HomeMy WebLinkAboutEAN Holdings LLC - Enterprise Rent-A-Car - Off Airport Car Rental AgreementLqL1 "A=&*V 0:411MATE":
THIS AGREEMENT, executed this 20TH day of November, 2008, between the YAKIMA
AIR TERMINAL - McALLISTER FIELD, an agency of the City of Yakima and County of
Yakima, Washington, hereinafter referred to as "BOARD," and ENTERPRISE LEASING
COMPANY, a Washington corporation d/b/a Enterprise Rent-A-Car, hereinafter referred to
as "OPERATOR":
WHEREAS, BOARD operates the Yakima Air Terminal - McAllister Field, under the
authority granted by the Joint Operations Agreement signed by the City and County of
Yakima, July 1, 1982, hereinafter referred to as "Airport," and
WHEREAS, car rental services at the Airport are essential for proper ground transportation
of passengers arriving at and departing from the Airport,
NOW THEREFORE, in consideration of the concession rights granted herein and the
mutual covenants and agreements hereinafter contained, the parties hereto agree, for
themselves, their successors and assigns, as follows:
OPERATOR is hereby awarded a concession to operate an off airport rental car
business at the Airport for the sole purpose of loading and unloading customers with
bona fide reservations for rental cars (YMC 1,92.040(12). OPERATOR shall not
conduct any other business at the Airport without the prior written consent of the
BOARD.
OPERATOR shall conduct said off Airport rental car business in a first-class manner
continuously during the entire term of this Agreement. OPERATOR agrees !twill not
disturb the Airport or any other tenant, or person using the Airport, make or permit
any disturbance or any unusual noise, vibration or other condition on or at the
Ai rpo rt.
It is understood and made a specific condition of this Agreement that the
Lease\Enterprise 08— Car Rental Agreement 1
OPERATOR is the holder of a license, franchise, agency agreement or other form of
consent from Enterprise Rent-a-Car and shall do business at the Airport under the
trade name and style of that company.
2. DEFINITIONS:
The following terms and phrases shall have the following meanings for purposes of
this Agreement:
Gross Automobile Rental Revenue" means only the time and mileage charges and
sums received by the OPERATOR from its customers for all vehicles rented from
the air terminal, it being understood that such gross receipts include only receipts
derived from the rental of automobiles to passengers picked up at the Yakima Air
Terminal (YMC 1.92,040(10)).
For consistency with other tenants and to meet the intent of YMC 1.92.040(10),
"time and mileage charges and sums received" shall mean the time and mileage
charges including any upgrades, however, it shall specifically exclude the following:
CFCs (if any), fuel, carbon offsets, concession fee revenue (if any), damage
waivers, personal effects coverage, personal accident insurance, supplemental
liability protection, amenities including, but not limited to GPS, satellite radio, and
child/infant seats, parking tickets, tolls, towing, impound fees, traffic tickets, taxes
and fees, and loss/conversion/abandonment/salvage,
"Rental Car" or "Motor Vehicles" shall mean motor vehicles designed primarily for
the carriage of passengers and commonly classified as sedans, coupes,
convertibles, station wagons, four-wheel drive vehicles, passenger vans, sports
utility vehicles, 15 passenger vans, moving trucks. OPERATOR shall not park, store
or lease vehicles on the Airport premises.
3. TERM:
The term of this Agreement shall commence on December 1, 2008 and terminate on
November 30, 2009, unless otherwise terminated as provided for herein.
OPERATOR promises and agrees to pay a percentage fee equal to ten percent
(10%) of Gross Automobile Rental Revenue per month, as defined herein, payable
Lease\Enterprise 08— Car Rental Agreement 2
on the tenth day of each month for the preceding month's receipts (YMC 1.92.040
(6)). OPERATOR may pass through the ten percent (10%) fee to its rental car
customers as follows- OPERATOR shall list separately on any customer rental
agreements, contracts or invoices, the percentage fee payable by OPERATOR to
BOARD for concession privileges under this Agreement. OPERATOR agrees that
at no time will the percentage fee passed through to the customer exceed eleven
and eleven one-hundredths percent {11.11 %),
The OPERATOR hereby covenants and agrees:
A. To furnish prompt, efficient, first-class rental car service which is adequate to
meet all reasonable demands for its operation at the Airport.
B. That the rental cars used by the OPERATOR at the Airport shall be maintained,
at the OPERATOR'S sole expense, in good, safe and operative order, free from
known mechanical defects, and in a clean, neat and attractive condition, inside and
outside.
C. That the personnel performing services at the Airport shall be neat, clean and
courteous. The OPERATOR shall not permit its agents, servants or employees to
conduct business in a loud, noisy, boisterous, offensive or objectionable manner, or
to solicit business at the Airport in any manner whatsoever (YMC 1.92,040 (12)).
D. That it will meet all expenses in connection with its operation at the Airport, and
the rights and privileges herein granted, including, without limitation by reason of
enumeration, taxes, permit fees, license fees and assessments lawfully levied or
assessed upon the OPERATOR, and that it will secure all such permits and
licenses.
E. That it will comply with the rules and practices as set forth in the current Yakima
Air Terminal Security Plan as amended from time to time. Any fines assessed
against the BOARD by the FAA or TSA as a result of the OPERATOR's failure to
comply with the provisions of this paragraph or other intentional or negligent acts or
omissions of OPERATOR, its employees or agents will be paid promptly upon
demand to the BOARD by the OPERATOR.
F. The BOARD shall be the sole and final judge of the quality and the adequacy of
the services furnished by the OPERATOR as specified herein. In the event the
Lease\Enterprise 08— Car Rental Agreement 3
BOARD determines that OPERATOR has failed to comply with the requirements
hereunder with respect to the quality and adequacy of its services, the BOARD shall
issue a notice to OPERATOR, detailing noncompliance and providing for thirty (30)
clays to cure such noncompliance. However, the BOARD may, in its discretion,
extend the time for compliance if, in its opinion, the OPERATOR is making
reasonable progress in complying with the requirements of this Agreement.
G. This agreement shall follow the rules and regulations of the Yakima Municipal
Code 1.92.040 for Off- airport rental car business activity.
6. TAXES AND LIENS:
In addition to the rent and fees payable above, OPERATOR promises and agrees to
pay, as the same become due and payable, all licenses, fees and taxes, including
but not limited to the leasehold excise, required to be paid by OPERATOR by
reason of this Agreement and by reason of OPERATOR's use and occupancy of the
premises and by reason of OPERATOR's construction or ownership of
improvements to the premises. OPERATOR shall neither suffer nor permit the
attachment of any lien or other encumbrance to the premises by reason of
OPERATOR's occupancy thereof. OPERATOR agrees to indemnify BOARD and
shall hold BOARD harmless from any such taxes and liens.
OPERATOR shall use and occupy the premises solely for the purpose of
maintaining and conducting a non - exclusive commercial rental car, van and truck
operation, as defined herein. Any occupancy, use, activity, display or product not
specifically permitted herein shall be and is hereby prohibited. The use of the
property for any other purpose shall be deemed a material breach of this Agreement
constituting grounds for its termination. This provision shall apply to any assignment
of this Agreement, whether voluntary or due to mortgage foreclosure or for any other
reason. Failure of the assignee to comply with this Section shall be reasonable
cause for BOARD to withhold approval or consent to assignment.
8. SIGNS:
OPERATOR shall not erect or display any signs that would constitute an
appearance of solicitation or advertisement for business (YMC 1.92.040 (12).
Lease\Enterprise 08— Car Rental Agreement 4
9. REGULATIONS:
OPERATOR agrees to comply with all applicable laws, ordinances, rules,
regulations and policies of all governmental authorities having jurisdiction over the
Airport, including policies adopted by BOARD, as such laws, ordinances, rules,
regulations and policies apply to the use and operation of Airport property, facilities
and operations as those laws, ordinances, rules, regulations and policies now exist
or may hereafter become effective. OPERATOR further agrees to accept
responsibility for not allowing unauthorized persons access to the Airport Operations
Area (AOA). The OPERATOR shall obtain and keep in force all permits required by
law for operation of the rental car business.
10. ASSIGNMENT:
OPERATOR shall not assign this Agreement without the prior written approval of
BOARD, such approval not to be unreasonably withheld. Such assignment shall be
in conformance with all applicable Airport, local, state and federal laws, ordinances,
rules, regulations and policies. OPERATOR shall give preference to aeronautical
activities and all assignees shall comply with all laws, ordinances, rules, regulations
and policies applicable to the use and operation of Airport property, facilities and
operations as those laws, ordinances, rules, regulations and policies now exist or
may hereafter become effective. Consent to assignment by BOARD shall not be
construed to be a consent to any subsequent assignment. Consent to assignment
shall not be required, but only notice of any assignment if to an entity which is wholly
owned by OPERATOR'S parent company. In such event, OPERATOR shall provide
not less than thirty (30) days notice of such assignment.
11. MISCELLANEOUS PROVISIONS:
X The parties agree that BOARD, through its Airport Manager or other person
reserves the right, but shall not be obligated to OPERATOR, to maintain and keep in
repair the Terminal area of the Airport and all publicly owned facilities of the Airport,
together with the right to direct and control all activities of OPERATOR in that
regard.
B. BOARD reserves the right to take any action necessary or desirable by
BOARD to protect the operations of the Airport against obstruction, or any other
Lease\Enterprise 08— Car Rental Agreement 5
activity interfering with the efficient operation of the Airport, together with the right to
prevent OPERATOR from erecting, or permitting to be erected, any building or other
structure on the Airport which, in the opinion of the Airport Manager, would limit the
usefulness of the Airport or constitute a hazard to aircraft.
C. During time of war or national emergency, BOARD shall have the right to lease
the Terminal area or any part thereof to the United States of America for military
use, and, if any such lease is executed, the provisions of this Agreement shall be
suspended insofar as they are inconsistent with the provisions of the lease
agreement with the United States of America.
D. If either BOARD or OPERATOR is delayed or hindered in or prevented from
performing any act or obligation called for by this Lease by reason of strikes,
lockouts, unavailability of materials, failure of power, restrictive governmental laws or
regulations, riots, insurrections, war or other reason beyond its control, then
performance of such act or obligation will be excused for the period of the delay and
the period for the performance of such act or obligation will be extended for a period
equivalent to the period of the delay.
E. This Agreement shall be subordinate to the provisions of any existing or future
agreement between BOARD and the United States of America relative to the
operation or maintenance of the Airport, the execution of which has been or may be
required as a condition to the expenditure of federal funds for the development of
the Airport,
A. At no expense to BOARD, OPERATOR shall defend against and indemnify fully
and save harmless the BOARD of the Yakima Air Terminal - McAllister Field, the
Yakima Air Terminal - McAllister Field, the City of Yakima and Yakima County and
their elected and appointed officials, employees and agents, from any and all
liability, damages, suits, claims, actions, judgements or decrees, made against the
BOARD of the Yakima Air Terminal - McAllister Field, the Yakima Air Terminal -
McAllister Field, the City of Yakima or Yakima County or their elected and appointed
officials, employees and agents, including all expenses incidental to the investigation
and defense thereof, including reasonable attorney fees, based on or arising from
the occupancy or use of the premises by OPERATOR or as a result of
OPERATOR'S operations at the Airport or from any other act or omission of
OPERATOR, its servants, employees, agents, invitees, independent contractors or
any other entity, person, firm or corporation acting on behalf of OPERATOR or
Lease\Enterprise 08— Car Rental Agreement 6
under its direction, whether such claim shall be by OPERATOR or a third party;
provided, however, that OPERATOR shall not be liable for any injury, damage or
loss occasioned solely by the negligence of BOARD, its agents or employees.
BOARD shall give to OPERATOR prompt and reasonable notice of any such claims
or actions and OPERATOR shall have the right to investigate, compromise and
defend the same to the extent of its interest.
B. At no expense to OPERATOR, BOARD shall defend against and indemnify fully
and save harmless the OPERATOR and its officers, employees and agents, from
any and all liability, damages, suits, claims, actions, judgments or decrees, made
against the OPERATOR and its officers, employees and agents, including all
expenses incidental to the investigation and defense thereof, including reasonable
attorney fees, based on or arising from the negligence, wrongful act or omission, or
willful misconduct of BOARD, its servants, employees, agents invitees, independent
contractors or any other entity, person, firm or corporation acting on behalf of
BOARD or under its direction, whether such claim shall be by BOARD or a third
party; provided, however, that BOARD shall not be liable for any injury, damage or
loss occasioned solely by the negligence of OPERATOR, its agents or employees.
OPERATOR shall give to BOARD prompt and reasonable notice of any such claims
or actions and BOARD shall have the right to investigate, compromise and defend
the same to the extent of its interest,
C. OPERATOR agrees to reimburse BOARD for any damage to the premises
caused by the occupancy of OPERATOR, its employees, agents, servants, invitees,
independent contractors or any other person acting on behalf of OPERATOR or
under its direction.
D. BOARD agrees to defend, indemnify and hold OPERATOR harmless against
and from any claim or liability arising from or alleged to arise from the presence of
hazardous material or toxic waste on the subject premises and the introduction to
the premises of such materials due to BOARD'S activities or under its control.
BOARD represents and warrants to OPERATOR that as of the date hereof no
underground storage tanks or related piping exist at the Premises: the Premises is in
full compliance with all state and Federal environmental laws, rules, and regulations;
and BOARD has received no notice of Hazardous Materials originating on or outside
of the Premises which affect the Premises.
E. OPERATOR shall keep and hold the BOARD of the Yakima Air Terminal -
McAllister Field, the Yakima Air Terminal - McAllister Field, the City of Yakima and
County of Yakima, their elected and appointed officials, agents and employees, free
and harmless from any and all claims and actions, loss, damage, expense or cost,
Lease\Enterprise 08— Car Rental Agreement 7
including reasonable attorneys fees, incidental to the investigation and defense
thereof, resulting from, arising out of, or caused by OPERATOR resulting in any
liability under the Federal Comprehensive Environmental Response Compensation
Liability Act of 1980, as amended, 42 U.S.C, 9601 et seq.; Hazardous Materials
Transportation Act, 49 U.S.C. 1801 et seq.; Resource Conservation and Recovery
Act, 42 U.S.C. 6901 et seq.; the Clean Water Act, 42 U.S.C. 1251 et seq.; the
Washington Environmental Policy Act, RCW Ch, 43.21C; the Washington Water
Pollution Control Act, RCW Ch. 90.48; the Washington Hazardous Waste
Management Act, RCW Ch. 70.105; the Washington Model Toxic Control Act, RCW
Ch. 70-105D, and the regulations promulgated thereunder, or under any applicable
local or state environmental ordinance, statute, law, rule or regulation. The
provisions of this Sub-section shall survive the termination of this Agreement,
13. INSURANCE:
OPERATOR shall file with BOARD a certificate of insurance, or other proof of
insurance acceptable to BOARD, evidencing an insurance policy with the Yakima Air
Terminal - McAllister Field, the City of Yakima and County of Yakima as additional
insureds providing.,
1. Comprehensive general liability insurance coverage in amounts of not less
than $1,000,000 Combined Single Limit covering all business operations,
employees and customers and all activities pertaining to the Airport.
Not less than 30 days written notice, or other such time period as may be
acceptable to BOARD, must be supplied to BOARD in the event of cancellation,
material change to the policy or non-renewal of any or all policies. Certificate shall
be issued by carrier(s) with a minimum A.M. BEST rating of A-VII which are
admitted in the State of Washington or other such carriers as shall be acceptable to
BOARD.
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A. The occurrence of any of the following will be an event of default on the part of
OPERATOR:
(i) Nonpayment. Failure to pay any amount payable by OPERATOR to BOARD
when due, such failure continuing for a period of ten (10) days following
Lease\Ente rp rise 08— Car Rental Agreement 8
OPERATOR'S receipt of written notice of such failure;
(ii) Other Obligations. Failure to perform any obligation of OPERATOR under
this Agreement other than those matters specified in subsection (i) hereof, such
failure continuing for thirty (30) days following OPERATOR'S receipt of written notice
of such failure, or, if it is not reasonably possible to cure such failure to perform
within thirty (30) days, for such additional time as may be reasonably necessary,
provided OPERATOR commences the cure within the thirty (30) day period and
thereafter proceeds diligently to complete the cure.
B. As additional and not alternative remedy, optional with BOARD and upon thirty
(30) days written notice to OPERATOR, should OPERATOR be in default hereunder
other than default in the payment of said fees, BOARD may cure or correct the
same and the cost of such action by BOARD shall immediately become due and
payable from OPERATOR, together with late fees on said sum at a rate of twelve
percent (12%) per annum, and the non-payment of said sum by OPERATOR shall
be adequate grounds for BOARD to invoke the other remedies as provided in this
Agreement.
C. Upon termination of this Agreement for any reason, OPERATOR shall
immediately discontinue services.
ir- IMIIOMTM
This Agreement and the tenancy hereby created shall absolutely terminate, without
prejudice to any remedies which might otherwise be available to BOARD for
collection of past due or future rent.)
16. VENUE, ATTORNEY FEES:
In the event of litigation to enforce the rights and obligations hereunder, venue shall
lie in Yakima County Superior Court, and the prevailing party shall be entitled to its
reasonable attorney fees in addition to court costs.
M 'I -I I, Jiff M-1
01,1301RIGI: T
To the extent required by law, OPERATOR, for itself, its personal representative,
successors in interest and assigns, as a part of the consideration hereof, does
Lease\Enterprise 08— Car Rental Agreement 9
hereby covenant and agree as follows:
A. No person, on the grounds of race, color, religion, sex, age, marital status,
handicap or national origin, shall be unreasonably excluded from participation in,
denied the benefits of, or be otherwise subjected to discrimination in OPERATOR's
personnel policies and practices or in the use or operation of OPERATOR's services
or facilities.
B. OPERATOR agrees that in the construction of any improvements on, over or
underAirport land and the furnishing of services thereon, no person, on the grounds
of race, color, religion, sex, marital status, handicap, age or national origin, shall be
unreasonably excluded from participation in, denied the benefits of, or otherwise be
subjected to discrimination.
C. OPERATOR 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, Non-discrimination 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.
D. It is the policy of the Department of Transportation that minority business
enterprise as defined in 49 CFR Part 23, i.e., firms owned and controlled by
minorities; firms owned and controlled by women and firms owned and controlled by
financially disadvantaged persons; shall have the maximum opportunity to
participate in the performance of leases as defined in 49 CFR Section 23.5.
Consequently, this Agreement is subject to 49 CFR Part 23 as applicable.
OPERATOR hereby assures that no person shall be excluded from participation in,
denied the benefits of or otherwise discriminated against in connection with the
award and performance of any contract, including leases, covered by 49 CFR Part
23 on the grounds of race, color, national origin or sex.
OPERATOR hereby assures that it will include the above clauses in all sub-leases
and cause SUB-OPERATORS to similarly include clauses in further sub-leases.
18. DISADVANTAGED BUSINESS ENTERPRISES:
A. CONCESSIONAIRE OBLIGATION: This Agreement is subject to the
requirements of the U. S. Department of Transportation's regulations, 49 CFR Part
23, Subpart F. BOARD agrees that it will not discriminate against any business
Lease\E nterp rise 08— Car Rental Agreement 10
owner because of the owner's race, color, national origin or sex in connection with
the award or performance of any concession agreement covered by 49 CFR Part 23
Subpart F.
19. INTEGRATION:
This document embodies the entire Agreement between the parties with respect to
the subject matter herein contained. No amendments or modifications hereof shall
be enforceable unless in writing, signed by the party to be charged.
M Board will not claim or have a lien of any kind, be it contractual or statutory, on or
against OPERATOR'S motor vehicles for non-payment of Rent, default by
OPERATOR or any other reason, and the BOARD hereby waives all such liens
available to the BOARD.
Time is of the essence of this entire Agreement.
Lease\Enterprise 08— Car Rental Agreement 11
q*_y__U9
YAKIMA AIR TERMINAL • McALLISTER FIELD
2400 W. Washington Avenue
Yakima, Washington 98903
(509) 575-6149 - phone
(509) 575-6185 - fax
William Wheeler, Chairman
STATE OF WASHINGTON
County of Yakima A
I certify that I know or have satisfactory evidence that William Wheeler and Le&F-" signed
this instrument, on oath stated that they were authorized to execute the instrument and
acknowledged it as the Chairman and the respectively of the Board of the
Yakima Air Terminal -McAllister Field to be the free a d voluntary act of such party for the
uses and purposes mentioned in the instrument.
I r-eatj'G.c r cp-
Date
By:
Notary Public,,/'
Appointment Expires
ob
Lease\Enterprise 08— Car Rental Agreement 12
0. .- 0.
Enterprise Leasing Company, a Washington Corporation
1119 SW 7" St.
Renton, WA 98057
(425) 228-7650 Group Office
(509) 735-2061 Area Manager
(425) 228-8858 Group Office Fax
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U 1 T ( F!'-""
County of Yakima I
1 certify that I know or have satisfactory evidence thaq�<10,lt4 � 416A�fg"n�-e% this
instrument, on oath stated that he was authorized to execute the instrument and
acknowledged it as the
?/V of Enterprise Rent-A-Car of Yakima to be the free
and voluntary act of such party for the uses and purposes mentioned in the instrument.
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Lease\Enterprise 08- Car Rental Agreement 13
AMENDMENT#1
OFF AIRPORT CAR RENTAL AGREEMENT
EAN HOLDINGS, LLC
dba: ENTERPRISE RENT-A-CAR
THIS AGREEMENT, executed this day of _jVQ2
�J, 2010, between the
YAKIMA AIR TERMINAL - McALLISTER FIELD, an agency of the City of Yakima and
County of Yakima, Washington, hereinafter referred to as "BOARD," and EAN
HOLDINGS, LLC, a Delaware Limited Liability Company dba: Enterprise Rent-A-Car
hereinafter referred to as "OPERATOR":
W I T N E S S E T H:
WHEREAS, BOARD operates the Yakima Air Terminal - McAllister Field, under the
authority granted by the Joint Operations Agreement signed by the City and County of
Yakima, July 1, 1982, hereinafter referred to as "Airport," and
WHEREAS, car rental services at the Airport are essential for proper ground
transportation of passengers arriving at and departing from the Airport,
NOW THEREFORE, in consideration of the concession rights granted herein and the
mutual covenants and agreements hereinafter contained, the parties hereto agree, for
themselves, their successors and assigns, as follows:
Each party acknowledges that this is a new amendment to the underlying Agreement
dated December 1, 2008 between the LESSOR and the LESSEE, and that this
amendment supersedes and replaces all prior amendments. As used herein,
"underlying Agreement" is defined as the Operating Agreement dated December 1,
2008 and absent any amendment later released. The Lease in effect at any given time
is defined by the underlying Agreements and all active amendments.
This amendment is effective May 1, 2010 through April 30, 2013.
Name change from ENTERPRISE RENT-A-CAR OF YAKIMA, a Washington
corporation to EAN HOLDINGS, LLC, a Delaware Limited Liability Company dba:
Enterprise Rent-A-Car.
14:4 TA A
The term of this Amendment shall commence on May 1, 2010 and terminate on
April 30, 2013, unless otherwise terminated as provided for herein.
Enterprise 2008 Amend #1 Page 1 of 2
LESSOR:
YAKIMA AIR TERMINAL - McALLISTER FIELD
2•00 W. Washington Avenue
Yakima, Washington 98903
(509) 575-6,1,jjL_Q__phQr_,�....
STATE OF WASHINGTON
County of Yakima
I
469 /t0
Date
I certify that I know or have satisfactory evidence that Mike Redmond signed this
instrument, on oath stated that he is authorized to execute the instrument and
acknowledged it as the Airport Manager of the Yakima Air Terminal - McAllister Field to
be the free and voluntary act of such party for the uses and purposes mentioned in the
instrument.
Date 4/ _/ (D
By: 01' ' UZ I Notary Public
Appojntmlo arps /1-Loav/1
LESSEE:
EAN HOLDINGS, LLC
Enterprise Rent-A-Car
1119 W 7t' St
Renton, WA 98057
Phone 403-532-3910
Fax 918-401-8156
, Vice President/General Manager
STATE OF WASHINGTON
County of
J0
JANVro
I
As"I
//2_40 -
Date