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EAN 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. �'l 91#1 d.AQW11111111 t#VT11 190000 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 111t71 tom, a Rich rd Thr her �VV�� I Dafe 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. A blic Appointment Expires 71,20 6 A c - "I// .......... �OTAR' NO, 112156 1 EXP, 07120109 (P �A C op W /I It 11111111 M 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