RELOCATION, REDUCTION OR TERMINATION. (a) At any time during the Term hereof, due to the nature of the commercial air public transportation facilities in general, it may be necessary to relocate and/or reduce all or any part of the Premises if the Director determines such action to be necessary for airline and/or airport operational considerations (e.g., the operation of non-concession services in the Terminal, the operation of non-concession services for any airline or Airport operations in the Terminal or due to public health or safety issues relating to the operation of the Terminal). For purposes hereof, relocation is defined as the City’s decision to terminate possession of an existing concession facility and to provide a reasonably comparable space for the substitute concession facility in terms of size, location, relation to airline gates and exposure to the Terminal’s users’ pedestrian traffic flow patterns (particularly enplaned passengers) within the Terminal. Reduction of the Premises includes, but is not limited to, the movement of walls of the Premises or any other action which may reduce the Floor Area of the Premises. In the event the Director elects to exercise any such rights as the City deems reasonably necessary or desirable, it shall advise Concessionaire by 60 days prior written notice and Concessionaire hereby agrees to be bound by such election and to execute; upon receipt from the Director, whatever amendments, terminations or other instruments as may be necessary. If the Premises are relocated or reduced to a size reflecting a 10% or greater decrease in the Floor Area, the parties agree to negotiate in good faith on a commercially reasonable basis with respect to an equitable adjustment to Guaranteed Rent. Any such relocation or reduction of the Premises shall be accomplished, with Concessionaire’s complete cooperation, as expeditiously as is reasonable under the circumstances but in no event later than the date specified by the Director to ensure the proper and efficient operation of the Terminal. In the event any such relocation or reduction occurs after the Premises have been constructed and opened for business to the public, the City agrees to reimburse Concessionaire (through appropriate credits against future payments of Guaranteed Rent and/or Percentage Rent, through direct reimbursement, or by bearing costs directly, or a combination of any methods legally available to City) for the reasonable and proper costs of renovating the relocated and/or reduced Premises (in accordance with Final Drawings and total renovation costs approved by the Director) so that the same are reasonably comparable to the original Premises. The City also agrees to reimburse Concessionaire (through appropriate credits against future payments of Guaranteed Rent and/or Percentage Rent, through direct reimbursement, or by bearing costs directly, or a combination of any methods legally available to City) for the reasonable and proper costs of moving Concessionaire’s Operating Equipment and exterior storefront signage. Concessionaire shall be responsible for any and all other costs involved. The City shall not have any liability for such relocation or reduction of the Premises other than as specifically set forth in this Section 7.04(a) and Concessionaire hereby waives any such claims, including, without limitation, claims for lost business opportunity, claims for lost profits and claims for relocation benefits under Federal and any state law. If Concessionaire is unable to operate its business in the Premises or any portion thereof as a result of the exercise of any of the City’s rights, Concessionaire’s payment of Guaranteed Rent shall be abated during the period which Concessionaire is unable to operate. Notwithstanding the foregoing, if the Director desires to relocate Concessionaire to a substitute concession facility as provided in this Section 7.04(a), Concessionaire shall have the right, in its sole discretion, to terminate this Agreement within 30 days after receipt of the Director’s relocation notice. If Concessionaire elects to terminate this Agreement as provided in this Section 7.04(a) due to the proposed relocation of the Premises, this Agreement shall terminate on the effective date thereof as reasonably specified by the Director and Concessionaire shall remain liable for the payment of all Rentals and the performance of all other accrued obligations of Concessionaire under this Agreement up to and including the effective date of such termination. Upon the early termination of this Agreement by the Concessionaire as provided in this Section 7.04(a), other than by reason of Concessionaire’s default, Concessionaire shall be entitled to be reimbursed by the City for any unamortized investment in Fixed Improvements to the nearest full month as established by its amortization period for Cost of Fixed Improvements in accordance with the requirements set forth in Section 7.04(b) below. (b) In the event the Director in its reasonable judgment believes it desirable for the City to obtain possession of the Premises, or any portion thereof, for airline and/or airport operational considerations (e.g., the operation of non-concession services in the Terminal, the operation of non-concession services for any airline or Airport operations in the Terminal or due to public health or safety issues relating to the operation of the Terminal), the Director, upon 90 days prior notice in writing to Concessionaire, may terminate this Agreement. In the event of such termination, within 120 days following the date that Concessionaire shall have vacated and surrendered possession of the Premises to the City in the condition required under this Agreement, paid all Rentals and performed all other accrued obligations hereunder through the effective date of such termination, the City shall pay to Concessionaire a sum equal to net book value of Cost of Fixed Improvements. In order to obtain any funds from the City, at a minimum, Concessionaire must have furnished to the Director in accordance with Section 6.01 (f), all such relevant information concerning the net book value of the Cost of Fixed Improvements. The following will be considered the net book value of the Cost of Fixed Improvements: (i) the unamortized balance of reasonable amounts paid by the Concessionaire for the construction and installation of Fixed Improvements upon the Premises; (ii) the unamortized balance of reasonable amounts paid by the Concessionaire to extend utility lines into the Premises; and (iii) the unamortized balance of reasonable sums paid to external architects, engineers, surveyors, and construction managers in connection with the design, development and construction of Fixed Improvements upon the Premises. For purposes of this Agreement, the Concessionaire’s Cost of Fixed Improvements shall be amortized by Concessionaire, depreciated monthly, using the straight-line method, over a period beginning with each location’s Rental Commencement Date through the seventh (7th) anniversary of the first Lease Year or over the useful life of each Fixed Improvement in accordance with GAAP, whichever period is shorter. (c) Such payments under Sections 7.04(a) or (b) shall be in lieu of any claims, causes of actions, suits, or damages that Concessionaire may have as a result of its use and occupancy of the Premises, including, without limitation, any and all rights and/or awards under any applicable Federal or state law.
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Sources: Concession Agreement, Concession Agreement
RELOCATION, REDUCTION OR TERMINATION.
(a) At any time during the Term hereof, due to the nature of the commercial air public transportation facilities in general, it may be necessary to relocate and/or reduce all or any part of the Premises if the Director determines such action to be necessary for airline and/or airport operational considerations (e.g., the operation of non-concession services in the Terminal, the operation of non-concession services for any airline or Airport operations in the Terminal or due to public health or safety issues relating to the operation of the Terminal). For purposes hereof, relocation is defined as the City’s decision to terminate possession of an existing concession facility and to provide a reasonably comparable space for the substitute concession facility in terms of size, location, relation to airline gates and exposure to the Terminal’s users’ pedestrian traffic flow patterns (particularly enplaned passengers) within the Terminal. Reduction of the Premises includes, but is not limited to, the movement of walls of the Premises or any other action which may reduce the Floor Area of the Premises. In the event the Director elects to exercise any such rights as the City deems reasonably necessary or desirable, it shall advise Concessionaire by 60 days prior written notice and Concessionaire hereby agrees to be bound by such election and to execute; upon receipt from the Director, whatever amendments, terminations or other instruments as may be necessary. If the Premises are relocated or reduced to a size reflecting a 10% or greater decrease in the Floor Area, the parties agree to negotiate in good faith on a commercially reasonable basis with respect to an equitable adjustment to Guaranteed Rentthe MAG. Any such relocation or reduction of the Premises shall be accomplished, with Concessionaire’s complete cooperation, as expeditiously as is reasonable under the circumstances but in no event later than the date specified by the Director to ensure the proper and efficient operation of the Terminal. In the event any such relocation or reduction occurs after the Premises have been constructed and opened for business to the public, the City agrees to reimburse Concessionaire (through appropriate credits against future payments of Guaranteed Rent MAG and/or Percentage Rent, through direct reimbursement, or by bearing costs directly, or a combination of any methods legally available to City) for the reasonable and proper costs of renovating the relocated and/or reduced Premises (in accordance with Final Drawings and total renovation costs approved by the Director) so that the same are reasonably comparable to the original Premises. The City also agrees to reimburse Concessionaire (through appropriate credits against future payments of Guaranteed Rent MAG and/or Percentage Rent, through direct reimbursement, or by bearing costs directly, or a combination of any methods legally available to City) for the reasonable and proper costs of moving Concessionaire’s Operating Equipment and exterior storefront signage. Concessionaire shall be responsible for any and all other costs involved. The City shall not have any liability for such relocation or reduction of the Premises other than as specifically set forth in this Section 7.04(a) and Concessionaire hereby waives any such claims, including, without limitation, claims for lost business opportunity, claims for lost profits and claims for relocation benefits under Federal and any state law. If Concessionaire is unable to operate its business in the Premises or any portion thereof as a result of the exercise of any of the City’s rights, Concessionaire’s payment of Guaranteed Rent the MAG shall be abated during the period which Concessionaire is unable to operate. Notwithstanding the foregoing, if the Director desires to relocate Concessionaire to a substitute concession facility as provided in this Section 7.04(a), Concessionaire shall have the right, in its sole discretion, to terminate this Agreement within 30 days after receipt of the Director’s relocation notice. If Concessionaire elects to terminate this Agreement as provided in this Section 7.04(a) due to the proposed relocation of the Premises, this Agreement shall terminate on the effective date thereof as reasonably specified by the Director and Concessionaire shall remain liable for the payment of all Rentals and the performance of all other accrued obligations of Concessionaire under this Agreement up to and including the effective date of such termination. Upon the early termination of this Agreement by the Concessionaire as provided in this Section 7.04(a), other than by reason of Concessionaire’s default, Concessionaire shall be entitled to be reimbursed by the City for any unamortized investment in Fixed Improvements to the nearest full month as established by its amortization period for Cost of Fixed Improvements in accordance with the requirements set forth in Section 7.04(b) below.
(b) In the event the Director in its reasonable judgment believes it desirable for the City to obtain possession of the Premises, or any portion thereof, for airline and/or airport operational considerations (e.g., the operation of non-concession services in the Terminal, the operation of non-concession services for any airline or Airport operations in the Terminal or due to public health or safety issues relating to the operation of the Terminal), the Director, upon 90 days prior notice in writing to Concessionaire, may terminate this Agreement. In the event of such termination, within 120 days following the date that Concessionaire shall have vacated and surrendered possession of the Premises to the City in the condition required under this Agreement, paid all Rentals and performed all other accrued obligations hereunder through the effective date of such termination, the City shall pay to Concessionaire a sum equal to net book value of Cost of Fixed Improvements. In order to obtain any funds from the City, at a minimum, Concessionaire must have furnished to the Director in accordance with Section 6.01 (f), all such relevant information concerning the net book value of the Cost of Fixed Improvements. The following will be considered the net book value of the Cost of Fixed Improvements: (i) the unamortized balance of reasonable amounts paid by the Concessionaire for the construction and installation of Fixed Improvements upon the Premises; (ii) the unamortized balance of reasonable amounts paid by the Concessionaire to extend utility lines into the Premises; and (iii) the unamortized balance of reasonable sums paid to external architects, engineers, surveyors, and construction managers in connection with the design, development and construction of Fixed Improvements upon the Premises. For purposes of this Agreement, the Concessionaire’s Cost of Fixed Improvements shall be amortized by Concessionaire, depreciated monthly, using the straight-line method, over a period beginning with each location’s Rental Commencement Date through the seventh (7th) anniversary of the first Lease Year or over the useful life of each Fixed Improvement in accordance with GAAP, whichever period is shorter.
(c) Such payments under Sections 7.04(a) or (b) shall be in lieu of any claims, causes of actions, suits, or damages that Concessionaire may have as a result of its use and occupancy of the Premises, including, without limitation, any and all rights and/or awards under any applicable Federal or state law.
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