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HomeMy WebLinkAboutR-2017-096 Off Airport Car Rental Agreement with EAN Holdings, LLC dba Enterprise Rental CarA RESOLUTION RESOLUTION NO. R-2017-096 authorizing the execution of an Off Airport Car Rental Agreement with EAN Holdings, LLC dba Enterprise Rental Car at the Yakima Air Terminal -McAllister Field WHEREAS, The City owns and operates Yakima Air Terminal -McAllister Field in accordance with applicable Federal, State and Local regulations, and WHEREAS, car rental services at the Yakima Air Terminal -McAllister Field are essential to provide convenient and responsive ground transportation for passengers arriving at and departing from the airport; and WHEREAS, the City Council has determined that approval of the Off Airport Car Rental Agreement attached hereto and incorporated herein by this reference will promote the purposes of the Yakima Air Terminal -McAllister Field, will promote convenient and responsive ground transportation services for the travelers coming to and departing from Yakima, and is in the best interests of residents of the City, Now, Therefore BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized and directed to execute and administer the attached and incorporated Off Airport Car Rental Agreement with EAN Holdings, LLC dba Enterprise Rental Car, to meet the transportation requirements of the public who utilize the Yakima Air Terminal -McAllister Field and associated aviation services ADOPTED BY THE CITY COUNCIL this 1st dayof Au•ust, 2017 '' ATTEST qf ft/Q/00264A , ,,,,,r,,,, , v SonyaClear Tee, City Clerk : A. S `, : Kathy OFF AIRPORT CAR RENTAL AGREEMENT EAN HOLDINGS, LLC dba: ENTERPRISE RENT -A -CAR THIS AGREEMENT, executed this .2. g/4 day of -,r5-L, / , 2017, between the YAKIMA AIR TERMINAL - McALLISTER FIELD, A departrvient of the City of Yakima, Washington, hereinafter referred to as "LESSOR," and EAN HOLDINGS, LLC, a Delaware Limited Liability Company dba: Enterprise Rent-A-Car hereinafter referred to as "OPERATOR" WITNESSETH: WHEREAS, LESSOR operates the Yakima Air Terminal - McAllister Field, 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. 1. CONCESSION RIGHTS GRANTED: 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. OPERATOR shall not conduct any other business at the Airport without the prior written consent of the LESSOR. OPERATOR shall conduct said off Airport rental car business in a first-class manner continuously during the entire term of this Agreement. OPERATOR agrees it will 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 Airport. Lease\Enterprise 2017 — Car Rental Agreement 1 It is understood and made a specific condition of this Agreement that the 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 Revenues" shall mean all monies paid or payable to the OPERATOR as time and mileage charges, or like charges 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 - McAllister Field. "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 or solicit on the Airport premises. 3. TERM: The term of this Agreement shall commence on August 1, 2017 and shall continue thereafter on a month to month basis until terminated by either party on thirty (30) days prior written notice 4. RENTS AND FEES: OPERATOR promises and agrees to pay LESSOR a percentage fee equal to ten percent (10%) of gross monthly rental revenues, as defined herein, payable on the tenth day of each month for the preceding month's receipts. 5. ADDITIONAL OBLIGATIONS OF OPERATOR: 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. Lease\Enterprise 2017 — Car Rental Agreement 2 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 except through the use of approved signs as defined in Section 8 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 - McAllister Field Airport Security Plan as amended from time to time. Any fines assessed against the LESSOR by the Federal Aviation Administration or Transportation Security Administration 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 LESSOR by the OPERATOR. F. The LESSOR 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 LESSOR determines that OPERATOR has failed to comply with the requirements hereunder with respect to the quality and adequacy of its services, the LESSOR may, upon thirty (30) days written notice, exercise its right to terminate this Agreement as per Section 14, contained herein However, the LESSOR 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 Section 1 92 040 for off -airport rental car business activity. Lease\Enterprise 2017 — Car Rental Agreement 3 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 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 use thereof. OPERATOR agrees to indemnify LESSOR and shall hold LESSOR harmless from any such taxes and liens 7. USE: 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 LESSOR to withhold approval or consent to assignment. 8. SIGNS: No signs or other advertising matter or devices shall be used or displayed in or about the premises or upon any portion of the Airport without the prior written approval of the Airport Manager, which approval shall not be unreasonably withheld 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 LESSOR, 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 Lease\Enterprise 2017 — Car Rental Agreement 4 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 LESSOR 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 LESSOR shall not be construed to be a consent to any subsequent assignment. 11. MISCELLANEOUS PROVISIONS: A. The parties agree that LESSOR, 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. LESSOR reserves the right to take any action necessary or desirable by LESSOR to protect the operations of the Airport against obstruction, or any other 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, LESSOR 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. This Agreement shall be subordinate to the provisions of any existing or future agreement between LESSOR 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. Lease\Enterprise 2017 — Car Rental Agreement 5 12. INDEMNITY/DUTY TO DEFEND: A. At no expense to LESSOR, OPERATOR shall defend against and indemnify fully and save harmless the LESSOR of the Yakima Air Terminal - McAllister Field, the Yakima Air Terminal - McAllister Field the City of Yakima and its elected and appointed officials, employees and agents, from any and all liability, damages, suits, claims, actions, judgements or decrees, made against the Yakima Air Terminal - McAllister Field, the City of Yakima and its 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 leased 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 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 LESSOR, its agents or employees LESSOR 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. OPERATOR agrees to reimburse LESSOR for any damage to the premises caused by the occupancy and/or use of OPERATOR, its employees, agents, servants, invitees, independent contractors or any other person acting on behalf of OPERATOR or under its direction. C. LESSOR 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 at the inception of this Agreement and the introduction to the premises of such materials due to LESSOR 'S activities or under its control. D. OPERATOR shall keep and hold the LESSOR of the Yakima Air Terminal - McAllister Field, the Yakima Air Terminal - McAllister Field, the City 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, 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 Lease\Enterprise 2017 — Car Rental Agreement 6 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 LESSOR a certificate of insurance, or other proof of insurance acceptable to LESSOR, evidencing an insurance policy with the Yakima Air Terminal - McAllister Field, the City 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 LESSOR, must be supplied to LESSOR 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 LESSOR 14. DEFAULT, TERMINATION & FORFEITURE: A. The failure by OPERATOR to pay fees in the amounts and at the times specified herein, or the failure by OPERATOR to otherwise comply with any term, provision or condition of this Agreement, shall constitute grounds for termination of this Agreement and forfeiture of all fees paid by OPERATOR to the time of termination This Agreement shall terminate and fees paid shall be forfeited for cause as specified above on written notice by LESSOR to OPERATOR stating the amount of fees in default or otherwise stating accurately the manner in which OPERATOR fails or has failed to comply with this Agreement. OPERATOR shall make full payment or otherwise comply with this Agreement in the manner specified in the notice within thirty (30) days (except three (3) days for payment of rent) from OPERATOR's receipt of such notice, otherwise this Agreement and tenancy shall Lease\Enterprise 2017 — Car Rental Agreement 7 be terminated and rent forfeited Such notice shall be given in writing and served on OPERATOR by personal delivery or mailed by certified mail with return receipt requested addressed to OPERATOR at its address stated below OPERATOR's signature to this Agreement or such other address as the parties may advise each other in writing It is further agreed that after receipt of notices and as an additional condition to avoid forfeiture, OPERATOR shall pay LESSOR 's costs and expenses, including attorney's fees, for the preparation and service of such notice Nothing contained herein shall release or diminish OPERATOR's obligation to pay rent for the full term of this Agreement save such amount as LESSOR recovers from any subsequent Operator during the term of this Agreement. Notices shall be deemed received three (3) days after mailing to OPERATOR at the address below OPERATOR's signature to this Agreement or such other address as the parties may advise each other in writing. B. As additional and not alternative remedy, optional with LESSOR and upon thirty (30)days written notice to OPERATOR, should OPERATOR be in default hereunder other than default in the payment of said fees, LESSOR may cure or correct the same and the cost of such action by LESSOR 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 LESSOR to invoke the other remedies as provided in this Agreement. C. Upon termination of this Agreement for any reason, OPERATOR shall immediately discontinue services. 15. INSOLVENCY: This Agreement and the tenancy hereby created shall absolutely terminate, without prejudice to any remedies which might otherwise be available to LESSOR 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 a court of competent jurisdiction in Yakima County, Washington The prevailing party shall be entitled to its reasonable attorney fees in addition to court costs. Lease\Enterprise 2017 — Car Rental Agreement 8 17. NON-DISCRIMINATION CLAUSE: 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 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 under Airport 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. Lease\Enterprise 2017 — Car Rental Agreement 9 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. LESSOR agrees that it will not discriminate against any business 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 20. TIME OF ESSENCE: It is mutually agreed that time is of the essence in the performance of all covenants and conditions to be kept and performed under the terms of this Agreement. Lease\Enterprise 2017 — Car Rental Agreement 10 LESSOR: YAKIMA AIR TERMINAL - McALLISTER FIELD 2406 West Washington Avenue, Suite B Yakima, Washington 98903 (509) 575-6149 (509) 575-6185 (fax) Cliff Moore, Manager STATE OF WASHINGTON County of Yakima CITY CONTRACT NO: 2o' RESOLUTION NO:I�DD- -2 J/ 7 -096 I certify that I know or have satisfactory evidence that Cliff Moore signed this instrument, on oath stated that they were authorized to execute the instrument and acknowledged it as the City Manager to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Date By. Notary Pu.lic Appointment Expires / - / z - �a - -ao/7 Notary Public State of Washington KAARRE ALLYN MY COMMISSION EXPIRES January 12, 2020 Lease\Enterprise 2017 — Car Rental Agreement 11 OPERATOR: EAN HOLDINGS, LLC 1119 SW 7th Street Renton, WA 98057 (509) 248-6767 Yakima (509) 727-3479 Troy Kiemo Regional Vice President 728-1 7 Date STATE OF WASHINGTON County of Yakima I certify that I know or have satisfactory evidence that I—} A,,, Aa signed this instrument, on oath stated that he was authorized to' execute the instrument and acknowledged it as the Iz,u e of EAN Holdings, LLC Rent-A-Car of Yakima to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Date -21 c-01 > z.) By: 2LK� Notary Public - y Appointment Expires l b /) / f 7 Lease\Enterprise 2017 — Car Rental Agreement 12 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDASTATEMENT 1 Item No. 6.H. For Meeting of: August 1, 2017 ITEM TITLE: Resolution authorizing agreement with EAN Holdings, LLC dba Enterprise Rent-A-Car at the Yakima Air Terminal -McAllister Field for off airport car rental SUBMITTED BY: Robert K. Peterson, Airport Director, 509-575-6149 SUMMARY EXPLANATION: The Yakima Air Terminal -McAllister Field hosts a variety of businesses at the airport to provide passengers and the residents of the Yakima Valley critical services. One of these services are Rental Car agencies which provide ground transportation to passengers arriving in the Yakima Valley. In order to continue this significant service, agreements must be updated and renewed periodically to better align the agency's mission with the community's needs. EAN Holdings, LLC, dba Enterprise Rent -A -Car's agreement is due for renewal to continue their services at the Yakima Airport. Compensation to the airport is based on the industry standard which is 10% gross revenues from vehicles leased at the airport. ITEM BUDGETED: STRATEGIC PRIORITY: APPROVED FOR SUBMITTAL: STAFF RECOMMENDATION: Adopt Resolution BOARD/COMMITTEE RECOMMENDATION: N/A ATTACHMENTS: Yes NA City Manager Description D Resolution D Car Rental Agreement Upload Date 7/14/2017 7/13/2017 Type Resolution Contract 2