HomeMy WebLinkAbout1999-04-12 99-151 ORDERCOUNCIL ACTION
Date: 4/12/99 Item No.:p9-j5l
Item/Subject Lease Agreement with Stillwater Realty Trust- 890 Hammond St.
Responsible Department: Community and Economic Development
Stillwater Realty Trust requests an extension of the term of the lease of the property at
890 Hammond St., Bangor beyond the termination data of October 31, 2002. Stillwater
Realty Trust requests a term coterminous with the lease for the property at 900
Hammond St., or until April 30, 2018, with an option to extend the tern until 2028.
Rent is fixed until 2002 under the current agreement after which an appraisal
would ae used to determine the rent during the remaining period of the term.
Manager's Comments: Ca£9 k ma
VaAG :&u�v
City Manager
Associated Information:
Budget Approval
Finance Director
il1.J�j "I' Or^i'w
city Soilcitor YU
Introduced For
X Passage
First Reading Page 1 of 1
Referral
99-151
Aedpmd to Councilor Eohmau April 12. 19995
CITY OF BANGOR
QIILE) @r1bETa....Aulhonzing a Lease. Agm.ementwith Stillwater Realty Truel 890
Hammond St.
By the City CeaaeeR Of the 04 Of 0a .
ORDERED,
THAT
WHEREAS, by Indenture of lease, dated November 16, 1972 and
assigned December 5, 1986, Stillwater Realty Trust leased a lot of land located at 890.
Hammond SL, Bangor, Maine, and
WHEREAS, the parties wish to enter a new Lease Agreement to
extend the farm of the lease;
NOW THEREFORE BE IT ORDERED BY THE CITY COUNCIL OF
THE CITY OF BANGOR THAT the City Manager is hereby authorized, on behalf of the
City of Bangor, to execute a lease agreement between Stillwater Realty Twat and the
City of Bangor for a lot of land located at 890 Hammond St., Bangor, Maine, in a form
approved by the City Solicitor or Assistant City Solicitor, and in substantially the same
form as attached hereto.
IR CITY CODBCIY.
April 12. 1999
Motion for Passage Made and
Seconded
passed .a�p•L/lY��
CI C BBR
99-151
ORDER
Title, Authorizing a Lease Agreenme:
with Stillwater Realty Trost - 890
Hammond Street
... 4 ..............................
.......�..J. 4�.�.....q.....................
1n1lo, A^rig�ndunto�� ' ^ -
.........QM L .�/.. ............
V Councilman
INDENTURE OF LEASE
THIS INDENTURE OF LEASE, executed this day of April,
1999, by and between:
CITY OF BANGOR, a municipal cerpomtion 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');
STILLWATER REALTY TRUST, a partnership organized
and existing under the laws of the State of Maine, and being
located in the County of Penobscot, 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, by Indenture of lease, dated November 16, 1972 and
assigned December 5, 1966, the parties agreed to the lease by the Lessor of a lot of
land located on Hammond St., Bangor, Maine; and
WHEREAS, Lessee wishes to extend a lease of that parcel;
NOW, THEREFORE, the parties do mutually agree as follows:
ARTICLE I - PREMISES
The Lessor, for and in consideration of the rents to be paid and the
obligations to be performed by Lessee as hereinafter provided, don 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 us
present physical condition:
A certain parcel or lot of land located on Hammond St. in the
City of Bangor, County of Penobscot, State of Maine, and
further described as follows:
Beginning W the intersection of the southerly right-of-way
line of Hammond St. and the easterly line of the Airport
Indenture of "we
Steescer Realty Trust
property at monument "3 as shown on a plan titled "Bangor
International Airport Property Map", Plan No. G-791, on file
at the City Engineer's Office; thence S 810 -06'-05" W along
the southerly line of Hammond St. a distance of 160.0';
thence S 80 -53' -55" E a distance of 124.0'; thence N 810 -
O6 -05" E a distance of 127.59'to the easterly line of the
airport; thence N 50 44 -53" E a distance of 128.16' along
said line to the point of beginning. Excepting and reserving
to the Bangor Water District all rights and privileges to
operate and maintain a water utility line as described in Vol.
1946, Page 290, Penobscot Registry of Deeds.
The location of said parcel is further described on a plan
dated October 13, 1972 and attached hereto as Exhibit W.
In addition, Lessor hereby grants to Lessee the full right an
privilege to excavate for, construct, operate and maintain a
sewer line extending from the rear of said premises to the
"Dow Field Trunk Sewer", as shown on Exhibit "A", said
sewer line to be constructed by Lessee in accordance with
the Ordinances of the City of Bangor.
ARTICLE II - TERM
TO HAVE AND TO HOLD the demised premises unto the Lessee for a
tenn commencing May 1, 1999, and terminating on April 30, 2018.
Lessee shall have the option to extend this lease for a further term of ten
(10) years commencing on May 1, 2018 and terminating on April 30, 2028 provided that
Lessee shall not be in default of this agreement in any manner, upon the same terms
and conditions and in the same manner as provided for the initial term.
The option to extend provided for by this Article will be exercised, if al all,
as follows and not otherwise: Not less than ninety (90) days before the natural
termination of the initial term herein pmvided for, the Lessee shall malty the Lessor in
writing of its election to lease the demised premises for the said additional term.
ARTICLE III - COMPUTATION OF ANNUAL RENTAL
A. The rent to be paid by Lessee to Lessor during the period May 1, 1999
to October 31, 2002 shall be EIGHT HUNDRED AND SIXTEEN DOLLARS ($816.00)
per year paid monthly in the amount of SIXTY-EIGHT DOLLARS ($68.00) remitted in
advance on the first day of each and every morM.
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B. Lessee further covenants to pay to the Lessor as rental each and
every year during the remaining tens of this lease for the premises leased hereunder as
follows:
�GPL--1fi1.T--1iR'AkklirTF11d1Si�p. �rSiAkk!
The monthly rental payment during this period will be one -twelfth (1/12) of
one-tenth (1/10), or .00833, of the market value of the demised land. The market value
will be determined by a current appraisal of the land provided by an independent
appraiser hired by the Lessor. The appraisal will value the land as of July 31, 2003 as N
there has not been any development or structures elected on it. In the event that the
Lessee disputes the appraised value, the Lessee may commission, at its expense, a
second appraisal by an independent appraiser and will notify the Lessor of such within
ten (10) days of receipt of the appraisal. If the parties remain in dispute as to the
market value of the land after the second appraisal, the two appraisers will appoint a
third independent appraiser. The market value will then be the average of the high and
low appraisals performed by the three appraisers. In such event the expense of the
third appraisal will be shared equally by the Lessor and Lessee.
November 1. 2008 through October 31, 2013
The monthly lease payment during this period will be determined as
follows:
the monthly lease payment of the previous five year period plus:
the product of monthly lease payment of the previous five year period
multiplied by the sum of the five annual percentage changes in the Consumer Price
Index, the All Items expenditure category, for the period July, 2003 to July, 2008.
The annual percentage change is calculated by subtracting the value of
the index on July at beginning of the period, eg. July, 2003, from the value of the
index on July of the following year, eg. July, 2004 and dividing the remainder by the
value of the index on July at the beginning of the period, eg July, 2003. The annual
percentage change will be the percent resulting from the above calculation but in no
case greater than five (5%) percent for any year,
The term "Consumer Price Index" is the "monthly unadjusted Consumer
Price Index for All Urban Consumers (CPI -Uy 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
tens of this lease, the rental adjustment for the subsequent five-year 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
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authoritatively represents the annual change in urban consumer prices in the United
States over the preceding five-year period.
November 1 2013 throuah October 31, 2010
The monthly lease payment during this period will be determined in a
method similar to that used for the previous period with the exception that the sum of
the five annual percentage changes in the Consumer Price Index, the All Items
expenditure category, will be forthe period of July, 2008 to July, 2013.
November 1 2018 through October 31, 2023
If the Lessee has exercised its right to extend the agreement as provided
for in Article II, the monthly lease payment during this period will be determined in a
method similar to that used for the previous period with the exception that the sum of
the five annual percentage changes in the Consumer Price Index, the All Items
expenditure category, will be for the period of July, 2013 to July, 2018.
November 1 2024 throuah December 31 2028
The monthly lease payment during this period will be determined in a
method similar to that used for the previous period with the exception that the sum of
the five annual percentage changes in the Consumer Price Index, the All Items
expenditure category, will be for the period of July, 2018 to Jury, 2023.
C. Rent shall be paid monthly in advance on the first day of each and
every month. Lessee shall pay all rentals herein required, without prior demand
therefor, in lawful money of Me 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 (1.5%)
per cent per month to the date of payment.
ARTICLE IV - USE, OCCUPANCY AND ALTERATIONS TO PREMISES
A. Lessee shall have Me right to use, occupy and maintain the premises
herein described in a reasonably businesslike, careful, dean, and reasonably safe
manner for the purposes of operating and maintaining a one story office building.
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 Administration relating to the operation of Bangor
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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.
E. 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, 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.
F. Lessee shall have the right to erect signs on the leased premises
subject to the prior written approval of me 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 right,
upon reasonable notifcabon 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 paregreph, "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, without prior notice or with such notice as is reasonable given the nature of
the emergency concerned, and to have access for this purpose.
ARTICLE V - 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 Lessors Bangor International Airport, and further expressly agrees
that lt 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.
Lessee hereby covenants and agrees that it shall not, during the term of this
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ru
Indenrt
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lease, including any extension or renewal hereof, violate any local, state or Federal
regulation, ordinance or statute pertaining to hazardous waste or hazardous material
and further expressly agrees that it shall indemnify Lessor from any and all costs,
expense or liability, of whatever kind or nature, incurred by the Lessor for any such
violation.
Such costs shall be cleared to include, without Inflation, Lessor's costs of
defending any suit filed by any person, entity, agency, or governmental authanty;
paying any fines imposed in connection with such suit; paying any judgments or
othenvise 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 VI - LIABILITY AND PROPERTY DAMAGE INSURANCE
The Lessee during the entire term 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,
costs or expenses arising out of injuries to persons whether or not employed by Lessee
or damage to property whether resulting from acts, omissions, negligence or otherwise
of the Lessee, its directors, officers, employees and agents and arising from Lessee's
use of the premises or any part or portion thereof.
Comprehensive Public Liability
Bodily Injury $300,000.00 each occurrence
Property Damage $300,000.00 each occurrence
Fire Damage
$300,000 each occurrence
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
farce of the insurance required hereunder. Lessor shall be notified of any changes or
discontinuances of coverage.
The minimum insurance coverage required under this Article shall be
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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 Lessors maximum
liability for such claims under the Maine Tort Claims Act.
ARTICLE VII - INDEMNITY
A. General Indemnification - 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 ads 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 canyirg 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 activilies under this Lease. For this purpose the Lessee hereby expressN
waves any and all immunity it may have under the Maine Workers Compensation Ad in
repand to such clams 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.
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. Lessor agrees that in the event of
destruction or damage of improvements owned by Lessee on the demised premises, or
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Whwater Realty TNar
to any part thereof, and as often as the improvements shall be damaged, by fire or
other casualty, Lessee shall have the right but not the obligation to rebuild and repair
the improvements for occupancy. If Lessee elects not to rebuild and repair, it shall so
notify Lessor within ninety t90) days or more expeditiously if possible of its decision.
Lessor shall then have the option to terminate this lease and the right, after notice to
Lessee, to cause Lessee to demolish all structures to ground level, remove all
foundations and to remove all debris from said demolition and removal from the
demised premises. In the event Lessee decides to rebuild and repair said damages all
improvements shall be restored to their state and condition prior to said fire or other
casually, or shall be constructed in accordance with plans approved by Me Lessor,
which shall not be unreasonably withheld. Any insurance proceeds, in any event, shall
be paid to Lessee.
ARTICLE IX - 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 M obey all
municipal ordinances, and all State and Federal miss, regulations, or laws pertaining to
the operation of said Airport and Lessee's use and occupancy of the demised promises.
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. Further, it is understood and agreed that Lessor retains a dg ht for the
passage of aircraft ("aircraft" being defined as any contrivance now known or hereafter
invented, used or designed for navigation of or flight in the air) by whomsoever owned
and operated, in the airspace above the property above 342.4' MSL to an infinite height
together with the right to cause in all airspace above Me 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 Me 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 Me
operation of aircraft landing at or taking -of from or operating at or on the Airport. The
Lessee specifically agrees to make no claims in any Pone 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
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the Airport, or as otherwise to otherwise endanger the landing, taking off or
maneuvering of aircraft.
ARTICLE X - TAXES
It is covenanted and agreed that all hies and/or assessments, fees or
charges of any kind whatsoever, as may be imposed during the term hereof, or any
extension of the term of this lease, by any governmental authority upon the demised
premises are the responsibility of the Lessee. It is expressly agreed that such taxes
and assessments shall include all amounts levied as real estate or other property taxes
upon the demised premises by Me Lessor acting in its governmental capacity.
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 tenor hereof, or any extension of the tens of this Lease, by any governmental
authority on Lessee's personal property located an the demised premises.
Lessee further hereby waives any and all rights or privileges of exemption
from taxation on the demised premises and on any personal property located therein
arising due to public ownership of the demised premises by the City of Bangor.
Provided however, nothing herein shall be deemed to prohibit the Lessee from
contesting the assessed valuation of such property in the same manner as provided by
law under Title 36, Maine Revised Statutes, for other nonexempt properties and
taxpayers.
ARTICLE XI - NONDISCRIMINATION
Lessee for rtseff, 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
(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,
Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally -Assisted
Programs of the Department of Transportation - Effectuation of Title VI of the Civil
Rights Act of 1964, and as said regulations may be amended. In the event of breach of
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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 XII - 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 tens hereof
without hindrance or rejection by the Lessor or any other persons.
ARTICLE XIII - LIENS
The Lessor and the Lessee agree that each will promptly discharge
(either by payment or by fling of the necessary band 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 arse 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 XIV - REMOVAL OF PROPERTY
Upon the termination or final expiration of this Lease, the improvements
and other personal property erected or located upon the demised premises by the
Lessee shall remain the property of the Lessee, and the Lessee shall have the right to
remove the same from Me demised premises within sixty (60) days from Me date of
termination or final expiration of this lease. Any such property not so removed within
said sixty (60) days shall become the property of the Lessor to be disposed of in such
way as the Lessor may deem ft. In the event the Lessee elects to remove said
improvements and other personal property, the buildings and land appurtenant thereto
shall be returned to as near as possible its condition as at the commencement of the
Lease, ordinary wear and tear excepted.
In the event Lessee shall fail to remove any improvements or personal property
within sixty (60) 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 improvements or personal property. In such event,
there shall be deducted from Lessors costs the fair value to the Lessor actually realized
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from sale, use or other disposition of the improvements or personal property concerned.
ARTICLE XV - SURRENDER OF POSSESSION
Subject to the provisions contained in Article XIV, the Lessee shall, upon
the termination of this Lease, surrender the quiet and peaceable possession of the
demised promises.
ARTICLE XVI - UNITED STATES RIGHTS
It is understood and agreed that He 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 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 terminaterthis 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 XVII - 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 of ten (10) days after
written nofice thereof by Lessor; or
(2) If Lessee shall negled or fail to perform or observe any of the other
covenants, terms, provisions, or conditions on its pad 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
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(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 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 rents
and other charges reserved as would have become due under this Lease R 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 rote for the demised premises.
ARTICLE )(VIII -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, 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 Lessor's interests under this Lease, "reasonable
attorneys fees' under this 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.
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ARTICLE XIX -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 to any
corpomfion or holding company having the controlling interest in the Lessee, or to any
corporation which may be a subsidiary of the Leasee. 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 XX - FINANCING AFFECTING DEMISED PREMISES
Lessor is cognizant of the need of Lessee to finance the construction of
buildings, structures and improvements an the demised premises, and therefore
specifically agrees to permit the Lessee to mortgage, conditionally assign or transfer its
leasehold interest in the demised premises for the purpose of obtaining construction
and permanent loan financing for the said buildings, structures, and improvements,
provided:
(1) the term of such mortgage, conditional assignment or transfer shall not
exceed the initial term hereof;
(2) Lessee shall give notice of the existence of such mortgage, conditional
assignment or transfer, together with the name and address of the mortgagee,
assignee or transferee and a copy of the mortgage, assignment or transfer document;
(3) that in the event of foreclosure, and in the event that said mortgagee,
conditional assignee or transferee shall become the owner of the Lessee's interest
pursuant to such foreclosure, said mortgagee, conditional assignee or transferee shall
have the right to take possession and shall became the legal owner and holder of the
lease -hold estate created hereunder and shall hold such estate upon the same terms
and conditions as held by Lessee from which such mortgagee, conditional assignee or
transferee acquired possession, but in such event, said mortgagee, conditional
assignee or transferee shall be liable under the terms and conditions hereof during the
period of time in which said mortgagee, assignee or transferee holds such estate, and
for any defaults under the terms or conditions hereof which arose before said estate
become vested in said mortgagee conditional assignee or transferee. Provided,
however, that such mortgagee, conditional assignee or transferee shall nor be liable for
defaut(s) of the Lessee occurring prior to foreclosure unless Lessor provided written
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SNM1vatar Realty Trust
notice of such default(s) to the mortgagee, conditional assignee or transferee before
the effective data of the foreclosure action.
(4) that the existence of such mortgage, conditional assignment or transfer, or
any foreclosure by a mortgagee shall not relieve the Lessee from any liability or
responsibility of the obligations on its part to be performed.
ARTICLE XXI - 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 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 =1- WAIVER
Failure on the part 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 Lessor's rights hereunder. Further, it is
covenanted and agreed that no waiver at any time of any of the provisions hereof by
Lessor, shall be construed as a waiver of any other provisions hereunder, and that a
waiver at any time of any of the provisions hereof shall not be conshued 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 Lessor's consent or approval of any subsequent
similar ad by the Lessee.
ARTICLE XXIII - 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:
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Imlenture of Lean
snilweler Really Tryst
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.
Notices to Lessee, are to be sent by registered or certified mail, return
receipt requested, postage prepaid, addressed to:
Stillwater Realty Trust
P.O. Box 2400
Bangor, Maine 04402-2400
or to such other respective addresses as the parties may designate to each other in
writing from time to time.
ARTICLE XXIV - INVALIDITY OF PARTICULAR PROVISIONS
If any tern 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 eMorceable to the fullest extent Permitted by law.
ARTICLE XXV -CONSTRUCTION
The headings appearing in the Lease are intended for convenience and
reference only, and not to be considered in construing this Lease.
ARTICLE XXVI -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.
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Indenture WLease
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ARTICLE XXVII - 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 XXVIII - 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 XXIX -AMENDMENT TO LEASE
This lease contains all the terms and conditions between the parties hereto and no
alteration, amendment or addition hereto shall be valid unless in writing and signed by
both parties hereto.
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IN WITNESS WHEREOF, the parties hereto have set their hands and
seals the day and year written above.
CITY OF BANGOR
Date:
Witness:
STILLWATER REALTY TRUST
Data
Witness:
By:
Edward A. Barrett
Its City Manager
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