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HomeMy WebLinkAboutRES.2041.02-22-2005BILL NO. 05-38 RESOLUTION NO. ��'W A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE AN AIRPORT CONTRACT AND CONCESSION AGREEMENT WITH HERTZ CORPORATION FOR AUTOMOBILE RENTAL SERVICES AT THE CAPE GIRARDEAU REGIONAL AIRPORT BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS: ARTICLE 1. The City Manager, for and on behalf of the City of Cape Girardeau, Missouri, is hereby authorized to execute an Airport Contract and Concession Agreement with Hertz Corporation for automobile rental services at the Cape Girardeau Regional Airport. A copy of said Agreement is attached to this Resolution and made a part hereof. PASSED 20��. AND ADOPTED THIS DAY OF Gayle L. Coi ad City Clerk l Ja B. Knudtson, Mayor AIRPORT CONTRACT AND CONCESSION AGREEMENT This Contract and Concession Agreement, made and entered into as of the 1st day of March, 2005, by and between City of Cape Girardeau, Missouri, hereinafter called "Lessor", and The Hertz Corporation, a Delaware Corporation, hereinafter called "Lessee", WITNESSETH: WHEREAS, Lessor owns or controls and operates the Cape Girardeau Regional Airport located near Cape Girardeau, Missouri, hereinafter called the "Airport"; and WHEREAS, automobile rental services at the Airport are essential for proper accommodation of passengers arriving at and departing from the Airport; and WHEREAS, Lessor desires to make said services available at the Airport and Lessee- is qualified, ready, and able to perform or see to the performance of said services, and to furnish or see to the furnishing of facilities for use in connection therewith; NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter contained, the parties agree, for themselves, their successors and assigns, heirs, executors and administrators, as follows; 1. Lessee hereby agrees that he will provide automotive rental services for the said Airport for a term beginning with the I" day of , 2005. This agreement unless sooner terminated shall continue until 28th of February, 2006. Thereafter, this contract shall continue in force from year to year unless one of the parties to the contract notifies the other party at least thirty (30) days prior to February 28th, that they intend to terminate the contract or that they desire to negotiate the contract. 2. The premises described herein shall be used by Lessee for the purpose of providing automobile rental services at the Airport, and for the purpose of arranging for such services for outgoing passengers using the Airport. 3. Lessor hereby further grants to Lessee, subject to the terms and conditions hereinafter contained, the right to conduct and operate an automobile rental concession at the Airport in an area shown on a plat attached hereto and marked "Exhibit A", for the purposes aforesaid. This shall not be construed to be an exclusive concession, and Lessor shall have the right to deal with and perfect arrangements with any other individual, firm, or corporation for engaging in like activity at the Airport. Lessor shall not, however, grant to any other individual, firm or corporation other than Second Party, an automobile rental concession on terms or conditions more favorable in any respect than those herein granted Lessee. 4. Lessee agrees to pay to Lessor as rental for the rights and privileges herein granted by Lessor: A. An amount equal to ten percent (10%) of the first Six Thousand Seven Hundred Fifty Dollars ($6,750.00) of Lessee's gross revenue. B. An amount equal,to five percent (5%) of Lessee's gross revenue in excess of Six Thousand Seven Hundred Fifty Dollars ($6,750.00). C. The rental payments set out above shall be paid on a monthly basis and shall be due on or before the 10th day of each month for the preceding month. D. The term "gross revenue" as used herein shall mean the time and mileage charges for rental of automobiles and shall include the percentage received by Lessee for renting station cars and floater cars, but shall not include the amount of any federal, state or municipal sales or other similar taxes separately stated and collected from customers of Lessee now or hereafter levied or imposed, nor any sums received as insurance or otherwise for damage to automobiles or other property of Lessee, or for loss, conversion or abandonment of such automobiles, nor any amounts paid by customer of Lessee separately billed as additional charges for waiver by Lessee Party of its rights to recover from customers for damages to the vehicle rented. E. All sums due hereunder and the report of gross revenues mentioned in B. hereof shall be paid or made by delivery to Lessor's City Collector, City Hall, 401 Independence, Cape Girardeau, MO 63701. F. Lessee hereby agrees to submit with the monthly payment, at the request of the Airport Board, an operating statement showing a breakdown of the monthly revenues. Lessee hereby agrees that he will submit his books to an annual audit at the expense of Lessee or submit to Lessor a certificate from its auditor stating the gross receipts. 5. During the term hereof Lessee shall have, and Lessor hereby gives and grants to Lessee, the following rights: A. The right, at Lessee's sole expense, to install, and thereafter to operate and maintain, illuminating and non -illuminating signs advertising Lessee's business on the premises leased to Lessee hereunder, and at such other place or places in or upon the Airport as may be mutually agreed upon by the parties hereto. B. The right, at Lessee's sole expense, to erect upon the premises such buildings, fixtures, structures, additions and improvements as may be required in connection with Lessee's operation hereunder, and to install therein and thereon such equipment and facilities as Lessee may deem necessary or desirable, provided, however, that no such buildings, fixture, structure, addition or improvement shall be made or installed by Lessee without prior written consent of Lessor, and Lessee covenants and agrees prior to the installation or making of such buildings, fixture, structure, addition or improvement, to submit the general plan, location, design and character thereof to Lessor for approval, which approval, Lessor agrees, shall not be unreasonably withheld. Lessor reserves the right to take any action it considers necessary to protect the aerial approaches of the airport against against obstruction, together with the right to prevent Lessee from erecting, or permitting to be erected, any building or other structure on the airport which in the opinion of Lessor would limit the usefulness of the airport or constitute a hazard to aircraft. C. The right upon any termination of this agreement, and within a reasonable time thereafter, to remove such items as may have been installed in or upon the premises at the Airport by Lessee, pursuant to paragraphs A. or B. hereof. D. The right to the joint use with others of roads and driveways useful in the conduct, operation and maintenance of Lessee's concession hereunder. E. The right to reasonable and adequate storage and parking space at a location or locations designated by Lessor and reasonably convenient to the terminal building at the Airport. In addition, Lessee shall have the sole and exclusive right to use a minimum of parking space for the parking of cars awaiting and arrival of customers at a fixed location near the exit or entrance way to the terminal building and Lessor agrees to restrict use of such space to Lessee Party by signs and by other means. Lessor agrees that the number of parking spaces assigned to Lessee for said purpose during each year of the term shall be reasonably proportional to the volume of Lessee's gross revenue at the Airport during the preceding calendar year, as compared to the gross revenue of other automobile rental concessionaires at the Airport during the same period. 6. Lessee hereby covenants and agrees: A. To furnish good, prompt and efficient service, adequate to meet all reasonable demands for automobile rental service to the Airport. B. That rental automobiles made available hereunder shall be maintained at Lessee's sole expense in good operative order, free from known mechanical defects, and in clean, neat and attractive condition, inside and outside. C. That the facilities to be provided by Lessee hereunder for the purpose of providing automobile rental service shall remain open for such periods during each day and such days during each week as may be necessary to meet reasonable demands for said services. Subject to the approval and control of the Lessor the Lessee may install as a facility hereunder in the premises or at such other places as the parties may agree upon, a direct line telephone to the office of the nearest company office for the purpose of supplying automobile rental service to airport patrons during periods when other automobile rental facilities are closed. D. That personnel performing services hereunder shall be neat, clean and courteous, and Lessor shall not permit its agents, servants or employees so engaged, to conduct business in a loud, noisy, boisterous, offensive or objectionable manner. E. That he shall abide by and be subject to all reasonable rules and regulations which are now, or may from time to time be promulgated by Lessor concerning management, operation or use of the Airport. F. That he will keep or cause to be kept true, accurate and complete records of business conducted hereunder and Lessee further agrees that Lessor shall have the right, through its duly authorized agents or representatives, to examine all pertinent records at any and all reasonable times for the purpose of determining the accuracy thereof and of the reports required to be made by Lessee pursuant to Article 4 hereof. G. That he will meet all expenses in connection with the rights and privileges herein granted, including without limitation by reason of enumeration, taxes, permit fees, license fees and assessments lawfully levied and that he will secure all such permits and licenses. H. That he hereby expressly agrees that none of his employees or agents shall prepare or cook food on the premises herein demised during the term hereof. 7. A. Lessee shall keep and hold harmless Lessor from and against any and all claims, demands, suits, judgments, costs and expenses asserted by any person or persons, including agents or employees of Lessor and Lessee, by reason of death or injury to persons, or loss or damage to property, resulting from Lessee's operations hereunder, or as the result of anything claimed to be done or omitted to be done by Lessee hereunder. B. Lessee shall obtain and maintain continuously in effect at all times during the term hereof, at Lessee's sole expense, general liability insurance protecting Lessee against liability which may accrue against Lessor by reason of Lessee's wrongful conduct incident to the use of the Airport premises or resulting from any accidents occurring on or about the roads, driveways, or other public places used by Lessee at the airport in the operations hereunder caused or arising out of any wrongful act or omission by Lessee. Such insurance shall provide maximum liability limits of $300,000 for damage to property in any one accident, and shall name Lessor as a co-insured thereunder. Lessee shall also, without cost to Lessor, obtain and maintain, during the term hereof, automobile liability insurance, covering the operation of rental automobiles hereunder with maximum liability limits of $300,000 for personal injury to or death of any one person in any one accident, $2,000,000 for personal injury to or death of two or more persons in any one accident, and $300,000 for damage to property in any one accident. Lessee shall upon written request provide certificates evidencing all such insurance to Lessor. C. Lessor agrees to notify Less in writing as soon as practicable of any claim, demand or action arising out of an occurrence covered hereunder, and to cooperate with Lessee in the investigation and defense thereof. 8. In the event that Lessee shall default in the payment of any sums when due hereunder, or shall default in the performance of any other covenant required to be kept by Lessee hereunder, and such default shall continue for a period of thirty (30) days after notice thereof from Lessor to Lessee, or if Lessee shall make an assignment for the benefit of creditors or be adjudged a bankrupt, Lessor shall have the right to immediately terminate this agreement, and in the event of such termination, Lessee shall have no further rights hereunder and shall thereupon remove from said premises and shall have no further rights or claims thereto. 9. In the event that the United States Government or any of its agencies shall occupy the Airport or any substantial part thereof to such an extent as to materially interfere with Lessee's operations, or in the event of destruction by fire or other cause of all or a material portion of the Airport or Airport facilities, or if Lessee's operations shall for any reason, similar or dissimilar, be materially interfered with for a period in excess of fifteen (15) days, then, and in any of those events, Lessee shall have the right upon written notice to Lessor to terminate this agreement and Lessee's further obligations hereunder, or at its option, to suspend this agreement for the periods of such disability, in which cases the minimum guarantee payment shall not be paid or payable from the effective date of such notice until normal operations shall have been restored and Lessor shall return to Lessee a just proportion of any minimum guarantee payment which may have been paid in advance for a month or portion thereof which falls within the period of disability. 10. It is expressly agreed and understood that any and all obligations of Lessee hereunder may be fulfilled or discharged either by Lessee or by a Licensee duly appointed thereto by Lessee and approved by Lessor and that any and all privileges of every kind granted hereunder may extend to and be enjoyed by such Licensee so appointed; provided, however, that notwithstanding the method of operation employed by Lessee hereunder; Lessee shall continue always to remain directly liable to Lessor for the performance of all terms and conditions of this agreement. Except as herein above set out the Lessee shall not assign this agreement without prior written consent of Lessor, nor permit any transfer by operation of law of Lessee's interest created hereby, other than by merger or consolidation. 11. All notice or other communication to Lessor or Lessee pursuant hereto shall be deemed validly given, served or delivered upon being deposited in the United States mail, registered with proper postage and registration fee prepaid, addressed as follows: To Lessor: City Manager City Hall 401 Independence Cape Girardeau, MO 63701 To Lessee: The Hertz Corporation, a Delaware Corporation Vice President of Properties and Concessions 225 Brae Blvd. Park Ridge, NJ 07652 Or to such other address as either party may designate by written notice to other delivered in accordance with the provisions of this Article. 12. A. Lessee, 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 contract and agreement, for a purpose for which a Department of Transportation program or activity is extended or for another purpose involving the provision of similar services or benefits, Lessee shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to 49 CFR Part 21, Nondiscrimination in Federally Assisted Programs of the Department of Transportation, and as said Regulations may be amended. B. Lessee, for himself, his 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 form participation in, denied the benefits of, or otherwise be subject to discrimination, (3) that Lessee shall use the premises in compliance with all other requirements imposed by or pursuant to 49 CFR Part 21, Nondiscrimination in Federally Assisted Programs of the Department of Transportation, and as said Regulations may be amended. C. Lessee 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 activities covered in 14 CFR Part 152, Subpart E. Lessee assures that no person shall be excluded on these grounds from participating in or receiving the services or benefits of any program or activity covered by this subpart. Lessee assures that it will require that its covered suborganizations provide assurances to Lessee that they similarly will undertake affirmative action programs and that they will require assurances from their suborganizations, as required in 14 CFR Part 152, Subpart E, to the same effect. D. 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 308 of the Federal Aviation Act of 1958. E. Lessee agrees to furnish service on a fair, equal and not unjustly discriminatory basis to all users thereof, and to charge fair, reasonable and not unjustly discriminatory prices for each unit or service; PROVIDED, that lessee may make reasonable and nondiscriminatory discounts, rebates, or other similar types of price reductions to volume purchasers. 13. Both Parties do hereby agree that this Contract and Concession Agreement shall supercede and cancel and any and all previous agreements, oral and written, made at any time prior to the date of the execution and enactment of this agreement hereinabove set out. IN WITNESS WHEREOF, the parties have caused this agreement to be executed by their duly authorized officers they day and year first written above. ATTEST: Gayle Conrad City Clerk CITY OF CAPE GIRARDEAU, MISSOURI Doug Leslie, City Manager THE HERTZ CORPORATION, A DELAWARE CORPORATION Simon Ellis Vice President, Properties and Concessions