HomeMy WebLinkAbout2006-07-26 STAFF REPORTS 2E O�PALAI SA4
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DATE: JULY 26, 2006 CONSENT CALENDAR
SUBJECT: NON-EXCLUSIVE OPERATING & LEASE AGREEMENT WITH 449
CORPORATION D/B/A EAGLERIDER MOTORCYCLE RENTAL USA
FOR THE OPERATIONS OF A MOTORCYCLE RENTAL CONCESSION
FROM: David H. Ready, City Manager
BY: Department of Aviation
SUMMARY
Airport staff is requesting approval for a non-exclusive operating and lease agreement
with 449 Corporation d/b/a Eaglerider Motorcycle Rental USA for the operation of a
motorcycle rental concession in the airport terminal.
RECOMMENDATION:
1. Approve Minute Order No. , approving Non-Exclusive Operating &
Lease Agreement for the Operation of a Motorcycle Rental Concession with
449 Corporation d/b/a Eaglerider Motorcycle Rental USA effective July 1,
2006 and valid until June 30, 2009 with two (2) one-year options.
2. Authorized the City Manager to execute all necessary documents, and the
two one-year options.
STAFF ANALYSIS:
The current motorcycle rental concession lease with Eaglerider expires June 30, 2006.
After a successful 4.5 years of operation the Airport, Eaglerider requests a new lease
for three (3) years with two one-year options. The motorcycle concession market is still
under development and has been well received by the traveling public and also fits with
the "American Resortport" image of the Airport.
City Council Staff Report
(July 26, 2006 -- Page 2)
, (EagleRider Motorcycle Agreement)
Due to the unique and special product being offered by Eaglerider and a market share
under development, staff negotiated with Eaglerider for an increase in concession fees
versus advertising an Invitation for Bid.
The new lease agreement contains a CPI adjustment for lease space. In addition, the
Ready Return Space will increase in size and the percentage rent payment to the
Airport will increase from 10% to 13% of grass revenues.
At its regularly scheduled meeting on July 5, 2006, the Airport Commission
recommended City Council approve the Non-exclusive Operating and Lease Agreement
for the Operation of a Motorcycle Rental Concession with 449 Corporation d/b/a
Eaglerider Motorcycle Rental USA effective July 1, 2006 and valid until June 30, 2009
with two (2) one-year options.
FISCAL IMPACT: Finance Director Review:
Airport revenue will increase by $2,371.20 per annum for counter/office ready return
space rent and by approximately $5,000.00 per annum due to the increase in the
percentage of gross revenue from 10% to 13%.
David H. Ready, Itv ager Richard S. Walsh, A.A.E.
Director of Aviation
Attachments:
Minute Order
Lease Agreement
MINUTE ORDER NO.
APPROVE MINUTE ORDER NO- ,
APPROVING NON-EXCLUSIVE OPERATING
AND LEASE AGREEMENT FOR THE
OPERATION OF A MOTORCYCLE RENTAL
CONCESSION WITH 449 CORPORATION
D/B/A EAGLERIDER MOTORCYCLE RENTAL
USA EFFECTIVE JULY 1, 2006 AND VALID
UNTIL JUNE 30, 2009 WITH TWO (2) ONE-
YEAR OPTIONS.
I, James Thompson, City Clerk of the City of Palm Springs, hereby certify that
this Minute Order Approving Non-Exclusive Operating and Lease Agreement for
the operation of a motorcycle rental concession with 449 corporation d/b/a
Eaglerider Motorcycle Rental USA effective July 1, 2006 and valid until June 30,
2009 with two (2) one-year options adopted by the City Council of the City of
Palm Springs, California, in a meeting thereof held on the 26th day of July, 2006.
James Thompson, City Clerk
Non-Exclusive Operating and Lease Agreement
No.
Between the City of Palm Springs
and
449 Corporation
d/b/a Eaglerider Motorcycle Rental USA
For, the Operation of a
Motorcycle Rental Concession at
Palm Springs International Airport
Palm Springs International Airport—Motorcycle Rental Concession Agreement Page 1 of 43
5.12 Internal Controls...............................................................------------•-...............16
5.13 Concession Pass-Through ..........................._- -- ................-....-........----------16
5.14 Security Deposit__............... ................... .............. 16
ARTICLE 6 CONSTRUCTION OF IMPROVEMENTS .................................. 17
6.01 Required Improvements.................------•----..,..-...................--••-----------------------17
6.02 Alterations, Improvements or Additions__.............____.............................17
6.03 Construction Requirements..........................................................................A7
6.04 Construction Insurance/lndemnirication ........................................................17
6.05 No Liens ............ ............ •------......................................................-•--------•-•----17
6.06 As-Built Drawings................................................................................•---..-...17
ARTICLE 7 ALTERATIONS AND IMPROVEMENTS__.... ---------------------18
7.01 Title to Improvements............................................................................... ....18
7.02 Removal of Improvements......................................................... .................18
ARTICLE 8 OBLIGATIONS OF CONCESSIONAIRE.......................................................18
8.01 Maintenance and Repair....................... .................................... ------------------18
8.02 Concession Service Standards.....................................................................19
803 Concession Operational Standards...-------- ........... ....._.... ----------20
8.04 Utilities...........................................................................................................23
8.05 Trash and Refuse..........................................................................................23
3.06 Cleanliness of Premises................................................................................23
8.07 Security.......___....................____---------------- .. .23
8.08 Airport Security Program...............................................................................24
ARTICLE9 SIGNAGE._............... .................................................................................24
9.01 Signage .........................................................................................................24
ARTICLE 10 INSURANCE.................................................................................................25
10.01 Commercial General Liability..........................................-------------------------------25
10.02 Comprehensive General Liability..--------- ....... ....__... ------------25
10.03 Workers' Compensation & Employers Liability..............................................25
10.04 Automobile Liability...........................--------------........................__..................25
%05 General Provisions........................................................................................25
ARTICLE 11 RELATIONSHIP OF THE PARTIES..............................................................26
ARTICLE 12 INDEMNIFICATION..... ................................................................................26
ARTICLE 13 DAMAGE OR DESTRUCTION OF PREMISES1IMPROVEMENTS..............27
13,01 Concessionaire's Obligation..........................................................................27
13.02 Right to Cancel..............................................................................................28
13.03 Insurance Proceeds.......................... --------------------------28
13.04 Termination Upon Destruction or Other Casualty---------------------____-----------28
ARTICLE 14 TERMINATION OF AGREEMENT, DEFAULT, AND REMEDIES.......___29
14.01 Termination....................... ... •.......................................................................29
Palm Springs International Airport--Motorcycle Rental Concession Agreement Page 3 of43
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14.02 Default.. .................................................... ...............................................29
14.03 Remedies ....... ............................................................ ....................... .......30
14.04 Termination by Concessionaire.....................................................................30
14.05 Surrender of Assigned Designated Premises................................................30
ARTICLE 15 ASSIGNMENT AND TRANSFER..................................................................31
ARTICLE 16 LAWS. REGULATIONS, PERMITS AND TAXES.........................................31
16.01 Compliance with Laws........................................................ ........ .................31
16.02 Permits and Licenses Generally.................................................___............32
16.04 Air and Safety Regulation..............................................................................33
16.05 Payment of Taxes.................... .....................................................................33
ARTICLE 17 DISCLAIMER OF LIABILITY___......... ........_.......... .......................... .....33
ARTICLE18 NOTICES........................................ ..............................................................33
ARTICLE 19 GOVERNMENTAL RESTRICTIONS.............................................................34
19.01 Federal Right to Reclaim...............................................................................34
19.02 Federal Review..............................................................................................34
19.03 City Tax Assessment Right...........................................................................34
19.04 Right of Flight................................................................................................35
19.05 Operation of Airport..............................................................................._......35
19.06 Release .... ..................................................................................................35
ARTICLE 20 NON-DISCRIMINATION-....... ............. ........ ..........._......... ....................35
M01 Non-discrimination....................................... .......................................•---....35
20.02 Disadvantaged Business Enterprises/Affirmative Action...............................38
20.03 Required DBE Statements ............................................................................38
20.04 DBE Program Requirements.........................................................................39
ARTICLE 21 MISCELLANEOUS.................................................. .....................................39
21.01 City Not Liable................ ..........................................................................39
21,02 Authorized Uses Only....................................................................................39
21,03 Waivers..........................................................................................................39
21 04 Subordination to Federal Agreements..........................................................40
21.05 City's Governmental Authority................... ........... ............. .........................40
. .
21.06 Rights Reserved to City......... ............... ......____......................................40
21.07 Invalidity of Clauses.......................................................................................40
21.08 Venue ........... ................ .....................____............................................40
21.09 Governing Law....... • .................... •. ,.........--...........---..........__..................40
21-10 Inspections .................................................................... ......... ........... ....40
21.11 Remedies Cumulative ................................................................_........-----...40
21.12 Paragraph Headings....... ......__....... .......................... .........................40
21.13 Binding Effect............................ .................................................. .............40
21.14 Performance..................................................................................................40
21A5Conflict..............._..............................................................-,.....................-----41
21-16 Excusable Delay......................................................................... .. ........... .41
Palm Springs International Airport--Motorcycle Rental Concession Agreement Page 4 of 43
21.17 Incorporation by References.........................................................................41
21.18 Entirety of Agreement....................................................................................41
21.19 Construction ....................................... .........................................................41
21.20 Radon............................................... .........................................................41
SIGNATUREPAGE..................................................... ..............................................................42
EXHIBITS..................................................... ..............................................................................43
Exhibit A Customer Service Counter/Office/Ready Return Space ............................43
Palm Springs International Airport--Motorcycle Rental Concession Agreement Page 5 of 43
Non-Exclusive O eratin and Lease Agreement No.
Operating g
Between City of Palm Springs
and
449 Corporation
d/b/a Eaglerider Motorcycle Rental, USA
For the Operation of a Motorcycle Rental Concession
AT
Palm Springs International Airport
THIS NON-EXCLUSIVE OPERATING AND LEASE 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 449 Corporation, d/b/a Eaglerider
Matorevcle Rental. USA, (hereinafter referred to as Concessionaire), having its usual place of
business at the Palm Springs International Airport, 3400 E. Tahquitz Canyon Way, Palm
Springs, California 92262, and a permanent mailing address at 3655 Camino Del Rio West
Suite B. San Diego, California, 92110_
WI TNESSETH:
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, 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, motorcycle rental services at the Airport are a desired accommodation of
passengers arriving at and departing from the Airport and for patrons of the Airport; and
WHEREAS, City and Concessionaire mutually desire to enter into this Agreement in
order to provide, as a portion of ground transportation to the Airport, motorcycle 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 Concessionaire's motorcycle rental
service and to fix the terms and conditions for such operations by the Concessionaire; and
WHEREAS, Concessionaire, for many years, has been engaged in the operations of an
motorcycle 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 agreements hereinafter contained to be observed and performed, the respective
parties, DO HEREBY AGREE AS FOLLOWS:
Palm Springs International Airport--Motorcycle Rental Concession Agreement Page 6 of43
ARTICLE 1
'KLCITALS
The foregoing recitals are true and correct and are hereby incorporated herein by reference.
ARTICLE 2
DEFINITIONS
2.01 'Airport means the Palm Springs International Airport, located at 3400 E. Tahquitz
Canyon Way, Palm Springs, California, owned and operated by the City of Palm
Springs.
2.02 'Annual Percentage Payment' means thirteen percent (13%) of Concessionaire's annual
Gross Revenues.
2.03 "Brand" for purposes of the Agreement, means a distinct motorcycle rental service brand
or trade name that is used for the purpose of customer identification, reservations, and
motorcycle rental transactions.
2.04 "Concession' means the motorcycle rental 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
Section 5.01(A) and (B).
2.06 "Contract Year" 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
2A7 "Designated Premises° means the Customer Service Counter I Office and Motorcycle
Ready Space as shown on Exhibits A and B attached hereto and incorporated herein by
reference and described more particularly below.
A. Customer Service Counter/Office located in the baggage claim area of the Terminal
Building as depicted on Exhibit A.
B. Motorcycle Ready Space located as depicted on Exhibit B.
2.08 'Director of Aviation' means the person designated by the City holding said position and
having the responsibilities and authority described herein or his designees.
2.09 "Disadvantaged Business Enterprise" or"DBE" has the same meaning as set forth in 49
CFR, part 23 (Code of Federal Regulations) as now or hereafter amended or any
successor regulation.
2.10 "FAA' means the Federal Aviation Administration.
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2.11 '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.
2.12 '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
regardless of where, how (cash, credit, barter or otherwise) or by whom payment 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 Gross Revenues. Gross Revenues shall include, but shall not be limited
to:
A. Time and/or mileage charges, after discounts taken at the time of rental,
assessed by Concessionaire to its customers.
B. Premiums 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 charges including extra driver coverage, underage
driver coverage and vehicle upgrade charges.
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.
H. All proceeds from the long-term lease of vehicles from any location on the
Airport
I. Amount charged to Concessionaire's customers at the commencement or the
conclusion of the rental transaction for the cost of furnishing and/ or replacing
fuel provided by Concessionaire.
J. Amount charged by Concessionaire as a pass through to its Customers of
Concession Fees, including, but not limited to, any Recovery Fee as provided in
Section 5.14.
K. Charges commonly referred to as 'drop charges" or'intercity fees.°
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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 are 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.
O. Sums received as the result of the loss, conversion, or abandonment of
Concessionaire's vehicles.
P. Sums received from the sale of vehicles or other 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,
are specifically prohibited.
2.13 "Monthly Percentage Payment' means thirteen percent(13%) of Concessionaire's
monthly gross Revenues.
2.14 "Terminal" means the main structures at the Airport where ticket counters, center lobby,
baggage claim, and gate concourses are located and are depicted on Exhibit E.
2.15 "TSK means the Transportation Security Administration.
ARTICLE 3
TERM OF OPERATING AGREEMENT
3.01 Term. The term of this Agreement shall be for a period of three (3) years, commencing
on July 1, 2006 (the Commencement Date) and terminating on June 30, 2009 (the
Term), 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.
302 Delivery of Assigned Designed Premises. Should City be unable to deliver possession of
the assigned Designated Premises as of the Commencement 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.
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
Palm Springs Intemational Airport—Motorcycle Rental Concession Agreement Page 9 of 43
which shall be subject to the terms, conditions and covenants set forth herein:
A. To conduct and operate a high quality motorcycle rental concession at the Airport
from the Designated Premises-
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.
4.02 Description of General Privileges. Uses and Rights. In addition to the specific privileges
granted pursuant to Section 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 Agreement, "Public Areas" means the public corridors, restrooms
and other areas within the Terminal that the general public has the right to access.
Public Areas shall at all times be subject to the exclusive control and management of
City. City shall have the full right and authority to make all rules 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 egress 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 grant 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 subject to the
terms, 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 motorcycle rental concession.
Concessionaire covenants and agrees that the Designated Premises shall be used
solely for the uses permitted in Sections 4.01 and 4.02 above and for no other purposes
whatsoever. Concessionaire hereby acknowledges and agrees that the motorcycle
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 motorcycle rental concession activity at the
Airport, provided that there are not more than two motorcycle rental concessions
operating out of the Terminal Building. In the event that any contract granted by the City
to any other on-site motorcycle rental concessionaire shall contain any provisions more
favorable to such concessionaire than the terms herein granted, then, at the option of
concessionaire which option shall be exercised by providing written notice to City, this
Agreement shall be amended to include such more favorable terms and any off-setting
Palm Springs Intemational Airport—Motorcycle Rental Concession Agreement Page 10 of 43
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 rights, profits or conditions more favorable to such concessionaire than those
enjoyed by Concessionaire.
4.04 Condition of the Designated Premises and Airport. Concessionaire expressly
acknowledges 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 any 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 Airport 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. In no event, however, may more than a total of two trade or brand
names be used. Except in the event of assignment of subletting during the Term of this
Agreement as indicated above, Concessionaire shall operate and maintain all signage
only under the brand or trade name(s) originally designated in its response to the IF&
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 name under a license or franchise
agreement, Concessionaire represents and warrants to 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 ropy 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
motorcycle rental concession at the Demised 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.
Palm Springs International Airport—Motorcycle Rental Concession Agreement Page 1 t of 43
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 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 Aecepted 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.
ARTICLE 5
CONCESSION FEES, FACILITY RENTAL, ACCOUNTABILITY AND
PERFORMANCE GUARANTEE
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 of Section 111 below_
A. 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 Airport. Concessionaire shall pay to the City, with the
submission of the Monthly Statement of Gross Revenues with "privilege fee"
computation, thirteen (13) percent of gross revenue for the month. This fee 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
State of California.
5.02 Facility Rental. In addition to the Concession Fees, Concessionaire shall pay to City for
the use and occupancy of the assigned Designated Premises, an annual Facility Rental
described as follows:
A. For the lease of Customer Service Counter / Office Space consisting of 172
Palm Springs International Airport—Motorcycle Rental Concession Agreement Page 12 of43
square feet, depicted in Attachment "A" hereto and incorporated herein by
reference, the sum of $6.g�1.75 annually, payable in twelve equal monthly
installments of$676.81 payable in advance and without demand, on the first day
of each calendar month of this Agreement, commencing July 1, 2006_
8. For the lease of the Motorcycle Ready Space consisting of 375 square fee,
depicted in Attachment W hereto and incorporated herein by reference, the sum
of 2,459.76 annually, payable in twelve equal monthly installments of$204.98,
payable in advance and without demand, on the first day of each calendar month
of this Agreement, commencing July 1, 2006.
C. Facility rental rates identified in Section. 5.02, paragraphs A and B are subject to
an annual Cost Price Increase (CPI) adjustment. The CPI used by the City is the
All Urban Consumers—not seasonally adjusted, area: Los Angeles-Riverside-
Orange Count item: All items, base period 1982-84=100.
5,03 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.
5.04 Diversion of Gross Revenues, Concessionaire shall not intentionally divert, through
direct or indirect means, any of Concessionaire's motorcycle rental or related business
with Airports customers to off-airport locations of Concessionaire or affiliates of
Concessionaire without including the Gross Revenues of such transactions, as defined
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 immediately 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.
5,05 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
imposing the same may endeavor to impose the tax on City,
5.06 Net Agreement. 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 assigned Designated Premises.
5.07 Place of Payments. All payments required to be made by the Concessionaire under this
Agreement shall be made payable to the City of Palm Springs, delivered or mailed
postage prepaid to:
Palm Springs International Airport_Motorcycle Rental Concession Agreement Page 13 of 43
I
Palm Springs International Airport
3400 F Tahquitz Canyon Way, Suite OFC
Palm Springs, CA 92262
or at such other place the City as the place of payment may hereinafter designate as in
writing.
5.08 Monthly Reports of 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 5.01 B if applicable to its Statement of Gross Revenues.
The City reserves the right to reasonably prescribe or change reporting forms, their
methods and time of submission, and payment schedule. The City shall first submit to
Concessionaire in writing specifying the desired changes.
5.09 Accounting Records. Concessionaire shall keep, throughout the Tenn 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 stored 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
under this Section 5.10 shall survive the expiration or termination of this Agreement_
5.10 Audit Requirements. 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
affiliated 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
Institute of Certified Public Accountants or any successor agency thereto or PCAOB, as
appropriate.The audit report shall include the following;
A. Schedule of all revenues by category and month and a schedule of the payments
Palm Springs International Airport--Motorcycle Rental Concession Agreement Page 14 of 43
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 Fees that have been paid to City in accordance
with this Agreement
D. The audit report shall include an opinion on the schedule of all revenues by
category and by month, the schedule of 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 owing for any Contract Year is greater
than the amount paid by Concessionaire to City during such Contract Year, the
Concessionaire shall pay the difference to City With the audit report. If amount of
Concession Fees actually paid by Concessionaire to City during any Contract Year
exceeds the Concession Fees due and owing for such Contract Year, the City shall
credit the overpayment in the following order: (I) against any past due amounts owed to
City by Concessionaire, including interest and late fees; (li) against currently
outstanding, but not yet due, Concession Fees owed to City by Concessionaire; (ii)
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_
5.11 Audit by City. Notwithstanding any provision in this Agreement to the contrary, Director
of Aviation or its representative(s) may at any time perform audits of all or selected
operations performed by Concessionaire under the terms of this Agreement. In order to
facilitate the audit perforated by City, Concessionaire agrees to make 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 representative(s) any and all working papers relevant to the audit performed by
the Certified Public Accountant. City or its represenfative(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 interest 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
Palm Springs International Airport--Motorcycle Rental Concession Agreement Page 15 of 43
on overdue accounts, or the highest 9mount of interest allowed by law if said interest is
deemed usurious. If any audit disi ioses 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 the City herein 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.
5.12 Internal Controls. Concessionaire shall establish and maintain 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 5A 1, 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.
5.13 Concession Pass-Through. The Concessionaire acknowledges that the percentage fee
payments by Concessionaire to the City under this agreement are for the
Concessionaire's 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 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 Fee must be titled "Concession Recovery Fee" "Concession
Recoupment 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 one-tenths percent(11.11%) of Gross Revenues and shall
be specifically included in the Definition of Gross Revenues 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 commitment to or contractual obligation by
Concessionaire with any group of State Attorneys General.
5.14 Security_Deposit. Concessionaire shall be required to comply with the following security
deposit requirement prior to commencement of activities:
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 security deposit of $1,750.00 to cover
Concessionaire's performance of all of its obligations under this Agreement for the entire
term.
Palm Springs International Airport—Motorcycle Rental Concession Agreement Page 16 of 43
,A,tICLE 6.
CONSTRUCTIONbF IMPROVEMENTS
6.01 Required Improvements. Concessionaire shall, at its sole cost and expense, install all
improvements and trade fixtures necessary and customary for the operation of a
motorcycle rental concession within the assigned Designated Premises in accordance
with the requirements of this Section 6.
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, alterations and additions made by
Concessionaire to the assigned Designated Premises shall be of high quality and meet
all applicable Federal, State and local laws, regulations, rules and requirements. Prior to
the commencement of construction, 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 carry comprehensive public liability insurance during construction 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 indemnify and
hold City harmless for any and all claims, demands, damages, costs or expenses of any
nature, including defense costs by reason of construction or alteration by
Concessionaire.
6.06 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 Lien 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
thereafter 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 not limited to, attorney's fees.
6.06 As-Built Drawings. Within ninety (90) days after completion of all work, Concessionaire
Palm Springs International Airport—Motorcycle Rental Concession Agreement Page 17 of 43
shall 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
7,01 Title to Improvemen_t_s. All fixtures and improvements that are constructed 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, 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 sale cost and expense. In such event, City shall provide timely
notification to Concessionaire of its election to require removal of Improvements 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 Improvements, 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.
ARTICLE 8
OBLIGATIONS OF CONCESSIONAIRE
&01 Maintenance and_Repo ir_ 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, invitees, 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 thereon or
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 deemed necessary in the reasonable discretion of the City.
The City may inspect the assigned Designated Premises to identify items in need of
Palm Springs International Airport-Motorcycle Rental Concession Agreement Page 18 of43
maintenance or repair and report in,writing to the Concessionaire those 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 Concessionaire's performance under this 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.
8.02 Concession Service Standards,
A. Subject to the terms and conditions of this Agreement, Concessionaire shall
operate and manage the Concession for the purpose of providing motorcycle
rental services to the traveling public and shall conform in all respects to all
applicable Federal, State and local laws, regulations and rules.
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,
efficient and safe service.
D. Concessionaire shall employ a sufficient number of trained personnel to handle
customer service, vehicle maintenance, car handling and office or administrative
duties incidental to the operation of the car rental concession granted hereunder.
Concessionaire must have sufficient personnel to handle peak season
motorcycle rental and return activities in order to keep terminal building queuing
from blocking passenger flow and to keep rental return vehicles from blocking
public roadways.
F. 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 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
Palm Springs International Airport—Motorcycle Rental Concession Agreement Page 19 of43
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 Concessionaire for public use. The City
in writing therefore shall submit notice of 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-to-time the City may cause quality
assurance reviews of the Concession to be conducted. Such reviews may
include inspection of the assigned designated premises 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.
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 furnish good, prompt,
courteous and efficient service adequate to meet all reasonable demands for its
service at said Airport. Concessionaire shall keep the Designated Premises in 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.
S. 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 shall 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 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 Designated Premises shall be operated and maintained in a safe,
clean, orderly and inviting condition at all times.
Palm Springs Internationai Airport—Motorcycle Rental Concession Agreement Page 20 of43
E. 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 Concessionaire on or about the Airport. The City shall be the sale
judge as to whether the conduct of Concessionaire's representative constitutes a
violation of this subsection and, upon notice from the Director of Aviation,
Concessionaire shall take ah 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 are customarily provided by the operators of
such transportation services.
I. Nothing contained herein shall require Concessionaire to awn, 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 Concessionaire shall
be made in Concessionaire's lawful 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 less 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
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Director of Aviation shall have the right, upon written request from
Concessionaire, to approve-changes to the above referenced business hours, 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 number 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 Premises 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 panting of
Lessee's automobiles available for rental and the return by customers of
automobiles rented. No storing, servicing or washing of automobiles shall be
pemtitted 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,jitneys,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 5.01 of this Agreement.
Q. Concessionaire shall provide, install and maintain, at its sole cost and expense,
within the Assigned Premise, office furnishings, fixtures and communication
systems and equipment as may be necessary for the effective and efficient
operation of the Concession.
R The Maintenance. Service Facility Space described in Section 2.08.D shall be
maintained by Concessionaire in good order and repair. The area shall be used
solely for the servicing of its vehicles rented in the course of business under this
Lease, and for no other purpose.
S- Concessionaire shall diligently and adequately provide for the trimming of the
trees on its Designated Premises- Such trees shall be maintained in such a
manner that they are trimmed back to the edge of the curb at all times.
Palm Springs International Airport—Motorcycle Rental Concession Agreement Page 22 of 43
T. Concessionaire shall not, under any circumstances or at any time, allow keys to
be left in vehicles in the return area of the readylretum 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.
8.05 Trash and Refuse_ Concessionaire shall provide a complete and proper arrangement 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 Premises. 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 to and from the assigned Designated Premises, 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 Cleanliness of Premises. The assigned Designated Premises and all 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 Concessionaire's receipt of the City's
written notice of violation, Concessionaire shall commence such corrective 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 diligent 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 rent and shall be due and payable within thirty (30) consecutive
days from the City's billing therefore.
8,07 Securily. Concessionaire acknowledges and accepts full responsibility for the security
and protection of the assigned Designated Premises 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 now 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
Palm springs International Airport—Motorcycle Rental Concession Agreement Page 23 of 43
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.
3.08 Airport Security Program_ Concessionaire agrees to observe all security regulations and
other requirements of any agency of the Federal government, 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, State 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. If as a result of the acts or omissions of
Concessionaire, its sublessees, employees, invitees or guests, City incurs any fines
and/or penalties imposed by the FAA or TSA; any expense in enforcing the regulations
of the FAA or TSA or the rules 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
SIGNAGF
9.01 Si na e_ 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 in respect to the use thereof
stated by the Director of Aviation in his written approval thereof shall become conditions
hereof as if set forth herein at length.
Palm Springs International Airport—Motorcycle Rental Concession Agreement Page 24 of 43
ARTIPLE 10
INSURANCE
Concessionaire shall, at its sole expense, maintain in full force and effect at all times during the
Term of this Agreement, 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 damage to the extent of their full
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 net 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, at the Concessionaire's 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 occurrence basis in an amount not less than either (i) a
combined single limit of THREE MILLION DOLLARS ($3,000,000A0) 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
Concessionaire's business in the Designated Premises.
%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 THREE 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 policies of insurance shall provide that
Palm Springs International Airport—Motorcycle Rental Concession Agreement Page 26 of 43
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 shall
provide City with certificates of insurance or appropriate insurance binders evidencing
the above insurance coverages written by insurance companies acceptable to City,
authorized and licensed to do business in the State of California and rated A= VII or
better by Best's Insurance 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 (iii) 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, vandalism, 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 foregoing waivers
of subrogation shall be operative-only so long as available in California and provided
further that no policy is invalidated thereby.
ARTICLE 11
RELATIONSHIP OF THE PARTIES
Nothing contained herein shall be deemed or construed to the parties hereto, or by any third
party, as creating the relationship of principal and agent, partners, joint ventures, or any other
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
properly, 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 hanmless 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
Palm Springs International Airport—Motorcycle Rental Concession Agreement Page 26 of 43
entity arising out of or in connection with the negligent performance of the work, 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 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
part of the City, its officers, agents or employees, but excluding such claims or liabilities arising
from the sole 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 save and hold the City, its officers, agents, and
employees hamiless therefrom;
(c) In the event the City, its officers, agents, 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
performance 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 attorney's fees.
ARTICLE 13
DAMAGE OR DESTRUCTION OF PREMISESIIMPROVEMENTS
13.01 Concessionaire's Obligations. Concessionaire hereby assumes full 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 part 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, representatives, guests, invitees, contractors, patrons, or any
person admitted to the assigned Designated Premises by Concessionaire or otherwise,
Concessionaire shall, at its sole cost and expense, restore the assigned Designated
Premises to the condition existing prior to such damage. Concessionaire shall
Palm Springs International Airport—Motorcycle Rental Concession Agreement Page 27 of 43
commence such restoration within thirty (30) flays and shall diligently pursue such
restoration to completion. Concessionaire shall make such repairs, replacements or
rebuilding in accordance with the construction requirements contained herein and as
established by the City. If Concessionaire fails to restore the assigned Designated
Promises 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 fully assume 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.
13.02 Right to Cancel. If any of the improvements on the assigned Designated Premises are
damaged or destroyed in whole 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 this 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 the
insurance proceeds received or receivable under any policy of insurance shall be paid to
and retained by City. All fees and other sums 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 Promises to
its former condition; provided, however, that Concessionaire expressly agrees,
covenants and warrants that nothing herein shall 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 assigned Designated
Premises, and Concessionaire further waives any claim against City for damages or
compensation, should this Agreement be so terminated.
13.03 Insurance Proceeds. Upon receipt by Concessionaire 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 such 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 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 further obligations
hereunder other than those, which expressly survive expiration or termination of this
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Agreement. Concessionaire 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 shall 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
Concessionaire.
B. The failure by Concessionaire to make payment of Concession Fees, Facility
Rental or any other 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.
C. The failure by Concessionaire to observe or perform any of the covenants,
conditions or provisions of this Agreement to be observed or performed by
Concessionaire, other than those described in paragraph B 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, (1) the making by Concessionaire or any
guarantor hereof of any general assignment, or general arrangement for the
benefit of creditors; (ii) 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.
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14.03 Remedies. In the event of any such material default or breach by Concessionaire, City
i may, with or without notice or demand, pursue any available right or remedy at law or
equity including the right, at its option, to immediately 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 arrearages 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 full 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 to 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 in 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 Concessionaire of
written notice to remedy same provided, however, that if the nature of City's
obligations is such that more than sixty (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 remedied 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.
14.05 Surrender of Assigned Designated Premises. Notwithstanding the obligations of
Concessionaire and rights of City provided for herein, Concessionaire expressly agrees
that upon termination 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 Concessionaire 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
Palm Springs Intemadonal Airport—Motorcycle Rental Concession Agreement Page 30 of 43
transfer of title to City for whatever.disposition is deemed to be in the best interest of
City.
ARTICLE 75
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
priorwritten 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 writing 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 terms 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, terms, 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 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 cost
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 Hazardous 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 Laud'shall mean any federal, state or
local law, statute, ordinance or regulation pertaining to health, industrial hygiene or
Palm Springs International Airport—Motorcycle Rental Concession Agreement Page 31 of 43
environmental condition on, under.or.about the Designated Premises, including, without
limitation, O the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 ("CERCLA"), 42 U.S.C. SECTIONs 9601 et seq.; (o) the Resource
Conservation and Recovery Act of 1976 ("RCRA') 42 U.S.C. SECTIONS 6901 et seq_;
(iii) California Health and Safety 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 25359.7; (v) Califomia
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 at seq.;
(ix) California Civil Code SECTION 3479 et seq.; (x) the Solid Waste Disposal Act 42
U.S.C. SECTION 6901 et seq.; and (xi) California Health and Safety Code SECTION
25280 at 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 which is (i)
defined or listed as a "hazardous waste," °extremely hazardous waste," "restrictive
hazardous waste° or"hazardous substance" or considered a waste, condition of pollution
or nuisance under the Environmental Laws; (i) petroleum or a petroleum product or
fractiori 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 parties 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 Permits and Licenses Generally. Concessionaire agrees that it shall, at its sole cost and
expense, be strictly liable and responsible for obtaining, paying for, and maintaining
current, and fully complying with, any and all permits, 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 governmental entity or any court
of law having jurisdiction over Concessionaire or Concessionaire's 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 for or resulting,
directly or indirectly, from Concessionaire's operations and activities on the assigned
Designated Premises have been obtained and am in full legal compliance.
16.03 Air and Safes Regulation. Concessionaire agrees that it shall conduct its operations and
activities under this Agreement in a safe manner, shall comply with all safety regulations
of the Airport and with safety standards imposed by applicable Federal, 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 from, or in any way related to, the conduct of Concessionaire's
business on the Designated Premises. Concessionaire hereby 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
Palm Springs International Airport—Motorcycle Rental Concession Agreement Page 32 of 43
are unsanitary, hazardous, or dangArpus to his or her health or safety, as determined by
standards adopted pursuant to the Occupational Safety and Health Act of 1970, as 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.
1&04 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 right 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 termination 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 less,
damage, or injury of any nature whatsoever sustained by concessionaire, its employees,
agents, or invitees during the term 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
under no circumstances shall city be liable for indirect, consequential, special, or exemplary
damages whether in contract or tort(including 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 and agrees that city shall have no liability whatsoever and
concessionaire covenants and agrees to hold 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 otherwise, in determining whether to enter into this agreement, was at its sole risk.
ARTICLE 18
NOTICES
All notices and elections (collectively, notices) to be given or delivered by or to any party
hereunder, shall be in writing and shall be (as elected by the party giving 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 personal delivery, courier services or overnight
Palm Springs International Airport—Motorcycle Rental Concession Agreement Page 33 of 43
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 case 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_ Tahquitz Canyon Way, Suite OFC
Palm Springs, CA 92262
Concessionaire: 449 Corporiation
Tb/a Eaglerider Motorcycle Rental USA
3655 Camino del Rio West, Suite B
San Diego, CA 92110
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 parry and the parties shall thereupon be released and fully discharged from
any and all liability hereunder arising after such termination or as a result thereof. This
Section 19.01 shall not act or be construed as a waiver of any rights 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 shall be determined by the FAA to be in
Violation of existing laws, regulations, grant assurances or other requirements.
19.03 City Tax Assessment Right. None of the terms, covenants and conditions of this
Agreement shall in any way be construed as a release or waiver an the part of City, as a
political subdivision of the State of California, or any of the public officials of the City of
Palm 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.
i
Palm Springs International Airport—Motorcycle Rental Concession Agreement Page 34 of43
i
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 fogy 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 Airport.
19.05 Operation of Airport. Concessionaire expressly agrees for itself, its subleases,
successors and assigns, to prevent any use of the Designated Premises which would
interfere with or adversely affect the operation, maintenance or development of the
Airport, or otherwise constitute an Airport hazard.
19.06 Release. Concessionaire acknowledges that noise and vibration are 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 Required Clauses:
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, Concessionaire shall maintain and
operate such facilities and services in compliance 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 Transportation-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 benefits of, or
be otherwise subjected to discrimination 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 person on the grounds of race, color, or national origin shall be
excluded from participation in, denied the benefits of, or otherwise be 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 of 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
Palm Springs International Airport—Motorcycle Rental Concession Agreement Page 35 of 43
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 furnish 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 created without liability therefore 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 any lease
agreement by which Concessionaire grants a right or privilege to any person, firm or
corporation to render accommodations 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 sex, 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 to 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.
20.01A0 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 of the public, a right of flight for the passage of aircraft in the airspace above
Palm Springs International Airport-Motorcycle Rental Concession Agreement Page 36 of43
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
navigation 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 is planned for the leased premises, or in the event of nay planned modification
or alteration of any present or future 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 agrees for itself, its
successors and assigns that it will not make use of the premises in any manner which
might interfere with the landing and taking off of aircraft from the Airport or otherwise
constitute a hazard. In the event 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_
20.01.16. It is understood and agreed that nothing 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 future may have or acquire affecting the
control, operation, regulation and taking over of said airport or the exclusive or non-
exclusive use of the Airport by the United States during the time of war or national
emergency.
20.01A7. This Agreement is subject to the requirements of the U.S. Department of
Transportation's regulations, 49 CFR 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 CFR 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 Part 23, Subpart F and 49 CFR Part
26 in the award and administration of DOT-assisted contracts. Failure by the
concessionaire to cant' out these requirements is a material breach of this contract,
Palm Springs International Airport—Motorcycle Rental Concession Agreement Page 37 of 43
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 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 Enterprises/Affirmative Action. Concessionaire acknowledges
that the provisions of Title 49, Part 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, as 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 Business 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 concession
agreement covered by 49 CFR, 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 Required DBF 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 agrees that is 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, management contract, or subcontract, purchase lease
agreement, or other agreement covered by 49 CFR part 23'
The Concessionaire or contractor agrees to include the above statements in any
subsequent concession agreement or contract covered by 49 CFR part 23, that it enters
and cause those businesses to similarly include the statements in further agreements.
Palm Springs International Airport Motorcycle Rental Concession Agreement Page 38 of 43
I
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.
Concessionaire is required, 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 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, Concessionaire 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 City_ Not Liable. City 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 at 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,
damages 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 commotion 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 permit 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 Concessionaire_
21.03 Waivers. The failure of City to insist on a strict performance of any of the agreements,
terms, covenants and conditions hereof shall not be deemed a waiver of any rights or
remedies that City may have for any subsequent breach, 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.
Palm Springs International Airport--Motorcycle Rental Concession Agreement Page 39 of43
21.04 Subordination to Federal Agreements. This 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 terms 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 the development of the Airport.
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 granted Concessionaire 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
part 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 be 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 purposes 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 Agreement shall be cumulative and not exclusive and shall
be in addition to all other rights and remedies of the parties_
21.12 Paragraph Headings. The headings of the various articles and sections of this
Agreement, and its Table of contents, are for convenience and ease of reference only,
and shall not be construed to define, 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 successors, 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
Palm Springs International Airport—Motorcycle Rental Concession Agreement Page 40 of 43
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 performance.
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 Sid, as referenced above, the order-of-precedence shall be (1)this Agreement; (ii)
the Invitation for Bid; (iii) Concessionaire's response to the Bid.
21.16 Excusable Delay. Any party 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 majeure, acts of God, fire, flood, earthquake, explosion, riot,
sabotage, windstorm, or labor dispute, and shall toll the time to perform 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 altered 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.
21.20 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 overtime. Levels of radon that exceed r'ederal 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—Motorcycle Rental Concession Agreement Page 41 of 43
IN WITNESS WHEREOF,the parties have executed and entered into this I p Agreement as of the date first
i written above.
I ATTEST: CITY OF PALM SPRING
a municipal corporation
By: By:
City Clerk City Manager
APPROVED AS TO FORM:
By:
City Attomey
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 F ial fj
By. BY•
rgna Re (notarized) �� Ig ed
Name, �} j cc. Name: i����
Title: t.i �l Titre: -�l
State of: ��� '� � State of W\
Couutyof: County of:
On 7-11-010-before me,AV&-om6,p.Wq Pox On 711 before me,Pee 6oK2f,�5 N yFtecc
Personally appeared DWAL.a 1-. Sw�E* Personally appeared DANIeL SVWe> a
e (or proved to me on the ^^ '--kpow; •^ . (or proved to me on the
basis of satisfactory evidence) to be the basis of satisfactory evidence) to be the
person(+whose name(s} islare subscribed to person(e) whose name(s} is/are-subscribed to
the wI mstrument and acknowledged to me the within instrument and acknowledged to me
that e/ executed the same in that Ctic executed the same in
/herlfhcir authorized capabity(tas), and that by r authorized oapacity(tae);and that by
hl ' stgnature(ej-on the instrument the I 1 signature(#-on the instrument the
person(sj or entity upon behalf of which the rsor� or entity upon behalf of which the
person(e)aoted,executed the instrument. person(s) acted,executed the instrument.
WITNESS my hand a official seal. WITNESS my hand a official eal_
Notary Signature: Notary Signature:
Notary Seal: Notary Seal:
OFFICIALSFAL OFFICIAL
_ ALEC GONZALES _ ALEC GONZALES
IONOTARY PUBLIGCALIFORNIA",-, NOTARY PUBLIGCAUFORNIA$
618420
COMM.NO.1618M SAN DI NO.COUNTY
SAN OIEGO COUNTY SAN DlEGO COUNTY
MY COMM.EXP.NOV.29,2004 MY COMM.EXP.NOV.A ZaO9
Palm Springs International Airport-Motorcycle Rental Concession Agreement Page 42 of 43
EXHIBIT A
CUSTOMER SERVICE COUNTER/OFFICE SPACE
READY RETURN SPACE
See attached
Palm Springs International Airport—Motorcycle Rental Concession Agreement Page 43 of 43
GATE 94 GATE 10 PALM SPRINGS INTERNATIONAL AIRPORT
�
/ GATE 8
GATE 9 • • �g -
Customer Service Counterl
GATE 7 (j — • • j GATE 6 Office Space 24.5'x 7'
®io ni 172 Sq. Ft.
GATES GATE 4 30 �dyf2 5 tum Space
375 Sq. Ft.
30
GATE 3 f GATE 2
fl
GATE 1
EAGLERIDER
EXHIBIT A
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