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05296 - VANGUARD CAR RENTAL USA INC DBA ALAMO & NATIONAL AIRPORT OP/LEASE AGR
City of Palm Springs DLParrmcnr of Aviarion c Palm Sprzrrgs InrernadonalAirport 3400 E Tahgwcz Cnnl•nn Wn}, 5uirr OT - • Pnlm Springs, Caldornia 91262-6966 'q( p1�P TJ (760) 319-3800 • Eix (7(,0) 1,9-3S15 • Wcb: WWw.Palms rm sir ori.Cnm YFOft I-• p' g •• p Enterprise Rent-A-Car Company of Los Angeles March 1, 2010 Attn: Patrick Burnwell, Controller 17210 S. Main St. Gardena, CA 90248 Enterprise Rent-A-Car Company Attn: Airport Properties & Relations 600 Corporate Park Dr. St. Louis, MO 63105 RE: PSP Exercise Option 2 —Agreement 5296 Vanguard Car Rental USA, Inc. Dear Mr. Burnwell: Per Section 3.01 of the Non-Exclusive Operating & Lease Agreement for a Car Rental Concession at Palm Springs International Airport with Vanguard Car Rental USA, Inc. dba Alamo and National (Agreement 5296), the City of Palm Springs has exercised Option Period 2: July 1, 2010 — June 30, 2011. If you have any questions concerning this notification please contact Thomas Nolan A.A.E., Executive Director of the Airport at 760.318,3901 or via email at Thomas.Nolan(a)palmsprings-ca_gov We appreciate the service provided by your firm and look forward to a continued partnership. Sincerely, ATTEST: David H. Re y�'d , Esq., PhD. mes Thompson City Manager City Clerk cc: Vanguard Agreement File - Airport ��„ -•- eil 1 APPROVED BY CITY COUNCIL At'PROVED By ClJY MANAGER Qtj 2/-/ 5 Post Office Box 2743 0 halm Springs, California 92263-2743 AMENDMENT NO. 1 �a�� TO NON-EXCLUSIVE OPERATING AND LEASE AGREEMENT No. FOR A FULL OR LIMITED CAR RENTAL CONCESSION AT PALM SPRINGS INTERNATIONAL AIRPORT THIS FIRST AMENDMENT, made and entered into as of the ktkday of 2009, by and between th CITY, OF P LM S7I,NG a p municipal corporation ("City") and1,� v lf:A� L� ("Concessionaire"). RECITALS WHEREAS, City is the owner of the Palm Springs International Airport, ("Airport'), and provides, as a portion of ground transportation to the Airport, car rental services for the community and its visitors; WHEREAS, City and Concessionaire entered into a Non-Exclusive Operating and Lease Agreement No.S7_, dated July 1, 2006 for a full or limited car rental concession at Palm Springs International Airport; WHEREAS, City and Concessionaire wish to enter into this First Amendment to change the age of rental vehicles requirement from "two" to "three" years previous to the current model year until June 30, 2010. WHEREAS, this Amendment was offered to all Non-Exclusive Full and Limited Car Rental Concessionaires at the option of the Concessionaire per Section 4.03 Restrictions of Privileges, Uses and Rights. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises of the parties hereto and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City and Tenant agree as follows: I- Subsection 8.02 F. Concession Service Standards in the Lease shall be amended as follows" with all other provisions of Section 8.02 F. remaining unchanged and in full force and effect: "Said automobiles shall not be older than three years previous to the current model year'. If the second option is exercised by the City effective July 1, 2010 Subsection 8.02F will revert to the original requirement "Said automobiles shall not be older than two years previous to the current model year". Car Rental Concession Amendment No.1 CIY?w;r,rrC.f �_ 1 Palm Springs International Airport 2. Full Force and Effect. Except as expressly modified herein all other provisions of the Concession Lease Agreement shall remain unmodified and in full force and effect. 3. Corporate Authority. The persons executing this Amendment on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Amendment on behalf of said park, (iii) by so executing this Amendment, such party is formally bound to the provisions of this Amendment, and (iv) the entering into this Amendment does not violate any provision of any other agreement to which said party is bound. (EXECUTION PAGE FOLLOWS) Car Rental Concession Amendment No.1 2 Palm Springs International Airport IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. _ - ATTEST: CITY OF PALM SPRING a municipal corporatio By. By City Clerk City Ma PROVED AS / 'A PP ITYCOUNCIL �1PPrR�V/ D BY CITY MANAGER CONTRACTOR: Check one: Individual Partnership Corporation Corporation uire two notarized signatures: One from each of the following: A. Chairman of Board, Presiders or a Vice President:AND B. Secretary,Assistant Secretary,Treasurer,Assistant Treasurer, or Chief nc• cer. B By: Signature (notarized) //�( �S•ignatuye (no ized)_ Name: {oj,!"?% /V• ,� i l fl7i Name: ! CGL i ii A/% Title: �•�i�r°.,'/.✓y Title: 1 ��', /D ip p'.� Stale of Aj1 y,,5(J A r1 State of County of J Ll/ Sn / County of Zal s rr C� �dJ° ��( U' /^ L S itS/6efora me,On !before me, etb' C`' (lG[, 'f On / Personally appeared �/ 6 • JPI1—1 l'] personally appeared(.3✓ 0- 61401 f✓1C3 w-/m who proved to me on the basis of safisfacory who proved to me on basin`of satisfactory evidence to be the persons)whose name(s) evidence to be the person(s)whose name(s) islare subscribed to the within instrument Were subscribed to the within instrument and acknowledged to me that he/she/they and acknowledged to me that he/she/they executed the same in his/her/their authorized executed the same in his/her/their authorized capacity(ies), and that by his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), signatures(s) on the instrument the person(s) or the entity upon behalf of which the or the entity upon behalf of which the person(s) acted,executed the instrument. person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY I certify under PENALTY OF PERJURY under the taws of the State of California that under the laws of the State of California that the foregoing=2CIrElph is true and correct. the foregoing paragre is true and correct WITNESS my hand nd offciaLseaL WITNESS my hand an official seal. Notary Signat /� l S�(9 s' Notary Signat �� S/ Notary Seal: V Notary Seal: PpY P!!•. MARY K.CCLASSUS =aC�' BGci My CommissionEcpires MARYK.OSLASSt1S <Pg B July = °•••• 'fin, My Commission Expires "3•. SEAL §_ NOTARY'. �•;yjF-.....•; St.Louis County = July 10,2011 "k,lp Commission#07110010 -` SEAL.ag_ SL Louis County commission407110010 Car Rental Concession Amendment NoA ; Palm Springs International Airpor Vanguard Car Rental USA Car Rental & Lease A5296 MO 7864 06-07-06 Non-Exclusive Operating and Lease Agreement No. Between the City of Palm Springs and Vanguard Car Rental USA Inc. d/b/a Alamo & National For the Operation of a Car Rental Concession at Palm Springs International Airport Palm Springs International Airport--Car Rental Concession Agreement Page 1 of 49 ORzN;�11L EZ TABLE OF CONTENTS PAGE ARTICLEI RECITALS.. ........... ........................... ........... .. ......................................................7 ARTICLE DEF1N1Ti0NS................................. .......... .. .. ....................•• .. ........................7 2.01 Airport. .. ........................................... .I—,.-- .. .................,....................................7 2,02 Annual Percentage Payment .................... .. ......................• --- ..................---- 7 2.03 Brand. ........................................ ....................................... .. .. ................. .. 7 2.04 Concession --................................ .......7 2.05 Concussion Fees.......... . - - .................••.. .....................•• .................. .. 7 2.06 Contract Year................................. .............................................................................7 2.07 Customer Facility Charge-- ............... ........ .. .. ................. .. .. .. .................. 7 2.08 Designated Premises.... --...................•• .. .....................•• ............................7 2,09 Director of Aviation.................. .. .. ........ .. .......................... .. .. ............... .. .. .....7 2.10 Disadvantaged Business Enterprise or DBE................................................................7 2.11 FAA.................................................. -- .. ................... ...................... .. ........8 2.12 Facility Rental....................... .. ............................... ...................................... .........8 2.13 Gross Revenues... .. .. ...................................................... ........................ .. .. ......8 2.14 Minimum Annual Guarantee .. ........................................ -- ................. ..........9 2.15 Monthly Percentage Payment.......................................... .. ...................... .. .. .. .......9 2.16 Response................................................. .. .................... .. .................. -- ........9 2.17 Terminal ............................ .. ..................... .. .. ................................... - ................9 2.18 TSA................- - ....................................................... .. ...................... - - - ..........9 ARTICLE 3 TERM OF OPERATING AGREEMENT. . ..................................................... .........9 3.01 Term...... --.....................• .. .. .....................•• .. .. ................ .. ................... 9 3.02 Delivery of Assigned Designated Premises .......---.....................................................9 ARTICLE 4 PRIVILEGES AND PREMISES ...... ........................................................................ 10 4.01 Description of Specific Privileges, Uses and Rights.................................................. 10 4,02 Description of General Privileges, Uscs and Rights.................................................. 10 4.03 Restrictions of Privileges,Uses and Rights................................................................ 10 4.04 Condition of the Designated Premises and Airport.................................................... 11 4.05 Dual Branding............................................................................................................11 4.06 Right to Relocate Customer Service Counter............................................................. 11 4.07 Ready Return Space Relocation......................... .........-------.................................... 12 4,08 Overflow Parking Spaccs...................... ......•-- ....................••• .-- .......................12 4.09 Off-Airport Car Rentals. .. .. ........................ .. .................... ...................-- 13 4.10 Security/Safety Meeting.. ........ ..... ...................... .. ................................................ 13 ARTICLE 5 CONCESSION FEES, FACILITY RENTAL.ACCOUNTABILITY AND PERFORMANCE GUARANTRE................. ........... .. ........................................... 13 5.01 Concession Fees...................... .. ................... .. .. .................. .. .................. 13 5.02 Abatement of Minimum Annual Guarantee............................................................... 14 5.03 Facility Rental......................................... ............ .. ................. .. .. ................ 14 Palm Springs International Airport-Car Rental Concession Agreement Page 2 of 49 5.04 Unpaid Fees .. ...................................... . . ........................................ 15 5.05 Diversion of Gross Receipts.. .. .................... -- .. .. .............. .........................----.. 15 5.06 Sales and Use Tax................. .. ............. ......................... 15 5.07 Net Agreement .. ........ ................................ . . 15 ................................ 5.08 Place of Payments ................... .. ......................... . ........................ ....... 15 5.09 Montbly Reports of Gross Revenues. .................................................... 15 5.10 Accounting Records............. . ... .......................... .. ............................ . 16 5.11 Audit Requirements......................... .... .......------------------------- -.,...................... -------- 16 5.12 Audit by City .. ............................... ................................ ... 17 5.13 Internal Controls.................. .. ................................................................................... 17 5.14 Concession Pass-Through........... ........ 17 5.15 Customer Facility Charge ................................. ..................... 18 5.16 Performance Guarantee .................................................................. ....19 ARTICLE 6 CONSTRUCTION OP IMPROVEMENTS.................... ...........................20 6.01 Required Improvements......... .. .. .. ......................................... .............20 6.02 Alterations, Improvements or Additions....................................................................20 6.03 Construction Requirements....................... .. .. ............ ...........................20 6.04 Construction Insurance/Indenmification....................................................................20 6.05 No Liens. .......... .............. 20 6.06 As-Built Drawings.......... ................................................................. ...........21 ARTICLE 7 A L'I'LRATIONS AND 1MPRO V LMLNTS ..............................................................21 7.01 Title to Improvements.. ................................................. ...........................................21 7.02 Removal of Improvements................. .. .. .. ....... ............................ ..21 7.03 Maintenance Service Facility Improvements.............................................................21 ARTICLE 8 OBLIGATIONS OF CONCESSIONAIRE......................... ...................22 8.01 Maintenance and Repair........................... ..................... .......................22 8.02 Concession Service Standards..................... ...... ............ ......................23 8.03 Concession Operational Standards................................ ...........................23 8.04 Utilities..................................... ..... .. .............................. .. .. ...................... .. ... .26 8.05 Trash and Rcfuse................................. ...... ............... ...........................26 8.06 Tree Maintenance.. .. .. ........................................ ....................... .. ..26 8.07 Cleanliness of Premises...................... .. ................. .. ..............................................26 8.09 Security......................................... .............. .......................... -- .27 8.09 Airport Security Program............................... .......................... .. .. .27 .ARTICLE 9 SIGNAGF .............................. ...................... .27 9.01 Signagc...................................... .................. .. --................................... ..27 ARTICLE 10 INSURANCE...................... ................................. .. -- .....................28 10-01 Cotmnercial General Liability.................... ...............................................................................28 10.02 Comprehensive General Liability. .. .........................................................................28 10.03 Workers' Compensation&Employers Liability........................................................28 10.04 Automobile Liability............. .. ............................ -- .. ........................ .28 10.05 General Provisions ................... ........................... .......28 Palm Springs International Airport-Car Rental Concession Agreement Page 3 of 49 ARTICLE I 1 RELATIONSHIP OF THE PARTTES.......................................................................29 ARTICLE 12 INDEMNIFICATION.............. ............... ................................ .. .........................29 ARTICLE 13 DAMAGE OR DESTRUCTION OF PRGMiSES/IMPROVEMENTS ....................30 13.01 Concessionaire's Obligation.......................................................................................30 13.02 Right to Cancel .. ......................... .. ............................••. .. .. .. ..................31 13.03 Insurance Proceeds...................... ..............................................................................31 13.04 Termination Upon Destruction or Other Casualty.............................................. ......31 ARTICLE 14 TERMINATION OF AGREEMENT,DEFAULT, AND REMEDIES.. .. ...............31 14.01 Termination.......................-- .. .....................•••• .. .. .......................... ....31 14.02 Default.................. ................................................ .. .......................... . .,.31 14,03 Remedies .. .. ........................ ............ .......... .. .. .................................32 14.04 Termination by Concessionaire................................................................ ..32 14.05 Surrender of Assigned Designated Premises..............................................................33 ARTICLE 15 ASSIGNMENT AND TRANSFER...........................................................................33 ARTICLE 16 LAWS,REGULATIONS.PERMIT'S AND TAXES ................................................33 16.01 Compliance with Laws.......... ....................... .. .. .. ....................... .. .. .33 16,02 Use of Underground Storage'fanks.......................................................... ................34 16.03 Permits and Licenses Generally.................................................................................35 16.04 Air and Safety Regulation................................. .. ............................ -- ...........36 16.05 Payment of Taxes........... .. .. .................. ..........••• .. ................................. .. .....36 ARTICLE 17 DISCLAIMER OF LIABILITY..... ...........................................................................36 ARTICLE 18 NOTICES......... .. ................................... .. .......................... .. ..........................37 ARTICLE 19 GOVERNMENTAL RESTPIICTiONS ............ ........................................................37 19.01 Federal Right to Reclaim — .. ........................... .. .. ...................... .. .......37 19.02 Federal Review.... .. ...... .......................... . .......................................... .. ..............37 19.03 City'fax Assessment Right........................... ............................................................38 19.04 Right of Flight..................... --.................................• ............................ .. .....38 1905. Operation of Airport......... ..... ................ ...............................................................38 19.06 Release . ....................... .. -- ....................... .. .. ....................... .. ........38 ARTICLE 20 NON-DISCRIMINATION............. .............. .. ............................. .. .. ...................38 20,01 Non-discrimtnatiO° .........................••. .. .......................••••• . .......................38 20.02 Disadvantaged Business Entcrpri5es/Affirmative Action..........................................41 2003. Required DBE Statements... .. .. .............................. ..............................................41 2004. DBE Program Requirements. .. ........................... -- .. ..................... .. .. ....41 Palm Springs International Airport—Car Rental Concession Agreement Page 4 of 49 I ARTICLF,21 MISCELLANEOUS............. . ............................................................ .. -- .. .........42 21.01 City Not Liable. ........................... ......................... .. .. .. .. .. ......42 21.02 Authorized Uses Only.......... .. .. .. ............................. .. ...................................................42 21.03 Waivers ................ ........................................ .... ................................................. ................42 21.04 Subordination to Federal Agreements...............................,...................................................42 2105 City's Govenunental Authority................ .......................................................... .. .. -- ..43 21.06 Rights Reserved to City .. -- .................... ............................................................ .. ........43 21.07 Invalidity of Clauses ......................................................... .. ......................... ... .. -- .....43 21,08 Venue 44.......... ................................... ..... .. .................................. ................ .. -- .........43 21.09 Governing [uw................................................................................... .. .. .. ...................43 21.10 Inspections.............................................................................................................................43 21.11 Remedies Cumulative................ ............... ........................ ........... .. .. .. .. .. ................43 21.12 Paragraph Headings ...................................................................... .. .. ...................43 21.13 Binding Effect...... .. ................................. .. -- .. .............................. ..................43 21.14 Perfonnancc.......................... ........••• .. -- .....................43 21.15 Conflict. .. ......................... ............................. .. .. .. ..................................43 21.16 Excusable Delay...................................................................... .. .............................. . -- 43 21.17 Incorporation by References................................... .. ... ..... ............................44 21.18 Entirely of Agreement.. ---- .. .......................... .. .. ---- .......................... .. .. .. ........44 21,19 Construction...... ........................................ ..................................... ....................................44 2120 Radon 45.......................................... ............................................ ......................................44 SIGNATUREPAGE ......... ............................. ... .... .................... .. ............................. .. .. ................45 FXHTBITS..................................................................................................................................:...............46 Exhibit A Ready Return Spaces/Lanes............................. .. ......................................................46 Exhibit Ovcr0ow Parking Lots.............. .. ................................ .. -- .....................---47 Exhibit C Customer Service Counter Spaces .............................................................................48 Exhibit D Maintenance Service Facility Spaces............................................................. ...........49 Palm Springs International Airport—Car Rental Concession Agreement Page 5 of 49 Non-Exclusive Operating and Lease Agreement No. �'a400 Between City of Palm Springs and Vanguard Car Rental USA Inc., d/b/a Alamo & National For the Operation of a Car Rental Concession AT Palm Springs International Airport THIS NON-EXCLUSIVE OPERATING AND LEASi? AGREEMENT (Agreement), made and entered into this 1" day of July, 2006, by and between the CITY OF PALM SPRINGS, a municipal corporation(hereinafter referred to as City),and Vanguard Car Rental USA, Inc. d/b/a Alamo &National, (hereinafter referred to as Concessionaire), having its usual place of business at the Pahn Springs International Airport, 3400 E. Taltquitz Canyon Way, Palm Springs, California 92262, and a permanent mailmg address at 6929 N. Lakewood Avenue, Suite 100,Tulsa_Oklahoma, 74117-1810. WITNESSETH: WHEREAS, the City owns and operates the Palm Springs International Airport (hereinafter referred to as Airport), located in the City of Palm Springs, County of Riverside, State of California, at 3400 E. Tahquitz Canyon Way; and WHEREAS, Concessionaire submitted a response to City's public solicitation for competitive bids for the Airport Rental Car Lease and Concession, Invitation for Bids (IFB) No. 06-04, which was opened May 2, 2006; and Wi-iEREAS, the City operates the Airport as a governmental function for the primary purpose of providing to the public the service of air transportation; and WHEREAS, rental car services at the Airport are essential for proper accommodation of passengers arriving at and departing from the Airport and for patrons of the Airport; and WHEREAS, City and Concessionaire mutually desire to color into this Agreement in order to Provide, as a portion of ground transportation to the Airport, car rental services for the community and its visitors; and WHEREAS, City has the right to permit the use of its property at the Airport and to grant the use of the Airport to Concessionaire for the operation of Conccesionaire's car rental service and to fix the terns and conditions for such operations by the Concessionaire; and WHEREAS, Concessionaire, for many years, has been engaged in the operations of an automobile rental business and is presently engaged in the performance of this type of service and is prepared, equipped and qualified to comply with the terms provided herein; NOW, THEREFORE, the parties hereto, for and in consideration of the premises, covenants and a1,*rcements hereinafter contained to be observed and performed, the respective parties, DO HEREBY AGREE AS FOLLOWS: Palm Springs International Airport—Car Rental Concession Agreement Page 6 of 49 ARTICLE 1 RECITALS The foregoing recitals are true and correct and are hereby incorporated herein by reference. ARTICLE 2 DEFINITIONS 2.01 "Airport" means the Palm Springs hiternationel Airport, located at 3400 E. Tahquit7 Canyon Way, Palm Springa, California, owned and operated by the City of Palm Springs. 2.02 "Annual Percentage Payment" means tcn percent (10%) of Concessionaire's annual Gross Revenues. 2.03 "Brand" for purposes of the Agreement, means a distinct rental car service brand or trade name That is used for the purpose of customer identification,reservations,and rental car transactions.. 2.04 "Concession" means the rental car concession operated by Concessionaire pursuant to the terms and conditions of this Agreement. 2.05 "Concession Fees"means the fees payable by Concessionaire to City pursuant to Scction 5.01(A) and(B). 2.06 "Contract Ycar" means the twelve (12) month period, beginning on July 1, 2006 and ending on June 30, 2007, and each twelve (12) month period thereafter, until the termination of this Agreement. 2.07 "Customer Facility Charge" or "CFC" means the fee imposed by CITY on each and every customer of the Concessionaire with respect to customer contracts at the Airport. 2.08 "Designated Premises" means the Ready Spacn/Return Lanes, Customer Service Counters, Overflow Parking Spaces and the Maintenance and Service Facilities as shown on Exhibits A, B, C, and D attached hereto and incorporated herein by reference and described more particularly below- A. Ready Return Spaces/Lanes adjacent to the north side of the Terminal Building as depicted on Exhibit A. B. Overflow Parking Spaces: are located in the two (2) parking lots as depicted on Exhibit B- C- Customer Service Counters: six (6) counters are located in the baggage claim area of the Terminal Building as depicted on Exhibit C- D. Maintenance and Service Facilities: five (5) facilities are located as depicted on Exhibit D. 2.09 "Director of Aviation" means the person designated by the City holding said position and having the responsibilities and authority described tacrcin or his designees. 2.10 "Disadvantaged Business Enterprise" or "DBE" has the same meaning as set forth in 49 CPR, Palm Springs International Airport—Car Rental Concession Agreement Page 7 of 49 part 23 (Code of Federal Regulations) as now or hereafter amended or any successor regulation. 2.11 "FAA."means the Federal Aviation Administration, 2,12 "Facility Rental" means the annual rental rate payable by Concessionaire to City for Concessionaire's use and occupancy of the assigned Designated Premises pursuant to Section 5,03. 2.13 "Gross Revenues" means all monies due Concessionaire, whether paid or unpaid, from any and all customers for the use, rental or lease of vehicles and any additional services or accessories contracted for, delivered, supplied or rented at or from the Airport regardicss of where, how (cash, credit, baiter or otherwise) or by whom psyrncnt is made; whether the customer is transported from the Airport to an off-Airport place of business; or where the vehicle is picked up or returned. Unless revenues are expressly and specifically excluded from Gross Revenues, all revenues derived from, arising out of or becoming payable on account of the Concession,whether directly or indirectly, shall be included in Grosy Revenues. Gross Revenues shall include, but shall not be limited to: A. Time and/or mileage chargcs, after discounts taken at the time of rental, assessed by Concessionaire to its customers- B. Premiutns on any and all insurance sold, including personal accident insurance, personal effects and cargo insurance, life insurance and any other insurance sold in connection with a vehicle rental. C, Sums received from customers for Collision Damage Wavier(CDW)protection and Loss Damage Waiver(LDW)protection. D. Any and all add-on fees and chargcs including extra driver coverage, underage driver coverage and vehicle upgrade chargcs. E. Any and all fees and charges for equipment, supplies and incidental items which are made available and charged for separate from the vehicle including, but not limited to, sporting equipment, cellular telephones, pagers, child restraint seats, video equipment, and any other incidental items and services. F. All local revenue derived from a vehicle rental transaction with a customer who has not deplaned at the Airport, yet the rental transaction occurred at the Airport. It also includes revenue derived from a vehicle rental transaction from any of the fixed base operator (FBOs)located on the airport. G. All charges attributable to any vehicle originally rented at the Airport, which is exchanged at any other location of Concessionaire. 1-I. All proceeds from the long-tern lease of vehicles from any location on the Airport. L Amount charged to Concessionaire's customers at the commencement or the conclusion of the rental transaction for the cost of ftirnishing and/ or replacing fuel provided by Concessionaire. J. Amount charged by Concessionaire as a pass throuob to its Customers of Concession Fees, including,but not limited to, any Recovery Fee as provided in Section 5.14 i Palm Springs International Airport—Car Rental Concession Agreement Page 8 of 49 K. Charges commonly referred to as "drop charges"or"intercity fees." Gross Revenues shall not include: L. The CFC added to each customer contract or otherwise charged to or assessed on each customer of the concessionaire. M. Amount of any sales taxes or other similar excise taxes, now or hereafter levied or imposed,which arc separately stated and collected from customers. N. Any sums received as insurance proceeds, or payments from Concessionaire's customers or insurers for damage to vehicles or other property of Concessionaire. G. Sutns received as the result of the loss, conversion, or abandonment of Concessionaire's vehicles. P. Sums received from the sale of vehicles or otber equipment used in the operation of the Concession,the use of which Concessionaire wishes to discontinue. Any retroactive discounts from gross revenues, including corporate volume discounts, arc specifically prohibited. 2.14 "Minimum Annual Guarantee" (MAG)means a mhtinrum amount to be paid to City on an annual basis during each Contract Year as set forth in Section 5.01(A). 2,15 "Monthly Percentage Payment" means ten percent (10%) of Concessionaire's monthly Grass Revenues. 2.16 "Response" means Concessionaire's response to City's Invitation for Bids # 06-04 whtcb was opened May 2,2006. 2.17 "Terminal"means the main structures at the Airport where ticket counters, cenicr lobby,baggage claim,and gate concourses arc located and are depicted on Exhibit E. 2.18 "TSA"means the Transportation Security Administration. ARTICLE 3 TERM OF OPERATING AGREEMENT 3.01 Tenn. The term of this Agreement shall be for a period of three (3) years, commencing on July 1, 2006 (the Conmienccmcnt Date) and terminating on June 30, 2009 (the Tenn), unless sooner terminated as provided herein. At the sole discretion of the City, this agreement may be extended for two additional one (1)year option periods- 3.02 Delivery of Assigned Designed Premises. Should City be unable to deliver possession of the assigned Designated Premises as of the Conurtenccmuot Date, rent shall be abated until possession is delivered. Concessionaire shall have no other remedy for such late delivery, nor shall such delay extend the term of this Agreement. if possession cannot be delivered within sixty (60) days of the Commencement Date, Concessionaire shall have the right to terminate this Agreement. Palm Springs International Airport—Car Rental Concession Agreement Page 9 of 49 ARTICLE 4 PRIVILEGES AND PREMISES 4.01 Description of Specific Privileges, Uses and Rights. City hereby grants to Concessionaire the following non-exclusive specific privileges, uses and rights, all of which shall be subject to the terms, conditions acid covenants set forth herein: A. To conduct and operate a high quality rental car concession at the Airport from the Designated Prcmiscs. B. To offer for rent additional services or accessories to complement the basic vehicle rental from the assigned Designated Premises. Such additional services or accessories may include the right to offer for sale related loss and collision damage waiver protection, personal injury and accident insurance, supplemental liability, uninsured motorist, and personal effects insurance; and to provide customer service features such as baby car seats and cellular telephones. 4.02 Descrimion of Gcncral Privileges Uses and Rights. in addition to the specific privileges granted pursuant to Suction 4.01,City hereby grants to Concessionaire: A. Nonexclusive use of the public areas within the Terminal for Concessionaire, its employees, contractors, patrons, invitees, suppliers of service, agents and authorized sublessees, if any, in connection with its operations hereunder. For purposes of this Ad ecment, "Public Areas" means the public corridors, restrooms and oilier areas within the Terminal that the general public has the right to acecss- Public Areas shall at all times be subject to the exclusive control and management of City. City shall have the full rigbt and authority to make all rides and regulations as City may in its sole discretion deem proper, pertaining to the proper operation and maintenance of the Public Areas; and B. Nonexclusive right of ingress to and caress from the Terminal over and across public roadways and walkways serving the Airport for Concessionaire, its employees, contractors, patrons, invitees, suppliers of service, agents and authorized sublessees, if any, in connection with its operations hereunder. Nothing herein contained shall be construed to gram to Concessionaire, its employees, contractors, patrons, invitees, suppliers of service, agents or authorized sublessees, if any, the right to use or occupy any space or area at the Airport improved or unimproved that is leased or assigned to a third party, or, except as expressly set forth in Section 4.02(A) and (B) above, City has not leased to Concessionaire pursuant to this Agreement. The general privileges, uses and rights granted in this Section 4.02 shall be suhjecr to the terns, conditions and covenants set forth herein. 4.03 Restrictions of Privileges, Uses and Rights, The rights granted hereunder are expressly limited to the operation and management of a rental car concession. Concessionaire covenants and agrees that the Designated Premises shall be used solely for the uses permittcd in Sections 4.01 and 4.02 above and for no other purposes whatsoever. Concessionaire hereby acknowledges and agrees that the car- rental concession herein granted is not an exclusive concession and the City shall have the right to deal with and perfect arrangements with any other individual or individuals, company or corporation to engage in a like car rental concession activity at the Airport, provided that there are not more than six car rental concessions operating out of the Terminal Building. In the event that any conu•act granted by the City to any other on-site automobile rental Palm Springs International Airport—Car Rental Concession Agreement Page 10 of 49 concessionaire shall contain any Provisions more favorable to such concessionaire than the terns herein granted,then, at the option of concessionaire which option shall be exercised by providing written notice io City,this Agreement shall be amended to include such more favorable terms and any off-setting burdens that may be imposed on any such other concessionaire. The intent of this provision is to ensure that Concessionaire is competing on as equal of terms as possible with any additional concessionaire and, as a result, no other concessionaire shall enjoy any tights, Profits or conditions more favorable to such concessionaire than those enjoyed by Concessionaire. 4.04 Condition of the Designated Premises and Airport. Concessionaire expressly acluiowlcciges that it has inspected the assigned Designated Premises and Airport and accepts the same "As Is, Where Is" in the condition existing as of the Effective Date, together with all defects latent and patent, if any. Concessionaire further acknowledges that City has made no representations or warranties of any nature whatsoever regarding the Airport or the Designated Premises, including, but not limited to, the physical and/or environmental condition of the Designated Premises, or any improvements located thereon, or the value of the Designated Premises or improvements, or the suitability of the Designated Premises, or arty improvements, or Concessionaire's legal ability to use the Designated Premises for Concessionaire's intended use thereof. 4.05 Dual Branding. Concessionaire shall be prohibited from operating at the Ail-port under any brand name or trade name other than the brand name(s) or trade name(s) that it originally designated in its Response,unless this Agreement has been assigned or sublet during its Term with the approval of City pursuant to the terms and conditions of Article 14 herein. ID no event,however, may more than a total of two trade or brand Dames be used. Except in the event of assignment of subletting during the Tenn of this Agreement as indicated above, Concessionaire shall operate and maintain all sib age only under the brand or trade name(s) originally designated in its response to the IFB. No other brand name shall be used or displayed by Concessionaire at the Airport or upon the Premises. If Concessionaire utilizes any particular brand or trade nine trader a license or franchise agreement, Concessionaire represents and warrants io the City that Concessionaire has been granted the right to use any such brand or trade name that may be used at the Premises for the entire term of this Agreement, pursuant to a franchise or license agreement (the Franchise Agreement) with the trade name owner(a Franchisor). At the City's request, Concessionaire agrees to provide the City with a copy of the Franchise Agreement and reasonable evidence that such agreement remains in full force and effect. Concessionaire agrees that the termination of Concessionaire's right to use Concessionaire's brand or trade name at the Designated Premises or to conduct a Rental Car Concession at the Premises of the type then conducted by or under license from Franchisor under the brand or trade name, shall constitute a material breach of Concessionaire's obligations under this Agreement. Except as provided herein,"Dual Branding"is prohibited. 4.06 Right to Relocate Customer Service Counter. City reserves the right to relocate all of the Customer Service Counter Space within the Terminal Building if required to ensure the operational effectiveness of the Terminal Building and concourses and if City agrees to reimburse such Relocation Costs to Concessionaire through Concession Fee credits. Said relocation shall be in order of original counter selection to an area of comparable size and quality as is reasonably practicable. "Relocation Costs" shall mean the reasonable and actual out-of-pocket expenses Palm Springs International Airport—Car Rental Concession Agreement Page 11 of 49 incurred by Concessionaire to move from the existing assigned Customer Service Counter Space to a substituted area(Substituted Premises) and the unamortized cost of Customer Service counter improvements made by concessionaire, if any, that cannot be relocated to the Substituted Premises. The unamortized cost of the improvements shall be determined in accordance with Generally Accepted Accounting Principles with a useful life not to exceed the term of the this Agreement Upon completion of such relocation, Concessionaire shall provide City with a statement certified by a financial officer of Concessionaire: (1) setting out Concessionaire's Relocation Costs-, and (2) itemizing the improvements made by Concessionaire that cannot be relocated to the Substituted Premises and showing the calculation of the unamortized value of such improvements. Copies of invoices shall accompany said statement for such Relocation Costs. City shall thereafter reimburse Concessionaire for such Relocation Costs by crediting the Privilege fee thereafter due until the Relocation Costs are reimbursed. 4.07 Ready Return Suacc/Lane Allocation/Reallocation. The City will assign the location of the Ready Return Spaces and Return Lanes within the Ready Return Space/Lane Lot for the three year Term to the top five (5) Concessionaires based on total ago-cgatc MAG for the initial three year term of the Agreement. At the commcnecmenl of this Lease, COnCCSSionalre will be assigned 27 Ready Return Spaces based on the ratio of Concessionaire's Minimum Annual Guarantee set forth in Section 5,01.A for the First Allocation Period to the total amount of the Minimum Annual Guarantees — First Allocation Period specified for the top five (5) Concessionaires in order from highest to fifth lowest MAG. For all subsequent years of the Agreement, the number of Ready Spaces will be reallocated to each Concessionaire based on a ratio of COnCCSS1ODa1re's Gross Revenues for the preceding Agreement Year to the total Gross Revenues of the top five (5) highest Gross Revenue On Airport Car Rental Concessionaires for the preceding Agreement Year. For all subsequent years of the Agreement, the Return Lane reallocation, if any, will be given to the top five (5) Concessionaires in descending order based on the Gross Revenues for the preceding Agreement Year. In the event a City audit of Gross Revenues determines an error in Gross Revenues of Concessionaire, the City may adjust the assigned Ready Return Spaces/Lanes based on the corrected Gross Revenues- The reallocation of Ready Return Spaces/Lanes shall take place on September 1 of each subsequent Agreement Year. Should TSA impose security rules that negate the above process by reducing the total number of Ready Return Spaces/Lanes,the Airport shall have the right to adjust allocations. 4.08 Overflow Parking Spaces. The Overflow Parking Spaces shall be used to park Concessionaire's vehicles awaiting for or returning from customer rental, or for purposes of fleet rotation. The City,based on Concessionaire's request and space availability, shall designate:overflow Parking Spaces on a first Palm Springs International Airport—Car Rental Concession Agreement Page 12 of 49 come, first served basis depicted in Attachment`B"hereto, and incorporated herein by reference. . The fee per space per day will be taken from the City of Palnx Springs current Comprehensive Fee Schedule. 4.09 Off-Airport Car Rentals. The City will continue to require off-airport car rental operators to obtain a permit as stipulated in the City's Comprehensive Fee Schedule and pay nine (9) percent privilege foe for business transacted with Airport passengers and customers as long as legally allowable. Nothing contained within this Section 4.09 shall be construed to mean that granting of said permit is the granting of a concession within the meaning of this Agreement, nor shall any provision of this subsection be construed to require the City to extend any more favorable economic tcmxs established for off-airport car rental operators, including percentage fees, to Concessionaires. 4.10 Security/Safety Mceting. Prior to the commnenccment of operations under this agreement, and at least annually thereafter, Concessionaire shall meet with the other car rental concessionaires operating on the Airport and Airport management to discuss and agree upon parking, recalculation and reallocation of Ready Return Spaces/Lanes, automobile movement procedures and Security/Safery procedures to be utilized by car rental concessionaires operating at the Airport. Said operating procedures shall specifically address procedures covering the receipt, storage and dispensing of automobile fuel at the Maintenance Facility Spaces. Safety procedures applicable to the installation, maintenance, and safety checks of storage and dispensing equipment will be included. The Director of Aviation shall have the right to resolve all disputes, disagreements or conflicts that may arise. ARTICLE S CONCESSION FEES, FACILITY RENTAL, ACCOUNTABILITY AND D PERFORMANCE GUAARANTEE 5-01 Concession Fees. For the concession privileges granted hereunder, Concessionaire shall pay to City Concession Fees equal to the greater of the Minimum Annual Guarantee or Annual Percentage Payment for each Contract Year throughout the Term of this Agreement. Concession Fees shall be payable in advance by installment as provided for herein and shall be reconciled on an annual basis in accordance with the provisions or Section 5.11 below. A. Minimum Amoral Guarantee. Concessionaire shall pay to City commencing upon the Commencement Dale and on the first day of each and every month throughout the Term of this Agreement, ono-twelfth (1/12) of the Minimum Annual Guarantee for the applicable Contract Year without demand, deduction, holdback or setoff. Concessionaire agrees the MAC. for each of the following Contract Years shall be as follows: July 1,2006—June 30,2007 (First Allocation Period) S 709,733.00 July 1,2007—June 30, 2008 (Second Allocation Period)$717,193.00 July 1, 2008—June 30,2009 (Third Allocation Period) $727324.00 If the option is awarded for years four and five, the MAG for years four and five will be the same MAG as the Third Allocation Period. B. Monthly Percentage Payment, within twenty (20) days after the beginning of each and every month throughout the Term of this Agreement, Concessionaire shall deliver a Statement of Gross Revenues (as hereinafter defined) for the preceding month to the Palm Springs International Airport—Car Rental Concession Agreement Page 13 of 49 Airport. In the event the Monthly Percentage Payment is greater than (1/12) of the MAG for the applicable Contract Year, Conccssionaire shall pay the difference to City with the Statement of Gross Revenues. This for is for the privilege to engage in business at Airport and is not for lease of the Concession Premises. Concessionaire shall be liable for any State Sales Tax thereon, should such "privilege fee" now or hereafter be held to be taxable by the Stare of California. 5.02 Abatement of Minimum Annual Guarantee. In the event for any reason the number of passengers deplaning on scheduled airline flights at the Airport during any calendar month shall be less than 65 percent (65%) of deplaning passengers for the same month previous year, or in the opinion of the Director of Aviation, the operation of Concessionaire's cat- rental business at the Airport is affected, through no fault of Concessionaire, by shortages or other disruption in the supply of automobiles, gasoline or other goods necessary to the conduct of such business, and said shortages or other disruption results in the material diminution in Concessionaire's monthly gross receipts and said shortage or other disruption is not caused by a labor dispute involving Concessionaire (such diminution to be satisfactorily demonstrated by Concessionaire to Director of Aviation, and the final decision to be solely that of Director of Aviation), then, in that event, Concessionaire shall not be required to pay to City that portion of the MAG that would otherwise be due and payable in accordance with the requirements of Section 5.01(A) above for that month. During the abatement period, Concessionaire shall continue to pay to City the Monthly Percentage Payment with the Statement of Gross Revenues (as hereinafter defined), and, if applicable, City shall credit Concessionaire a pro-rated portion of any payment of the MAG as may have been paid in advance. Concessionaire acknowledges and agrees that Concessionaire shall remain liable for payment of the full Annual Percentage Payment notwithstanding City's waiver of its right to receive any portion of the MAG. 5.03 Facility Rental. In addition to the Concession Fccs, Conccssionaire shall pay to City for the use and occupancy of the assigned Designated Premises, an annual Facility Rcnlal described as follows: A. For the lease of 27 (#) Ready Return Spaces and # 3 Ready Return Lane located in the Ready Return Spaces/Lane Lot depicted on Attaclunent "A" hcreto and incorporated herein by reference, Conccssionaire shall pay to the City an annual fee for each Ready and Return Space in an arnounl equal to One Thousand Four Dollars ($1004.00) per space multiplied by the total number of spaces allocated to Concessionaire for the Agreement Year, the sum of $ 27,109 00 annually, payable in twelve equal monthly installments of S 2,259,00, payable in advance and without demand on the first day of each month of this Agreement commencing July 1, 2006. 13. For the lease of Customer Service Counter#4 consisting of 439 square feet, depicted in Attachment "C" hereto and incorporated herein by rcCcrcuce, the sum of S 16,190.79 annually, payable in twelve equal monthly installments of$ 1.349.23, payable in advance and without demand, on the first day of each calendar month of this Agreement, commencing July 1,2006. C. For the lease of Maintenance Service Facility # 2 consisting of 72,326 square feet, depicted in Attachment "D" hereto, and incorporated herein by reference, the sum of $46,288,64 annually, payable in twelve equal monthly installments of S 3.857.391 payable in advance and without demand, on the first day of each calendar month of this Agreement commencing July 1,2006, Palm Springs International Airport—Car Rental Concession Agreement Page 14 of 49 D. Facility rental rates identified in Section 5.0.3, paragraphs A, B and C are subject to an annual CP1 adlustmcnt. The CPl used by the City is the All Urban Consumers — not seasonally adjusted, area: Los Angcics-Riverside-Orange, County item: All items, base period 1982-84=100. 5.04 Unpaid Fees. All payments required to be made to the City hereunder shall bear interest at the City's then current rate charged on overdue accounts or the maximum non-usurious interest rate, whichever is less,if not paid within 15 days from the date due. Said interest shall be calculated on a daily basis and shall be due and payable when billed. City shall not be prevented from terminating this Agreement for default in payment due to City pursuant to this Agreement or from exercising any other remedies contained herein or implied by law. 5.03 Diversion of Gross Revenues. Concessionaire shall not intentionally divert, through direct or indirect means, any of Concessionaire's rental car or related business with Airport's customers to off-airport locations of Concessionaire or affiliates of Concessionaire without including the Gross Revenues of such transactions, as dclincd in Section 2.13, in Concessionaire's reported Gross Revenues. Any such intentional diversion of Gross Revenues shall constitute a breach of contract and the City shall have the right to hnnediately terminate this Agreement upon determination by the City or its auditors that an intentional diversion exists or has occurred. Concessionaire shall not modify its accounting treatment or rename or redefine services or products. 5.06 Sales and Use Tax. Concessionaire shall pay monthly to City any sales, use or other tax, or any imposition in lieu thereof (excluding State and/or Federal Income Tax) now or hereinafter imposed upon the rents, use or occupancy of the assigned Designated Premises imposed by the United States of America, the State of California, or City of Palm Springs, notwithstanding the fact that the statute, rule, ordinance or enactment mmposmng the same may endeavor to impose the tax on City. 5.07 Net Acreernenl. This Agreement in every sense shall be without cost or expense to City including without limitation, cost and expenses relating to the development, maintenance, improvements and operation of the assiomcd Designated Premises. 5,08 Place of payments. All payments required to be made by the Concessionaire under this Agreement shall be made payable to the City or Palm Springs, delivered or mailed postage prepaid to: City of Palm Springs Finance Department Post Office Box 2743, Palen Springs, CA 92263-2743 or at such other place the City as the place of payment may hereinafter designate as in writing. 5.09 Montbly Reports or Gross Revenues- Within twenty (20) days after close of each month of throughout the Term of this Agreement, Concessionaire shall submit to the Airport, in a form and detail satisfactory to the City, a Statement of Gross Revenues that details Gross Revenues for the prior calendar month. The concessionaire shall attach payment per Section 5.0113 if applicable to its Statement of Gross Rcvenucs. Palm Springs International Airport—Car Rental Concession Agreement Page 15 of 49 The City reserves the right to reasonably prescribe or change repotting forms, their methods and time of submission, and payment schedule. The City shall first submit to Concessionaire in writing specifying the desired changes. 5,10 Accounting Records. Concessionaire shall keep, throughout the Term of this Agreement, all books of accounts and records customarily used in this type of operation, in accordance with Generally Accepted Accounting Principals prescribed by the American Institute of Certified Public Accountants or any successor agency thereto. Such books of accounts and records shall be retained and be available for three (3) years from the end of each Contract Year, including three (3) years following the expiration or termination of this Agreement. City shall have the right to audit and examine during normal business hours all such books of accounts and records relating to Concessionaire's operations hereunder. if the books of accounts and records are kept at locations other than the Airport, Concessionaire shall, at its sole cost and expense, arrange for them to be brought to a location convenient to the auditors for City in order for City to conduct the audits and inspections as set forth in this Article. Concessionaire shall maintain a record of each vehicle rental agreement written at the Airport, including a copy of each original agreement signed by Concessionaire's customer. Accountability for the numerical sequence of contracts issued and unissued shall be maintained. Accounting records of Concessionaire shall be stared sequentially, or in such other manner approved by the Airport, to provide reasonable and expeditious access for audit purposes hereunder. Failure to maintain books of accounts and records as required under this Section 5,10 shall be deemed to be a material breach of this Agreement. The obligations arising raider this Section 5.10 shall survive the expiration or termination of this Agreement. 5.11 Audit Reauirennents. Within one hundred twenty (120) days after the close of each contract year, Concessionaire shall provide to the City an audit report on all Gross Revenues from operations at the Airport and from the operations of any of Concessionaire's subsidiaries, contractors, management companies, or related or afliliatcd companies involved in providing services covered by this Agreement. The audit report shall cover the preceding Contract Year. The audit report shall be prepared by an independent Certified Public Accountant, not a regular employee of Concessionaire, in accordance with Generally Accepted Auditing Standards prescribed by the American Instilutc of Certified Public Accountants or any successor agency thereto or PCAOB, as appropriate. The audit rcport shall include the following: A. Schedule of all revenues by category and month and a schedule of the payments made to City. B. Schedule summarizing the total number of vehicle rental transactions and any sales taxes collected by month. C. The total amount of Concession Pees that have been paid to City in accordance with this Agreement- D. The audit report shall include an opinion on the schedule of all rcvcaucs by category and by month, the schedule oC payments to City, and the calculation of Concession Fees during the period. Delivery of an audit report containing a qualified opinion, an adverse opinion, or a disclaimer of opinion, as defined by the American Institute of Certified Public Accountants or any successor agency thereto, shall be deemed to be a material breach of this Agreement. If the audit report indicates that the amount of Concession Fees (together with any sales taxes thereon) due and Palm Springs International Airport—Car Rental Concession Agreement Page 16 of 49 owing for any Contract Year is greater than the amount paid by Conucssionarrc to City during such Contract Year, the Concessionaire shall pay the diffcronec to City with the audit report. if amount of Concession Fees actually paid by Concessionaire to City during any Contract Year exceeds tbu Concussion Foes duo and owing for such Contract Year, the City shall credit the overpayment in the following order: (1) against any past due amounts owed to City by Concessionaire, including interest and late fees, (ri) against currently outstanding,but not yet due, Concession Fees owed to City by Concessionaire; (iii) against future Concession Fees which will become due during the succeeding Contract Year' and (iv) against any other sums payable by Concessionaire to City. Notwithstanding the foregoing, in the event of an overpayment by Concessionaire during the final Contract Year, the City shall credit the overpayment against any remaining amounts owed to City, including interest and late fees, and refund to Concessionaire any overpayment amount in excess of the credit. 5.12 Audit by City. Notwithstanding any provision in this Agreement to the contraty, Director of Aviation or its mpresentative(s) may at any time perform audits of all or selected operations performed by Concessionaire under the terms of this Agreement, 1n order to facilitate the audit performed by City, Concessionaire agrees to maku suitable arrangements with the Certified Public Accountant who is responsible for preparing the audit report on behalf of Concessionaire pursuant to Section 5.11 to make available to City's represcntative(s) any and all working papers relevant to the audit performed by the Certified Public Accountant. City or its representativc(s) shall make available to Concessionaire a copy of the audit report prepared by or on behalf of City. Concessionaire shall have thirty (30) days from receipt of the audit report from City or its representative(s) to provide a written response to the Department regarding the audit report. Concessionaire agrees that failure of Concessionaire to submit a written response to the audit report in accordance with the requirements of this Section 5.12 shall constitute acceptance of the audit report as issued. If any audit performed by or on behalf of the City for any period discloses an under reporting of Gross Revenues, Concessionaire shall forthwith report and pay to City amounts due plus imerest from the date upon which the correct Concession Fee report and payment originally was to be made at the City's then current interest rate charged on overdue accounts, or the highest amount of interest allowed by law if said interest is ducmcd usurious. if any audit discloses an under reporting by three (3)percent or more for any period, Concessionaire shall reimburse the City for the cost of said audit. The rights granted to thu City herem shall be cumulative and in addition to any and all rights and remedies the City may have at law, equity or otherwise by the terms of this Agreement. 5.13 Internal Controls. Concessionaire shall establish and maimain a reasonably adequate system of internal controls, including a revenue control system. Concessionaire shall require its outside auditors providing the audited statement and opinion required by Section 5.11, to notify Concessionaire and the City of any weakness in Concessionaire's system of internal control coming to the auditor's attention during the course of said audit. Concessionaire shall take the appropriate action to remedy any weakness reported. 5.14 Concession Pass-Through. The Concessionaire acknowledges that the percentage fee payments by Concessionaire to the City tinder this agreement are for the Conccssionairo'b privilege to use the Airport facilities and access the Airport market and are not fees imposed by the City upon Concessionaire's customers. The City does not require, but will not prohibit, a separate statement Palm Springs International Airport—Car Rental Concession Agreement Page 17 of 49 i I of and charge for the percentage fee on customer invoices or rental agreement (Recovery Fee), provided that such Recovery Fee is in full compliance with California laws and regulations and meets the following conditions! A. Such Recovery Pee rnust be titled "Concession Recovery Fee" "Concession Rccoupmcnt Fee"or such other appropriate name. B. Recovery Fee must be shown on the customer rental agreement and invoiced with other Concessionaire charges(i.e, above the line). C. Recovery Fee as stated on the invoice and charged to the customer shall be no more than eleven and onc-tenths percent (11.11%) of Gross Revenues and shall be specifically included in the Definition of Gross Rovcnues for purposes of remittance to the City. D. Concessionaire shall neither identify, treat, nor refer to the Recovery Fee as a tax, nor imply that City is requiring pass through of such fee- E. Concessionaire shall comply with all applicable laws, including Federal Trade Commission requirements and any cormnitrnent to or contractual obligation by Concessionaire with any group of State Attorneys General. 5.15 Customer Facility Charge- A. Imposition of a Customer Facility Charge. During the Tenn of this Agreement, City may impose, and, if directed by City, the Concessionaires will collect and remit to City, a Customer Facility Charge (CFC). The amount of each CFC shall be payable directly by each of the customers of the Concessionaire as a separately identified charge for rental car transaction entered into by said customer. The CFC amount for any of Concessionaire's automobiles contracted for or picked up at the Airport pursuant to a customer contract will be in the amount authorized by applicable California legislation. The proceeds from the imposition of a CFC, if such fee is imposed by the City, shall be used for the planning, design and constriction of common rental car facilities. The CFC shall remain in effect until terminated by City in its sole discretion. B. Collection of Customer Facility Charges. Concessionaire shall separately state the amount of the CFC in all of its customcr contracts and collect the CFC from its customers on behalf of City. Concessionaire agrees that the CFC is not income,revenue or any other asset to Concessionaire, that Concessionaire has no ownership or property interest in such CFCs; and that Concessionaire hereby waives any claim to a possessory or ownership interest in the CFCs. Concessionaire agrees that it holds such CFCs in trust for the benefit of the City, and that the City (or a trustee on its behalf) has complete possessory and ownership rights to such CFCs. C. Reporting and Audit. Concessionaire shall report to City by the twentieth (20d') day of each month the number of transactions that it processed during the preceding mouth, and at such time remit to City all amounts it has collected as CFCs from its customers during the preceding month without deduction or set-off. Concessionaire shall be responsible for the amounts of any CFCs that it does not collect from its customers. Any such amounts not remitted by the twentieth(206)day of the month shall be assessed as a fee payable by Concessionaire equal to two (2%) of such amount per month until paid. City shall have the right to audit the records of Concessionaire, pursuant to Section 5.12 of this Agreement, to assure compliance with this provision. Further, if City determines that a Palm Springs International Airport—Car Rental Concession Agreement Page 1a of 49 t I Concessionaire has failed for any reason to collect and remit the proper amount of CFCs jfor any fiscal year, such Concessionaire will be required to pay to City an arnount equal to the amount of any such deficiency applicable to its Customer Contracts for the fiscal I year in question plus the amount of any fees and penalties owed pursuant to the terms of this Agreement. D. Use of CK Proceeds. City will apply and use the amounts of CFCs remitted to it as follows, First: to the payment of debt service on debt obligations incurred by City in connection with the planning, design and construction of conunon rental car facilities. Second. to repay City for the annual amortisation of any amounts of City's funds expended on or invested in capital rental car facilities; Third: to fund a reserve against any future shortfalls in CFC revenues; Fourth: 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 CFC expendirure requirement; Fifth to defease or prepay the amounts of any indebtcdncss that City has incurred in l connection with the planning, design and construction of common rental car facilities; Sixth. to be held in reserve to pay the cost of future improvements to commmon rental car facilities. 5,16 Performance Guarantee. Concessionaire shall be required to comply with the following l performance security roquircmcnt prior to commencement of activities: i Prior to commencing operations at the Airport pursuant to this Agreement, Concessionaire must post with the City, and Concessionaire must thereafter continuously maintain for the entire term, a performance bond or such other guarantcc form acceptable to the Director of Aviation and City Atiome equal to lift percent 50% of the dollar value of its averse guaranteed minimum i Y, q Y P �• ) � �� '� annual concession fee for teen of the concession agreement to cover Concessionaire's performance of all of its obligations under this Agreement for the entire tern. if Concessionaire elects to submit a performance bond,the performance bond to be provided by Conccssionaire and its surety shall be in a form acceptable to the City. The surety company shall be licensed to do business in California, and shall be otherwise acceptable io the City. Concessionaire shall be responsible for paying all required bond premiums. Such Performance Bond shall not contain any exclusion or condition based on a time-period for the discovery of, and the making of a claim for any loss which is less than one year after the expiration date of such Performance Bond. In other words, the Performance Bond shall allow the City to make a claim trader the Bond, for losses which totally or partially occurred during the period of such Bond. Such extended claim discovery and/or claim reporting period shall be for a period of at least one year or longer after the expiration of such Bond. Such Bond shall not contain any wording that would allow for the cancellation or reduction in coverage under the Bond, other than at the listed expiration dale, provided that 30-days notice of such expiration is given to the City before termination of coverage at any such expiration date. An annually renewable Performance Bond may be substituted by the Concessionaire each year in Palm Springs International Airport--Car Rental Concession Agreement Page 19 of 49 lieu of providing a single Bond. The performance bond shall be payable to the City in the event Concessionaire defaults in any of its i monetary or other obligations to the City hereunder. ARTICLE 6 CONSTRUCTION OF IMPROVEMENTS i 6.01 Required luiprovcments. Concessionaire shall, at its sole cost and expense, install all improvements and trade fixtures necessary and customary for the operation of a rental car concession within the assigned Designated Premises in accordance with the requirements of this Section 6. i i 6.02 Alterations. Improvements or Additions. Concessionaire shall make no alterations, additions or improvements to the assigned Designated Premises, without the prior written approval of the Director of Aviation, which approval may be granted or withheld by the Director of Aviation at the Director's sole discretion. 6-03 Construction Requirements. All improvements, alteration~ and additions made by Conccssiouairc to the assigned Designated Premises shall be of high duality and meet all applicable Fcdcral, State and local laws, regulations, rules sod requirements- Prior to the commcnccmcut of consruction, one (1) Full and complete set of plans and specifications for all improvements, alterations and/or additions shall be submitted to the Director of Aviation for approval, which approval may be granted or withheld in the Director's sole discretion. All improvements shall be completed in accordance with construction standards established by the Airport and the plans and specifications approved by the Airport. 6.04 Construction Insurance/Indemnification Requirements. Concessionaire shall be required to tarty comprehensive public liability insurance during constriction per Article 9; if an independent contractor does the construction, the contractor in Concessionaire and City's name shall procure insurance. All insurance shall be in the limits and coverage's acceptable to City's Risk Management Department. Concessionaire shall indernnify and hold City harmless for any and all claims, demands, damages, costs or expenses of any nature, including defense casts by reason of construction or aftcration by Concessionaire, 6.05 No Liens. Concessionaire covenants and agrees that nothing contained in this Agreement shall be construed as consent by City to subject the estate of City to liability under the Construction Lion Law of the State of California. Concessionaire shall notify any and all parties or entities performing work or providing materials relating to any improvements made by Concessionaire of this provision of this Agreement. If so requested by City, Concessionaire shall file a notice satisfactory to City in the Public Records of Palm Springs, California stating that the City's interest shall not be subject to liens for improvements made by Concessionaire. In the event that a construction lien is filed against the assigned Designated Premises or other City property in connection with any work performed by or on behalf of Concessionaire, Concessionaire shall satisfy such claim, or transfer same to security within ten (10)days, City may do so and thcrcaftcr charge Concessionaire, and Concessionaire shall promptly pay to City upon demand all costs incurred by City in connection with the satisfaction or transfer of such claim, including, but nol limited to,attorney's fees. Palm Springs International Airport—Car Rental Concession Agreement Page 20 of 49 I I Y I I ' 6.06 As-Built Drawings. Within ninety (90) days after completion of all work, Concessionaire shall I furnish to the City, at no charge, a complete set of as-built drawings. Concessionaire agrees that, upon the request of the City, Concessionaire will inspect the assigned Designated Premises jointly with the City to verify the as-built drawings. ARTICLE 7 ALTERATIONS AND IMPROVEMENTS I I I 7.01 Title to Improvements. All fixtures and improvements that are conshucted or placed upon the assigned Designated Premises, excluding furnishings, equipment and trade fixtures, (the Improvements) shall become the absolute property of City upon termination or expiration of this Agreement and City shall have every right, title, and interest therein, free and clear of any liens, I mortgages encumbrances. 7.02 Removal of Improvements. City shall be entitled, at its option, to have the assigned Designated Premises returned to City free and clear of some or all of the Improvements at Concessionaire's sole cost and expense, in such event, City shall provide timely notification to Concessionaire of its election to require removal of Iuprovcrnents and, to the extent possible, City shall notify Concessionaire at least sixty (60) days prior to the expiration or termination of this Agreement. Concessionaire shall have sixty (60) days from date of notice within which to remove the Improvements. If Concessionaire fails to remove the LmprovementS, City may remove the Improvements. Concessionaire agrees that Concessionaire shall fully assume and be liable to City for payment of all costs of removal of the Improvements (whether direct or indirect) incurred by City, plus a twenty-five percent (25%) administrative overhead fee, which costs and administrative overhead fee shall be due and payable City within thirty (30) days from the date of the written notice provided by the Airport. The obligations arising under this Article 7 shall survive the expiration Or termination of this Agreement. 7.03 Maintenance Service Facility Improvements. Not withstanding the provisions of Section 7.02, concessionaire hereby acknowledges that is it and will continue to be the owner and operator of all improvements, alterations, fixtures and appurtenances installed at the assigned Maintenance Set-vice Facility Space, including, but not limited to, the Underground Storage Tank System. i Unless a new Agreement is entered into with Concessionaire for the assigned Maintenance Service Facility Space, upon the expiration or sooner termination of this agreement, Concessionaire hereby agrees io either (i) sell said improvements, alterations, fixtures and appurtenances including,but not limited to, the Underground Storage Tank System,to a car rental concessionaire that the city has approved to enter into a car rental concession agreement with City, which sale shall be at a price mutually agreeable to Concessionaire and such car rental concessionaire and which sale shall be effective on the expiration or sooner termination of this Agreement; or (ii) remove, at concessionaire's sole cost and expense, such improvements, alterations, fixtures and appurtenances, including the Underground Storage Tank System, from the assigned Maintenance Service Facility Space within thirty (30) days of the expiration or sooner termination of this Agreement and to assuss, remove,remediate, cleanup,monitor,dispose of and mitigate any Covered Hazardous Materials released on or in the assigned Maintenance Service Facility Space as more specifically provided in Section 16.01, to closure from all appropriate regulatory agencies. If concessionaire elects to remove said improvements, Concessionaire shall turn over the assigned Maintenance Service Facility to City in the condition the assigned Maintenance Service Facility existed prior to the installation of said improvements Palm Springs International Airport—Car Rental Concession Agreement Page 21 of 49 reasonable wear and tear excepted. Upon the last day of the term of this Agreement, Concessionaire shall surrender the Designated Premises to City in the same condition as received, and in a good,sanitary and clean condition,reasonable use and wear thereof excepted. ARTICLE 8 OBLIGATIONS OF CONCESSIONAIRE 8.01 Maintenance and Repair. Concessionaire shall, at its sole cost and expense, maintain the assigned Designated Premises and improvements and appurtenances thereto, in a safe and presentable condition consistent with good business practice, industry standards and in accordance with all applicable Federal, State and local laws, regulations and rules. Concessionaire shall repair all damages to the assigned Designated Premises caused by its employees, patrons, invitccs, i suppliers of service, or furnishers of material, or any other person whomsoever, and all damages caused by or resulting from or in any way arising out of Concessionaire's operations thurcon or i Concessionaire's use of the assigned Designated Premises. Concessionaire shall maintain and repair all equipment thereon. Concessionaire shall repaint and refurbish its facilities as may be I deemed necessary to the reasonable discretion of the City. i The City may inspect the assigned Designated Premises to identify items in need of maintenance or repair and report in writing to the Concessionaire thosu items in need of maintenance and repair. Concessionaire agrees that it shall abide by the decision of the City with respect to any and all such maintenance or repair. The City shall reasonably judge Conccsstonairu's performance under ibis Section 8.01 as to the quality of maintenance and repair. Upon written notice by the City to Concessionaire, Concessionaire shall perform the required maintenance or repair in accordance with the City's decision. If Concessionaire has not made a good faith effort, as determined by the City, to begin to perform the maintenance or repair within ten (10) days after receipt of the City's written notice and to diligently pursue the same to completion, City shall have the right to enter the assigned Designated Premises and perform the necessary maintenance or repair, and Concessionaire hereby expressly agrees that it shall fully assume and be liable to City for payment of the costs thereof, plus twenty-five percent (25%) administrative overhead- Such maintenance or repair cost, plus the administrative cost, shall be due and payable within thirty (30) calendar days of the City's billing therefore. 9.02 Concession Service Standards. A. Subject to the terns and conditions of this Agreement, Concessionaire shall operate and manage the Concession for the purpose of providing rental car services to the traveling public slid shall conform in all respects to all applicable Federal, Slate and local laws, regulations and roles. B. The assigned Designated Premises shall be staffed and operated seven (7) day per week, commencing not less than thirty (30) minutes prior to the first scheduled flight and ending not less than thirty(30)minutes after the last scheduled flight, except as otherwise approved in writing by the Director of Aviation. C. Concessionaire shall cause its employees to conduct themselves at all times in a courteous manner towards the public or other tenants and to provide prompt, er6cient and safe service. Palm Springs International Airport—Car Rental Concession Agreement Page 22 of 49 D. Concessionaire shall employ a bufri6cnt number of trained personnel to handle customer service, vehicle maintenance, car handling and office or administrative duties incidental to the operation of the our rental concession granted hereunder. Concessionaire must have sufficient personnel to bundle peak season rental car rental and return activities in order to keep terminal building queuing from blocking passenger flow and to keep rental return t vehicles from blocking public roadways- E. Concessionaire shall be responsiblc for the conduct, demeanor and appearance of its officers, agents, employees and representatives. Attendants and other employees, while ' on duty, shall wear Uniforms which shall be subject to approval by the Director of Aviation who shall take due regard of the existence of franchise agreements specifying uniforms- Uniforms shall, at all times, be maintained in a neat, orderly and clean ' condition. F. Concessionaire shall at all times during the term of this Agreement maintain at the Airport, at its sole cost and expense, an adequate number of automobiles for rental to meet all reasonably foreseeable demands by passengers and other users. Said automobiles shall not be older than two years previous to the current model year. All automobiles shall be clean, neat and attractive inside and out and be maintained in good mechanical condition. The City reserves the right to disapprove any automobile provided by Conocsbionairc for public use. The City in writing therefore shall submit notice of i disapproval and the reasons to the Concessionaire. Concessionaire shall forthwith withdraw said unsatisfactory automobile from its Airport rental fleet. G- Concessionaire recognizes that from time-io-time the City may cause quality assurance reviews of the Concession to be conducted. Such reviews may include inspection of the assigned designated premibes used in the operation of the Concession. Concessionaire agrees to fully cooperate in such quality assurance reviews and to immediately take whatever actions are necessary to correct any deficiencies. I 8.03 Concession Operational Standards, A. Concessionaire shall furnish service on a fair, reasonable and nondiscriminatory basis to all users of the Airport. Concessionaire shall fimsh good, prompt, courteous and efficient service adequate to meet all reasonable demands for its service at said Airport. Concessionaire shall keep the Designated Premises to a safe, clean, orderly and inviting condition at all times, satisfactory to the City. All services and property sold must conform in all respects to federal, state, county and municipal laws, ordinances, and regulations. B. Concessionaire shall not, through its officers, agents, representatives or employees, divert or cause to be diverted any prospective concession patrons from the Airport to another location. If any such diversion does occur, the diverted transaction shall be deemed to have occurred at the Airport and the cost of such diverted rental shall be included in Concessionaire's Gross Revenues. C. Concessionaire sball not permit its employees nor any other person under its control to engage in open or public disputes or conflicts. Concessionaire shall be responsible for the conduct, demeanor and appearance of its officers, agents, employees and representatives. Attendants and other employees, while on duty, shall wear uniforms which shall be Palm Springs International Airport—Car Rental Concession Agreement Page 23 of 49 i I I subject to approval by the Director of Aviation who shall take due regard of the existence of franchise agreements specifying uniforms. Uniforms shall, at all times, be maintained in a neat, orderly and clean condition. Customer service personnel and attendants shall be trained by Concessionaire to render a high degree of courteous and efficient service, and it shall be the responsibility of the Concessionaire to maintain close supervision over said personnel to assure the rendering of a high standard of service to the public and the patrons of the car rental concession. Upon objection from the Director of Aviation concerning the conduct, demeanor or appearance of such persons, Concessionaire shall take all steps necessary to remove the cause of the objection. D. The assigned Desrgtiated Premises shall be operated and maintained in a safe, clean, orderly and inviting condition at all times. ) . Except such advertising and promotional items as may be purchased from the Airport's advertising concessionaire or which the Director of Aviation has previously approved as permanent signage to be installed within the assigned Designated Premises, Concessionaire shall be strictly prohibited from posting any signage which advertises inducements, including, but not limited to, automobile rental rates, fuel charges, makes and models of automobiles, automobile equipment and amenities, availability of automobiles and any other type of promotional information or incentive. F. Concessionaire shall not permit its agents or employees to engage in the overt or offensive solicitation or pressure sales tactics for rentals or related services offered by Conccssionairc on or about the Airport. The City shall be the sole judge as to whether the conduct of Concessionaire's representative constitutes a violation of tills subsection and, upon notice from the Director of Aviation, Concessionaire shall take all steps necessary to eliminate the offensive conduct or condition This restriction shall include the approaching of any person by an employee or any other representative of Concessionaire for the purpose of offering information regarding Concessionaire or conducting surveys. This restriction shall apply at all times and at all 'terminal locations. G. The public access area located in front of Concessionaire's reservation counter may be cordoned-off, at the option of Concessionaire, for the purpose of customer queuing. The area is included in the assigned Designated Premises and therefore is considered in the calculation of Facility Rental. The public access area extends the length of Concessionaire's reservation counter and ten feet (10") from the front of the counter. such use of the public access area requires that Concessionaire utilize only such barrier stanchions as specifically designated by the Director of Aviation and that the placement and condition of such stanchions be maintained in a neat and orderly manner and in good repair at all times. H. Concessionaire shall not represent itself as a provider of for-hire transportation services nor render services, which arc customarily provided by the operators of such transportation services. I. Nothing contained herein shall require Concessionaire to own, unconditionally or otherwise, vehicles used in the operation of the Concession; provided, however, all vehicles used in the operation of the Concession shall be owned, leased, or rented by Concessionaire or an affiliate. Concessionaire may obtain such vehicles from any supplier. J. All contracts, advertising, solicitation and publicity regarding Conccssionairc shall be Palm Springs International Airport—Car Rental Concession Agreement Page 24 of 49 made in Concessionaire's lawhd trade/brand name and shall not in any manner misrepresent the relationship between City and Concessionaire nor City's interest herein. K. Concessionaire shall make service available at the Customer Service Counter Space year- round seven days a week commencing not lesb than thirty (30) minutes prior to the first scheduled flight and ending not less than thirty (30) minutes after the last scheduled flight.. Automobile rentals and customer service shall be available through staffing of the Customer Service Counter Space, The Director of Aviation shall have the right, upon written request from Concessionaire,to approve cbangcs to the above referenced business horns,if he,at his sole discretion, determines such change of staffing hours is necessary. L. The day-to-day operation and management of the Concession shall be under the direct supervision of an active, qualified and competent manager who shall at all times be subject to the direction and control of Concessionaire. Prior to the Commencement Date, Concessionaire shall designate in writing to the City the name, address and telephone munber of the manager who at all times shall be the authorized representative of Concessionaire for all matters relating to the Concession. Concessionaire shall provide written notice to the City of any change in its manager within seven (7) days of the change and shall include any change of address or telephone number. M. Concessionaire, its agents, employees and suppliers shall not block any areas used for ingress and egress by Airport traffic and shall not interfere with the activities of City, its agents, employees, any other Airport Concessionaires or tenants, or any other authorized person. N. The services provided by Concessionaire shall be strictly limited to those permitted herein. Concessionaire shall not engage in any other business activity from the assigned Designated Prermses or any other location on the Airport without benefit of a validly executed agreement entered into with City for the provision and conduct of such other business activity. O. Ready Return Spaces described in Section 2.08.A are solely for The parking of Lessee's automobiles available for rental and the return by customers of automobiles rented. No storing, servicing or washing of automobiles shall be permitted in the parking spaces area. Parking of vehicles other-than automobiles complying with Section 8.02 shall not be permitted upon the Concession Premises: this includes trucks,lnneys,junk cars, etc. P. Concessionaire may also, at its option,provide car rental service for customers at Airport Fixed Base Operators, who have been authorized by Lessor to engage Airport Car Rental Concessionaires for this purpose, provided that Concessionaire shall so notify City in writing of its intent to do so. Gross receipts derived from such car rentals shall be included in the calculation of the monthly Percentage Fee payable to City pursuant to Section S.OIof thib Agreement- Q. Concessionaire shall provide, install and maintain, at its sole cost and expense,within the Assigned Premise, office furnishings, fixtures and cormnunication systems and equipment as may be necessary for the effective and efficient operation of the i Concession. R The Maintenance Service Facility Space described in Section 2.080 shall be maintained by Concessionaire in good order and repair. The area shall be used solely for the Palm Springs International Airport—Car Rental Concession Agreement Page 25 of 49 i I i servicing of its vehicles rented in the course of business under this Lease, and for no t other purpose. t t S. Concessionaire shall diligent) and adequately provide for the tritmnin of the uees on its i D Y q YP g t Designated Premises. Such trees shall be maintained in such a manner that they are t txinm cd back to the edge of the curb at all times. T. Concessionaire shall not, under any circumstances or at any time, allow keys to be left in vehicles in the return area of the ready/return lot. 8.04 Utilities. City shall provide electricity and water used or consumed in or on the assigned Designated Premises located at the Terminal Building. Concessionaire will provide telephone, computer service at its own cost. Concessionaire shall pay, before delinquency, all charges for electric, gas, water, sewer, telephone, computer and all other utility services used in, upon or about the assigned Maintenance Service Facility Space. I 8.05 Trash and Refuse. Concessionaire shall provide a complete and proper arrsngcment for the adequate sanitary handling of all trash and other refuse caused as a result of the operation of the assigned Designated Premises and shall provide for its timely removal to the central collection point to be provided by the City. Concessionaire shall provide and use suitable covered fireproof receptacles for all trash and other refuse on or in connection with the assigned Designated Promises. Piling of boxes,cartons, barrels, or other similar items in view of a public area shall not be permitted. Transporting Merchandise, Trash, and refuse associated with operation of the car rental concession hereunder io and from the assigned Designated Prcmi9cs, Concessionaire shall use only carts, vehicles, or conveyances that are sealed and leak proof and that are equipped with wheels suitable for operating on carpets without damage hereto. 8.06 'free Maintenance. Concessionaire shall be responsible for the ongoing tree trimming and maintenance of the trees located curbside at the assigned Maintenance Service Facility to eliminate public road obstruction. 8.07 Cleanliness of Premises. The assigned Designated Prcmitics and al I equipment and materials used by Concessionaire shall at all times be clean, sanitary and free from rubbish, refuse, food scraps, garbage, dust, dirt, rodents, insects, and other offensive or unclean materials. The Concessionaire will not sell or permit the sale of any food or beverages on or from the assigned Designated Premises The City shall reasonably determine whether Concessionaire is in compliance with the obligations as provided for herein and shall provide Concessionaire with written notice of any violations of Concessionaire's obligations. Immediately upon CenCCSSiOnatrC'S receipt of the City's written notice of violation, Concessionaire shall commence such connotive action as required by City or as may be necessary to remedy such non-compliance to satisfaction of City. If corrective action is not initiated within ten (10) days of receipt of City's written notice and pursued to completion in a diligeut manner, the City may cause the same to be accomplished and Concessionaire hereby expressly agrees that Concessionaire shall assume and be liable to City for payment of all such Costs, plus twenty-five percent (25%) for administrative overhead. Such costs, plus the administrative cost, shall constitute additional rout and shall be due and payable within thirty(30) consecutive days from the City's billing therefore. Palm Springs International Airport—Car Rental Concession Agreement Page 26 of 49 8.08 Security. Concessionaire acknowledges and accepts full responsibility for the security and Protection of the assigned Designated Prcntiscs and any and all inventory and equipment now existing or hereafter placed on or installed at the Airport, and for the prevention of unauthorized access to its facilities and expressly agrees to comply with all rules and regulations of City and of any and all other governmental entities that Dow or may hereafter have jurisdiction over such security. Concessionaire fully understands that the police security protection provided by City is limited to that provided to any other business situated at the Airport, and expressly acknowledges that any special security measures deemed necessary or desirable for additional protection of the assigned Designated Premises shall be the sole responsibility of Concessionaire and shall involve no cost to City. 8.09 Airport Security Pro;narn. Concessionaire aen-ces to observe all security regulations and other requirements of any agency of the Federal govenuncrrt, including,but not limited to, the FAA and TSA, applicable to Concessionaire, as such regulations or requirements have been or may be amended, including without limitation, TSA Part 1542 of the Code of Federal Regulations and Title 49, Part 1500 of the Code of Federal Regulations. Concessionaire agrees to comply with the Airport Security Program and the Air Operations Area (AOA) Vehicle Access Program, and amendments thereto, and to comply with such other rules and regulations as may be reasonably prescribed by City, and to take such steps as may be necessary or directed by City to insure that sublessees, employees, invitees and guests observe these requirements. Concessionaire shall conduct background checks of its employees to the extent required by any Federal, Slate or local law or if, to the extent permitted by law, required by the City. The City shall have the right to require the removal or replacement of any employee of Concessionaire at the Airport that the City has reasonably determined may present a risk to public safety or the security of the Airport. Tr as a result of the acts or omissions of Concessionaire, its sublessees, employees, invitees or guest~, City incurs any tines and/or penalties imposed by the FAA or TSA; any expense in enforcing the regulations of the FAA or TSA or the odes or regulations of City; or any expense in enforcing the Airport Security Program, then Concessionaire agrees to pay to City all such costs and expenses, including all costs of administrative proceeding, court costs, and attorneys fees and all costs incurred by City in enforcing this provision. Concessionaire further agrees to rectify any security deficiency or other deficiency as may be determined by City, the FAA or TSA. In the event Concessionaire fails to remedy any such deficiency, City may do so at the cost and expense of Concessionaire. Concessionaire acknowledges and agrees that City may take whatever action is necessary to rectify any security deficiency or any other deficiency identified by City, the FAA or TSA. ARTICLE 9 SIGNAGE 9.01 Sienaee. City shall install all signs necessary or required for the direction of pedestrian and vehicular traffic on the sidewalks, ways and roads within the Terminal Building and Designated Premises. All directional signs in the Terminal Building, including any additions thereto, shall be installed by the City. No signs or advertisements pertaining to concessionaire's car rental business shall be installed or maintained outside of or within the Designated Premises until Concessionaire has submitted to the Director of Aviation for approval, in writing,such drawings, sketches, design dimension and type and character of such signs and advertisements proposed to be placed therein or thereon and any payments, conditions, restrictions or limitation iD respect to the use thereof Palm Springs International Airport—Car Rental Concession Agreement Page 27 of 49 I I stated by the Director of Aviation in his written approval thereof shall become conditions hereof ' as if set forth herein at length. ARTICLE 10 INSURANCE i Concessionaire shall, at its sole expense, maintain in full force and effect at all times during the Terri of this Agrccmcnt, the insurance limits, coverages and endorsements required herein. Neither the requirements contained in this Article 10 nor City's review or acceptance of insurance shall in any manner limit or qualify the liabilities and obligations assumed by Concessionaire under this Agreement. 10.01 Commercial General Liability. Concessionaire, at its expense, shall maintain fire and extended coverage insurance written on a per occurrence basis on its improvements, appurtenances, alterations, trade fixtures, equipment, personal property and inventory within the Designated Premises from loss or dainage to the extent of their fill replacement value. Concessionaire shall have the right to self-insure the items specified in this Section 10.01 and Sections 10.02, 10.03, and 10.04, so long as Concessionaire maintains a net worth satisfactory to the City's Risk Manager. The City's Risk Manager may require nut worth documentation up to and including an audited financial statement. 10.02 ComPrehensive General Liability. During the entire term of this Agreement, the Concessionaire shall, ar the COnCe$4iena1re'8 sole cost and expenses, but for the mutual benefit of City and Concessionaire, maintain comprehensive general liability insurance insuring against claims for bodily injury, death or property damage occurring in, upon or about the Designated Premises and on any areas directly adjacent to the Designated Premises written on a per occurrcncc basis in an amount not less than either (i) a combined single limit of THREE MILLION DOLLARS ($3,000,000.00) for bodily injury, death, and property damage or (ii) bodily injury limits of $500,000.00 per person, $1,000,000.00 per occurrence and $1,000,000.00 products and completed operations and property damage limits of$200,000.00 per occurrence and$500,000.00 in the aggregate. 10.03 Worker's Compensation. Concessionaire shall, at the Concessionaire's sole cost and expense, maintain a policy of worker's compensation insurance in an amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both the Concessionaire and the City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Concessionaire in the course of conducting Coneebbiouaire's business in die Designated Premises. 10.04 Automobile Liability. Concessionaire shall, at Concessionaire's sole cost and expense, maintain a policy of automobile liability insurance written on a per occurrence basis in an amount of not less than T14REE MILLION DOLLARS ($3,000,000.00) combined single limit covering all owned, non-owned, leased and hired cars. 10.05 General Provisions. All of the policies of insurance required to be procured by Concessionaire pursuant to this Article shall be primary insurance and shall name the City,its officers, employees and agents as additional insureds. The insurers shall waive all rights of contribution they may have against the City, its officers, employees and agents and their respective insurers. All of said Palm Springs International Airport—Car Rental Concession Agreement Page 28 of 49 i i policies of insurance shall provide that said insurance may not be amended or cancelled without providing 30 days prior written notice by registered mail to the City. Prior to the effective date of the Agreement and at least 30 days prior to the expiration of any insurance policy, Concessionaire i shall provide City with certxlicalcs of insurance or appropriate insurance binders evidencing the i above insurance coverages written by insurance companies acceptable to City, authorized and licensed to do business in the Stale of California and rated A: VII or better by Best's Insurance j Guide. In the event the Risk Manager of City (Risk Manager) determines that (i) the Concessionaire's activities in the Designated Premises create an increased or decreased risk of loss to the City, (ii) greater insurance coverage is required due to the passage of time, or tit changes in the industry require different coverages be obtained, Concessionaire agrees that the minimum limits of any insurance policy required to be obtained by Concessionaire may be changed accordingly upon receipt of written notice from the Risk Manager; provided that Concessionaire shall have the right to appeal a determination of increased coverage by the Risk Manager to the City Council of City within ten (10) days of receipt of notice from the Risk Manager. City and Concessionaire hereby waive any rights each may have against the other on account of any loss or damage occasioned by property damage to the Designated Premises, its contents, or Concessionaire's trade fixtures, equipment, personal property or inventory arising from any risk generally covered by insurance against the perils of fire, extended coverage, vandalivm,malicious mischief,theft, sprinkler damage, and earthquake sprinkler leakage.Each of the parties, on behalf of their respective insurance companies insuring such property of either City of Concessionaire against such loss, waives any right of subrogation that it may have against the other. The forcgoimg waivers of subrogation shall be operative only so long as available in California and provided fiirther that no policy is invalidated thereby. ARTICLE 11 RELATIONSHIP OF THE PARTIES Nothing contained herein shall be dccmcd or construed to the patties hereto, or by any third party, as creating the relationship of principal and agent, partners, joint ventures, or any otber similar such relationship between the parties hereto- It is understood and agreed that neither the method of computation of fees nor any other provision contained herein, nor any acts of the parties hereto creates a relationship other than the relationship of the City and Concessionaire. ARTICLE 12 INDEMNIFICATION Concessionaire, as a material part of the consideration to be rendered to City under this Agreement, hereby waives all claims against City for damage to equipment or other personal property, trade fixtures, or improvements in, upon or about the Designated Premises and for injuries to persons in or about the Designated Premises, from any cause arising at any time, Concessionaire agrees to indemnify the City, its officers, agents and employees against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, (herein claims or liabilities) that may be asserted or claimed by any person, firm or entity arising out of or in correction with the negligent performance of the wort., operations or activities of Concessionaire, its agents, employees, subcontractors, or invitees, provided for herein, or arising from the use of the Designated Premises by Concessionaire or its employees and customers, or arising from the failure of Concessionaire to keep the designated premises in good condition and repair, as herein provided, or arising from the negligent acts or omissions of Concessionaire hereunder, or arising Palm Springs International Airport—Car Rental Concession Agreement Page 29 of 49 i I from Concessionaire's negligent performance of or failure to perform any term, provision, covenant, or condition of this Agreement (including, but not limited to, the failure to perform the remediation obligations specified in Section 16.02), or arising from the presence or threatened presence of any hazardous material on or about the Designated Premises, whether or not there is concurrent passive or active negligence on the pail of the City, its officers, agents or employees, but excluding such claims or liabilities arising from the sale negligence or willful misconduct of the City, its officers, agents or employees,who are directly responsible to the City, and in connection therewith- (a) Concessionaire will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorney's fees incurred in connection therewith; (b) Concessionaire will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Concessionaire hereunder; and Concessionaire agrees to cave and hold the City, its officers,agents, and employees harmless therefrom; (c) In the event the City, its officers, sgcnts, or employees are made a party to any action or proceeding filed or prosecuted against Concessionaire for such damages or other claims arising out of or in connection with the negligent per'fomnanec of or failure to perform the work, operation or activities of Concessionaire hereunder, Concessionaire agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including, but not limited to,legal costs and atiorney's fees- ARTICLE 13 DAMAGE OR DESTRUCTION OF PREMISES/IMPROVEMENTS 13 01 Concessionaire's Obligations. Concessionaire hereby assumes fill responsibility for the condition of the assigned Designated Premises and character, acts and conduct of all persons admitted to the assigned Designated Premises by or with the actual or constructive consent of Concessionaire or by or with the consent of any person acting for or on behalf of Concessionaire. If the assigned Designated Premises, improvements, or any pant thereof, are damaged in any way whatsoever, whether by act of God,by the act, default or negligence of Concessionaire, or of Concessionaire's members, agents, employees, officers, rcprescntalives, guests, invitees, contactors, patrons, or any person admitted to the assigned Ocsiamatcd Premises by Concessionaire or otherwise, Concessionaire shall, ai its sole cost and expense, restore the assigned Designated Premises to the condition existing prior to such damage. Concessionaire shall commence such restoration within thirty (30) days and shall diligently pursue such restoration to completion. Concessionaire shall make such repairs, replacements or rebuilding in accordance with the construction requirements contained hcrcin and as established by the City. If Concessionaire fails to restore the assigned Designated Premises as required above, City shall have the right to enter the assigned Designated Premises and perform the necessary restoration, and Concessionaire hereby expressly agrees that it shall filly assnne and be liable to City for payment of the costs therefore, plus twenty-five percent (25%) administrative overhead. Such restoration cost, plus the administrative cost, shall be due and payable within thirty(30) days from date of written notice therefore. Palm Springs International Airport—Car Rental Concession Agreement Page 30 of 49 13,02 Right to Cancel. If any of the improvements on the assigned Designated Premises are damaged or destroyed in wbolc or in part by fire or other casualty, Concessionaire may, subject to approval of City, be relieved of the obligation to repair, replace or rebuild the same and have the right to cancel tits Agreement. In such event, Concessionaire shall provide City written notice within ' thirty (30) days after the date of any such damage or destruction and, upon approval by City, this Agreement shall terminate and lbe insurance proceeds received or receivable under any policy of insurance shall be paid to and retained by City. All fees and other stuns due hereunder payable under this Agreement shall be prorated and paid to the date of such termination. The receipt and acceptance of insurance proceeds by City under this Article 13 will relieve Concessionaire from any responsibility to restore the assigned Designated Premises to its former condition; provided, however, that Concessionaire expressly agrees, covenants and warrants that nothing herein shall i P Y c g serve to relieve Concessionaire of its liability for penalties or expenses associated with, arising out of, or in any way resulting from any impairment of or damage to the environment of the jassigned Designated Premises, and Concessionaire further waives any claim against City for damages or compensation, should this Agreement be so temninated. i i 13,03 Insurance Proceeds. Upon receipt by Conccssionairc of the proceeds of the insurance policy or policies, the proceeds shall be deposited in an escrow account approved by the Department so as to be available to pay for the cost of sucb repair, replacement or rebuilding. Such proceeds shall be disbursed during construction to pay the cost of such work. if the amount of such insurance proceeds is insufficient to pay the costs of the necessary repair, replacement or rebuilding of such damaged improvements, Concessionaire shall pay any additional sums required into the escrow account. If the amount of such insurance proceeds is in excess of the costs thereof, the amount of i such excess shall be remitted to Concessionaire. 13.04 Termination Upon Destruction or Other Casualty- in the event the assigned Designated Premises, or any part thereof, shall be destroyed or damaged in whole or in part by fire, water or any other cause, or if unforeseen occurrence shall likewise render the fulfillment of this Agreement by City impossible, then City, at its sole option, may terminate this Agreement. Concessionaire shall pay all fees, rental, and costs and satisfy all of its obligations hereunder arising prior to the time of such termination, whereupon this Agreement shall terminate and the parties shall be relieved of all father obligations hereunder other than those, which expressly survive expiration or termination of this Agreement. Conccssionairc hereby waives any claim for damages or compensation should this Agreement be so terminated. ARTICLE 14 TERMINATION OF AGREEMENT, DEFAULT, AND REMEDIES 14.01 Termination. This Agreement sball automatically terminate and expire at the end of the Term. 14.02 Default. The occurrence of any one or more of the following events shall constitute a material default and breach of this Agreement by Concessionaire. A. The vacating or abandonment of the assigned Designated Premises by Conccssionairc. B. The failure by Concessionaire to make payment of Concession Fees, Facility Rental or any otber payment required to be made by Concessionaire hereunder, as and when due, where such failure continues for a period of three (3) days after written notice thereof from City to Concessionaire. Palm Springs International Airport—Car Rental Concession Agreement Page 31 of 49 C. The failure by Concessionaire to observe or perfomi any of the covenants, conditions or provisions of this Agreement to be observed or performed by Concessionaire, other than those described in paragraph 13 above, where such failure shall continue for a period of thirty (30) days after written notice from City to Concessionaire; provided, however, that if the nature of Concessionaire's default is such that more than thirty (30) days are reasonably required for its cure, then Concessionaire shall not be deemed to be in default if Concessionaire commenced such cure within such thirty (30) day period and thereafter diligently pursues such cure to completion- D. To the extent permitted by law, (J) the making by Concessionaire or any guarantor hereof of any general assignment, or general arrangement for the benefit of creditors; (h) the filing by or against Concessionaire of a petition to have Concessionaire adjudged a bankrupt or a petition for reorganization or arrangement under any law relating to bankruptcy [unless, in the case of a petition filed against Concessionaire, the same is dismissed within sixty (60) days); (iii) the appointment of a Trustee or receiver to take possession of substantially all of Concessionaire's assets located at the assigned Designated Premises or of Concessionaire's interest in this Agreement, where possession is not restored to Concessionaire within thirty(30) days; or(iv)the attachment, execution or other judicial seizure of substantially all of Concessionaire's assets located at the assigned Designated Premises or of Concessionaire's interest in this Agreement, where such seizure is not discharged within thirty (30) days. E. The discovery by City that any information given to City by Concessionaire relating to this Agreement was materially false. 14,03 Remedies. In the event of any such material default or breach by Conccssionaire, City may, with or without notice or demand, pursue any available right or remedy at law or equity including the right, at its option, to inunediately terminate this Agreement, by giving written notice to that effect. Upon such termination, Concessionaire shall immediately surrender the assigned Designated Premises to City and shall cease its operations at the Airport. Such termination shall be without prejudice to City to any remedy for arrearabes or payments due hereunder or breach of covenant or damages for the balance of the Concession Fees and other sums due hereunder, payable through the hill Term of this Agreement, or any other damages or remedies whatsoever. Upon termination of this Agreement, City shall have the right to engage another Concessionaire io provide the services required hereunder for such period or periods at such fees and upon other terms and conditions as City may, in good faith, deem advisable. 14.04 Termination by Concessionaire. Concessionaire may terminate this Agreement, if Concessionaire is not in default of this Agreement (including, but not limited to, its payments to City hereunder), by giving City sixty (60) days advance written notice to be served as hereinafter provided, upon or after the happening of any one of the following events: A. Issuance by any court of competent jurisdiction of an injunction iu any way preventing the use of the Airport for Airport purposes and the remaining in force of such injunction for a period of at least ninety consecutive(90) days. B. The default by City in the performance of any covenant or agreement herein required to be performed by City and the failure of City to remedy such default for a period of sixty (60) consecutive days after receipt from Conccssionaire of written notice to remedy same provided, however, that if the nature of City's obadations is such that more than sixty Palm Springs International Airport—Car Rental Concession Agreement Page 32 of 49 (60) days are required for performance then City shall not be in default if City commences performance within such sixty (60) day period and thereafter diligently prosecutes the same to completion. Notwithstanding the foregoing, a notice of cancellation shall not be of any force or affect if City has rcmcdicd the default prior to receipt of Concessionaire's notice of cancellation- C. The lawful assumption by the United States Government or any authorized agency thereof, of the operation, control, or use of the Airport and facilities, or any substantial part or parts thereof, in such a manner as to substantially restrict the operation of Concessionaire, for a period of at least ninety(90)consecutive days. 1403 Surrender of Assigned Designated Premises. Notwithstanding the obligations of Concessionaire and rights of City provided for herein, Concessionaire expressly agrees that upon terminatiou or cancellation of this Agreement it shall immediately surrender the assigned Designated Premises to City free and clear of all personal property of Concessionaire. All repairs and obligations for which Conces5ionairc is responsible shall be completed by the earliest practical date prior to surrender. Any personal property of Concessionaire not removed in accordance with this provision may be removed and placed in storage by the City at the sole cost of Concessionaire. Failure on the part of Concessionaire to reclaim same, as provided by law, shall constitute a gratuitous transfer of title to City for whatever disposition is deemed to be in the best interest of City. ARTICLE 15 ASSIGNMENT AND TRANSFER Concessionaire shall not, in any manner, assign, transfer or otherwise convey an interest in this Agreement, or sublet the Designated Premises or any portion thereof (Assignment), without the prior written consent of the City, which consent may be granted or withheld by the City in its sole discretion. Any such attempted Assignment without City approval shall be null and void. In the event the City consents in wring to an Assignment, Concessionaire shall have the right to the extent permitted by the City's consent to such Assignment, provided that the use of the Designated Premises shall be limited to the same uses as are permitted under this Agreement. Any permitted Assignment shall be subject to the same conditions, obligations and terns as set forth herein and Concessionaire shall be fully responsible for the observance by its assignees of the terms and covenants contained in this Agreement. Notwithstanding any provision of this Agreement to the contrary, in the event of an approved Assignment, Concessionaire shall remain primarily liable to City for fulfilling all obligations, terns, and conditions of this Agreement, throughout the Term of this Agreement. City may freely assign this Agreement at any time without the consent of Concessionaire, and upon assumption by such assignee of City's obligations hereunder, City shall be released from all liability and obligation arising hereunder after such assignment. ARTICLE 16 LAWS, REGULATIONS, PERMITS AND TAXES 16.01 Compliance with Laws. Concessionaire shall, at its sole cost and expense, comply with all of the requirements of all municipal, state and federal authorities now in Force or which may hereafter be in force pertaining to the use of the Designated Premises, and shall faithfully observe in said use all municipal ordinances, including, but not limited to, the General Plan and zoning ordinances, state and Palm Springs International Airport--Car Rental Concession Agreement Page 33 of 49 federal statutes or other governmental regulations now in force or which shall hereinafter be in force. The judgment of any court of competent jurisdiction, or the admission of Concessionaire in any action or proceeding against Concessionaire, whether City is a party thereto or not, that Concessionaire has violated any such order or statute in said use, shall be conclusive of that Fact as between the City and Concessionaire, subject to any appeal rights Concessionaire may have. Concessionaire shall not engage in any activity on or about the Designated Premises that violates any Environmental Law, and shall promptly, at Concessionaire's sole cast and expense, take all investigatory and/or remedial action required or ordered by any governmental agency or Environmental Law for clean-up and removal of any contamination involving any I•Iazardous Material created or caused directly or indirectly by Concessionaire subject to any appeal rights Concessionaire may have under the terms of this Agreement. The term "Environmental Law" shall mean any federal, state or local law, statute, ordinance or regulation pertaining to health, industrial hygiene or environmental condition on, under or about the Designated Premises, including, without limitation, (i)the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. SECTIONS 9601 et scq.; (ii) the Resource Conservation and Recovery Act of 1976 ("RCRA") 42 U.S.C. SECfIONs 6901 et seq.; (iii) California Health and Safely Code SECTIONS 25100 et seq.; (iv) the Safe Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety Code SECTION 25249.5 et seq.; (v)California Health and Safety Code SECTION 23359.7; (vi) California Health and Safety Code SECTION 25915; (vii) the Federal Water Pollution Control Act, 33 U.S.C. SECTIONS 1317 et seq.; (viii) California Water Code SECTION 1300 et seg., (ix) California Civil Code SECTION 3479 et seg.; (x) the Solid Waste Disposal Act 42 U.S.C. SECTION 6901 et seq.; and (xi) California Health and Safety Code SECTION 25280 et seq. regulating the use of underground storage tanks, as such laws are amended and the regulations and administrative codes applicable thereto. The term "Hazardous Material" includes, without limitation, any material or substance whicb is (i) defined or listed as a "hazardous waste," "extrcmcly hazardous waste," "restrictive hazardous waste" or "hazardous substance" or considered a waste, condition of pollution or nuisance under the Environmental Laws; (ii) petroleum or a petroleum product or fraction thereof, (iii) asbestos; and/or (iv) substances known by the State of California to cause cancer and/or reproductive toxicity. It is the intent of the patties hereto to construe the terms "Hazardous Materials" and `Environmental Laws" in their broadest sense. Concessionaire shall provide all notices required pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety Code SECTION 25249 et seq. Concessionaire shall provide prompt written notice to City of all notices of violation of the Environmental Laws received by Concessionaire relating to the Designated Premises. 16.02 Use of Undererotmd Storage Tanks. The parties acknowledge that Concessionaire or Concessionaire's predecessor-m-interest installed one or more underground storage tanks at the Maintenance and Service Pacility Space, along with related pipelines, pumps, pump islands and dispeuscrs, and other appurtenant structures (collectively bercaftcr referred to as the Underground Storage Tank System) which Concessionaire uses or will use in its car rental concession hereunder. Concessionaire understands and acknowledges that Concessionaire is the owner and operator of the Underground Storage Tank System as more particularly set forth in SECTION 7.0.3. To the best knowledge of Concessionaire,there has been no release of Hazardous Materials on, tinder or around the Maintenance and Service Facilities Space, the groundwater underlying the Maintenance and Service Facilities Space, or otherwise. Concessionaire hereby agrees to comply with all federal, state and local laws, ordinances, regulations and orders applicable to the Palm Springs International Airport--Car Rental Concession Agreement Page 34 of 49 i I I installation, maintenance, use, operation and removal of said Underground Storage Tank System ' during the term of this Agreement, including, but not limited to, the provisions of Health and Safety Code SECTION 25280 et seq. All references contained in this SECTION to the "Code" shall be deemed to refer to the Health and Safety Code. Execpt to the extent any materials (as hCTCinafler defined) arc protected by altomcy-client privilege or attorney work product, Concessionaire covenants and agrees m provide City promptly with any and all correspondence, reports, studies, notices, permits, approvals, orders and similar matters received by Concessionaire or given by Concessionaire with respect to the Underground Storagc Tank System (Materials), including, but not limited to, copies of any permits relating to the Underground Storage Tank System issued,renewed or transferred pursuant to Code SECTION 25284 or 25285, copies of any notices revoking or modifying said permits pursuant to Code SECTION 25285.1, copies of all compliance or inspeclion reports prepared pursuant to Code SECTION 25288, and copies of any notices of releases of substances from the Underground Storage Tatilc System pursuant to Code SECTION 25295, In addition, Concessionaire shall notify City of any unauthorized release in excess of five (5) gallons from the Underground Storagc 'Panic System even if notice is not required to be provided to the applicable local agency. Not more than three (3) months prior to expiration of the term of this Agreement and not legs than one (1) month prior to the expiration orthe tern of this Agreement, Concessionaire shall have a tank integrity test(as such term is defined in Code SECTION 25281(u)) conducted by a tank tester licensed by the State Water Resources Control Board pursuant to Cade SECTION 25284.4 and shall deliver to City a copy of the report prepared by the tank tester setting forth the findings, reconumendations and conclusions of the tank integrity test. Reincdialion Obligations. If any inspection of the Underground Storagc Tank System determines that a release from the Underground Storage Tank System has occurred or if the presence or threatened presence or any Hazardous Material is hereafter detected on or about the Designated Premises, including, but not limited to, the Maintenance and Service Facility Space, and the Hazardous Material is one which may have been introduced to the Designated Premises by Concessionaire or its agents, contractors, employees or licensees from the Underground Storage Tank System or otherwise during the term of this Agreement or any previous agreement between City and Concessionaire, then until such time as it is finally determined by a court of competent jurisdiction that such Hazardous Material (hereinafter Covered Hazardous Material) was released or discharged on or about the Designated Premises by a person other than Concessionaire or its agents, contractors, employees or licensees, Concessionaire shall, at its sole expense, promptly commence the remedial clean-up measures to assess, remove or remediate the Covered Hazardous Material from the Designated Premises, monitor,mitigate and/or dispose of the effects of such Hazardous Material, to the extent such may be required tinder Environmental Law, and shall diligently pursue such assessment, removal, remedial clean-up, monitoring, disposal and mitigation measures to completion and closure from the appropriate regulatory agencies, all in compliance with applicable Environmental Laws Such activities shall be conducted in a diligent, expeditious and safe mariner so as not allow any dangerous or hazardous conditions to occur on the Designated Premises during or after such activities. In addition, Concessionaire shall promptly repair all material damage to the Designated Premises and the improvements thereof caused by any such removal, remedial clean-up, monitoring, disposal or mitigation measures undertaken by or at the direction of Concessionaire and return the Designated Premises substantially to the condition it existed immediately prior to such remediation activities. 16.03 Permits and Licenses Generally. Concessionaire agrees that it shall, at its sole cost and expense, Palm Springs International Airport—Car Rental Concession Agreement Page 35 of 49 I I t be strictly liable and responsible for obtaining, paying for, and maintaining current, and fully complying with, any and all perrmts, licenses and other governmental authorizations, however designated, as may be required at any time throughout the Term of this Agreement by any Federal, State or local govcmmental entity or any court of law having jurisdiction over Concessionaire or Coneessionairc'b Operations and activities, for any activity of Concessionaire's conducted on the assigned Designated Premises and for any and all operations conducted by Concessionaire including ensuring that all legal requirements, permits, and licenses necessary far or resulting, directly or indirectly, from Concessionaire's operations and activities on the assigned Designated Premises have been obtained and are in full legal compliance. I 16.04 Air and Safety Regulation- Concessionaire agrees that it shall conduct its operations and activities under this Agreement in a safe manner,shall comply with all safely regulations of the Airport and ' with safety standards imposed by applicable Pcderal, State and local laws and regulations and shall require the observance thereof by all employees, contractors, business invitees and all other persons transacting business with or for Concessionaire resulting fi-om, or in any way related to, ' the conduct of Concessionaire's business on the Designated Premises. Concessionaire hereby i i agrees that neither Concessionaire, nor employee or contractor or any person working for or on behalf of Concessionaire, shall require any personnel engaged in the performance of ' Concessionaire's operations to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his or her health or safety, as determined by standards adopted pursuant to the Occupational Safety and Health Act of 1970, ab same may be amended from time to time, as well as all State and local laws, regulations, and orders relative to occupational safety and health. i 16.05 Payment of Taxes. Concessionaire shall pay any and all taxes and other costs lawfully assessed against its interest in the Designated Premises, its improvements and its operations under this Agreement. Concessionaire shall have the tight to contest the amount or validity of any tax or assessment payable by it by appropriate legal proceedings, but this shall not be deemed or construed in any way as relieving,modifying, or extending Concessionaire's covenants to pay any such tax or assessment, unless the legal proceedings shall operate to prevent the collection of the tax or assessment. Upon tenoination of such legal proceedings, the Concessionaire shall pay the amount of any such tax or assessment, or part thereof, as finally determined in such proceedings, the payment of which may have been deferred during the prosecution thereof, together with any costs, fees, interest,penalties, or other liabilities in connection therewith. ARTICLE 17 DISCLAIMER OF LIABILITY City hereby disclaims, and concessionaire hereby releases city, from any and all liability, whether in contract or tort (including strict liability, negligence and nuisance), for any loss, damage, or injury of any nature whatsoever sustained by concessionaire, its employees, agents, or invitees during the tern of this agreement including,but not limited to, loss, damage, or injury to the improvements or personal property of concessionaire or concessionaire's business invitees that might be located or stored on the Designated Premises, unless such loss, damage, or injury is caused solely by city's sole negligence. The parties expressly agree that imder no circumstances shall city be liable for indirect, consequential, special, or exemplary damages whether in contract or tort (mcluding strict liability, negligence, and nuisance), such as, but not limited to, loss of revenue or anticipated profits or any other damage related to the assignment of the Designated Premises to concessionaire pursuant to this agreement. Concessionaire acknowledges Palm Springs International Airport—Car Rental Concession Agreement Page 36 of 49 1 i and agrees that city shall have no liability whatsoever and concessionaire covenants and agrees to bold harmless city from any and all liability relating to any information provided by city relating to this � agreement. Furthermore, concessionaire acknowledges and agrees that its use of any such information, • whether prepared or provided by city or othcrwisc, in dctcrnrming whether to enter into this agreement, ' was at its sole risk. i ARTICLE 18 NOTICES i ' All notices and elections (collectively,notices)to be given or delivered by or to any party hereunder, shall i be in writing and shall be (as elected by the party slung such notice) hand delivered by messenger, courier service or overnight mail, or alternatively shall be sent by United States Certified Mail, with Return Receipt Requested. The effective date of any notice shall be the date of delivery of the notice if by i personal delivery, courier services or overnight mail, or if mailed, upon the date which the return receipt is signed or delivery is refused or the notice designated by the postal authorities as non-deliverable, as the cage may be- The parties hereby designated the following addresses as the addresses to which notices may be delivered, and delivery to such addresses shall constitute binding notice given to such party: City: Director of Aviation Palm Springs International Airport 3400 E. Tabquitz Canyon Way, Suite OFC Palm Springs, CA 92262 Concessionaire: Bert Sheppard, Vl' of Properties&Airport Relations Dew Vanguard Car Rental USA,Jne, 6929 N- Lakewood Avenue, Suite 100 Tulsa, Oklahoma 74117-1810 Either party may change the address to which notices under this Agreement shall be given, upon three (3) days prior written notice to the other party. ARTICLE 19 GOVERNMENTAL RESTRICTIONS 19.01 Federal Right to Reclaim In the event a United States governmental agency shall demand and take over the entire facilities of the Airport or the portion thereof wherein the Premises are located, for public purposes for a period in excess of ninety (90) days, either party may terminate this Agreement by providing written notice of such termination to the other party and the parties shall thereupon be released and fully discharged from any and all liability hereunder arising after i such termination or as a result thereof. This Section 19.01 shall not act or be construed as a waiver of any lights Concessionaire may have against the United States as a result of such taking. 19.02 Federal Review. Concessionaire acknowledges this Agreement may be subject to review or inspection by the FAA to determine satisfactory compliance with Federal law or grant assurances and agrees that this Agreement shall be in full force and effect and binding upon both parties pending such review or inspection by the FAA, if applicable; provided, however, that upon such review or inspection all parties hereto agree to modify any of the terms of this Agreement which Palm Springs International Airport—Car Rental Concession Agreement Page 37 of 49 i i l ' bhall be detem-tinud by the FAA to be in violation of existing laws, rcgulationb, grant assuranecb or Other requirements- 19.03 City Tax Assessment Right. None of the terns, covenants and conditions of this Agreement shall in any way be construed as a release or waiver on the part of City, as a political subdivision of the i State of California, or any of the public officials of the City of Pahn Springs of the right to assess, levy, and collect any ad valorem, non ad valorem, license, personal, intangible, occupation, or other tax which shall be lawfully imposed on the Designated Premises,the business or property of Concessionaire. 19.04 Right of Flight. City reserves unto itself, its successors and assigns, for the use and benefit of the public, a right of flight for the passage of aircraft in the airspace above the surface of the Designated Premises together with the right to cause in said airspace such noise as may be inherent in the operations of aircraft now known or hereafter used, for navigation of or flight in the said airspace for landing on,taking off from, or operating on the Airpon. i 19.05 02eration of Ahport. Concessionaire expressly agrees for itself, its subleases, successors and assigns, to prevent any use of the Designated Premises which would interfere with or adversely i affect the operation, maintenance or development of the Airport, or otherwise constitute an Airport hazard. 19,06 Release. Concessionaire acknowledges that noise and vibration arc inherent to the operation of Airport and hereby releases City from any and all liability relating to the same. ARTICLE 20 NON-DISCRIMINATION 20,01 Non-Discrimination and FAA acquired Clauscs: 20.01.01 Concessionaire for himself, his heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree, as a covenant running with the land, that in the event facilities are constructed, maintained, or otherwise operated on the said property described in this lease for a purpose for which a DOT program of activity is extended or for another purpose involving the provision of similar services or benefits, Concessionairc shall maintain and operalc such facilities and services in uompliancc with all other requirements impose pursuant to Title 49, Code of Federal Regulations, DOT, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-Assisted Programs of the Department of'rransportation-Effectuation of Title VI of the Civil Rights Act of 19645 and as said Regulations may be amended. 20.01.02 Concessionaire for himself, his heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree, as a covenant running with the land,that: (1)no person on the grounds of race, color, or national origin shall be excluded from participation in, denied the bcnclits of, or be otherwise subjected to discrinunation in the use of said facilities, (2) that in the construction of any improvements on, over, or under such land and the furnishing of services thereon, no perbon on the grounds of race, color, or Palm Springs International Airport--Car Rental Concession Agreement Page 38 of 49 i i national origin shall be excluded from participation in, denied the benefits of, or otherwise be j subjected to discrimination, (3) that Concessionaire shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department jof Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination 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. 20.01.03 That in the event of breach of any of above nondiscrimination covenants, City shall have the right to terminate this Agreement and to reenter and repossess said land and the facilities thereon, and hold the same as if this Agreement had never been made or issued. This provision does not become effective until the procedures of 49 CFR Part 21 are followed and completed including expiration of appeal rights. 20.01.04 Concessionaire shall f unish its accommodation and/or services on a fair, equal and not unjustly discriminatory basis to all users thereof and it shall charge fair, reasonable and not unjustly discriminatory prices For each unit or service, PROVIDED, THAT the Concessionaire may be allowed to make reasonable and nondiscriminatory discounts, rebates or other similar type of price reductions to volume purchasers. 20,01.05 Non-compliance with paragraph above shall constitute a material breach thereof and in the event of such non-compliance, the City shall have the right to terminate this Agreement and the estate hereby ecated without liability uhereforc or at the electing of the City or the United States either or both said Governments shall have the right to judicially enforce provisions. 20.01.06 Concessionaire agrees that it shall insert the above five provisions in auy lease agreement by which Concessionaire grants a right or privilege to any person, firm or corporation to render accormmodations and/or services to the public on the premises herein leased. 20.01.07 Concessionaire assures that it will undertake an affirmative action program as required by 14 CFR Part 152, Subpart E, to insure that no person shall, on the grounds of race, creed, color, national origin, or scx, be excluded from participating in any employment activity covered by this subpart. Concessionaire assured that it will require that its covered sub-organizations provide assurances to the Concessionaire that they similarly will undertake affirmative action programs and that they will require assurance from their sub-organizations, as required by 14 CFR 152, Subpart E,to the same effort. 20.01.08. City reserves the right io further develop or improve the landing area of the Airport as it sees fit, regardless of the desire or view of Concessionaire and without interference or hindrance. 20.01.09. City reserve the right, but shall not be obligated to Concessionaire to maintain and keep in repair the landing area of the Airport and all publicly-owned facilities of the Airport, together with the right to direct and control all activities of the Concessionaire in this regard. 20.01.10 This Agreement shall be subordinate to the provisions and requirement of any existing or future agreement between the City and the United States, relative to the development, Operation or maintenance Of the airport, 20.01.11 There is hereby reserved to the City, its successors and assigns, for the use and benefit Palm Springs International Airport—Car Rental Concession Agreement Page 39 of 49 of the public, a right of flight for the passage of aircraft in the airspace above the surface of the premises herein leased. This public right of flight shall include the right to cause in said airspace any noise inherent in the operation of any aircraft used for navrnation or flight through the said airspace or landing at, taking off from or operation on the Airport. 20.01.12. Concessionaire agrees to comply with the notification and review requirements covered in Part 77 of the Federal Aviation Regulations in the event future construction of a building iti planned for the leased premises, or in the event of nay planned modification or alteration of any present or ftiture building or structure situated on the leased premises. 20.01.13. Concessionaire, by accepting this Agreement, expressly agrees for itself, its successors and assigns that it will not erect nor permit the erection of any structure or object, nor permit the growth of any tree on the land leased hereunder above the mean sea level elevation of 500 feet In the event the aforesaid covenants are breached, City reserves the right to enter upon the Designated Premises hereunder and to remove the offending structure or object and cut the offending tree,all of which shall be at the expense of Concessionaire. 20.01.14. Concessionaire, by accepting this Agreement expressly ad cos for itself, its successors and assigns that it will not make use of the premises in any mamxcr which might interfere with the landing and taking off of aircraft from the Airport or otherwise constitute a hazard. In the evem the aforesaid covenant is breached, City reserves the right to enter upon the premises and cause the abatement of such interference at the expense of Concessionaire. 20,01,15. Tt is understood and agreed that nothinb herein contained shall be construed to grant or authorize the granting of an exclusive right within the meaning of SECTION in 308a of the Federal Aviation Act of 1958 (49 U.S.C. 1349z), 20.01.16. This Agreement and all the provisions hereof shall be subject to whatever right the United States Government now has or in the fumre may have or acquire affecting the control, operation, regulation and taking over of said airpon or the exclusive or non-exclusive use of the Airport by the United States during the time of war or national emergency. 20.01.17. This Agreement is subject to the requirements of the U.S. Department of Transportation's regulations,49 CPR Part 23, Subpart F and 49 CFR Part 26, The concessionaire agrees that it will not discriminate against any business owner because of the owner's race, color, national origin, or sex in connection with the award or performance of any Concession Agreement covered by 49 CPR Part 23, Subpart F and 49 CFR Part 26. The concessionaire or any sub-concessionaires shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Parr 23, Subpart F and 49 CFR Part 26 in the award and administration of DOT-assisted contracts. Failure by the concessionaire to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate. The concessionaire agrees to include the above statements in any subsequent Concession Agreements that it enters and cause those businesses to similarly include the statements in further Palm Springs International Airport—Car Rental Concession Agreement Page 40 of 49 Agreements. 20.01.18. In the event that the Department of Transportation issues a regulation dealing with DBE participation which may be applicable to car rental concessions during the term of this agreement, car rental concessionaires may, at the discretion of the City, be required to develop and implement a DBE participation program in compliance with the regulation. 20.02 Disadvantaged Business l3ntemrises/Affrmative Action. Concessionaire acknowledges that the provisions of Title 49, Pert 23 of the Code of Federal Regulations, Disadvantaged Business Enterprises (DBE), and Title 14, Part 152 of the Code of Federal Regulations, Affirmative Action Employment Programs, are applicable to the activities of Concessionaire under the terms of this Agreement, unless exempted by said regulations, and hereby agrees to comply with said regulations, ac now or hereafter amended or any successor regulations, and all requirements of the Department, the FAA and the U.S. Department of Transportation, in reference thereto. These requirements include, but are not limited to, the compliance with DBE and/or Employment Affirmative Action participation goals, the keeping of certain records of good faith compliance efforts, which would be subject to review by the various agencies, the submission of various reports, and including, if directed by Department, the contracting of specified percentages of goods and services contracts to Disadvantaged Buainesc Enterprises in accordance with the goals established. Failure to comply with these requirements shall be grounds for default and termination of this Agreement. Concessionaire agrees that it will not discriminate against any business owner because of the owner's race, color, national origin or sex in connection with the award of performance of any conccssion agreement covered by 49 CPR, part 23, of the Code of Federal Regulations, as now or hereafter amended or any successor regulation. Any termination pursuant to this Section 20.02 shall not be effective until the procedures specified in said federal regulations or established by City are completed, including exercise or expiration of any appeal rights. 20.03 Rcquircd DBB Statements. "This Agreement is subject to the requirements of the U.S. Department of Transportation's regulations, 49 CFR part 23. The Concessionaire or contractor agrccs that is will not discriminate against my business owner because of the owner's race, color, national origin, or sex in connection with the award or performance of any conccssion agreement, management contract, or subcontract, purchase Icasc agreement, or other agreement covered by 49 CPR par 23." i The Concessionaire or contractor agrccs to include the above statements in any subsequent concession agreement or contract covcrcd by 49 CRR part 23, that it enters and cause those businesses to similarly include the statements in further agreements. I 20,04 DBE Program Requirements. Concessionaire shall, at all times, remain in compliance with applicable Federal Regulations pertaining to the participation of DBEs in Airport contracting opportunities. I Concessionaire is rcquircd, within 90 days of the commencement of the Agreement, to submit a DBE plan to the City. The DBE plan shall address Concessionaire's policy with regard to DBE participation, its commitment to comply with 49 CFR Parts 23 and 26 and efforts which will be made to meet its compliance commitment. The DBE plan submitted by Concessionaire shall be updated by Concessionaire annually within 30 days of the anniversary of the Agreement- In the Palm Springs International Airport—Car Rental Concession Agreement Page 41 of 49 event that a national DBE goal, applicable to this Agreement, is set by the Federal Aviation Administration or the Department of Transportation during the term of the Agreement, Concessionairc shall make good faith efforts as defined by the applicable regulation, to meet the goal. Such efforts shall be documented and submitted to the City within 90 days of the enactment by the FAA or DOT of such a requirement. Concessionaire is required to submit, in the format prescribed by the City, a quarterly report of DBE participation, including the DBE participants' name, address, contact information, type and dollar amount of participation and percentage of participation. Concessionaire shall assist the City in identifying participants in the business opportunities covered by this Agreement who may be eligible for certification as a DBE. ARTICLE 21 MISCELLANEOUS 21.01 Ci N_ Noi Liable. Ciry shall not be responsible or liable to Concessionaire for any claims for compensation or any losses, damages or injury sustained by Concessionaire resulting from (a) cessation for any reason of air carrier operations St the Airport Terminal or (b) diversion of passenger traffic to any other facility. City shall not be responsible or liable to Concessionaire for any claims for compensation or any losses, dainages or injury whatsoever sustained by Concessionaire including, but not limited to, those resulting from failure of any water supply, heat, air conditioning or electrical current or from an act of God, state of war, terrorism, civilian conimotion or riot or any cause beyond the control of City. All personal property placed on or moved on to the Designated Premises shall be at the sole risk of Concessionaire. City shall not be liable for any damage or loss of any personal property placed or moved on to the Designated Premises, 21,02 Authorized Uses Only. Notwithstanding anything to the contrary herein, Concessionaire shall not use or perinit the use of the Designated Premises or the Airport for any Illegal or improper purpose or for any purpose which would invalidate any policies of insurance, now existing or hereafter written on the Airport for City or Concessionairc. 21.03 Waivers. The failure of City to insist on a strict performance of any or the agreements, terms, covenants and conditions hereof shall not be doomed a waiver of any rights or remedies that City may have for any subsequent broach, default, or non-performance, and City's right to insist on strict performance of this Agreement shall not be affected by any previous waiver or course of dealing. i 21.04 Subordination to Federal A,_Yrccmcnts. 'Phis Agreement shall be subject and subordinate to all the terms and conditions of any instrument and documents under which City acquired the land or improvements thereon and shall be given only such effect as will not conflict with nor be inconsistent with such terns and conditions. Concessionaire understands and agrees that this Agreement shall be subordinate to the provisions of any existing or future agreement between City and the United States of America, or any of its agencies, relative to 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 die development of the Airport. Palm Springs International Airport—Car Rental Concession Agreement Page 42 of 49 i I 21.05 City's Governmental Authority. Nothing in this Agreement shall be construed to waive or limit City's governmental authority as a political subdivision of the State of California to regulate Concessionaire or its operations 21.06 Rights Reserved to City. All rights not specifically d anled Conccssionairc by this Agreement are reserved to City. 21,07 invalidity of Clauses. The invalidity of any portion, article, paragraph, provision clause, or any portion thereof of this Agreement shall have no affect upon the validity of any other pail or portion hereof. 21.08 Venue. To the extent allowed by law, the venue for any action arising from this Agreement shall be in Riverside County, California. 21.09 Governing Law. This Agreement shall bu governed by and in accordance with the laws of the State of California. 21.10 Inspections. The authorized employees and representatives of City and any applicable federal, state, and local governmental entity having jurisdiction hereof shall have the right of access to the Designated Premises at all reasonable times for the purposcb of inspection for compliance with the provisions of this Agreement and/or applicable laws. 21.11 Remedies Cumulative. The rights and remedies of the parties with respect to any of the terms and conditions of this Agrcumcm shall be cumulative and not exclusive and shall be in addition to all other rights and remedies of the parties. 21,17 Paragraph Headings. The headings of the various articles and sections of this Agrccmcpt, and its Table of Contents, are for convenience and case of rcfcrcnec only, and shall not be construed to debt, limit, augment or describe the scope, context or intent of this Agreement or any part or parts of this Agreement. 21.13 Binding Effect. The terms, conditions and covenants of this Agreement shall inure to the benefit of and be binding upon the parties hereto and their suceccsorv,assigns and sublessees, if any. This provision shall not constitute a waiver of any conditions against assignment or subletting. 21.14 Performance. The parties expressly agree that time is of the essence in this Agreement and the failure by Concessionaire to complete performance within the time specified, or within a reasonable time if no time is specified herein, shall, at the option of City without liability, in addition to any other rights or remedies, relieve City of any obligation to accept such performapcc. 21.15 Conflict. In the event of any conflict and for purposes of resolving any disputes which may arise regarding this Agreement, the Invitation for Bid or Concessionaire's response to the Bid, as referenced above, the orderof-precedence shall be (I) this Agreement; (ii) the Invitation for Bid; (iii) Concessionaire's response to the Bid. 21.16 Excusable Delay. Any parry in performing under this Agreement shall use reasonable efforts to remedy the cause or causes of an excusable delay. Excusable delays are those delays due to force Palm Springs International Airport—Car Rental Concession Agreement Page 43 of 49 majeme, acts of God, fire, flood, earthquake, explosion, riot, sabotage, windstorm, or labor dispute,and shall toll the time to purform under this Agreement. 21.17 Incorporation by References. All terms, conditions, specifications of Request for Bid # 06-04, all exhibits attached hereto and referenced herein shall be deemed to be incorporated in this Agreement by reference. 21.18 Entirety of Agreement. The parties agree that this Agreement sets forth the entire agreement between the parties, and there are no promises or understandings other then those stated herein. None of the provisions, terms and conditions contained in this Agreement may be added to, modified, superseded or otherwise attend except by written instrument executed by the parties hereto. 21,19 Construction. Neither party shall be considered the author of this Agreement. The terms of this Agreement shall not be strictly construed against one party as opposed to the other based upon who drafted it. 2120 Radon. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that cxcecd federal and State guidelines have been found in buildings in California. Additional information regarding radon and radon testing may be obtained from City's public health unit. Palm Springs International Airport—Car Rental Concession Agreement Page 44 of 49 i _I-N-WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written-above- ATTEST: CITY OF PALM SPRING I - - .'=:4•t,mlmlcip orporatton By: By: .3�f I I - City Clerk City Mana APPR/ f S TO F APPROVED By CU C©UNC91. By: • �S} City Attorney CONTRACTOR: Check one: —individual Partnership Corporation Corporations require two notarized signatures: One.from each of the following: A. Chairman of Board, President, or any Vice President: AND B. Secretary, Assistant Secretary,Treasurer,Assistant Treasurer, or Chief Fi ancial Officer- BY; n�1�1 gy: Jn,yAnature (notarized) Signature (notarize Name: 1�� n d SLEInNi � Name: _T_5S�e6 Gd d y Title: V; C Ye ES /J�c7u Title: I`%ss%, 5EZ% State of: Q &/ a .n -L Slate of: County of. E ur County of: S-3/�G / On S before me, T r i z Z. do a h u { On. -,' •U(before me, A4 AQu /64AS Personally appeared t SAC,/�).o Personally appearedT L It personally known to me (or(or proved a on the personally known to me (or proved to me on the basis of satisfactory evidence) to be the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the person(g) whose name(s) is/arc subscribed to the within instrument and acknowledged to me that within instrument and acknowledged to me that he/she/they executed the same in his/her/their he/she/they executed the same in his/her/their authorized capacity(ics), and that by his/her/their authorized capacily(ics),and that by his/her/their signaturc(s) on the instrument the person(s), or signature(s) on the instrument the person(s), or entity upon behalf of which the person(s) acted, entity upon behalf of which the person(s) acted, executed the instrument, executed the instrument. WITNESS my hand and official seal- WITNESS my hand and official seal. Notary Signature: Notary Signature: A • ^ " H t56ma Notary Seal: 16) Notary Scat: 90"n6mim OFFICIAL SEAL TERRIE L DONAHUE WAGONER COUNTY Notary Puhllc Oklahoma COMMISSIONp03013752 OFFICIAL SEAL . Ex . 11-17-2007 MARY E. THOMAS OSAGE CyOgUpgNTYY�,{ Palm Springs International Airport--Car Rental Concession g Comm, Exlr. 7% 9 EXHIBIT A READY RETURN SPACES/LANES See attached Palm Springs International Airport—Car Rental Concession Agreement Page 46 of 49 M M 1 1 d d d d r+ « n�n� ,n n. ... m e .. d � � m µ w o P M w 9 P w .. � P P R VSA AIRPORTS GAR RENTAL LOT mfr'rn,c cwnrmNera 255 north t] Otero Road g479 Prone; ((7$1) 318-0200 Polm Sprrge, Colftnto 92262 FAX : R60) 378-7452 acuau mr EXHIBIT B OVERFLOW PARKING LOTS See attached Palm Springs International Airport—Car Rental Concession Agreement Page 47 of 49 Rental Car Temporary Overflow Parking 34, 11 a0l,L 11 y6., b. s y,_h A °�w�wnof �70 nr r ? go • .:. I A - k EXHIBIT C CUSTOMER SERVICE COUNTER SPACE i See attached I I I I I i Palm Springs International Airport--Car Rental Concession Agreement Page 48 of 49 ' ��iGf{•1h3f7" G I I i i PALM SPRINGS INTERNATIONAL AIRPORT RENTAL CAR COUNTER SPACE JULY1, 2006 ' Counter Space 1 Office: 231 sq. ft, Counter: 192 sq. ft. Que: 330 sg. TOTAL 753 sq. ft " I °• ! Counter Space 2 Office: 231 sq. ft. N Counter: 171 sq. ft Que: 294 sq. ft m TOTAL 696 sq. ft a A m a Counter Space 3 Office: 157 sq. fL a Counter: 122 sq. ft. Que: 210 sq. ft TOTAL 489 sq, ft. Counter Space 4 Office: 157 sq. ft. Counter: 122 sq. ft. ue: 210 sq, ft otb TOTAL 489 sq, ft. T N A � C P u a1 Counter Space 5 ' Office: - 157 sq. ft, Counter: 122 sq. ft. Que: 210 sq, ft TOTAL 489 sq. ft. w a a P Counter Space 6 Office: 108 sq. ft. Counter: 84 sq- ft Que: 144 sq. ft TOTAL 336 sq. ft. Li ' EXHIBIT D i MAINTENANCE SERVICE FACILITY SPACES See attached I Palm Springs International Airport—Car Rental Concession Agreement Page 49 of 49 1 MAUMNAPn/SERVICE FACILITY ' EXHIBIT D r�fro' Lot ! Scusre Fobt+4c I 1 7].Z31 a I z 2Z.JZ4 � I 46.434 �• I 5 46.431 _` xr�Pow I .8 I _ 4 i I I M'nA I I � � w i R � 1 KVYNw .µa. 4I.Il� ���x .V•/ ' r .ar ' ; a4rrry cme 1 CITY a PALM SPRINGS « �� REEL IPahpi7Y PI/177pldyN V o^, PROPERTY PLAT a.�tvwc ncrt rr AIRPORT LEASE PROPERTY tem an f=¢c fu Nr10 l.2x' ocDom m oft sxcr ha. SE mom 13 TAS. R 4E. S.B.B.lk M. Lae Z aR 2 MARSH 7E OF INSURANC CERTI FICA E' CERTIFICATE NUMBER I h, NYC-002434428-03 PRODUCER THIS CERTIFICATE 15 ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS Mamh USA Inc NO RIGHTS UPON THE CERTIFICATE HOLDER OTHER THAN THOSE PROVIDED IN THE 1166 Avenue of Americas POLICY THIS CERTIFICATE DOES NOT AMEND,EXTEND OR ALTER THE COVERAGE New York NY 10036 AFFORDED BY THE POLICIES DESCRIBED HEREIN COMPANIES AFFORDING COVERAGE COMPANY 50614-VAN-CAR-0607 A AMERICAN HOME ASSURANCE COMPANY INSURED COMPANY Vanguard Car Rental USA Inc B N/A National Rental(US)Inc Alamo Rental(US)Inc. COMPANY 6929 N Lakewood AVE,Suite 100 C N/A Tulsa,OK 74117 COMPANY D NIA COVERAGES su orsodos and replaces an previously Issued certificate for the policy eriod noted below, 9 COVERAGES.. . .. . .... . . ��Th(s certificate' .P. .. . P YP Y� P YP - .. r . THIS IS TO CERTIFY THAT POLICIES OF INSURANCE DESCRIBED HEREIN HAVE BEEN ISSUED TO THE INSURED NAMED HEREIN FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THE CERTIFICATE MAYBE ISSUED OR MAY PERTAIN THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN le SUBJECT TO ALL He rERMS CONDITIONS AND EXCLUSIONS OF SUCH POLICIES AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS CO "TYPE OF INSURANCE POLICY NUMBER POLICYEFFECTIVE POLICY EXPIRATION LIMITS LTR DATE IMMIDDIYYI DATE IMMIDDIYY) GENERAL LIABILITY $ 3,000,000 GENERAL AGGREGATE A X COMMERCIAL GENERAL LIABILITY GI.1738117 OV01I06 01/01/07 PRODUCTS-COMPIOP ADS $ 3,000000 CLAIMS MADE Fx7 OCCuR PERSONAL&ADV INJURY S 3.000 000 _ OWNER'S&CONTRACTOR'S PRO EACH OCCURRENCE S 31000,000 .. FIRE DAMAGE fAry one fire MED EXP Anv one arson $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ 3,000.000 A X ANYAUTO CA 9799070 01/01/06 01/01/07 ALL OWNED AUTOS BODILY INJURY SCHEDULED AUTOS (Per person) HIRED AUTOS BODILY INJURY $ NON-OWNED AUTOS (Per...dent) FPROPERTY DAMAGE $ GARAGE LIABILITY AUTO ONLY-EA ACCIDENT S ANY AUTO OTHER THAN AUTO ONLY CACH ACCIDENT S - - AGGREGATE S EXCESS LIABILITY EACH OCCURRENCE $ UMBRELLA FORM ACCRECATE $ OTHER THAN UMBRELLA FORM $ WORKERS EMPLOYERSLMABILITYTION AND _-ORY LIMITS OR EL EACH ACCIDENT $ THE PROPRIETOR/ INCL EL DISEASE-POLICY LIMIT $ PARTNERSIEXECUTNE OFFICERS ARE SOL EL DISEASF.-FACH FMPLOYFF $ OTHER DESCRIPTION OF OPERATIONSILOCATIONSIVEHICLESISPECIAL ITEMS To the extent required by written conlract,The City of Palm Springgs,Its Officers,Employees and Agents are Included as Additional Insured as their Interests may appear with respect to the concession agreement For area fF1611. CERTIFICATE HOLDER CANCELLATION SHOULD ANY Or I I E POLICIES 312SCRIDCD I CREIN BE CANCELLED BEFORE THE EXPIRATION DATE TI IEREOF IIIC INBUHLH Al I OKIIING LOVEKAGL WILL LN II AVOR TO MAIL_�'Q DAYS WRITTEN NOTICE TO lHE City of Palm Springs CLHIII ICA IL IIUWLH NAMLD IILRLIN.BUr FAILURE TO MAIL uUC11 NOTICE SHALL IMPOSE NO OBLIGATION OR City of Ma nag or/Di rector of Aviation 3200 Tahquitz Canyon Way LIABILITY or ANY OND UPON TI IC INSURCB AFFORDING COVERAGE ITu AGENTu OR REPRESENTATIVES OR TI IC Palm Springs,CA 92262 ISSUER OF THIS CERTIFICATE MARSH USA INC. BY. Thomas A.Caldwell I IL.... VALD AS I ... MM9(3/02) OF;I'105/22I06, I ACORD,n, I CERTIFICATE 'OF LIABILITY INSURANCE DATE(MM/Dp/I — Yy) I 05/22/06 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION AOn Risk Services, Inc. of New York ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE SS East 52nd Street HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR New York NY 10055 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. 1 COMPANIES AFFORDING COVERAGE 1 COMPANY Aneri can Home Assurance Co. C PHONE- (866) 266-7475 FAX- (866) 467-7847 A 1 INSURED COMPANY e I vanguard Car Rental USA Inc. B I National Rental (US), Inc. 1 Alamo Rental (US), Inc. COMPANY 6929 North Lakew00d Avenue C — Suite 100 x j Tulsa OK 74117-1808 USA COMPANY D COVERAGES THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED NOTWTHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS EXCLUSIONS AND CONDITIONS OF SUCH POLICIES LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS 1 co POLICYEI PECI IVL FOUICY ENPmAT10N LrR TYPE Or MSURANPr P011CY NUMBER DAT'r(MM/DD/YYj DAT61MM/DUAY) LIMITS m 1 GENERAL LIABILITY GENERAL AGGREGATE � COMMERCIAL GENERAL LIABILITY PRODUCTS-COMPIOP AGG CLAIMS MADE ❑OCCUR PERSONAL&AOV INJURY r' 0 OWNER S&CONTRACTORS PROT EACH OCCURRENCE 0 FIRE DAMAGE(Any one flm) e 1 MED EXP(Any one oemon) 4 AUTOMOBILE LIABILITY r ANY AUTO COMBINED SINGLE LIMIT ALL OWNED AUTOS BODILY INJURY � SCHEDULED AUTOS (Per person) HIRED AUTOS BODILY INJURY NON-OWNED AUTOS (Per accident) PROPERTY DAMAGE GARAGE WABILITY AUTO ONLY•C- ACCIDENT ANY AUTO OTHER THAN AUTO ONLY EACH ACCIDENT AGGREGATE EXCE55 LIABILITY EACH OCCURRENCE UMBRELLA FORM AGGREGATE OTHER THAN UMBRELLA FORM A WORKER'S COMPENSATION AND WC 2100063 01/01/06 01/01/07 X ppy LIMITS OYH- EMPLOYERS LIABILITY ER WOrkerS Camp-eA EL EACH ACCIDENT s1,0 TI•12 PROPRIETOR I X INCL PARTNERSIEXECUTIVE EL DISEASE-POLICY LIMIT S1,000,000 OFFICERS ARE EXCL EL DISEASE•EA EMPLOYEE .YY DESCRIPTION OF OPBRATIONSILOCATIONSNE411CLESISPECIA41TEM3 rJ Evidence of Insurance for Named Ensured regarding concession agreement for area #1611 _ CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF TI-IF, ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE City Of Palm Springs EXPIRATION OAIE THEREOF THE ISSUING COMPANY WILL ENDEAVOR TO MAIL City Manager / Director of Aviation 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE MOLDER NAMED TO THE LEFT 3200 Tahquitz Canyon Way Palm Springs CA 92262 USA BUI FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE COMPANY ITS AGENTS OR REPRESENTATIVES AUTHORIZED REPRESENTATIVE ACORD 25S 1198 0 CORPORATION 998e Best's Rating Center- Search Results Page 1 Page 1 of 2 I I I r a: inter I YI View Ratings: Financial_Strenn th I5�ucr Credit Securities Advanced Sn CJ] Other Web Centers: Select One �+ i Search Results Page 1 of 1 10 Rated and non-Rated companies found, results sorted by Company Name Criteria Used: Company Name: Company names starting with american home To refine your search, please use our Advanced Search or view our Online Help for more information. r r r aan home View results starting with: A B C D E F G H I J K L M N O P R S T U V W X Y Z roe New Search„ amen _ ----g— i Company Information Financial Strength Ratings Issuer Credit Ratings _ Outlook/ y Outlook/ T AMB# �' Company Name Rating Implication Long-Term - Implication Short-Term Domicile ' 77351 American Home Assurance NR-5 Not Argentina Compan PP A licable I y (Property/Casualty-Insurance Company) 77982 American Home Assurance NR-5 Not Honduras Company Applicable (composite-Insurance Company) I 02034 American Home Assurance A+ Stable aa- Stable US: New Y, Company (Property/Casualty-Insurance Company) I 86121 American Home Assurance A+ Stable aa- Stable CA: Ontanc Company CAB (Property/Casually-Insurance Company) 77162 American Home Assurance NR-5 Not New Zealar Gam oanv(NZB) Applicable (Property/Casualty-Insurance Company) 89467 American Home Assurance United Kinc CompanyUKB ` (Property/Casualty-Insurance Company) 68161 American Hcma„Life Insurance NRA Not US:Arkans Company Applicable (Life/Health-Insurance Company) 06065 American Home Life Insurance A- Negative US: Kansas Company (Life/Health-Insurance Company) 11622 American Home Shield_of Nevada, NRA Not US: Nevad: Inc Applicable (Property/Casualty-Insurance Company) 11546 American Home Shield of Virginia, NRA Not US.Virginis Inc Applicable (Property)Casualty-Insurance Company) http://www3.ambest.com/ratings/RatingsSearch.asp 06/16/06 RSSIONAIRES BOND ' r: K07492510 ,OW ALL MEN BY THESE PRESENTS, that we, Vanguard Car Rental USA Inc d/b/a Alamo & ational, as Principal, and Westchester Fire Insurance Company, licensed to do business in the Mate of California, as Surety, are held and firmly bound unto the City of palm Springs, CA, as Obligee, in the penal sum of Three Hundred Fifty-Nine Thousand Fo -One And 66/100 Dollars ($359,041.66), lawful money of the United States of America, for the payment of which sum, well and truly to be made, the Principal and Surety do bind themselves, their heirs, executors, administrators, and successors and assigns, jointly and severally, firmly by these presents- THE CONDITIONS OF THIS OBLIGATION IS SUCH, that whereas the above bounden Principal has entered into a certain written Concession Agreement with the above named Obligee, effective the 1st day of July, 2006 and terminating the 30t' day of June, 2009, for an Non-Exculsive Operating and Lease Ageement and more fully described in said Concession Agreement, a copy of which is i incorporated herein by reference, except that nothing said therein shall alter, enlarge, expand or otherwise modify the term of the bond as set out below. NOW, THEREFORE, if Principal, its executors, administrators, successors and assigns shall promptly and faithfully perform the Concession Agreement, according to the terms, stipulations or conditions thereof, then this obligation shall become null and void; otherwise to remain in full force and effect. This bond is executed by the Surety and accepted by the Obligee subject to the following express condition: Notwithstanding the provisions of the contract, the term of this bond shall apply from JUIV 1, 2006, until July_1, 2007, and may be extended by the Surety by Continuation Certificate. However, neither nonrenewal by Surety, nor the failure or inability of the Principal to file a replacement bond in the event of nonrenewal, shall itself constitute a loss to the Obligee recoverable under this bond or any renewal or continuation thereof. The liability of the Surety under this bond and all continuation certificates issued in connection therewith shall not be cumulative and shall in no event exceed the amount as set forth in this bond or in any additions, riders, or endorsements properly issue_d_by-th'e-,, Surety as supplements thereto. Sealed with our seals and dated this 1st day of June, 2006. _ Vang and Car R-ental USA Inc dba Alamo & NationeY Principal - Westchest r Fire Insuranc Company - - By Theresa iraldo, Att ne -in-Fact - Agreed and acknowledged this day of By: Obligee _ �vl IAn 1 of y WE ar7ZQ : STCHE9TERFIRE INSL(RANCECONIPAIVY if] .: I7100R$. : 'Fawer 1380094 .Know all men by these preSe)(lts: I'll at WESTCHESTER FIRE INSURANCE COMPANY,a corporation ofthc State of NewYork,havingirs „ III 1 principal office in the City,of:Aflanta„C,�corgia,pursuant to Elie following Resolution,adopted by the Board of Directors of the Said Company on November 8„1999,to "RQSOLVE➢;that the Following Rures•hnll aowm tht execution far the Cumpany afhAude,undenakinp,iecnaniwncc,contra its.o d mhcr wrirings in Elm nature thereof _ jl (I) Tho[the pre idenS mty Senior Vac President,any Via Presklnt4 and AAi-umt Vice Presid.l,or any Attomry•v,Foot,Amy not utc for and on lchulrorthu'CompAny mly and all hoods,m eo�tdevAl-gs,relyyien, Anaaets and othn w arsis in arc nature therm rho same to be masted when necesmry by ih,Corporate Sea toot,or any Avishm Co,purau SAcrelnly,and the peal of the Coihpa atrixed iheruo,and that the _Ptcs,drnq any Senior Vitc PresidmS any Vicc Pressdent birmfy Assumnt Vice Praidc,n iwyaiipoin;mid amhoriac any oober 01r.cr(AlAaed'or appoinmd)ofthe Gmp.uiy as Auomeyg-In-Fuct to so A.A.upe or Acaot to .. the exeeodan rall such wnilrip on Imhal(ofd,e Company and to nffu dic scat Afire CPtlpally ecrno (2) Any yneh,vriting eseeueed in accordance wine tllmo Rules shrill Ix as binding upon the Company in any case ns 111mg1h•lined by the Prcmdent and mailed to by the Cmpotnra secretary it (3) T)io iigomnre ofihc President,or$Semor Vine Prenden;of a Vine Iln Aden6 of aaAsaeant Viep frtoddcntond the seal ofiht Company may lit ar.m by egsimiltm;mypowerofatlomry partAd ppouma mth,. Resoluoan,and the agnane of a ccmfying 01Pee and thesezl ofihc Companymry be naixadby ftasimdew any enuficate army such powm and tiny suehpoweror eeniGemA bang nch faealanla,imatureard stal shall he valid and bmdmg An the Company. ... Ili (4) Such other Orrm.oFthe Compagv,and flavoreye-In-Fan.Nall have autlmnty to comfy or vugly opla.ofth,s RtsOlutmn,the ny-)A Afire Comp,dy,and an,andavft or meold 61 the Conarmy neetdsary to the damage QEccirdmm, . . . . . . . .. (S) Thepass age of Ilia Resoluuon dots not revoke Ally cwlier authonry granted py Rcoluuons oflht Board oMraio, d Dees herebynominate,constitute and appoint TRACEY D, WATSON,THERESA GIRALDO,PAULA SEYMOUR;MIGDALIA OTERO, SHI'RLEY DEWELY,TERRY ANN GONZALES-SELMAN,MICHAEL SETT,DEBRA L. TEPLITZKY,FRANCESCA PAPA, SUZANNE POLOW,TATYANA OFENBAKH,CHRISTOPHER MCCARTY,TAMES HOLLAND and JOSEPII, CATANIA all o'f the City of New York,State of New York,each individually if fUere bot more than one named,its true and lawful . abbmey-i❑-fact,to mpke,execute,seal and del[vcr on iis behalf,and as its act and deed any and all bonds,undt-rtakings,reco(ptizanccs,contraeu and other writings in the nature thereof in penalties not exceeding Ten Million Dollars(S10,000,000)and the exccunon of such writings In pursuance of the9e presents shall be as binding upon said Company,as fully and amply.o if thcyliad been duly executed and ackowledSctl by the regularly ciccted officers of the Company at its principal office I .IN WITNESS WHEREOF,the said Stephen M Haney,Vicc-President,has hcreunto sttbscribcd his name and affixed the corporate seal of the said WESTCHESTER FIRE INSURANCE COMPANY this 22nd day of June 2005 ,ICviiiir RA COMPANY .. ��� .. .. IIDS IRS IIVSIJ . 1 Jr��r`GEGo. Stephen M.Haney,Vice President ti COMMONWL-ALTIIOFPENNSYLVANIA COUNTY OpPHILADELPyIq ss. On this 22nd day of June,A D,2005,beforc me,a Notary Public ofthe Commonwealth ofPcnnsylvania in and for the County of Philadelphia came Stephcp M.ldaney,V.[cc-President of the WESTCRESTER FIRE INSURANCE COMPANY to me personallyknown to be the individual and officer III . : who executed the preceding instrument,a"he aclsiowledgcd That he executed the same,and that the seal affixed fo the preceding instrument is the,.. ... eorpgrare seal of sajd.Company;that the said corporate seal and Ills signature were duly affixed by the authority and direction of th[:said corporation,and . . :that Resolution,adopted by the Board of Directors bfsaid Company,refuted to in the preceding instrument,is now in force . 'IN TESTIMONY WHEREOF,7 have hereunto set my hand and aftixcd my official seal it the City of Philadelphia the day and year first above written.' t�\al title„nair. n1n1uALSFAL aYathleea T .. un,Notary Public },.'r Philadelphia,Philadelphia County e 1 2: ,1iy Walmission expirus septzn.a.',2GP7 Nbtary S'vblic .. , ' 4 the undersigned Secretary of WESTCHFSTERFIRE INSURAiNCk COMPANY,do hereby certify that flee original PO WER OF: .. .. ATTORNEY,.of which the foregoing is a substantially true and correct copy,is-in full force and effect.. . .. . . LEIS In whereof,Ih S affixed ecretary,and axed the corporate seal.ol'the Carporation,this �'�day of wllnees ay>iliyreuntosubscribed myname as in J L1�t] 1I ,.g,�GHyyAt¢¢S�,p y .. . .. . . . + e . . Oeorlgll.Mull(g;In,Sececrary T141S POWER OF ATTORNEY MAY NOT BE USED TO EXECUTE ANY BOND WITH AN INCEPTION DATE AFTER June 22,2007 fil•1Vaaq-p" ACKNOWLEDGMENT OF ANNEXED INSTRUMENT STATE OF NEW YORK COUNTY OF NEW YORK On 6�VC6 before me personally came Gi�-�Jdo duly sworn, did depose and say that he/she is an Attorney-in-Fact of the Westchester' Fite In.=r-e aq)ary and knows the corporate seal thereof, that the seal affixed to said annexed instrument is such corporate seal, and was thereto affixed by authority of the Power of Attorney of said Company, of which a Certified Copy is hereto attached, and that he/she signed said Instrument as an Attorney-in-Fact of said Company by like authority TRACEY D-WATSON NOTARY PUBLIC,state of New York No,01 WA5o19877 Oualified in Kings County .\ - Certificate Filed in New York Count Commission&pires Nov-1,20.E��1 - WESTCHESTER FIRE INSURANCE COMPANY FINANCIAL STATEMENT December 31,2004 ADMITTED ASSETS BONDS $1,363.863,132 SHORT-TERM INVESTMENTS 24,549,145 STOCKS 0 REALESTATE 0 CASH ON HAND AND IN BANK 5.338,440 PREMIUM IN COURSE OF COLLECTION' 117,396.478 INTEREST ACCRUED 15.349,513 OTHER ASSETS 366,657.095 TOTAL ASSETS 1,892,152,803 LIABILITIES RESERVE FOR UNEARNED PREMIUMS $415,496.923 RESERVE FOR LOSSES 1.150,554,701 RESERVE FOR TAXES 5,413,537 FUNDS HELD UNDER REINSURANCE TREATIES 0 OTHER LIABILITIES (179,492,174) TOTAL LIABILITIES $1,391,972,987 CAPITAL: SPECIAL SURPLUS $187,300,000 CAPITAL: 928,592 SHARES,$4,85 PAR VALUE 4,503,671 CAPITAL: PAID IN 129,098,600 SURPLUS(UNASSIGNED) 179,277.545 SURPLUS TO POLICYHOLDERS 500.179,816 TOTAL $1,892.152,803 (-EXCLUDES PREMIUM MORE THAN 90 DAYS DUE.) STATE OF PENNSYLVANIA COUNTY OF PHILADELPHIA John P.Taylor,being duly swom,says that he is Vice President of Westchester Fire Insurance Company and that to the best of his knowledge and belief the foregoing is a true and correct statement of the said Company's financial condition as of the 31 st day of December,2004. Sworn before me 27th day of April,2005, COMMONWEALTH OF PENNSYLYANIA Niel Sew IreneT VwratK wXy pLd* Vie President ClIYOfNa'B? ^OmE#Y MYCmiftolon E)Ptres Nov.15,2007 m mbw.Pennsylvania Asvcdatio Of Nowries Notary Public My commi slon expires /short forms 2003M1vfic/ S<4k S>;.p `�•�.w,a a:�K CERTIFICATE "'�e'�:,.k'x �'ni' •k�. f ri4i F}��v#�I ,," %ymz x r",s, {'.'�t' I�a�1'��3 weµ: f ]'� •.y:�,� �'V`/�4�. NUM9EI G',. ,'is",:Yt"cry.^s ;.�^.�i�':%?,1?3:.?::g;,':.^t�^<ui,R A'•"�.'�?fixk���"�rvF�,a,^#§� �Y$.�:M:;i��s+,:s.T�"" '? •n3 yx. ,.,'d;... ���!�,� �w NYC-0U2342723� THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER OTHER THAN THOSE PROVIDE[ IN THE POLICY.THIS CERTIFICATE DOES NOT AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES LISTED HEREIN. PRODUCER COMPANY MARSH USA Inc. 44 WHIPPANY ROAD PO BOX 1966 MORRISTOWN.NJ 07962-1966 FAX:(2031229-6883 E-MAIL:CEERT.REQUESTNE@MARSH.COM S4550-ALL-PROP-06.07 INSURED LOAN NUMBER POLICY NUMBER VANGUARD CAR RENTAL USA INC. SEE ADDITIONAL PAGE TEXT NATIONAL RENTAL US INC- ALA RENTAL(US I C. EFFECTNE DATE IMMIDDNY) EXPIRATION DATE(MWODAf) CONT,UNTIL 6929 NORTH LAK OOD AVENUE 06/30/06 06=107 TEAMINATEO SUITE 100 IF CHECKED TULSA,OK 74117 THIS REPLACES PRIOR EVIDENCE DATED. i;`jIkQPFZT1":�.IFpMAfO .?k t:a,kgai•Y u.. f Fy';e:..�u , ,� •, �i.: r L yki� a 1,�r ts' y LOCATION✓-DESCRIPTION AT OR NEAR THE PALM SPRINGS MUNICIPAL AIRPORT,PALM SPRINGS,CA. >f,..p�p µµb�yy - e '< ttifid - mc��,�}`yyptllhe.16X6': A" be-Tit^rl'ol e�p°. .�31a„, u.,..n.,o p").:,"r 5..,":.r^••T"�"f�Tl'�. Im,1jF ° :i=i: 'p pZ ryL" "f'U]uFa,Zd, Srfi� n,lm�a, �R:.:•`L, m,�` IXIY�i+z.,_.z:,s �a.,.: ,^,.�°c;t�su . <,z«»:....,::.::.„3..a.....n..x.._,._»e:a..«...,t,�&1txa:'aa�a,,«,afi. ._..:.,n,w.,�•� THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED HEREIN HAVE SEEN ISSUED TO THE INSURED NAMED HEREIN FOR THE POLICY PERIOD INDICATE NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THE CERTIFICATE MAY I ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES LISTED HEREIN IS SUBJECT TO ALL THE TERMS,CONDITIONS AND EXCLUSIONS OF SU[ POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. COVERAGES I PERILS I FORMS AMOUNT OF INSURANCE( DEDUCTIBLE 1 O,OD0,000 ALL RISK-COMMERCIAL PROPERTY COVERAGE INCLUDING FLOOD,EARTHQUAKE AND BOILER AND MACHINERY INCLUDES COVERAGE IN FLOOD ZONE RECEIVED REPLACEMENT COST FOR PROPERTY DAMAGC ACTUAL LOSS"SUSTAINED FOR BUSINESS INTERRUPTION AND LOSS OF RENTS JUL Q rJ 2006 B , DEn OF AVIAT ON iREM IrNJU ...s'S.. .C7R[Clil] D X`# 3iri:;3".,;':#'<i.�a r; .#"w y?°;",y,,.,, s�iti';r .75, :;'sae F'Fs,^.r»,e... ,,,f•,°x�;# :na;'rom 3 ss y�Wq.�4.. .,�F%x°.-,;sy :`I '3atiN''#'�i a, .:S�C".'I,�u:,,,. ..'r"�:ki%"r�:a £�x„t t��ii,:,`.�=GeaM:rvn.�>. R.a.3�i:-3.b?i�f:`: 3f. �,,w; THE CITY OF PALM SPRINGS,ITS OFFICERS,EMPLOYEES AND AGENTS ARE INCLUDED AS LOSS PAYEE AS THEIR INTERESTS MAY APPEAR IN THE CONCESSION AGREEMENT FOR AREA#161I 4A „i NOW' : aMtl;as:F' P'F'' w3'I311:i`i m, rO 3Ea $ f: m °' a3w +l:.; .?,�,s.,;k9F?%µ`.$:":M'.^'•.�F;"i.%"i»r':i SHOULD ANY OF THE POLICIES LISTED HEREIN BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF,THE INSURERAFFORDING COVERAGE WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED HEREIN,BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER AFFORDING COVERAGE,ITS AGENTS OR REPRESENTATIVES,OR THE ISSUER OF THIS CERTIFICATE. a:o #;k` FY:¢"c iRf;#°� ix.."n �#w3`T aim:m ''3iy, . `4R,31F'1,CA'Y$"IiL7. I1.-h ..»,..�•. 3+.`3�.. `i<'�yA��a.',°;'.'v, � �£� w Ge "a' ' �i, �er.�F '' ,..>rc .:•san„°,.-s.. .:..»:. n,mh,E"7.,n•K N.?s...,�Y.7P'.a ,,., x..v.Ms'1:"�..Fii�Lr,"h.`6„°.'A.�:xi<Au1e�" '1�*,r�.�i�,l.: ` �;'� r;.:e> d!'n'p.. ,.. ig� �' e�% yaw nKn: c?`.3•srsaie#5°'z,a: w G ia�. 'h:C'"a ,rrsm' NAME AND ADDRESS NATURE OF INTEREST CITY OF PALM SPRINGS AliomDxALINsuREo CITY MANAGERIDIRECTOR OF AVIATION MORTGAGEE 3200 TAHQUITZ CANYON WAY PALM SPRINGS,CA 92262 X� LOSS PAYEE � (OTHER) MAR:H USA INC. ey Ma Radeszewski i'Yfi. L[;,y •re tM e#�ti,`v��; 'g A:�< =.l:Y>1'1' ':Iva,•,e%`�.?;,i.s: ..e�»r xaap'(�„vfR:�•. S'rRn S,x-a;sr. °.e;:".Y�.f-q,Mw�'R.a�".3:`:E.:P:� .r�",a":3.,:�:%_p��.,,. F,,, ,Px.� �di>'«� �;yY'.#y''`" 'n»nrv.a l.r.FR,dy,.`> >s •s{cr ><rF�r';a" " ,.:q: ",' ,»Fr>4�,a,,:.ar:?,.. . :n +!":F'' .:; . ; ar:M.. r s ty�� x::ia.y•,.�.,¢ .u:. O6 9 06 .az.», ;t�•' A54F<'?: /2 / ,K .R".s-N% .:.yi,.y[#�r�ws'- n;s:., .< .rr w� A,w" .,.ww.,,, „ga?..va'FT.° #°.n�.0 .a r�;,s.., w"�:,Y�. `4 ,#'. '.�'�^%¢:.. F # Ik �3;>, a3s' ��:,• ,.FpM�asty'p+`s�,::»:;:% <%# �. yst�s�, y, ,.�i»��kr<�";x A2 T1f. J[ [� �:a.°�s,�,rtvF r. ><p*#"„z.{<;< � rri5�y� :.1 :.:5:.: SxS:tuScw .FRS'• : :)• ur/ �'R... ..�C u' vi{'.,,Ni L�� »Fmi#�nP:f:�`��'b:.•L'.'i:rv>u�d%rv,:':YF»%'I.,re:r:.^a. ^n°x , �:. ;I, ]K?un �T':'% "^•k>'"?Sf.:'dya 7k},�'f" "pt "`i`'«,rc Ses:�"C w,'r"b'zpay,'?q` Mar j�MN„ .';:�nA".,,?#`sk<°,,tiNn6°,,. ..£.i£` 'T":i»,,'+%'tn�';�•s "n`? "2.& » t .�[„,. 4.` i x n l :�^'yF :, ' S A«r%� �e"w"„••y:"h �35�%c-,.,�y�[•.t��ri,;j:Sa��d.' 'k�it;��' •.r,^. ,.�R... PATE(MM/UPM'I „w��"^'C .�:i .� n. �'�:.`R� �r�� <}.,J,.ua'"�"�rXw" �.s'w, .�G`a•w:.,'p3.;"s•:C,y:`j�f�w.i?a.•:..'�4S7nf51f(�,'`,�jQfir"'���4�.�.�F 06/29/06 PIZOUucER COMPANIES AFFORDING COVERAGE MARSH USA Inc. COMPANY WHIPPANY ROAD PO BOX 1966 E MORRISTOWN,NJ 07962-1966 FAX.(203)229.FM3 COMPANY E-MAIL:CERT.REQUESTNEQMARSH.COM F 94550-ALL-PROP-06.07 IN50RED VANGUARD GAR RENTAL USA INC_ COMPANY NATIONAL RENTAL US)INC. G ALAMO RENTAL US INC. 6929 NORTH MOOD AVENUE SUITE 100 COMPANY TULSA,OK 74117 H ,5.[ �;.'d+.. k,.�:;3 •.�ai.a,• .•4. ..�,i :*�:, "k ,:ikas N.'a;:.fi:w^"u7a, NtlP".•^,pg:';nee: 'assfr:W'» ::a... •�r�' ,�a L,..��.:.�. ,:;ea `:i, .a.a[Fs2 ".:g�: i`7'`<b {�, (m'2,,°�t` ixa,.. ii Y.aiv�`��'%'n^ i%fd` yy ,i. ;`�'6%.v�.m L%" .a?`.l vu Cdn'H.':i, ,.'f'r.` �L,3m: ;:4^"`S' :�'s �y4;,ke `fix`, [r'$i�'IkT 4.a••�[ i%..w...�[n.µ�:Fi�S!<%%k`•f�':r'Slin xyM•.I.x�YN;FF:.�F. LLOYO'S OF LONDON POLICY NUMBER DP516706 _ EVEREST RE. POLICY NUMBER DP 600410E ALLIED WORLD ASSURANCE COMPANY POLICY NUMBER: P004993.002 FIREMAN'S FUND INS.CO. POLICY NUMBER: MXI 97124650 ."•m?r�iT!S:.a214ti '�...,Yrevm nr"aq'? Fs;..,✓ ; drd'aY 8 ��:,.:4.+.u;.,;„•,,1<•rzi,•.m,"�i5.x:r,•�4.,.?..±.»z,a'"N"� nvn-'ak[.!e,w>�¢atsa�;:;.a.M.;.:':.-uia�<'�a;w7.`c.'ar^�,N't��r.'..r.r'R'°»' �p�,:�..F�I;. •.�.�'s5,,e:�.u�-.Siw�`''w",`•�`vaH.�w X.vr..��+%1.< CITY OF PALM SPRINGS CITY MANAGERIDIRECTOR OF AVIATION 3200 TAHQUITZ CANYON WAY PALM SPRINGS,CA 92262 MAkSH USA INC BY Mary Radaszewski rn;.R,•Tei <� n.»S•[GLeMnr n:[S!4[4:Qq 9,SR'a',�:A,n» m:vru.H 9 iP e ".' )•4,4^ ;; .[Y.0 c%»•"3, li n >2n' %9[kr ,M;w�'. 'n xa x, a.. ,.w'°;3�» �g$ £��..;iY;}Qu:.".,kxs;;s,;� ;<;rh'';N,m.sp�w. ;'t•'✓i' �" M�yhk`Y,"i.i'iJ�w.,,<•�i`?i.2.l:M�"}•jF.iy.(�,r.L4.:.AFF i.[L��..Y.�3:L 3�:�:4'F3:.4,'`�'�§�s �m ��i1 .JI£�0.1%re'•."C�,?I<��,`x::.s3,§'w�:`9�':.C.'�I:',��nri r.�".,:..`5�.u%:iJ.:�Wnt•f:,.e:.n'�.%':x�k`;�xu�..!Y%%ial,.�i Bests Rating Center - Search Results Page 1 Page 1 of 1 _A.` , : 1 :) View Ratings ryttial Stern h ISf�i9r Qredlt SeCurlties Advanced Search Other Web Centers Select One_ Search Results page 1 of 1 2 Rated and non-Rated companies found, results sorted by Company Name Criteria Used: Company Name: Company names starting with westchester fire insurance To refine your search, please use our Advanced Search or view our Online-Help for more information. Now soar=h w_un_iernreirsy�n a View results starting with: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z Resetbst Company Information Financial Strength Ratings Issuer Credit Ratings Outlook I y Outlook/ t AM89 Company Name Rating Implication Long-Tenn "" Implication w Short-Tenn ^"' Domicile 733G7 Westchester Fire Insurance Cc Bermuda (Property/Casualty-Captive) 02137 Westchester Fire Insurance Comoanv A+ Stable aa- Stable US:New York (PropertylCasualty-Insurance Company) Note:Financial Strength Ratings as of 0 711 212006 04:42 PM E.S.T. Financial Strength Ratings (FSR) are sometimes assigned to Property/Casualty-A.M. Best Consolidated Groups. Please note that Life/Health -A.M. Best Consolidated Groups and Company Consolidated Financial Statements are not assigned FSR ratings. * Denotes Under Review Best's Ratings Visit Best's Rating Center for a complete overview of our rating process and methodologies. Important Notice:Bests Ratings reflect our independent Opinion,baaetl On a comprehensive quantitative and qualitative evaluation of a company's balance sheet strength,operating performance and business profile.These ratings are neither a warranty of a company's financial strength nor its ability to meet its financial obligations,including those to policyholders,view our entire notice for complete details. Custom r Servioe I ProduO u or I Member Center I Contact Info I Careers About A M.Best I Site Map I Pnvacy PQhcy I Security I Terms of Use I Leyal&LLcmnsln�r Copyright iD 2006 A M,Best Company.Inc.All rights reserved. A M Best Worldwide Hoadeuanerc,AmbeSt Rood,Otawrck,New Jersey,OB858 U.S.A http://www3.ambest.con-/ratings/RatingsSearch.asp?AltSrc=9 07/12/06