codes of the State of Maine, the Laws and Ordinances of the City of Bangor including the site plan approval process outlined in the laws and ordinances of the City of Bangor F. 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. G. Lessor, through its agents, shall have at all reasonable times the tight, upon reasonable notification to 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 if Lessee shall cease operations or shall maintain other than normal business hours. Lessor reserves the right to effect emergency repairs to any utility systems located on the demised premises at any time, withoul prior notice or with such notice as is reasonable given the nature of the emergency concemed, and to have access for this purpose. 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, depositor 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 paragraph. Page 4 02-26 Maine Hbfoncal Awafion Sociely Augu91, 1999 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 Federel regulation, ordinance or statute pertaining to hazardous waste or hazardous material and further expressly agrees that it shall indemnify Lessor from any and all costs, expense or liability, of whatever kind or nature, incurred by the Lessor for any such violation. Such costs shall be 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 connection with such suit; paying any judgments or otherwise 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 paragraph, 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 paragraph shall be deemed to survive the expiration or termination of this Lease. ARTICLE VII - 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 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, costa or expenses arising out of injuries to persons whether or not employed by Lessee or damage to property whether resuhing from acts, omissions, negligence or otherwise of the Lessee, ft 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 Fire Damage $300,000 each occurrence 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. Lessee shall cause to be furnished to the Lessor evidence in the form of certificates of insurance of the existence and continuance in Page 5 02-26 Maine Hlslorvcal Avialmn Society August 1, 1999 force of the insurance required hereunder. Lessor shall be notified of any changes or discominuances 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 no less than the Lessor's maximum liability for such claims under the Maine Tort Claims Act. ARTICLE VIII - INDEMNITY A. General Indemnffication - Lessee shall defend, indemnify, 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, 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 the negligence of the 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 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 waives any tl all' dv it may have underthe Maine Workers Compensation Act or the CharitvI 'N Ad 14 MRSA 11t 58 andMRSA 111 58-A in wardt h claims made or asserted by the Lessee's agents, servantsI The indemnification provided under this paragraph shall extend to and include any and all costs incurred by the City of Badger 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. Page 6 02-26 Maine HisNrcal Aviation Scoety Avgvs11, 1999 ARTICLE IX- 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 right, but not the obligation to rebuild and repair the building for occupancy. If Lessor elects to build or repair the premises, Lessor shall be entitled to receive and apply all proceeds of fire and casualty insurance policies required to be maintained by Lessee under Article VII above for that purpose. Lessor shall not be entitled to the proceeds of any separate policy or coverages insuring Lessee's personal property, inventory or other building contents owned by the Lessee. If Lessor elects not to rebuild and repair, it shall so notify Lessee within thirty (30) days or more expeditiously if passible 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 Lessees obligation to pay rent as herein above provided shall terminale upon receipt of such notice by the Lessor and surrender of the premises by the Lessee. ARTICLE X - RULES, REGULATIONS AND LAWS 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 rules, regulations, or laws pertaining to 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, rules and regulations of the Airport Manager not inconsistent with this Lease or with the aforesaid rules and regulations which are uniform, and which apply equally to all tenants, invitees and users of the Airport and their employees. B. Lessor retains the continuing right in the leased premises to prevent the erection or growth of any building, structure, tree or other objed extending into the airspace above 342.4' Mean Sea Level, and, after appropriate notice to the Lessee, to remove from said airspace, or at the sole option of the Lessor, as an alternative, to mark and light as obstructions to air navigation, any such building, structure, tree, or other object now upon, or which in the future may be upon Lessee's property, together with the right of ingress to, egress from, and passage over Lessee's property for the above purposes. C. 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 Page Maine Histones/ANation Society August 1. 1999 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 Lessee does hereby fully waive, remise and release any right or cause of action which it may now have or which 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 taking -oft 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. D. 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 drfficuft for Byers 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 XI - TAXES It is agreed that Lessee shall not be responsible for real estate taxes. Lessee further covenants and 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 tens hereof, or any extension of the term of this Lease, by any governmental authority on Lessee's personal property located on the demised premises. ARTICLE XII Lessee for itself, its personal representatives, successors in interest and assigns, and as part of the consideration hereof, does hereby covenant and agree that: (1) 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 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 Page 8 02-26 Maine Historical Aviation Society August 1, 1999 (3) Lessee shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subthle A, Office of the Secretary, Part 21, Nondiscrimination in Federally -Assisted Programs of the Department of Transportation - Effectuation of This VI of the Civil Rights Act of 1964, 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 Stales. ARTICLE XIII - COVENANT OF QUIET ENJOYMENT The Lessee, 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 Lessee agree that each will promptly discharge (either by payment or by fling of the necessary bond or otherelse any mechanics', matedalmen'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 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: the building's major structural components: roof, structural walls, foundation, and operating systems, including heating, plumbing, and electrical systems; all fixtures, including electrical, plumbing and heating fixtures; doors, windows, Floor and floor coverings, ceilings, walls, and exterior and interior 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 Article excepted. Lessee will also be responsible for cleaning of the demised premises and rubbish removal after occupancy. The Lessor shall be responsible for cleaning and removing all rubbish and debris within thirty (30) days of the signing of the lease. Page 9 Maine Historical Aviation soavety August 1, 1999 B. Any work performed by the Lessor at the request of the Lessee to keep, maintain or improve the demised premises, to the extent that it would involve direct outlays, will be paid for by the Lessee at the cost to the Lessor. C. The phrase "reasonable wear and tear"as used in Paragraph A of this Article as an exception to the obligations of the Lessee shall not be construed to relieve the Lessee of its responsibility for providing repairs of a routine and regular nature which may from time to time be necessary within its 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 XVI - UTILITIES Lessee shall pay the cost of all utilities furnished and consumed on the demised premises, including electricity, gas, heat, water and sewer user fees. Lessee accepts all utility fixtures as they now exist. Lessee shall have the right to repair or replace utility fixtures as it may choose, subject to the prior written approval of the Airport Manager, which shall not be unreasonably withheld, and provided that such repairs, replacement, alterations, and improvements do not weaken the structural integrity of the building, nor decrease its functional quality, appearance or value, and further provided that any such work shall be tion entirely at the Lessee's awn expense and will include returning disrupted surfaces to a serviceable and attractive condition. Such repairs, replacement, alterations, and improvements shall be constructed and maintained in accordance with all applicable building, fire, and property maintenance codes of the State of Maine, the Laws and Ordinances of the City of Bangor. ARTICLE XVII - 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 part 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 term 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 the event Lessee elects to remove said non -permanent improvements and other personal property, the demised Page 10 02-26 Maine Hiafwical Aviation Society Auguat 1, 1999 premises shall be returned as near as possible to its original or improved condition existing at the commencement of this Lease, damage by accidents[ fire and casualty and reasonable wear and tear excepted. C. In the event Lessee shall fail to remove any non -permanent improvements or other personal property within thirty (30) days from the date of termination or final expiration of this Lease, Lessor shall be entitled to recover from the Lessee Lessors 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 concerned. ARTICLE XVIII - SURRENDER OF POSSESSION Subject to the provisions contained in Article XVII, the Lessee shall, upon the termination of this Lease, surrender the quiet and peaceable possession of the demised promises. ARTICLE XIX - 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 or other existing Agreement in or to 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 not be considered to be a breach by the City of any covenant or obligation hereunder. If the exercise of such right or right 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 it 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 XX -TERMINATION It is covenanted and agreed that: (1) If the Lessee shall neglect or fail to pay the rent or other charges payable hereunder and such default shall continue for a period often (10) days after written notice thereof by Lessor: or (2) If Lessee shall neglect or fail to perform or observe any of the other Page 11 02-26 Maine Historical Aviation Sa>ely August 1, 1999 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 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 (4) If any assignment shall be made of the property of the Lessee for the benefit of creditors; or (5) 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 Lessee's property by a Court of competent jurisdiction; 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 and those claiming through or under it and remove its or their effects (forcibly H 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 rents and other charges reserved as would have become due under this Lease if this Lease had not been terminated or if the Lessor had not entered or reentered as aforesaid. Notwithstanding the foregoing, Lessee's liability shall not exceed the difference, if any, between the rental which would have been due had there been no such termination, and the amount being received by Lessor as rent from 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 the demised premises. ARTICLE XXI -ATTORNEY'S FEE The Lessee 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 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 the terms, conditions or covenants on the part of the Lessee herein contained, provided also that Lessee shall have failed to promptly correct the violation of any term, Page 12 02-26 Maine li vis cal Aviation society August 1, 1999 condition or covenant after receipt of notice that it is in violation thereof. In the event Lessor employs its City Solicitor or an assistant solicitor to collect rents or otherwise protect Lessots interests under this Lease, "reasonable attorneys fees" under this Article shall mean the reasonable cost of services provided by Lessor's Solicitor or assistant solicitor. ARTICLE XXII -ASSIGNMENT, SALE AND SUBLETTING The Lessee shall not M 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 to any corporation or holding company having the 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 XXIII -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 of Bangor City Manager tandem this agreement a valid and binding document on the part of the Lessor and that the same is fully enforceable in all of its tens 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 regulagons, 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 XXIV - WAIVER Failure on the part of the Lessor to complain of any action or nonaction on the pan of the Lessee no matter how long the same may continue, shall never be Page 13 02-26 Maine Historical Avia(ron Society August 1, 1999 deemed to be a waiver by the Lessor of any of Lessors 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 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 Lessor's 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 XXV - NOTICES Notices to the Lessor provided for in this Lease shall be sufficient ff sent by registered or certified mail, retum receipt requested, postage prepaid to: City Manager City of Bangor City Hall 73 Hadow Street Bangor, Maine 04401 with a copy to Airport Manager, Bangor International Airport, 289 Godfrey Boulevard, Bangor, Maine 04401. Notices to Lessee, are to be sent by registered or certified mail, return receipt requested, postage prepaid, addressed to: Maine Aviation Historical Society Bangor, Maine 04401 or to such other respective addresses as the parties may designate to each other in writing from time to time. ARTICLE XXVI - INVALIDITY OF PARTICULAR PROVISIONS If any term 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 provisions to persons or circumstances other than those to which it is held invalid or unenforceable shall not be affected thereby and such term and provision of this Lease shall be valid and be enforceable to the fullest extent permitted by law. Page 14 02-26 Maine Historical Aviation Sosias, August 1, 1999 ARTICLE XXVII - CONSTRUCTION The headings appearing in the Lease are intended for convenience and reference only, and not to be considered in construing this Lease. ARTICLE XXVIII - 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 XXIX -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 XXX - MEMORANDUM OF LEASE 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 XXXI -AMENDMENT TO LEASE This lease contains all the terms and conditions between the partes hereto and no alteration, amendment or addition hereto shall be valid unless in writing and signed by both parties hereto. Page is Maine Historical Aviation Society August 1, 1999 IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year written above. CITY OF BANGOR Date: Witness: MAINE AVIATION HISTORICAL SOCIETY Date: _ og-ia-g9 Witness: Fean`_70Mn, MM` a a aCa Zw'/M Lj„Onr.NME^iatls X9. Mt By: (name) Lz feye t (title)' �v`'tz ��g Page 16 02-26 i W1135f1W bltl 3;JIVW - _.. �I, if 31VIVV✓ ._ .. _. _.. _:]�Zi7 �N1!rS >aayrv� � ?saves �✓. � crenae � 9. �-6a 3'� nC n510 ,p,',A � v�3 �} m ' `.. x ` 11YD ���-Id �1rs �\ ' � ` - � y 10� evlaa� a�odotid _ \ ,, , , 86 �a,� �1 — — — �� ossa a �o�`U 8� en