HomeMy WebLinkAboutResolution - 2018-R0108 - EAN Holdings Dba Alamo Rent A Car - 03/22/2018Resolution No. 2018-RO108
Item No. 6.9
March 22, 2018
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for
and on behalf of the City of Lubbock, an Agreement for On -Airport Rental Car Concession
Services at Lubbock Preston Smith International Airport, by and between the City of Lubbock and
EAN Holdings, LLC, dba Alamo Rent A Car, and related documents. Said Agreement is attached
hereto and incorporated in this resolution as if fully set forth herein and shall be included in the
minutes of the City Council.
Passed by the City Council on March 22, 2018
DANIEL M. POPE, MA OR
ATTEST:
Re ecca Garza, City Secre ary
APPROVED AS TO CONTENT:
Kelly Campbell, Executive Director of Aviation
First Assistant City Attorney
ccdocs./RES.LPSIA Rental Car Agreement.EAN Holdings, LLC dba Alamo Rent A Car
02.23.2018
Resolution No. 2018-RO108
THE STATE OF TEXAS §
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF LUBBOCK §
LEASE AGREEMENT
This Agreement (referred to herein as "Agreement") entered into by the City of Lubbock
(referred to herein as "City"), a Home Rule Municipality of Lubbock County, Texas, and EAN
Holdings, LLC, doing business at the Airport as Alamo Rent A Car (referred to herein as
"Lessee").
WITNESSETH
WHEREAS, City owns, controls, and operates the Lubbock Preston Smith International
Airport (referred to herein as "Airport"), situated at 5401 North Martin Luther King Boulevard,
Lubbock, Lubbock County, Texas, and has the authority to grant certain rights and privileges
with respect thereto, including those hereinafter set forth; and
WHEREAS, automobile rental services at the Airport are an integral part of the necessary
accommodations for ground transportation provided for passengers arriving at and departing
from the Airport in the promotion and development of air commerce and air transportation; and
WHEREAS, Lessee desires to make said automobile rental services available at the
Airport and is qualified and has the capacity to perform said services and to equip said facilities
for use in connection therewith, and further desires to lease certain space and obtain certain
rights and privileges with respect to the operation of an automobile rental service at the Airport
upon the terms and conditions hereinafter set forth;
NOW THEREFORE, for and in consideration of the mutual promises, covenants, terms,
and conditions, both general and special, as hereinafter set forth, City hereby grants to Lessee the
rights and privileges hereinafter described; Lessee agrees to accept the duties, responsibilities,
and obligations as hereinafter set forth; and the parties hereto, for themselves, their successors,
and assigns agree as follows:
ARTICLE ONE
LEASE OF DESCRIBED PREMISES
City, upon mutual execution of this Agreement, does lease and demise to Lessee, upon
the terms and conditions contained herein, the following premises located at the Airport ("Leased
Premises"):
A. CUSTOMER SERVICE COUNTER — Rental Car Counter locations as shown on Exhibit
"A", which is attached to this Agreement and incorporated herein.
B. READY/RETURN VEHICLE PARKING AREA — Rental Car Ready/Return Parking
Spaces as shown on Exhibit "B", which is attached to this Agreement and incorporated
herein.
C. QUICK TURNAROUND/SERVICE FACILITY — Rental Car Quick Turnaround/Service
Facility ("QTA") as shown on Exhibit "C", which is attached to this Agreement and
incorporated herein.
D. SERVICE FACILITY — Rental Car Service Facility at a location and of a size yet to be
determined by the City. Lessee understands and agrees that its Service Facility may be
relocated by the City to a temporary location to facilitate construction of the QTA.
E. LOCATION AND REALLOCATION.
Customer Service Counters - The location of Lessee's Customer Service Counter will not
be reallocated, however, the Airport reserves the right to relocate all the customer service
counters within the terminal building during the Term of the Agreement. At such time
the lessees are to select the relocated service counter location, the Lessee with the highest
Market Share (gross revenues paid to the Airport as a percentage of total gross revenues
paid to the Airport by all lessees) for the previous twelve (12) calendar months will be
offered the first choice of location. The lessee with the next highest Market Share will be
offered the next choice, and so on until all counters have been selected.
Ready/Return Lot — Effective as of the commencement of the third (3rd) Agreement year,
the ready/return spaces shall be reallocated by the Executive Director of Aviation of City
(referred to herein as "Director") and every two (2) years thereafter according to the
percentage derived by comparing the aggregate concession fees paid by each lessee
compared to the total of all concession fees paid by all lessees during the twelve (12)
months of the prior Agreement year, and only if the Market Share of any one or more
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lessees is 15% higher or lower compared to that lessee's individual Market Share at the
end of the first Agreement year (if such reallocation occurs at the commencement of
Agreement Year 3), and as compared to that lessee's Market Share in the most recent
prior reallocation in all subsequent reallocations.
QTA - The size and location of car wash and fuel island space in the QTA during the
Term of the Agreement will not be reallocated. Provided however, Lessee's vehicle
staging and storage space rows in the QTA shall be reallocated by the City every two (2)
Agreement years, in full row increments, and only if the Market Share of any one or more
lessees is 15% higher or lower compared to that lessee's individual Market Share at the
end of the first Agreement year for the first reallocation at the commencement of
Agreement Year 3, and as compared to that lessee's Market Share in the most recent prior
reallocation in all subsequent reallocations. For lessees that are owned/controlled by the
same company, the aggregate company concession fees paid will be used in calculating
Market Share for reallocation of QTA space. Each lessee involved in or affected by any
reallocation of ready/return spaces or QTA vehicle staging and storage rows as identified
in this section is solely responsible for the reallocation costs and expenses incurred as a
result of the reallocation.
ARTICLE TWO
TERM & HOLDOVER
The Term of this Agreement shall be for ten (10) years commencing on Semember 1,
2018 ("Commencement Date") and ending on August 31, 2028 ("Expiration Date"). Upon
mutual agreement by the parties, the Term of this Agreement may be extended for up to two (2)
additional five (5) year periods by mutual written agreement, no later than six (6) months prior to
expiration date of original Term or expiration of the first five (5) year extension, whichever
applies. Notwithstanding, the City reserves the right to re -negotiate terms of this Agreement and
the agreements of all other lessees effective at the commencement of the sixth (6`h) Agreement
year. In such event, City will notify Lessee no later than twelve (12) months prior to the
expiration of the fifth (5`h) Agreement year of its election to re -renegotiate the terms of this
Agreement. The terms subject to such renegotiation could include, but are not limited to, a
modified Minimum Annual Guarantee (MAG), a modified Percentage Fee, a modified definition
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il
of Gross Revenues, and Rents. Lessee hereby acknowledges and agrees that the City has advised
Lessee of the City's right and option to require the periodic re -opening of the business terms of
this Agreement for negotiation. If lessees representing more than fifty percent (50%) of the
Market Share for the previous twelve (12) months (the "Majority in Interest") and the City reach
agreement on proposed modified terms in connection with the renegotiation, those terms will
constitute terms of a renegotiated offer to all lessees subject to acceptance by the lessees, and
final approval by the parties. If the Majority in Interest and the City are unable to reach
agreement on the proposed modified terms, the City will have the right to reaffirm the terms of
this Agreement without revision, or to terminate this Agreement and the agreements of all other
lessees, in accordance with the Agreement. Upon the approval of any such changes, the City will
provide Lessee with either a copy of such changes or a restated agreement reflecting such
changes.
In the event Lessee remains in possession of the Leased Premises after the expiration of
this Agreement or any extension thereof, without the consent of the City and without any written
renewal or extension of the Agreement, such holding over shall not be deemed as a renewal or
extension of this Lease, and may be terminated at any time by the Director.
Notwithstanding any provision of this Article, this Agreement is subject to earlier
termination as set forth in Article Nine.
ARTICLE THREE
USE OF PREMISES
The Lessee is granted for the Term a non-exclusive privilege of conducting a transient
automobile rental service and for no other purpose, from the Leased Premises. The Lessee is
prohibited from operating vehicle sharing and/or valet service programs.
This Agreement is between the City and Lessee operating under one (1) brand name.
Brand names shall not be changed, substituted, or added during the Term of this Agreement.
Lessee agrees to confine parking of its rental vehicles within its Ready/Return Vehicle
Parking Area premises. Lessee is prohibited from parking its vehicles on any of the curbs,
entrance roads, or grass areas on Airport property. Lessee is prohibited from allowing Airport
patrons to park personal vehicles in any of Lessee's Ready/Return Vehicle Parking premises.
Lessee shall be responsible for compliance with the requirements and directives of the
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Transportation Security Administration, including but not limited to its "300 foot rule". Lessee's
rental vehicles parked in any of the Airport's public parking lots shall accrue charges in
accordance with current parking rates. The City has no obligation to detect or report Lessee's
vehicles parked in public parking lots.
ARTICLE FOUR
PRECENTAGE FEE, MAG, GROSS REVENUES, RENTS, RECORDS,
AND PAYMENTS
A. PERCENTAGE FEE AND MINIMUM ANNUAL GUARANTY
1. The Lessee shall pay to the City the greater of TEN PERCENT (10%) of Lessee's
annual gross revenue (hereinafter Lessee's "Percentage Fee") or Lessee's applicable
Minimum Annual Guarantee ("MAG") for each year during the Term of this Agreement.
Lessee's MAG for the first Agreement year is depicted on Exhibit '` ". For the second
Agreement year and for every Agreement year thereafter, the City will reset Lessee's
MAG to an amount equal to 85% of the Percentage Fee paid by the Lessee to the City for
the prior Agreement year, but in no event shall Lessee's MAG during the Term of the
Agreement be less than the MAG for the first Agreement year.
2. All payments must be received by the City on or before the twentieth (20t) day of each
month during the Term of this Agreement. Percentage Fee payments must be
accompanied by a verified statement containing an itemized summary of the preceding
month's gross revenue ("Monthly Gross Receipts Report"). All payments shall be made
to Lubbock Preston Smith International Airport, 5401 N. Martin Luther King Boulevard,
Unit 389, Lubbock, Texas 79403. Lessee shall pay City a late payment charge of five
percent (5%) of the total amount payable if payment is not received by City on or before
the 20' day of the month.
B. GROSS REVENUES DEFINED
As used herein, the term "Gross Revenue" shall mean the total amount actually charged
by Lessee for or in connection with the use of a vehicle and any additional services or
accessories contracted for, delivered, rented to, or picked up at the Airport, as shown on
the vehicle rental contract, regardless of where, how (cash, credit, or barter) or by whom
the payment is made or where the vehicle is returned. Unless revenues are expressly and
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particularly excluded from Gross Revenues under this Agreement, such revenues shall be
included in Gross Revenues. Revenues derived from sources similar but not identical to
those described herein shall also be included in Gross Revenues unless expressly
excluded by this Agreement.
1. Gross Revenues shall include, but not be limited to:
a) All time and mileage revenues.
b) A separate statement of and charge for the Percentage Fee on customer
invoices or rental agreements ("Recovery Fee"), provided that such Recovery
Fee meets all of the following conditions: (a) such Recovery Fee must be
titled "Concession Recovery Fee," "Concession Recoupment Fee" or such
other name first approved by the City in writing; (b) the Recovery Fee must be
shown on the customer rental agreement and invoiced with other charges (i.e.
.'above the tax line"); (c) the Recovery Fee as stated on the invoice and
charged to the customer shall be no more than eleven and eleven one
hundredths percent (1 1.1 1%) of Gross Revenues, specifically excluding from
Gross Revenues for purposes of this calculation the Recovery Fee; (d)
Concessionaire shall neither identify, treat, or refer to the Recovery Fee as a
tax, nor imply that the City is requiring the pass through of such fee;
c) All revenues from the sale of liability damage waiver, collision damage
waiver, personal accident insurance, or any waiver or other insurance
products.
d) All revenues relating to furnishing and/or replacing fuel provided by Lessee at
the commencement or conclusion of the rental transaction.
e) Daily and weekly service fees for toll transponders or similar license plate
recognition services.
f) Cellular phones and global positioning navigation systems (GPS).
g) Child restraints.
h) Drop charges.
i) Additional driver fees.
j) Underage or overage driver fees.
k) Guaranteed reservation fees.
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1) Third party vehicle comps for promotional services rendered as a travel
promoter, agent, or otherwise.
m) All other revenues paid or due to Lessee arising out of or in connection with
its operations at the Airport unless expressly excluded by this Agreement.
2. Gross Revenues shall not include:
a) Amounts of any Federal, State, or municipal taxes and surcharges separately
stated on the Vehicle Rental Contract and collected from Airport Customers,
and which are payable directly to the taxing authority by Lessee. No exclusion
shall be allowed for taxes levied on Lessee's activities, facilities, equipment,
or real or personal property, payroll taxes, income taxes, taxes on frequent
flyer miles paid directly to the airline, license or tag fees, or other charges
which recoup operating costs.
b) Fees charged to customers for carbon offset or other environmental programs.
c) Customer Facility Charges.
d) Amounts for credits, refunds, or adjustments to customers for transactions
made at the Airport at the time of, or prior to the close-out of the rental
transaction and shown on the vehicle rental contract (without mark-up or
additional fees). Includes customer satisfaction program adjustments
applicable to revenues included in Gross Revenues which are subsequently
refunded by Lessee and recorded and reported in a separately documented
account from non -excludable adjustments. Lessee forfeits exclusion of all
customer satisfaction program adjustments in the event otherwise allowable
adjustments are commingled with any non -excludable amounts. Non -
excludable adjustments are those which affect amounts already excludable
from Gross Revenues (example: taxes) since this would result in a duplicate
deduction from Gross Revenues.
e) Any discounts separately stated on the vehicle rental contract which are
granted at the time the rental transaction commences, and are recorded and
reported in separately documented accounts from non -excludable discounts.
Lessee forfeits exclusion of all discounts in the event otherwise allowable
discounts are commingled with any non -excludable amounts. No exclusion
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shall be allowed for any amount retained by a third party as a financing
discount which may apply by reason of Lessee's acceptance of credit cards or
other credit arrangements. No exclusion shall be allowed for the portion of
retroactive rebates, dividends or refunds to any Airport Customer upon
attainment of a specified volume of rentals attributable to revenue or as part of
any other marketing plan which does not list the discount on the vehicle rental
contract at the commencement of the rental transaction.
f) Sums received by reason of Lessee's disposal of capital assets and/or trade
fixtures.
g) Sums received by Lessee for loss of use, loss, conversion, or abandonment of
Lessee's vehicles.
h) Sums received by Lessee from its customers, including all associated
administrative charges, for traffic tickets, parking tickets, towing charges,
impound fees, and other similar governmental fines and charges actually paid
by Lessee on behalf of such customers.
i) Sums received by Lessee for pass -through charges collected by Lessee from
its customers with respect to damage, repair, parts replacement, extraordinary
cleaning of vehicles, towing and transporting of damaged vehicles and key
replacement
j) Retroactive adjustment by Lessee of Gross Revenues designated as volume
discounts or rebates, corporate discounts or rebates, or any other designation
of any nature, or for any purpose.
3. It is understood and agreed that all losses or chargebacks (including bad debt
expenses) are to be bome solely by Lessee, and the City is to be paid on Gross
Revenues without charge or reduction for costs of losses.
4. Lessee shall not intentionally divert, through direct or indirect means, any of
Lessee's rental car or related business with Airport customers to off -airport
locations of Lessee or affiliates of Lessee without including the Gross Revenues
of such transactions, in Lessee's reported Gross Revenues. Any such intentional
diversion of Gross Revenues shall constitute a Default under this Agreement and
the City shall have the right to immediately terminate this Agreement upon
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determination by the City or its auditors that an intentional diversion exists or has
occurred.
5. Lessee shall not modify its accounting treatment or rename or redefine services or
products which under the terms of this Agreement would be subject to the
Percentage Fee unless approved in writing by the City.
C. RENT
1. Customer Service Counter: For each month during the Term, Lessee shall pay to
the City rent for the square footage of exclusive counter space, as shown on
Exhibit "A". The rental rate shall be equal to the terminal rental rate paid by the
airlines, and as adjusted annually by the City.
2. Ready/Return Vehicle Parking Area: For each month during the Term, Lessee
shall pay to the City the sum of TWENTY-FIVE AND NO/100 DOLLARS
($25.00) per space per month for Lessee's allocated parking spaces, as shown on
Exhibit "B". The monthly rental rate will increase $1.00 per space at the
commencement of each Agreement year.
3. Quick Turnaround/Service Facility ("QTA"): For each month during the Term.
Lessee shall pay to the City its pro-rata share of the ground rent for the land area
underlying the QTA, vehicle storage, circulation, and Service Facility areas
consisting of approximately 342,500 square feet, as shown on Exhibit "C", at the
rate of $0.20 per square foot per year. Lessee's pro-rata share shall be equal to
the percentage derived by comparing the Lessee's exclusive QTA premises to the
total exclusive use QTA premises of all lessees. The ground rental rate shall be
adjusted on January 1, 2019, and each January IS` thereafter. in accordance with
the percentage increase for the preceding twelve (12) months in the Consumer
Price Index published by the Bureau of Labor Statistics of the United States
Government. In no event however, will the ground rental rate for any Agreement
year be less than $0.20 per square foot per year.
4. Service Facility: Until the date Lessee takes possession of its QTA premises, the
Lessee shall pay to the City rent for the land area used by Lessee for its existing
Service Facility, at the rate of $0.20 per square foot per year. On January 1, 2019,
and each January I51 thereafter, the rental rate for the area used for the service
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facility shall be adjusted in accordance with the percentage increase for the
preceding twelve (12) months in the Consumer Price Index published by the
Bureau of Labor Statistics of the United States Government.
D. CUSTOMER FACILITY CHARGE
1. Lessee will collect and remit to City, a Customer Facility Charge (referred to herein as
"CFC") in the amount of $4.50 per Transaction Day for the rental of a vehicle by Lessee
at the Airport. A "Transaction Day" shall mean a 24-hour period or fraction thereof for
which a rental car customer is provided the use of a rental car regardless of the duration
or length of the rental term. A partial rental day that is within a grace period of no more
than two (2) hours after the last 24-hour day shall not be considered a Transaction Day.
Lessee will be required to pay CFCs to the City (regardless of whether such
amounts are charged to or collected from Airport customers) in accordance with
the terms and provisions of this Agreement. Lessee's election to not charge or
collect CFCs will not relieve Lessee from its responsibility to pay the full amount
of such CFCs due and payable to the City hereunder. The City hereby delegates to
the Director authority to reasonably determine and adjust accordingly the CFC
payable hereunder, if the total amount of CFC revenues estimated by the Director
to be remitted to the City will be insufficient to meet the debt service payment
requirement on the debt obligations incurred by the City in connection with rental
car facility capital projects.
2. CFC revenues paid to the City shall be placed in a separate account and may be used
by the City to pay the City's costs for financing, planning, designing, managing,
constructing, and improving rental car facilities and related infrastructure at the
Airport, including but not limited to roadways, parking facilities, terminal facilities,
utilities allocable to rental car usage, the development of future service and
maintenance facilities, and to fund the City's costs for such other rental car related
purposes as the City determines are necessary and appropriate.
3. City will apply CFCs revenues as follows:
• to the payment of debt service on debt obligations incurred by City in
connection with the rental car capital projects;
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• to repay City for the annual amortization of any amounts of City funds
expended on or invested in capital rental car facilities;
• to fund a reserve against any future shortfalls in CFC revenues;
• to make up any deficiencies in the amount of CFCs collected in prior years
or to defray all or part of a future fiscal year's annual CFC requirement;
• to defease or prepay the amounts of any indebtedness City has incurred in
connection with rental car capital projects;
• to fund a Capital Repair and Replacement Fund; and
• Seventh: to be held in reserve to pay the cost of future improvements to
rental car facilities.
4. Lessee shall separately state the amount of the CFC in its vehicle rental
agreements and collect the CFC from its customers on behalf of City, Lessee
agrees CFCs are not income, revenue, or any other asset of Lessee; that Lessee
has no ownership or property interest in such CFCs; and Lessee hereby waives
any claim to a possessory or ownership interest in the CFCs. Lessee agrees it
holds such CFCs in trust for the benefit of the City, and the City (or a trustee on
its behalf) has complete possessory and ownership rights to such CFCs.
5. Lessee will include in its Monthly Gross Receipts Report, in substantially the
form set forth in Exhibit "D" hereto, the: (i) total number of Vehicle Rental
Contracts entered into by Lessee with Airport Customers, (ii) total number of
Transaction Days thereunder, and (iii) total amount of CFCs payable by Lessee in
connection with such Vehicle Rental Contracts. Lessee will remit to the City the
total amount of CFCs due and payable for the previous month. Any such CFCs
which are not paid by the 20`" day of the month shall be subject to a late payment
charge of five percent (5%) of the total amount due. In the event Lessee fails to
timely furnish to the City any Monthly Gross Receipts Report required under this
Agreement, the City will have the right (but not the obligation), with seven (7)
days' written notice, to conduct an audit of Lessee's books and records, which
books and records will be prepared and maintained in accordance with, and will
include all of the information required under the terms of this Agreement, and to
prepare such Monthly Gross Receipts report at Lessee's expense. Moreover, in
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the event that Lessee fails to timely furnish any such Monthly Gross Receipts
Report or fails to make available its books and records, the City will have the
right to estimate the CFCs due and payable hereunder. In such case, the City will
furnish to Lessee, on a monthly basis, a report showing, in the aggregate, the total
number of Transaction Days and the total amount of CFCs payable in connection
with such Transaction Days hereunder, which shall be binding on Lessee.
G. The audit rights set forth in this Agreement will apply and will be available to the
City with respect to the CFCs and collections thereof hereunder; provided, (i) if
any such audit with respect to CFCs will disclose that Lessee's Monthly Gross
Receipts Report understated CFC collections to the extent of five percent (5%) or
more, Lessee will promptly pay to the City the cost of said audit in addition to a
late payment charge of five percent (5%) of the total amount due. If any such
audit with respect to CFCs and collections thereof discloses that Lessee's
Monthly Gross Receipts report understated CFC collections by less than five
percent (5%), Lessee will promptly pay to the City one-half (1/2) the cost of said
audit in addition to the deficiency, together with late payment charge of five
percent (5%) from the date due until paid, which deficiency will be payable in any
event. If the City requires or performs more than one (1) audit during any
Agreement year during the Term hereof, the cost of any such additional audit will
be paid by the City (except to the extent the initial or prior audit for such
Agreement year revealed a deficiency of five percent (5%) or more, in which case
the aforementioned provisions will apply).
7. Lessee covenants and agrees that Lessee will not be entitled to any rights to offset
or other reduction in the requirements herein and will be required to remit to the
City all CFCs imposed upon Lessee regardless of any amounts that may be owed
or due to Lessee by the City.
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E. LESSEE'S ABATEMENT RIGHTS]. In the event one or more of the following
conditions occur during the Term hereof, Lessee's MAG shall be abated for the
period of time the condition or conditions continue to exist:
a) If, for any reason, the number of passengers deplaning on scheduled airline flights
at the Airport during any monthly period shall be less than 85% of the number of
such deplaning passengers for the same month of the immediately preceding year.
b) If the operation of Lessee's car rental business at the Airport, through no fault of
Lessee, is adversely affected by shortages or other disruptions in the supply of
automobiles, gasoline, or other goods necessary for the operation thereof, and
there is a material diminution of gross revenues by 20% in Lessee's gross
revenues hereunder for a period of thirty (30) or more consecutive days
attributable to such shortages or other disruptions.
2. During the period of the abatement, Lessee will continue to pay to the City the
Percentage Fee and the City will return to Lessee any minimum annual guaranteed
payment which may have been prepaid. In the event any of the above conditions
continue for a period in excess of six (6) consecutive months, Lessee shall have the
right to terminate this Agreement.
F. MOST FAVORED NATIONS CLAUSE
In the event any contract granted by the City to any other automobile rental company for
a concession at the Airport shall contain terms and conditions more favorable than the
terms and conditions herein described (other than the location of the counter area, the
number of allocated ready/return parking spaces, and the QTA), then at the option of
Lessee, this Agreement shall be amended to include such more favorable terms and any
offsetting burdens that may be imposed on any such other rental car company. The intent
of this provision is to ensure Lessee will be able to compete on terms as equal as possible
with all other automobile rental companies at the Airport and to ensure no other lessee
shall enjoy any rights or privileges more favorable to such lessee than those enjoyed by
the Lessee herein.
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G. EXCLUSIVITY
City agrees during the Term of this Agreement that it will not enter into any more than
six (6) automobile rental Lease Agreements for the purpose of conducting a rental car
business in the terminal building of the Airport. If fewer than six (6) automobile rental
Lease Agreements are awarded, no additional rental car will be added during the term of
the Agreement. In the case of a vacancy by a lessee, the City reserves the right to fill the
vacancy through another Request for Proposal process under the similar terms and
conditions.
H. RECORDS
The Lessee, following accepted accounting practices and procedures, will maintain true
and accurate books, records, and receipts which will show all revenues of all business
transacted upon and within the Airport by Lessee. Within sixty (60) days of the end of
each Agreement year, Lessee shall submit to the City a verified statement of Gross
Revenue during the most recent Agreement year in which Lessee conducted business
operations at the Airport. Such statement shall be certified by Lessee's chief financial
officer or other authorized representative of Lessee and shall be accompanied by Lessee's
payment of any remaining sums due the City for such business operations. In the event
Lessee's prior payments to the City exceed the amount required by this Agreement, the
City shall reimburse Lessee with an amount equal to the difference between the sum
required and the sum paid.
I. AUDIT
All books, records, and receipts of all business transacted upon and within the Airport
will be kept or maintained at the Airport or other place consented to in writing by the
Director, and will be available for inspection and examination during regular office hours
by the Director or authorized representatives of the City. Such written consent may be
revoked by the Director at any time. Any other books, records, and receipts of Lessee's
business operations located within a two (2) mile radius of the Airport which the Director
or authorized representatives of the City desire to inspect or examine shall also be made
available for such purpose after reasonable notice to Lessee. For the purposes of
determining the accuracy of the required statements of gross revenue, the Director may
authorize the making of a spot test audit and base the findings for an entire period upon
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such audit, provided that the audit shall include at least twenty-five percent (25%) of the
total time of the period audited. Lessee herein agrees to pay all reasonable expenses
incurred by the Director and all other authorized representatives of the City when such
person or persons inspect, examine, or audit books, records, or receipts of business
transacted at the Airport at any location other than the Airport.
In addition, the Director shall have the right at any time during the Term of this
Agreement to authorize an audit of Lessee's records pertaining to its business operations
at the Airport. Any such audit shall be undertaken by the City's Internal Audit
Department or a reputable firm of independent Certified Public Accountants satisfactory
to the City. The cost of such audit shall be borne by the City, unless results of the audit
reveal a discrepancy of more than five percent (5%) between gross revenue reported in
accordance with Section A of this Article and gross revenue as determined by the audit.
In case of a discrepancy of more than five percent (5%) in favor of the Lessee. the full
cost of the audit shall be borne by the Lessee.
J. DIVERTING REVENUE
Any action taken by the Lessee to divert rental car business from the Airport to off -
Airport locations or to induce its patrons or patrons of other car rental lessees at the
Airport to rent or receive vehicles in any manner or at any location so as to diminish
rentals payable to the City by Lessee or other car rental lessees at the Airport shall
constitute a material breach hereof and a cause for the immediate termination of this
Agreement by the City.
ARTICLE FIVE
OBLIGATIONS OF THE CITY
A. CLEAR TITLE
The City covenants and agrees that upon execution of this Agreement, City is well seized
of the Leased Premises and has good title, free, and clear of all liens and encumbrances
having priority over this Agreement; and the City has full right and authority to lease the
premises described in this Agreement.
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N.
B. MAINTENANCE OF AIRPORT
The City covenants and agrees it will during the Term of this Agreement operate and
maintain the Airport as a public facility consistent with and pursuant to the Assurances
given by the City to the United States Government under federal law.
C. CONDITIONS AND MAINTENANCE OF LEASED PREMISES
Except as provided in Exhibit E, the City shall assume no responsibility for the condition
of the Leased Premises and shall not assume responsibility for maintenance, upkeep, or
repairs necessary to keep the Leased Premises in a safe and serviceable condition.
D. The City agrees to provide employee parking for Lessee's employees at the same rate and
same location as provided other Airport tenant employees.
E. The City agrees to provide a postal box for Lessee at the same rate and same location as
provided other Airport tenants.
ARTICLE SIX
LESSEE PRIVILEGES AND CONDITIONS; MAINTENANCE
The City grants to the Lessee the following general privileges, uses, and rights, all of
which are subject to the terms, conditions, and covenants herein set forth and all of which shall
be non-exclusive on the Airport:
A. The general use of all common terminal facilities and improvements which are now or
may hereafter be connected with or appurtenant to the terminal building only in such a
manner as may be necessary or convenient to the conduct of Lessee's business.
B. The right of ingress to and egress from the Leased Premises over and across common or
public roadways serving the Airport for Lessee, its agents, employees, patrons, invitees,
suppliers of services, and providers of materials. Such right of ingress and egress being
subject to such ordinances, rules, and regulations now existing or subsequently
promulgated.
C. The privilege of constructing improvements upon Lessee's Leased Premises, subject to
the prior written approval by the Director and in accordance with the City's ordinances,
codes, permits, etc.
D. The right to sell used rental vehicles with the following restrictions:
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I. Only those vehicles used by the Lessee at the Airport may be sold at the Airport.
All signs used in connection with the sale of such vehicles shall be approved in
writing and in advance by the Director.
2. The sale of such vehicles on Airport premises shall be restricted to Lessee's QTA
premises, as shown in Exhibit "C" or the temporary Service Facility location,
whichever one is being utilized.
E. STANDARD OF SERVICE
The Lessee shall conduct a first class automobile rental service on the Leased Premises
sufficient to meet reasonable demands for such service at the Airport. The Lessee agrees
to conduct its business in a proper and courteous manner and to furnish prompt and
efficient service, making available to the public clean, late -model, low -mileage
automobiles in good mechanical condition. As used herein, the term "late -model" shall
mean no more than two (2) model years old (including the current model year).
Lessee agrees to charge fair, reasonable, and non-discriminatory rates and charges for the
rental of vehicles. However, Lessee may make reasonable and non-discriminatory
discounts, rebates, or other similar types of price reductions to volume customers.
F. BUSINESS SOLICITATIONS
All of Lessee's business operations and solicitations will be confined to its Leased
Premises. Lessee agrees to have employees present at its counter during all hours of
scheduled airline arrivals.
G. ADVERTISING
Lessee will erect no signs and will distribute no advertising in the Airport or on Airport
property without the prior written consent of the Director. However, such prior written
consent shall not be required for advertising placed by Lessee with any other party
authorized by the City to sell, rent, or offer Airport terminal advertising space.
H. MAINTENANCE
Lessee accepts the Leased Premises in their present condition. It shall be the sole
responsibility of the Lessee to keep, maintain, repair, and operate the entirety of the
Leased Premises, and shall, at its sole cost and expense, maintain the grounds, fences,
buildings, improvements, and appurtenances at all times in a clean and presentable
condition, free of trash, debris, and weeds and consistent with good business practices,
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I
and equal in appearance and character to similar improvements in the terminal building,
Ready/Return Vehicle Parking area, and QTA. The Lessee shall repair all damage to the
Leased Premises and City -owned property caused by its employees, patrons, and its
operations at the Airport. The City shall be the sole judge of the quality of maintenance
and upon written notice from the Director the Lessee shall be required to perform such
maintenance as deemed necessary. Failure by Lessee to comply within ten (10) days
following receipt of such written notice from the Director shall give the City the right to
enter upon the Leased Premises and perform the necessary maintenance, the cost of
which shall be borne by the Lessee. Other detailed responsibilities are shown on Exhibit
"E", which is attached to this Agreement. Major maintenance items shall be funded as
set forth in Article Four, Section D.
1. Not later than six (6) months prior to the date upon which the City notifies Lessee
that its QTA premises will be available for use and occupancy, Lessee, and all
other lessees ("On -Airport Rental Car Companies") that are parties to a valid
Lease Agreement with the City will enter into or join in an operating agreement
(the "Operating Agreement") establishing a consortium of the On -Airport Rental
Car Companies (the "RAC Consortium") which provides, among other things, for
(i) the maintenance, repair, cleaning (trash pick up), ice and snow removal, and
striping of the Ready/Return Vehicle Parking area; (ii) the cleaning (trash pick
up), operation, maintenance, and repair of the QTA and the common use fueling
system pursuant to, and in accordance with, the terms and provisions of this
Agreement and the other On -Airport Rental Car Company Lease Agreements then
(or to be) in effect; and, (iii) the hiring of a property manager, reasonably
acceptable to the City.
The Operating Agreement shall require the On -Airport Rental Car Companies to
give notice to the City of any default by Lessee thereunder and provide the City
with the option to elect to cure any such default within a period commensurate
with any cure period given to Lessee under the Operating Agreement. The RAC
Consortium shall promptly notify the City of any non-payment or other default by
any On -Airport Concessionaire under the Operating Agreement or of any notice
of default received by the RAC Consortium under the Operating Agreement.
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( P
Failure to enter into an Operating Agreement shall be considered a material
breach of this Agreement and may subject the Lessee to a cancellation of the
Agreement without further obligation on the part of the City.
ARTICLE SEVEN
IMPROVEMENTS
A. FACILITY IMPROVEMENTS
The City anticipates construction of a new consolidated rental car QTA, as generally
depicted in Exhibit "C" and reconfigure the Ready/Return parking area and
improvements, as depicted in Exhibit "B" (collectively the "Facility Improvements"). The
City shall not be required to perform any work or construct any improvements, furnish any
services or facilities, perform any maintenance, or make any repairs or alterations or
environmental remediation or clean-up in or to the Leased Premises throughout the Term
hereof.
B. PROPERTY PERMANENTLY AFFIXED TO PREMISES
Any property belonging to Lessee which becomes permanently attached to the Leased
Premises shall become the property of the City upon termination of this Agreement,
whether upon expiration of the initial Term, any extension thereof, or earlier under any
provision of this Agreement.
C. REMOVAL OF LESSEE'S PROPERTY
Except as provided herein, Lessee shall have the right, within twenty (20) days after the
termination of this Agreement, whether such termination comes upon expiration of the
initial Term, any extension, or otherwise under any provision of this Agreement, to
remove from the Leased Premises all of Lessee's furniture, fixtures, equipment, and
furnishings which have not become the property of the City. Lessee shall restore the
Leased Premises to the original condition, normal wear and tear excepted. The City.
however, shall have a lien on all of Lessee's property (excluding vehicles) to secure any
unpaid rentals or other revenue due the City. Lessee's right to remove property from the
Leased Premises is conditioned upon all amounts due the City from Lessee having been
paid in full. Property left on the Leased Premises after twenty (20) days from the date of
termination of this Agreement shall be deemed abandoned and will become the property
of the City. The property may be disposed of as the City sees fit, without any liability to
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6)
the Lessee to account for the proceeds of any sale. The City, at its option, may charge rent
from the date of expiration or termination of this Agreement through the day of final
removal of the property, or of notification to the Lessee of the abandonment of the
property and taking by the City, as the case may be.
ARTICLE EIGHT
OTHER PROVISIONS
A. UTILITIES
Lessee shall assume and pay for all costs or charges for utility services provided to
Lessee.
B. PAYMENT OF TAXES AND FEES
Lessee shall pay all federal, state, and local government taxes, license fees, and
occupation taxes levied on either the Leased Premises, the business conducted on the
Leased Premises, or on any of Lessee's property used in connection therewith. The
Lessee shall render for taxation purposes all automobiles and other property used in
connection with Lessee's business operations at the Airport.
Taxation may be subject to legal protest in accordance with the provisions of the taxing
authority whose levy is questioned. Any protest is at the sole expense of Lessee.
Delinquency in payment of such obligations after any protest has been settled shall, at the
option of the City, be cause for immediate termination of this Agreement.
C. REGULATIONS
The Lessee's officers, agents, employees, and servants will obey all rules and regulations
which may be promulgated by the City, its authorized agents at the Airport, or by other
lawful authority.
D. PROHIBITION OF SUBLEASES AND ASSIGNMENTS
The Lessee will not directly or indirectly assign, sublet, sell, hypothecate, or otherwise
transfer this Agreement or any portion of the Leased Premises without the prior written
consent of Director.
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E. INDEMNIFICATION AND INSURANCE
1. Indemnification. Lessee shall be deemed to be an independent contractor and
operator responsible to all parties for its respective acts and omissions, and the
City shall in no way be responsible therefore, except those caused by the sole
negligence of the City's respective officers, employees, elected officials and
agents as allowed by law. Lessee shall indemnify and hold harmless, to the fullest
extent permitted by law, the City, and the City's respective officers, employees,
elected officials, and agents from and against any and all losses, damages, claims,
or liabilities of any kind or nature which arise directly or indirectly, or are related
to, in any way, manner, or form the activities of Lessee contemplated hereunder.
Lessee further covenants and agrees to defend any suits or administrative
proceedings brought against the City and/or the City's respective officers,
employees, elected officials, and/or agents on account of any claim for which it is
obligated to indemnify the City, and to pay or discharge the full amount or
obligation of any such claim incurred by, accruing to, or imposed on the City, or
the City's respective officers, employees, elected officials, and/or agents, as
applicable, resulting from the settlement or resolution of said suits, claims, and/or
administrative proceedings. In addition, Lessee shall pay to the City, the City's
respective officers, employees, elected officials, and/or agents as applicable, all
attorney fees incurred by such parties in enforcing Lessee's indemnity in this
section.
2. Indemnification — Environmental Harm. Without limiting any provisions of
this Agreement, Lessee shall also defend, indemnify, and hold the City, the City's
respective officers, employees, elected officials, and agents harmless from and
against all suits, actions, claims, demands penalties, fines liabilities, settlements,
damages, costs, and expenses (including but not limited to reasonable attorney's
and consultant's fees, court costs, and litigation expenses) of whatever kind or
nature, known or unknown, contingent or otherwise, brought against the City
arising out of or in any way related to:
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E)
a. Any actual, threatened, or alleged contamination by hazardous substances
of the premises or contamination by hazardous substances of the Airport by
Lessee or its agents;
b. The presence, disposal, release, or threatened release of hazardous
substances by Lessee or its agents at the Airport that is on, from, or affects the
soil, air, water, vegetation, buildings, personal property, persons, animals, or
otherwise;
c. Any personal injury (including wrongful death) or property damage (real
or personal) arising out of or related to hazardous substances by Lessee at the
Airport; or
d. Any violation by Lessee of any Environmental Laws that affects the
Airport.
3. Insurance. The Lessee shall maintain insurance at all times that this Agreement
is in effect, at Lessee's sole expense and with an underwriter authorized to do
business in the State of Texas and acceptable to the City, against claims of general
liability, automobile liability, and worker's compensation resulting from Lessee's
business activities at the Airport.
a. General Liability Insurance — Lessee will carry and maintain General
Liability Insurance for the protection of the City, and insuring against all
claims, losses, costs, and expenses arising out of injuries to persons whether
or not employed by the Lessee, damage to property whether resulting from
acts or omissions, negligence, or otherwise of the Lessee or any of its agents,
employees, patrons, or other persons and growing out of the use of the Leased
Premises by Lessee, such policies to provide not less than ONE MILLION
AND NO/100 DOLLARS ($1,000,000.00) for Combined Single Limit
General Liability Insurance. To the extent permitted by law, the policy shall
include a waiver of subro ag t, ion and the City shall be named an additional
insured as their interest may appear arising out of the conduct of the Lessee on
a primary and non-contributory basis.
b. Automobile Liability — Lessee will carry and maintain Automobile
Liability Insurance in the amount not less than ONE MILLION AND
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NO/100 DOLLARS ($1,000,000.00) for Combined Single Limit Automobile
Liability Insurance. To the extent permitted by law, the policy shall include a
waiver of subrogation and the City shall be named an additional insured on a
primary and non-contributory basis.
c. Workers' Compensation and Employer Liability — Lessee shall obtain
workers' compensation coverage to the extent legally required by Section
406.002 of the Texas Labor Code. If legally required, Lessee shall maintain
said coverage throughout the Term of this Agreement (or, if shorter, during
the period such coverage is legally required) and while such coverage is
legally required to be in effect shall comply with all provisions of Title 5 of
the Texas Labor Code to ensure the Lessee maintains said coverage. Lessee
shall carry and maintain Employer Liability coverage in an amount no less
than FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($500,000.00). Any termination of legally required workers' compensation
insurance coverage by Lessee or any cancellation or nonrenewal of legally -
required workers' compensation insurance coverage for the Lessee shall be a
material breach of this Agreement. To the extent permitted by law, the policy
shal I include a waiver of subro ation.
d. Hazard and Extended Coverage — Lessee shall procure from a company
authorized to do business in the State of Texas and keep in force Hazard and
Extended coverage insurance on the Leased Premises to 80% of the full
insurable value and shall furnish the City with evidence that such coverage
has been procured and is being maintained. The City shall be named an
additional insured as their interest may appear arising out of the conduct of the
Lessee on a primary and non-contributory basis.
e. Current Certificates of Insurance and Endorsements shall be provided to
the City, or other satisfactory evidence of insurance shall be filed with the
Director by the Lessee. The Lessee or its insurer shall notify the Director of
any alteration, renewal, or cancellation of this coverage which shall remain in
full force and effect until at least ten (10) days after such notice of alteration,
renewal, or cancellation is received by the Director.
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F. WAGES
The Lessee shall pay, or require the payment of, the prevailing wage rate for each
craftsman or workman employed by Lessee, or by persons or firms engaged by Lessee
for any alteration of the Leased Premises or installation, maintenance, or repair of
vehicles, fixtures, equipment, and furnishings used in Lessee's operations, as required by
Texas Government Code Chapter 2258, as amended. The ordinances and statute and
amendments thereto are incorporated herein by the reference for all purposes.
G. CONDUCT AND APPEARANCE OF EMPLOYEES
Employees of Lessee who are reasonably deemed to be discourteous or objectionable
shall be removed from the Leased Premises by Lessee on demand from the Director, who
may also cause any objectionable person or persons, including Lessee's employees, to be
removed from said premises; and Lessee hereby waives any right and all claims for
damages against City or any of its officers, agents, elected officials, or employees which
might occur as a result of the exercise of such authority.
H. LIENS PROHIBITED
Lessee shall not bind or attempt to bind the City for payment of any money in connection
with the construction, repairing, alterations, additions, or reconstruction work on the
Leased Premises. Lessee shall not permit any mechanic's, materialman's, or contractor's
liens to arise against the premises, improvements thereon, or any equipment, machinery,
and fixtures thereon belonging to the City. Lessee expressly agrees it will keep and save
the premises and the City harmless from all costs and damages resulting from any liens of
any character created or that may be asserted through any act or thing done by the Lessee.
In the event any mechanic's lien or other lien or order for payment shall be filed against
the Leased Premises or improvements thereon, or against City -owned property located
thereon during the initial Term hereof, or during any subsequent extension, Lessee shall
within ten (10) days cause the same to be cancelled and discharged of record by bond or
otherwise, at the election and expense of Lessee. Lessee shall also defend on behalf of
the City, at Lessee's sole cost and expense, any action, suit, or proceeding which may be
brought thereon or for the enforcement of such lien or order. Failure of the Lessee to
comply with any requirement of this section shall be cause for immediate termination of
this Agreement by the City.
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1. AIRPORT CONCESSION DISADVANTAGED BUSINESS ENTERPRISE
I. In order to qualify Lessee as an Airport Concession Disadvantage Business
Enterprise (ACDBE) under this Agreement, Lessee shall be certified by the State of
Texas under the Unified Certification Program.
2. The City is committed to a policy and program for the participation of ACDBEs
in concession -related contracting opportunities in accordance with U.S. Department of
Transportation's (DOT) 49 Code of Federal Regulations (CFR) Part 23 as may be
amended. In advancing City's policy, Lessee agrees to ensure that ACDBEs, as defined
in 49 CFR Part 23 and City's ACDBE Program, have the maximum opportunity to
participate in the performance of this Agreement. Lessee will take all necessary and
reasonable steps in accordance therewith to ensure that ACDBEs are encouraged to
compete for and perform subcontracts under this Agreement.
3. Non -Discrimination
(a) This Agreement is subject to the requirements of the U.S. Department of
Transportation's Regulations 49 CFR Part 23. Lessee agrees it will not
discriminate against any business owner because of owner's race, color, natural
origin, or sex in connection with the award or performance of any concession
agreement, management contract, or subcontract, purchase of lease agreement, or
other agreement covered by 49 CFR Part 23. Failure by Lessee to carry out these
requirements is a material breach of this Agreement, which may result in the
termination of this Agreement or such other remedy as the City deems
appropriate.
(b) Lessee will agree to include the statements in paragraphs (1) and (2) above in any
subsequent concession agreement or contract covered by 49 CFR Part 23 that it
enters and cause those businesses to similarly include the statements in further
agreements.
4. ACDBE Participation and Compliance
(a) ACDBE Goal: Lessee agrees it will pursue subcontracting opportunities with
ACDBE firms, certified with the State of Texas Uniform Certification Program,
to provide goods and services to be purchased under this Agreement for each year
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0
of the Term, or clearly demonstrate in a manner acceptable to City its good faith
efforts to do so.
(b) ACDBE Termination and Substitution: Lessee will not terminate an ACDBE for
convenience without the City's prior written consent. If an ACDBE is terminated
by the Lessee with the City's consent or because of the ACDBE's default, then
the Lessee must make a good faith effort, in accordance with the requirements of
49 CFR Part 23.25 to find another ACDBE to substitute for the original ACDBE
to provide the same amount of ACDBE participation.
(c) Reporting Requirements: Lessee agrees that within twenty (20) days after
September 30 of each year during the Term of this Agreement, it will provide an
ACDBE Utilization Activity Report to the City, in a form acceptable to the City,
the total actual payments received by each of its ACDBE subcontractors and
vendors for such fiscal year, calculated in accordance with the requirements of 49
CFR Part 23. If the ACDBE participation required is not met, Lessee will explain
in its report the reason for its failure to meet the prescribed goal and the corrective
action(s) the Lessee proposes to take in the next fiscal year(s) to meet said goal.
(d) Monitoring: City will monitor the compliance and good faith efforts of the
Lessee in meeting the requirements of this Section. City will have access to the
necessary records to examine such information as may be appropriate for the
purpose of investigating and determining compliance with this Section, including,
but not limited to, records, records of expenditures, contracts between the Lessee
and the ACDBE participant, and other records pertaining to the ACDBE
participation plan with the Lessee.
(e) Prompt Payment: Lessee agrees to pay each subcontractor under the Agreement
for satisfactory performance of its contract no later than ten (10) calendar days.
Lessee agrees further to release retainage payments to each subcontractor within
ten (10) calendar days after the subcontractor's work is satisfactorily completed.
Any delay or postponement of payment from the above referenced time frame
may occur only for good cause. This clause applies to both ACDBE and non-
ACDBE subcontractors.
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(f) Sanctions for Non -Compliance: City may, in addition to pursuing any other
available legal remedy for Lessee's failure to comply with this Section, terminate,
suspend, or cancel this Agreement in whole or in part; and/or suspend the Lessee
from future Agreements with the City.
J. NON-DISCRIMINATION PRACTICES
Lessee, its agents, and employees will not discriminate against any person or class of
persons by reason of age, sex, race, religion, or national origin in providing any services
or in the use of any of its facilities provided for the public. Lessee further agrees to
comply with such enforcement procedures as the United States Government might
demand that the City take in order to comply with the Sponsor's Assurances.
Lessee agrees not to discriminate against any employee or applicant for employment
because of age, sex, race, religion, or national origin. Lessee agrees to take affirmative
action to ensure applicants are employed and employees are treated during employment
without regard to their age, sex, race, religion, or national origin. Such action shall
include, but not be limited to employment, upgrading, demotion, transfer, recruitment,
layoff, rates of pay or other forms of compensation, and selection for training, including
apprenticeship.
Lessee shall also comply with the Americans with Disabilities Act, if applicable, at all
times this Agreement is in effect.
K. SINGULAR AGREEMENT
Lessee acknowledges and agrees it will only operate under one brand name during the
Term of this Agreement. Under no circumstances shall any "dual branding" or combined
operations of Lessee be represented to the public in signage or other manner which would
represent to the public that two or more companies were jointly operating one concession
operation at the Airport.
L. OUTSTANDING CHARGES
Lessee herein agrees to pay all outstanding rentals, fees, and other charges incurred under
any prior Agreement with the City within twenty (20) days of the date of execution of
this Agreement.
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M. COMPLIANCE WITH CHAPTER 2270, SUBTITLE F, TITLE 10, TEXAS
GOVERNMENT CODE
The Lessee warrants that it is in compliance with Chapter 2270, Subtitle F, Title 10 of the
Texas Government Code by verifying that: (1) it does not boycott Israel; and (2) it will
not boycott Israel during the term of the Agreement.
ARTICLE NINE
TERMINATION AND CANCELLATION
A. TERMINATION
This Agreement shall terminate at the end of the full Term or extension hereof and
Lessee shall have no further right or interest in any of the premises or improvements
hereby demised.
B. CANCELLATION BY LESSEE
This Agreement may be cancelled by Lessee after the happening of one or more of the
following events:
1. The permanent abandonment of the Airport by the City as an air terminal.
2. The lawful assumption by the United States Government, or any authorized
agency thereof, of the operation, control or use of the Airport, or any substantial
part or parts thereof, in such a manner that substantially restricts Lessee for a
period of at least ninety (90) days from operating thereon.
3. The issuance by any court of competent jurisdiction of an injunction in any way
preventing or restraining the use and operation of the Airport for a period of at
least ninety (90) days.
4. The default of the City in the performance of any covenant or agreement herein
required to be performed by the City and the failure of the City to remedy such
default for a period of thirty (30) days after receipt from Lessee of written notice
to remedy the same.
Lessee may exercise such right of termination by giving thirty (30) days advance written
notice to the City at any time after the lapse of the applicable periods of time and this
Agreement shall terminate as of the thirtieth (301h) day. Concessions and rentals due
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Q
hereunder as set forth in Article Four shall be payable only to the effective date of said
termination.
C. CANCELLATION BY CITY
This Agreement may be cancelled by City after the happening of one or more of the
following events:
1. The taking by a court of competent jurisdiction of Lessee and its assets pursuant
to proceedings brought under the provisions of any federal reorganization act.
2. The appointment of a receiver for Lessee's assets.
3. The divestiture of Lessee's assets by other operation of law.
4. The abandonment by Lessee of its rental car service at the Airport for a period of
ten (10) days or more.
5. The failure by Lessee to pay any rentals or other charges due after given ten (10)
days written notice to cure.
6. The default by Lessee in the performance of any covenant or agreement herein
required to be performed by Lessee and the failure of Lessee to remedy such default for a
period of thirty (30) days after receipt of written notice to remedy the same from the
Director.
7. The Lessee's breach of any provision contained in Article Four, Section A, 2 of
this Agreement.
8. The lawful assumption by the United States Government, or any authorized
agency thereof, of the operation, control, or use of the Airport, or any substantial part or
parts thereof, in such a manner as to substantially restrict Lessee for a period of at least
ninety (90) days from operating thereon.
If any of the aforesaid events occur, City may enter upon the Leased Premises and take
immediate possession of the same and remove Lessee's effects. Upon said entry, this
Agreement shall terminate and any amounts due hereunder as set forth in Article Four
shall be payable to said date of termination.
It is agreed that failure to declare this Agreement terminated upon the default of Lessee
for any of the reasons set forth above shall not be construed as a waiver of any of the
City's rights hereunder or otherwise bar or preclude City from declaring this Agreement
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cancelled as a result of any subsequent violation of any of the terms or conditions of this
Agreement.
ARTICLE TEN
GFNFR A 1,
A. TIME OF EMERGENCY
During time of war or national emergency, the City shall have the right to lease the
landing area and any other portion of the Airport to the United States for governmental
use and, if any such agreement is executed, the provisions of this Agreement, insofar as
they are inconsistent with the provisions of the agreement to the United States, shall be
suspended.
B. SPONSOR'S ASSURANCE SUBORDINATION
This Agreement shall be subordinate to the provisions of any existing or future agreement
between the City and the United States concerning the operation or maintenance of the
Airport, the execution of which has been or may be required as a condition precedent to
the expenditure of federal funds for the development of the Airport. Should the effect of
such agreement with the United States be to take any of the property under this
Agreement or otherwise diminish the commercial value of this Agreement, the City shall
not be held liable therefor.
C. REPLACEMENT AFTER DAMAGE
It is agreed between the parties hereto that in the event the Leased Premises are damaged
by fire or other accidental cause during the initial Term of this Agreement so as to
become totally or partially untenantable, the City shall have the option to restore the
premises to their former condition. If the City elects to exercise the option, the City shall
give Lessee notice in writing of its election within thirty (30) days of the occurrence of
such damage. If the City elects to restore the premises, the City shall proceed with due
diligence and there shall be an abatement of the associated rent or concessions until
repairs have been made for the time and to the extent for which the premises, or part
thereof, have been untenantable. Should the City not exercise the option to restore the
premises, this Agreement shall cease and terminate effective on the date of damage by
fire or other accidental cause.
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�P
D. CONFLICT OF INTEREST
Lessee acknowledges it is informed that Texas law prohibits contracts between the City
and its "officers" and "employees," and that the prohibition extends to officers and
employees of City agencies, such as City -owned utilities, and certain City boards and
commissions, and to contract with any partnership, corporation, or other organization in
which the officers or employees have a substantial interest. Lessee certifies (and this
Agreement is made in reliance thereon) that neither the Lessee nor any person having an
interest in this Agreement is an officer or employee of the City or any of its agencies,
boards, or commissions.
E. BOND
Lessee must provide the City with a performance bond in the amount equal to one fourth
of Lessee's first Agreement year MAG under this Agreement to secure the prompt
payment of Lessee's obligations under this Agreement. Such bond shall be effective
through the Term of this Agreement.
In lieu of a performance bond, Lessee may provide to the City an irrevocable letter of
credit from a bank or other financial institution approved by the City Attorney of the City
and which assures the City of payment equal to one fourth of Lessee's first Agreement
year MAG.
F. RIGHT OF INSPECTION
The City reserves the right to conduct inspections of the Leased Premises at reasonable
times to ensure that fire, safety, sanitation regulations, and other provisions contained in
this Agreement are being adhered to by the Lessee.
G. TERMINATION OF AGREEMENT, SURRENDER OF LEASED
PREMISES, AND OWNERSHIP OF IMPROVEMENTS
Lessee covenants and agrees at the expiration of the initial Term of this Agreement, or
any extension which has been granted, or upon earlier termination as provided elsewhere
in this Agreement, Lessee will quit and surrender the Leased Premises and the
improvements in good state and condition, reasonable wear and tear accepted, subject to
Article Seven, Section C of this Agreement, and the City shall have the right to take
possession of the Leased Premises and the improvements, subject to the limitations
expressed in Article Seven of this Agreement, with or without process of law.
Rental Car Lease Agreement
Page 31
H. HEADINGS
The paragraph headings contained herein are for convenience in reference and are not
intended to define, extend, or limit the scope of any provisions in this Agreement.
1. NOTICES
Notices to the City required or appropriate under this Agreement shall be deemed
sufficient if in writing, mailed registered or certified, and postage prepaid addressed to:
Executive Director of Aviation
Lubbock Preston Smith International Airport
5401 N. MLK Blvd., Unit 389
Lubbock, Texas 79403
Notices to the Lessee shall be deemed sufficient if in writing, mailed registered or
certified, and postage prepaid to the representative and address provided by Lessee and
on -file at the Airport.
J. NON -ARBITRATION
The City reserves the right to exercise any right or remedy available to it by law, contract,
equity, or otherwise, including without limitation, the right to seek any and all forms of
relief in a court of competent jurisdiction. Further, the City shall not be subject to any
arbitration process prior to exercising its unrestricted right to seek judicial remedy. The
remedies set forth herein are cumulative and not exclusive, and may be exercised
concurrently. To the extent of any conflict between this provision and another provision
in, or related to, this document, this provision shall control.
K. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the City and Lessee, and any
other written or parole agreement with the City is expressly waived by Lessee.
Rental Car Lease Agreement
Page 32
EXECUTED this 22nd day of March , 2018.
THE CITY OF LUBBOCK
BY:
DANIEL M. POPE, MAYOR
Re
ST:
a Garza, City Secreta y
EAN Holdings, LLC, dlbla
Alamo Rent A Car
BY: 9t:j
IItwar
Title:
Date:
APPROVED AS TO CONTENT:
C2Lw
ey Ca pbell, Ex cutive Director of Aviation
rney
Rental Car Lease Agreement
Page 33
:fibKF>mstnn Smn+ EXHIBIT A
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PAGE
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41S
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40 STALLS
10 STALLS
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01/25/18 --
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EXH RBIT C (I OF 2) LBB CONRAC
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QUICK TUMA ROUND, AREA
PAGE 3 OF ¢
QUICK TURN -AROUND
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za srALLs
4 FLTJJVAC POg?Ip15
1 CAR WASH BAY
2 VAl+TEMAHCE BAYS
I..STACKNG
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24 STALLS
4 F[fE.LfYAC P.ZS1710N5
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2 MAN.EHA W-E BAYS
IDS STACK"G
2 S20 SF ADMN
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2 WPRENANC� BAYS
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ul
4VFt�rAc Po$1TK]1+S
1 CAR WASH BAY
2 MANTENANCE BAYS
10 YAPIT. STACKNG
ZM SF ADMN
01/25/18
EXHIBIT C (2 OF 2)
Int2rnaLonai Airpor,
CK"CIC UIRM-MMU NID AREA
PAGE 4 OF 4
LBB CONRAC
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01/25/18
LUBBOCK PRESTON SMITH INTERNATIONAL AIRPORT
MONTHLY GROSS RECEIPTS REPORT
NAME OF COMPANY
NION-M 1 YEAR
STATFAIENT OF GROSS RECEIPT'S
Time & Mileage S
Drop Charges S
Child Restraints Car Seats S
Concession Recoupmenl S
Insurance & Insurance Waivers S
Fuel S
Toll Transponders Sen. ice Fees S
Cellular Phones & GPS S
Additional Driver S
Underage Overage Driver S
Guaranteed Reservation Fees S
Coupons - Vehicle comps S
Customer Adjustment S
Change of Equipment S
Overstay Understay Fee S
Tosa-s Reimbursement Fee S
Vehicle License Recoup S
Non -Airport Users S
Government Administrative Rate S
Replacement Equipment Fee S
Maintenance S
Frequent Flyers Program S
Miscellaneous S
Other. S
GROSS RECEIPTS $ 0 ;n 10% = S 0
CUSTOMER FACILITY CHARGE
Number of Rental Transactions-
Average rental price (total rental):
NUMBER OF CONTR.aCT DAYS Ca" S4.50 = S 0
TOTAL. DUE 'VVITH THIS REPORT
(Pay CFC on separate check or payment method)
Signature of Authorized Representative
S 0
Date
EXHIBITI)
i
EXHIBIT E
OPERATION & MAINTENANCE RESPONSIBILITIES
Air Conditioning
Heating
Lighting
a. Street / Overhead Lighting
b. Bul b & Tube Replacement
I: Maintenance
Electrical Maintenance `
Maintenance
a. Other than Structure
b. Structure {
c. Exterior '
Custodial Service / Ground Keeping
Window Cleaning
a. Exterior
b. Interior
Snow Removal
Premises
Service
Counter
Ready &
Return Lot
EBB
LBB
LBB
RAC
RAC
RAC
RAC
RAC
RAC
RAC
RAC
LBB
LBB
RAC
RAC
LBB
RAC
RAC
RAC - Rent A Car is responsible
LBB - Lubbock Preston Smith International Airport is responsible
QTA - Major maintenance and replacement funded by the CFC Capital Repair and Replacement fund.
QTA Routine maintenance and repair is the RAC responsibility.
RAC shall be responsible for any light fixtures installed by RAC.
RAC shall be responsible for any electrical fixtures or services installed by RAC.
RAC shall be responsible for any structure constructed by RAC (back wall of service counter
and ready/return lot podiums).
RAC shall be responsible for any exterior maintenance required from actions of RAC,
its employees, or subcontractors.
I
REVISED
PROPOSAL SUBMITTAL FORM
CITY OF LUBBOCK
REQUEST FOR PROPOSALS #17-13525-TF
On :Airport Rental Car Concession Services
LUBBOCK PRESTON SMITH INTERNATIONAL AIRPORT
ON -AIRPORT RENTAL CAR CONCESSION
MINIMUhI ANNUAL GUARANTEE BID
Proposer agrees to pay to the City the greater of the minimum annual guarantee (MAG) or 101
oFthe concessionaire's annual cross re%enue as defined in the Lease Agreement (Exhibit D
attached to this RFP). The City will not consider any proposal in which the NI_AG offered
for the first .Agreement year is less than $50,000.
First Agreement Year MAG Bid $ 81,697.00
Proposer shall operate its concession at the Airport under the following brand/trade name and no
others, during the Teri of this concession:
Alamo Rent A Car
Brand Trade \acne
The undersigned hereby oilers to Furnish the services as specified herein and in their proposal and
:agreement (ATTACHED) at the tcmns stated therein and in strict accordance with the
specifications, all of which are made a part of this offer.
ACKNOWLEDGE receipt of ADDENDA: FIX 42 X #3_X_ 44 X
Name of Business (Stamp maybe used i lEAN HnAdinns_ 1 1 C
Address 4210.South Con ress Avenue
City Austin _ State_ TX 7.1p 78745
The City of Lubbock Charter states that no officer or employee of the City can benefit from any
contract_ job, x%orb, or seri,-e for the municipality or be interested in the sale to the City of any
supplies. equipment. material. or articles purchased. Will an} officer or employee of the City, or
member of their immediate family. benefit from the award of the contract to the above fine?
l'ES_X_ NO
EXHIBIT F
(0
By
Authorized Represen� 'e - must --Un by hand
Date. October 12 2017
Print Name and Title: Howard Zaroff... Vice President/General Manager
Business Telephone Number 512-912-0332 Fax Number 51.2-912- 3 1
If unable to res and to this RFP and you vsish to continue to receive Requests for
Proposals, lease return this page to the folloNvin address:
Citv of Lubbock Purchasing Department
P.O. Box 2000
Lubbock, Texas 79457
T/
CERTIFICATE OF INTERESTED PARTIES FORM 1295
1 of 1
Complete Nos. 1- 4 and 6 if there are interested parties.
OFFICE USE ONLY
Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties.
CERTIFICATION OF FILING
Certificate Number:
1
Name of business entity filing form, and the city, state and country of the business entity's place
of business.
2017-267984
EAN Holdings, LLC
AUSTIN, TX United States
Date Filed:
10/03/2017
2
Name of governmental entity or state agency that is a party to the contract for which the form is
being filed.
CITY OF LUBBOCK, TEXAS
Date Acknowledged:
03/14/2018
3
Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a
description of the services, goods, or other property to be provided under the contract.
RFP 17-13525-TF
On -Airport Rental Car Concession Services at Lubbock Preston Smith International Airport
Nature of interest
4
Name of Interested Party
City,State, Country (place of business)
(check applicable)
Controlling
Intermediary
5
Check only if there is NO Interested Party. ❑
X
6
UNSWORN DECLARATION
My name is and my date of birth is
My address is I ,
(street) (city) (state) (zip code) (country)
I declare under penalty of perjury that the foregoing is true and correct.
Executed in County, State of on the day of , 20
(month) (year)
Signature of authorized agent of contracting business entity
(Declarant)
rms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.3337
CERTIFICATE OF INTERESTED PARTIES FORM 1295
1 of 1
Complete Nos. 1 - 4 and 6 if there are interested parties.
OFFICE USE ONLY
Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties.
CERTIFICATION OF FILING
Certificate Number:
2017-267984
1
Name of business entity filing form, and the city, state and country of the business entity's place
of business.
EAN Holdings, LLC
AUSTIN, TX United States
Date Filed:
10/03/2017
2
Name of governmental entity or state agency that is a party to the contract for which the form is
being filed.
CITY OF LUBBOCK, TEXAS
Date Acknowledged:
3
Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a
description of the services, goods, or other property to be provided under the contract.
RFP 17-13525-TF
On -Airport Rental Car Concession Services at Lubbock Preston Smith International Airport
4
Name of Interested Party
City, State, Country (place of business)
Nature of interest
(check applicable)
Controlling
I Intermediary
5
Check only if there is NO Interested Party.
X
6
AFFIDAVIT I swear, or affirm, under pen of perjury, that the above disclosure is true and correct.
THERESA ANN PAJESTKA
My Notary ID # 7306159
•-;;F of ;w;••' Expires May 29, 2021
���••" Signature o thorized agent of cc acting business entity
AFFIX NOTARY STAMP / SEAL ABOVE
�r
Sworn to and subscribed before me by the said �,�Q - _(� Ljt-r— this the day of October
2017 to certify which, witness my hand and seal of office.
�h s V4,P M64
Signature of officer administering oat Printed name of officer administering oath Title of officer administerina oath
-)rms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.3337