CONCESSION AGREEMENT
FOR
RENTAL CAR CONCESSION
AT
LOUISVILLE INTERNATIONAL AIRPORT
LOUISVILLE REGIONAL AIRPORT AUTHORITY
AND
VANGUARD CAR RENTAL USA INC. D/B/A ALAMO
TABLE OF CONTENTS
Page
SECTION 1. PREMISES................................................................................................................ 1
SECTION 2. PERMITTED USES AND PRIVILEGES ................................................................ 2
SECTION 3. TERM........................................................................................................................ 3
SECTION 4. CONCESSION FEES ............................................................................................... 4
SECTION 5. PERFORMANCE BOND ......................................................................................... 9
SECTION 6. MAINTENANCE AND SUBMISSION OF RECORDS AND REPORTS ........... 10
SECTION 7. MINIMUM STANDARDS..................................................................................... 13
SECTION 8. INSTALLATION OF IMPROVEMENTS AND TENANT FINISHES ................ 16
SECTION 9. MAINTENANCE AND REPAIR .......................................................................... 18
SECTION 10. UTILITIES ............................................................................................................ 21
SECTION 11. QTA MANAGEMENT AND OPERATION ....................................................... 21
SECTION 12. ALLOCATION OF QTA SPACES ...................................................................... 22
SECTION 13. OWNERSHIP OF QTA ........................................................................................ 23
SECTION 14. ENVIRONMENTAL RESPONSIBILITIES ........................................................ 23
SECTION 15. TAXES .................................................................................................................. 24
SECTION 16. LAWS AND REGULATIONS ............................................................................. 24
SECTION 17. INDEMNIFICATION ........................................................................................... 25
SECTION 18. INSURANCE ........................................................................................................ 25
SECTION 19. AUTHORITY NOT LIABLE FOR DAMAGE.................................................... 26
SECTION 20. INDEPENDENT CONTRACTOR ....................................................................... 26
SECTION 21. ASSIGNMENT, TRANSFER OR SUBLEASE ................................................... 26
SECTION 22. NONDISCRIMINATION AND DISADVANTAGED BUSINESS ENTERPRISE
....................................................................................................................................................... 27
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TABLE OF CONTENTS
(continued)
Page
SECTION 23. AIRPORT CONCESSION DISADVANTAGE BUSINESS ENTERPRISES .... 29
SECTION 24. PENDING CONSTRUCTION AND NON DEFAULT TERMINATION .......... 29
SECTION 25. TERMINATION BY CONCESSIONAIRE ......................................................... 30
SECTION 26. TERMINATION BY AUTHORITY .................................................................... 30
SECTION 27. OBLIGATIONS IN EVENT OF DEFAULT ....................................................... 31
SECTION 28. GOVERNMENTAL AND BOND RESOLUTIONS ........................................... 32
SECTION 29. NOTICES .............................................................................................................. 32
SECTION 30. WAIVER AND SEPARABILITY OF TERMS ................................................... 33
SECTION 31. HEADINGS .......................................................................................................... 33
SECTION 32. NO BROKERS INVOLVED ................................................................................ 33
SECTION 33. INCORPORATION OF DOCUMENTS; ENTIRE AGREEMENT .................... 34
SECTION 34. GOVERNING LAW; TIME ................................................................................. 34
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CONCESSION AGREEMENT
THIS AGREEMENT, made and entered into this ______ day of _____________, 2005 by
and between the Louisville Regional Airport Authority ("Authority") and Vanguard Car Rental
USA Inc. d/b/a Alamo, a Delaware corporation ("Concessionaire"),
WITNESSETH;
For and in consideration of the covenants and agreements hereinafter contained and other
valuable consideration, the parties agree for themselves, their successors and assigns, as follows:
SECTION 1. PREMISES
1.1 Authority hereby leases to Concessionaire, and Concessionaire takes the following areas:
A. For its exclusive use, the counter space in the Landside Building, shown as location
#4 on Exhibit B attached hereto, comprising of 253 square feet, more or less, in
which Concessionaire shall equip, install and maintain an office area and one
counter;
B. For its exclusive use, that portion of the QTA building, shown as location #4 on
Exhibit C-1, comprising of 133 square feet, more or less (the “QTA Exclusive
Space”);
C. For is exclusive use, the QTA Parking Spaces, shown on Exhibit C-2, as allocated
by Authority from time to time in accordance with Section 12 hereof, which at all
times shall be at least 25 spaces (the “QTA Parking Spaces”);
D. For is exclusive use, the kiosk location, shown as location #6 on Exhibit C-3 (the
“Kiosk Space”); and
E. For its use in common with other rental car companies, other than Concessionaire,
that have agreements with the Authority (“Rental Car Companies”) those facilities,
areas and appurtenances which constitute QTA Common Facilities (the “QTA
Common Facilities”).
1.2 The type and design of the office area and counter insert to be constructed and installed by
Concessionaire shall be approved in advance by Authority as specified elsewhere herein.
The improvements provided by Authority and those to be provided by Concessionaire are
specified in Section 8 of this Agreement. The equipment installed by Concessionaire shall
remain the personal property of Concessionaire and may be removed by Concessionaire
upon termination of the Concession Agreement. Any and all space of which Concessionaire
is granted exclusive use and common use under this Agreement as designated on Exhibits B,
C-1, C-2 and C-3 is, for the duration of such exclusive use and common use hereunder,
defined as the "Premises".
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1.3 Authority, its officers, agents and employees, shall have the right to enter the Premises at all
reasonable times and for all reasonable purposes.
1.4 The Authority shall, at any time during the term of this Agreement, have the right, if it
determines in its sole judgement to terminate the Concession Agreement with respect to the
QTA space to address the parking requirements for Louisville International Airport (the
“Airport”) or otherwise, upon at least 12 months advance notice to the Concessionaire of
such event.
1.5 Concessionaire shall not conduct, nor permit any employee to conduct, any business or
commercial operation from the Premises or upon the property of Authority not herein or
otherwise authorized by Authority.
SECTION 2. PERMITTED USES AND PRIVILEGES
2.1 Concessionaire is hereby granted the non-exclusive right and privilege to operate a
passenger vehicle rental concession at and from the Premises at the Airport.
2.2 Concessionaire, during the term of this Agreement, shall operate and maintain all signage
under the brand name or trade name of Alamo. Concessionaire shall be prohibited from
operating at the Airport under any brand name or trade name other than stated herein. No
other brand name or trade name shall be used or displayed by Concessionaire at the Airport
or upon the Premises during the term of this Agreement.
2.3 Concessionaire shall have the right to joint use, in common with others, of the driveways in
the Terminal Area of the Airport for the conduct, operation and maintenance of the
Concession.
2.4 Concessionaire, so long as permitted by law, shall be permitted to sell used automobiles,
subject to the limitations of Paragraph 4.3 G., in order to maintain the modern fleet
standards required by this Agreement.
2.5 Concessionaire shall further have the right to offer personal accident insurance to its rental
car customers; such insurance being that which provides the customer with 24 hour
insurance protection in the event of accidental death or bodily injury during the duration of a
rental period and that which provides the passengers of a customer with insurance protection
in the event of accidental death or bodily injury while such passengers are entering,
occupying or leaving the rental vehicle during the duration of the rental period.
2.6 Concessionaire shall have the right to offer personal effects insurance to its rental car
customers; such insurance being that which provides the customer with protection if any of
the customer's personal items placed in the rental vehicle are damaged, destroyed or stolen
from the rental vehicle during the duration of the rental period.
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2.7 Concessionaire shall have the right to offer cellular phones and other electronic services to
its rental car customers for the duration of the rental period.
2.8 Concessionaire shall have the right to offer infant/child safety restraint seats to its rental car
customers for the duration of the rental period.
2.9 Authority agrees to do all that it lawfully is able to do to prevent persons, firms, or
corporations engaged in the rental car business who do not hold permits, licenses, leases or
concession agreements with Authority from soliciting such business at the Airport, provided
that any off-airport rental car firm or agency shall have the right to pick-up or deliver any
customer at the Airport if such firm or agency shall have prior arrangements with such
customer.
2.10 Employees of Concessionaire shall have the right to park their private vehicles in such
area(s) of the Airport as Authority may designate for airport employee parking, for so long
as Authority makes such area(s) available for other Airport employees, under the same
conditions and provisions and at the same charge as other non-Authority employees are
permitted to park. Employees of Concessionaire shall not park their private vehicles in the
QTA; and, if found in violation, the private vehicle will be subject to towing. Authority is
not hereby obligated to make such employee parking area(s) available.
SECTION 3. TERM
3.1 This Agreement shall be binding upon execution by both parties for a term of five years
commencing September 1, 2005 (the "Effective Date") and ending August 31, 2010.
3.2 After the execution of this Agreement and receipt by Authority of all required bonds and
insurance policies, Authority shall make available to Concessionaire, and Concessionaire
shall have the right to enter on the Premises for the purpose of constructing, and otherwise
installing, the Initial Improvements pursuant to Section 8 hereof.
3.3 Upon the expiration or other termination of this Agreement, Concessionaire's right to use the
Premises, facilities, rights, licenses, services and privileges herein granted shall cease, and
Concessionaire shall forthwith upon such expiration or termination surrender the same. The
continued occupancy and use of the Premises by Concessionaire after the expiration of the
five year term of this Agreement shall not result in the automatic renewal of this Agreement
under KRS 383.160(1) or any similar statute then in effect, or otherwise, nor shall
Authority's failure to object to or resist such continued occupancy operate to extend the term
of this Agreement unless specifically agreed to in writing. For the purpose of payment of
rents and fees, any such holding over by Concessionaire shall be construed as a month-to-
month tenancy at the rents and fees provided in Section 4 hereof in effect at the expiration or
other termination of this Agreement.
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SECTION 4. CONCESSION FEES
4.1 Commencing on the Effective Date herein and continuing for the term hereof,
Concessionaire agrees to pay Authority for the use of the Premises and for the rights and
privileges herein granted by Authority, a Concession Fee in an amount equal to:
A. A business privilege fee, for the use of Authority provided driveways, terminal curb
areas, other Airport facilities, other than the Premises leased to Concessionaire, and
for the business opportunity afforded by the Airport, which is the greater of:
1. Ten percent (10%) of monthly gross receipts for each year of the term of the
Concession Agreement.
-or-
2. A monthly minimum guarantee of:
First Year $21,000.00 per month
Second Year $21,100.00 per month
Third Year $21,200.00 per month
Fourth Year $21,300.00 per month
Fifth Year $21,400.00 per month
B. For exclusive use terminal rental counter space:
1. For the first year, $15,425.41, payable in 12 monthly installments of
$1,285.45 as a fixed charge for 253 square feet of exclusive use counter
space in the Landside Building, as designated in Exhibit B hereto, such fixed
charge being calculated on the basis of $60.97 per square foot per year, and
2. For the second year, $15,888.40, payable in 12 monthly installments of
$1,324.03 as a fixed charge for 253 square feet of exclusive use counter
space in the Landside Building, as designated in Exhibit B hereto, such fixed
charge being calculated on the basis of $62.80 per square foot per year, and
3. For the third year, $16,364.04, payable in 12 monthly installments of
$1,363.67 as a fixed charge for 253 square feet of exclusive use counter
space in the Landside Building, as designated in Exhibit B hereto, such fixed
charge being calculated on the basis of $64.68 per square foot per year, and
4. For the fourth year, $16,854.86, payable in 12 monthly installments of
$1,404.57 as a fixed charge for 253 square feet of exclusive use counter
space in the Landside Building, as designated in Exhibit B hereto, such fixed
charge being calculated on the basis of $66.62 per square foot per year, and
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5. For the fifth year, $17,360.86, payable in 12 monthly installments of
$1,446.73 as a fixed charge for 253 square feet of exclusive use counter
space in the Landside Building, as designated in Exhibit B hereto, such fixed
charge being calculated on the basis of $68.62 per square foot per year.
Provided; however, if the U.S. Department of Labor national Consumer
Price Index (“CPI”) exceeds 3% growth in any year of the Agreement the
terminal counter space rental rate will be increased for that year by the CPI.
C. QTA Rent in the amount of $76.04 per space per month for each space allocated
to Concessionaire pursuant to Section 12 hereof.
D. Concessionaire shall pay the cost of maintenance and repair for the QTA as provided
in Section 9 hereof.
E. Concessionaire shall pay the cost of utilities used in QTA Common Facilities as
provided in Section 10 hereof.
F. (1) Customer Contract Fee. The Authority currently charges a fee of $5.00 per
contract for each customer entering into rental contracts with Concessionaire (the
"Customer Contract Fee"). The Authority hereby reserves the right to increase,
decrease or eliminate the Customer Contract Fee or to change the Customer Contract
Fee to a charge per day, or other method, rather than per contract in its sole
discretion at any time, such increases or decreases or changes to be effective as
provided by the Authority.
(2) Collection and Remittance of Customer Contract Fees. Concessionaire shall
collect the Customer Contract Fee from each customer. The Customer Contract Fee
shall be identified on a separate line on all rental car customer contracts, after taxes,
and shall be described as the "LIA Contract Fee." All Customer Contract Fees
collected and/or held by the Concessionaire shall (i) be held in trust by the
Concessionaire for the Authority's benefit, and (ii) be the Authority's property, and
the Concessionaire acknowledges and agrees that it shall have only a possessory
interest (not an equitable interest) in such Customer Contract Fees. Any such
Customer Contract Fees collected by the Concessionaire shall be (i) in the amount
established by the Authority from time to time for all rental car operators doing
business at the Airport, and (ii) collected from all customers, including without
limitation all customers receiving complimentary or discounted car rental under the
Concessionaire's bona fide marketing plans. All Customer Contract Fees so
collected shall be remitted to the Authority within fifteen days after the end of the
calendar month during which such fees were collected.
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(3) Accounting Records for Customer Contract Fee. The Concessionaire shall
maintain records and controls that are sufficient to demonstrate the correctness of
any such Customer Contract Fees collected by the Concessionaire and the amount of
any Customer Contract Fees remitted to the Authority. The records shall be
available for inspection and examination by the Authority or its duly authorized
representatives at all times.
G. The Concessionaire shall be required to collect and state the 10% of gross receipts to
be paid to the Authority pursuant to 4.1.A.1 hereof in all rental contracts for all
rentals, services or fees paid by its customers. Such amount shall be identified as
“Concession Rent” on each rental contract. The Concessionaire shall state in all
rental contracts the Vehicle License Fee, Loss Damage Waiver Fee, Collision
Damage Waiver Fee, or other pass through fees allowed herein. Any such amounts
collected by Concessionaire shall be included in gross receipts, and the Concession
Rent amounts collected shall be subject to a recoupment fee or concession fee
recovery by the Concessionaire and such recoupment shall not make the Concession
Rent to exceed 11.11%. No other pass-through fees or charges shall be allowed
other than exceptions allowed herein. The Authority shall have the right to modify
or delete this requirement herein upon 30 days’ written notice to each
Concessionaire if it concludes, in its sole discretion, that its treatment herein of pass-
through fees is not in the best interest of the Authority, is contrary to accepted
industry practices, or in unlawful.
4.2 The minimum guarantee, the terminal counter space rental and the QTA Rent shall be paid
monthly in advance on or before the first Calendar Day of each month. Within 20 days after
the end of each calendar month, Concessionaire shall, in addition, pay to Authority such an
amount which, when added to the monthly minimum guarantee previously paid Authority
for that month, will make the total amount of the business privilege fee paid to Authority
equal to not less than the percentage of Concessionaire's gross receipts stipulated in
Paragraph 4.1A.1 for that preceding month. Other rents or payments are due as provided in
the Sections referenced above. Payments not made on or before the due dates shall accrue
interest, from the date due until paid, at the rate set forth in Authority's Regulations as may
be amended from time to time.
4.3 The term "gross receipts" as used herein shall mean, for all purposes hereof, the aggregate of
the entire amount of all revenues received and services performed for cash, on credit or
otherwise, of every kind, name and nature arising out of or from Concessionaire's operations
at or from the Airport, regardless of actual collection, including without limitation:
A. Amounts paid by customers of Concessionaire separately billed as additional
charges for waiver by Concessionaire of its right to recover from customers for
damage to the vehicle rented (commonly referred to as "CDW" or "LDW"),
including unbundled CDW or LDW (unbundling commonly referred to as Rental
Car Companies’ practices of having agreements with customers that stipulate an “all
inclusive” rate that, in addition to time and mileage, may include loss damage
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waiver, collision damage waiver, liability insurance supplement, personal accident
insurance, and personal effects coverage); and
B. Any charges separately billed to customers for prepaid fueling or as reimbursement
for refueling an automobile which is rented pursuant to a rental agreement under
which the customer is obligated to return the automobile with the same amount of
gasoline as furnished at the inception of the rental (commonly referred to as "fuel to
fill"); and
C. The amount of any corporate or volume discounts or rebates.
D. Any charges separately billed to customers of Concessionaire for Vehicle License
Fee (“VLF”) including all items included in the VLF line item except federal, state
or municipal sales taxes or other similar taxes such as property taxes.
except:
E. The amount of any federal, state or municipal sales taxes or other similar taxes
separately stated and collected from customers of Concessionaire now or hereinafter
levied or imposed;
F. Any sums received by Concessionaire as compensation for damage to
automobiles or other property of Concessionaire, or for loss, conversion, or
abandonment of such automobiles;
G.. Proceeds from the sale of vehicles under Paragraph 4.3 hereof; provided,
however, that Concessionaire shall not, under this exemption, be permitted to
annually sell more vehicles than: (1) the number of vehicles purchased each
model year for use in the business activity authorized by this Agreement; or (2)
the number of vehicles which were permanently assigned to Concessionaire's
Airport operation; or (3) the number of vehicles in the average daily fleet of
Concessionaire's Airport operation, whichever number of vehicles is greater,
whether such sale shall be at wholesale, retail, barter or exchange. No later than
the commencement date hereof, Concessionaire shall report to Authority the total
number of vehicles in its rental fleet for this Concession as of the commencement
date. Monthly thereafter, Concessionaire shall report to Authority the number of
vehicles purchased, or permanently assigned, for use in its Concession rental fleet
and the number of vehicles sold during that month and the cumulative total of
purchases/assignments and sales for the then current agreement year. If, at the
end of the then current year of this Agreement, the twelve month total of sales
exceeds that number of vehicles which were purchased, or is in excess of that
number of vehicles which were permanently assigned for use hereunder, or is in
excess of the number of vehicles in the average daily fleet of Concessionaire's
Airport operation, whichever number of vehicles is greater, then, in such event,
Concessionaire shall report the total receipts from the sale of such excess vehicles
and pay Authority 10% thereof, such amount to be in addition to any other sums
due Authority under this Agreement; and
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H. Customer Contract Fee.
I. Any discounts separately stated on the rental agreement which are granted at the
time the rental transaction commences, and are recorded and reported in
separately documented accounts from non-excludable discounts. Company
forfeits exclusion of all discounts in the event otherwise allowable discounts are
commingled with any non-excludable amounts. No exclusion shall be allowed for
any amount retained by a third party as a financing discount which may apply by
reason of Company’s acceptance of credit cards or other credit arrangements. No
exclusion shall be allowed for the portion of retroactive rebates, dividends or
refunds to any customer upon attainment of a specified volume of rentals
attributable to revenue or as part of any other marketing plan which does not list
the discount on the rental agreement at the commencement of the rental
transaction.
4.4 No demand of payment need at any time be made, but it shall be the duty of Concessionaire
to pay monies when due, without demand. Failure to pay the amounts due or comply with
any other Concessionaire's financial obligations to Authority under this Agreement within
15 days of the due date set forth herein, will entitle Authority to terminate or suspend this
Agreement upon giving Concessionaire 10 days advance notice of its intention to do so, and
for no other cause than nonpayment. If payment is not made on or before the 10th day after
delivery of such notice, Authority, in addition to all other rights and remedies it may have,
may terminate the Concession Agreement and reenter and take possession of any Premises
on the Airport of which Concessionaire has exclusive use.
4.5 Except for its fleet of rental vehicles, Concessionaire hereby waives the right to claim that
any of its property located on the Airport is exempt from execution or attachment, or exempt
by any law from the payment of debt; and, except for its fleet of rental vehicles, all such
property shall be subject to and responsible for the payment of the money agreed to be paid
by Concessionaire under this Agreement, and for the discharge of any liability created
hereby, for which a lien on such property is hereby granted to Authority.
4.6 Concessionaire hereby agrees that it will not, after receipt of the notice pursuant to
Paragraph 4.4, remove any of its property from the Premises until the default has been
cured. Concessionaire hereby grants to Authority, at any time after 10 days following the
receipt of such notice, the right to take possession of all property of Concessionaire located
at the Airport, to remove the same to a storage place selected by Authority and to retain such
property in storage either at such place or its original site on the Airport, until the default is
cured and a reasonable charge for removal and storage is paid to Authority. This right shall
be in addition to, and not in substitution for, any other rights of Authority. It is further
agreed that Authority shall not be liable for any damage to such property incurred as a result
of its removal or storage, unless such damage is caused by negligence on the part of
Authority, or for any loss of business or indirect injury to Concessionaire or its business
resulting from or attributable to such removal or storage.
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4.7 If at any time, Concessionaire and other Rental Car Companies using the QTA do not
account for at least 50% of the gross receipts of rental car companies doing business at the
Airport, whether under a Concession Agreement or not, then Concessionaire and Authority
may re-negotiate the rentals payable with respect to the QTA.
4.8 Concessionaire shall not modify its accounting methods or rename or redefine services or
products, which under the terms of this Agreement would be subject to gross receipts.
Except as provided in Paragraph 4.3 A through I, all other fees or charges collected shall be
considered gross receipts and shall not be withheld from the percentage calculation. Unless
revenues from Concessionaire is expressly and particularly excluded from gross receipts
under this Agreement, such revenues shall be included in gross receipts. Revenues that may
be derived from sources similar but not identical to those described herein shall be included
in gross receipts unless expressly excluded by this Agreement.
4.9 All reports and submissions to the Authority as required in Section 4 hereof shall also be
subject to reporting requirements pursuant to Section 6 herein.
SECTION 5. PERFORMANCE BOND
5.1 Concessionaire shall, before commencement of operation of the Concession granted by this
Agreement furnish Authority a Performance Bond in the amount equal to 50% of the
highest annualized minimum monthly guarantee to be paid to Authority by Concessionaire
under this Agreement, which shall be $128,400.00. The term of such Performance Bond
shall be for five years, in accordance with the term of this Agreement. The Performance
Bond shall be given by Concessionaire, at Concessionaire's sole expense, to assure and
guarantee the performance by Concessionaire of all its obligations, including the payment of
Concession Fees and any other payments due to the Authority, under this Agreement, and
shall not be canceled on less than 30 days notice to Authority. The Surety or Sureties, for
the required Performance Bond shall be a Corporate Surety or Sureties duly authorized to do
business in the Commonwealth of Kentucky and shall be subject to approval by Authority.
Concessionaire may, at its option, substitute an Irrevocable Bank Letter of Credit drawable
in Jefferson County, Kentucky, payable without condition to Authority, in lieu of a
Performance Bond underwritten by other corporation Surety, in a form acceptable to
Authority. The term of such Letter of Credit shall be for five years, in accordance with the
term of this Agreement. It shall not be necessary for Authority to terminate this Agreement,
or to pursue any other remedy available to it, in order to look to such security for
performance. Failure to maintain such security in effect shall constitute a default hereunder,
and shall justify Authority asserting any right, or taking any action, permitted elsewhere in
this Agreement, or by law, for its protection or for enforcement of the obligations of
Concessionaire. The rights of Authority under this paragraph shall be in addition to, and not
in substitution for, any other rights of Authority.
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SECTION 6. MAINTENANCE AND SUBMISSION OF RECORDS AND REPORTS
6.1 Books and Records.
A. Concessionaire shall keep and maintain full and complete books of accounts and
other records concerning operations at the Airport. All records required under this
Section 6.1 shall be on a form or format acceptable to Authority; and, if
Concessionaire’s records have been generated from computerized data,
Concessionaire shall provide the extracts of data files in a computer readable format
on data disks, e-mail with attached files or suitable alternative computer data
exchange formats. All rental agreement forms used by the Concessionaire in its
operations at the Airport shall be sequentially numbered in a numbering series
exclusively for the Airport. Accounting records of Concessionaire shall be stored
sequentially, or in such other manner approved by the Authority, to provide
expeditious access for audit purposes herein. In the event the Concessionaire does
not maintain exclusive sequential numbering for rental agreements commencing at
the Airport, the Concessionaire agrees to provide copies of rental agreements from
other rental locations included in the nonexclusive sequence to Authority or its
auditors for the purposes of testing reporting completeness.
1. The books and records shall include, but is not limited to:
(a) all original accounting source documents detailing transactions relevant to this
Agreement, including but not limited to (i.) original rental contacts, (ii.)
operating/financial statements, (iii.) a complete (cumulative) general ledger, (iv.)
monthly sales journals detailing each rental transaction for the month, (v.)
reconciliations between the financial records and monthly reports submitted to the
Authority, (vi.) bank statements applicable to the operation of this Concession at
the Airport, (vii.) corporate trial balances, (viii.) corporate contracts with
corporate customers, (ix.) annual audited financial statements and related reports
on internal controls (including management representation letters), (x.) electronic
media documenting accounting records, and (xi.) other sales related documents;
and (b) all exclusions from gross receipts claimed by Concessionaire. For
exclusions or adjustments to gross receipts, the books or records shall include, but
are not limited to: (i.) all agreements between Concessionaire and corporate or
volume customers establishing the customers' contractual rights to rebates; (ii.)
lists of all individual rental transactions with all corporate or volume customers;
(iii.) all individual rental agreements with all corporate or volume customers; and
(iv.) any documentation or records supporting additional reductions to gross
receipts.
B. Concessionaire shall provide and maintain, by generally accepted accounting
principles, accurate records of its gross receipts derived under this Agreement for a
period of three years from the date the record is made. Concessionaire agrees that
said records will be kept on the Premises during the term hereof or made readily
available at the Authority’s general offices. After the expiration or other termination
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of this Agreement said records shall be kept at Concessionaire's principal office and
shall remain accessible to Authority as provided herein. Authority shall have the
right at all reasonable times to inspect the books, records and receipts of
Concessionaire, or may so designate a duly authorized representative to make a
review or investigation of the daily, weekly or monthly gross receipts accruing from
said business; and Concessionaire shall freely lend its own assistance in such
inspections, examinations and audits and provide the name and telephone number of
Concessionaire’s accounting manager or the like who has thorough knowledge of
the accounting system as it pertains to this Agreement, if requested.
C. Authority reserves the right to audit Concessionaire's books, including, but not
limited to, the general ledger, records of receipts, and rental car contracts, at any
reasonable time, for the purpose of verifying the gross receipts reported by
Concessionaire hereunder. Concessionaire agrees to retain all such records, which
shall be readily available to Authority for the purpose stated herein; provided,
however, that individual rental contracts may be disposed of by Concessionaire 90
days after the end of each contract year upon 60 days prior written notice by
Concessionaire to Authority. If, as a result of such audit, it is established that
Concessionaire has understated the gross receipts received by it from all operations
on the Premises by three percent or more, the entire expense of said audit shall be
borne by Concessionaire. Any additional percentage fees due shall forthwith be paid
by Concessionaire to Authority with interest thereon, at the rate set forth in
Authority's Regulations as amended from time to time, from the date such additional
percentage fee originally became due.
D. In addition to the audit(s) provided for in Paragraph 6.1.C above, Authority is hereby
granted the right to conduct an audit(s) of the books and records (whether in paper,
electronic or other form), including the general ledger and all vehicle rental
contracts, of any of Concessionaire's vehicle rental facilities located in Jefferson
County, Kentucky for the purpose of determining what, if any, of the vehicle rentals
were made to airport passengers and which have been diverted from the Concession
and which would, or should, have otherwise been reported as gross receipts
hereunder. Concessionaire hereby agrees to freely lend its assistance and support to
Authority in the conduct of any audit(s) hereunder, including the conduct of
customer origin/destination surveys as Authority deems appropriate. If, as a result
of such audit(s), it is established that Concessionaire diverted any vehicle rentals
from the Airport, Concessionaire shall report all such sums to Authority as gross
receipts in the month in which such diversion occurred. Any additional percentage
fees due shall forthwith be paid by Concessionaire to Authority with interest
thereon, at the rate set forth in Authority's Regulations, from the date such additional
percentage fees originally became due. If, as a result of any such audit, Authority
determines that Concessionaire engaged in a willful diversion of vehicle rentals from
the Airport, Concessionaire shall, in addition to the Concession Fee, and interest
thereon, otherwise due, pay to Authority as liquidated damages and not as a penalty
an amount equal to 25% of the total amount of all sums that would, or should, have
otherwise been reported as gross receipts hereunder. If willful diversion is
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determined, the entire expense of said audit(s) shall be borne by Concessionaire. If,
based on two or more separate audits, covering two separate time frames, conducted
pursuant to this Paragraph 6.1.D, Authority determines that Concessionaire has a
systematic pattern of willful diversion of Airport vehicle rentals, Authority may, in
its sole discretion and without further obligation to Concessionaire, upon seven days
notice of its intent to do so, forthwith terminate this Agreement. In the event of such
termination, Concessionaire shall remain liable for all sums due Authority herein
and elsewhere hereunder. As used herein, "willful diversion" shall mean five or
more vehicle rentals diverted from the Airport in any one calendar month; and
"systematic pattern" shall mean willful diversion occurring in two or more calendar
months.
6.2 Reports.
A. Concessionaire shall submit to Authority by the 20th day of each month, a verified
statement of gross receipts of the Concession in a form as shown on Exhibit D, as
well as all other required reports, for the preceding month.
B. Concessionaire shall provide Authority with a monthly accounting of all
transactions written at the Airport, such information to be reported at the time
monthly gross receipts are reported in a form as shown on Exhibit E. To the
extent permitted by law, Authority agrees that it will treat such data as
confidential and will not disclose the transaction of Concessionaire, without
Concessionaire's expressed approval, except that the total number of all
transactions of all rental car Concessionaires and combined total gross receipts
may be distributed with approval of Concessionaire.
C. The statement of gross receipts as shown, reported and submitted to the Authority on
Exhibit D and the monthly accounting of all transactions as shown, reported and
submitted on Exhibit E shall agree in total.
D. Concessionaire shall provide Authority, at Concessionaire's sole cost and expense,
within 90 days after the end of each year of operation, a certified audited
statement of gross receipts for the preceding twelve-month period covering all
business transacted by Concessionaire at the Airport. The statement shall be
certified by an independent Certified Public Accountant and shall be prepared in
such detail and on such forms acceptable to Authority, at its sole discretion.
E. All reports required under this Section 6.2 shall be on a form or format acceptable to
Authority; and, if Concessionaire’s reports have been generated from computerized
data, Concessionaire shall provide the extracts of data files in a computer readable
format on data disks, e-mail with attached files or suitable alternative computer data
exchange formats.
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6.3 Concessionaire shall pay Authority, in addition to Concession Fees or other financial
obligations to the Authority not as a penalty but as liquidated damages, $5.00 every
Calendar Day for each record Company is late in submitting to the Authority as required in
Section 6.1 hereof. Said charge will continue until specific performance is accomplished
and shall not be offset against any other amount due Authority.
SECTION 7. MINIMUM STANDARDS
7.1 The following standards of service are the minimum levels acceptable to Authority for
operation of the Rental Car Concession. In operation of the Concession, Concessionaire
shall meet or exceed every such standard of service.
A. Concessionaire shall accept "major" or nationally recognized credit cards and may
have and operate a national credit card system exclusive to Concessionaire.
B. Concessionaire shall operate and maintain a national reservations system conducted
exclusively by Concessionaire, or in conjunction with a nationally franchised
system, or a reservations system conducted by other than Concessionaire to which
the general traveling public has reasonably convenient access.
C. Concessionaire shall, as a condition of performance hereunder, offer one-way rental
service, "rent it here, leave it there", for the convenience of the traveling public.
D. Concessionaire shall provide bodily injury and property damage liability insurance
coverage as required by Section 18 hereof.
E. Concessionaire shall at all times maintain, at its own expense, on or reasonably near
the Airport an adequate number of automobiles to meet reasonable public demand
therefor. Such automobiles shall at all times be maintained by Concessionaire, at its
own cost and expense, in good operating order and free from known or reasonably
discernible mechanical defects, and shall be kept in clean, neat and attractive
condition, inside and out. Concessionaire agrees that it will at no time use
automobiles whose year model is more than two years older than the current model
year. For example, when the current model year is 2005, only 2005, 2004 and 2003
models shall be used; when the current model year is 2006, only 2006, 2005 and
2004 models shall be used. Not less than 50% of Concessionaire's fleet shall be
equipped with factory or dealer-installed air conditioning. Authority reserves the
right to disapprove of any automobile supplied by Concessionaire that does not meet
or exceed the standards contained herein for public use at the Airport. Notice of
such disapproval shall be submitted to Concessionaire by Authority in writing with
the reasons therefor and Concessionaire shall take immediate action to withdraw
such unsatisfactory automobiles from service at the Airport.
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F. Concessionaire shall furnish service on a fair, reasonable and nondiscriminatory
basis to all users of the Airport. Concessionaire shall furnish good, prompt, clean,
courteous and efficient service adequate to meet all reasonable demands for its
services at the Airport. It shall maintain and operate the Concession in a first-class
manner and shall keep its Premises in a safe, clean, orderly and inviting condition at
all times, satisfactory to Authority.
G. Concessionaire's rental counters shall be kept open so as to provide maximum
availability of service and adequate rental opportunity to the public during such
hours as may be established or reestablished from time to time by Authority, such
period initially to be not less than 17 hours a day, from the hours of 6:00 a.m. to
11:00 p.m., seven days a week; provided, however, Concessionaire will remain open
to meet any reservations arriving outside of such initial time frame. The hours
during which the business conducted by Concessionaire hereunder shall remain open
as hereinabove provided may, at the sole discretion, or with the approval, of
Authority, be changed if the requirements of the air travelers and the public for such
service changes, and such change is consistent with the flight schedules of the
airlines serving the Airport and Authority deems the change to be in the best interest
of the public.
H. Concessionaire shall not misrepresent to the public its prices or the terms and
provisions of its rental agreements or those of its competitors. Concessionaire shall
fully inform each customer, prior to the execution of such customer’s rental
agreement, of all fees and charges applicable to such customer’s rental. If the
Authority determines, after notice and opportunity for Concessionaire to comment
that any of Concessionaire’s business practices are unreasonable, deceptive, or
unconscionable, Concessionaire shall immediately cease such practices upon receipt
of a written notice to do so from the Authority. The Authority will give advance
notice to Concessionaire that the Authority considers a certain practice to be
unreasonable, deceptive, or unconscionable and Concessionaire shall have an
opportunity to respond to the allegation.
I. Concessionaire may install, as a facility on the demised Premises, or at such other
places as the parties may agree upon, a direct line telephone to the nearest office of
Concessionaire for the purpose of supplying automobile rental service to Airport
patrons during periods when other automobile rental facilities of Concessionaire are
closed.
J. Concessionaire shall select and appoint a full time manager of its operations herein
authorized. Such manager shall be highly qualified and experienced, and vested
with full power and authority to act in the name of Concessionaire in respect to the
method, manner and conduct of the operation of the rental car facilities to be
performed under this Agreement. Such manager or supervisor shall be assigned to a
duty station at Airport where he or she shall be available during regular business
hours, and at all times during the Manager's absence a duly authorized subordinate
shall be in charge and available at such duty station.
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K. Concessionaire shall provide, at Concessionaire's sole expense, a sufficient number
of employees to effectively and efficiently operate the Concession at the Airport.
Concessionaire shall employ enough persons to maintain adequate levels of
automobiles available for rental.
L. Concessionaire shall control the conduct, demeanor and appearance of its employees
and representatives. Concessionaire's employees while on duty, shall wear
acceptable uniforms, or other suitable attire, complete with name-tags identifying
such employees, which shall, at all times, be maintained in a neat, orderly and clean
condition. Such employees shall be trained by Concessionaire to render a high
degree of courteous and efficient service and it shall be the responsibility of
Concessionaire to maintain close supervision over such employees to assure the
rendering of a high standard of service to the public and the patrons of the rental car
concession. Upon reasonable objection from Authority concerning the conduct,
demeanor or appearance of such persons, Concessionaire shall forthwith take all
steps necessary to remove the cause of the objection.
M. Concessionaire shall not permit its employees to engage in the solicitation of the
services offered by Concessionaire outside of its rental counter area. Authority shall
be the sole judge as to whether the conduct of Concessionaire's employees in the
solicitation of business constitutes a violation of this Paragraph 7.1, and upon notice
from Authority, Concessionaire shall forthwith take all steps necessary to eliminate
the condition complained of.
N. Concessionaire shall so conduct and carry on its automobile rental business on the
Airport so as to maintain a friendly, cooperative, competitive relationship with other
Rental Car Companies engaged in like business at the Airport and shall not engage
in open, or public disputes, disagreements, or conflicts tending to impair the quality
of the automobile rental service of Concessionaire or its competitors or be
incompatible to the best interest of the public at the Airport. Authority shall have the
right to resolve all such disputes, disagreements, or conflicts and its resolution
thereof, shall be binding upon Concessionaire.
O. In order to maintain the visual appearance of the Landside Building and to avoid
visual clutter, Concessionaire shall keep its terminal counter, and back wall visible
to the public, free and clear of all advertisements, hand-outs, schedules of rates,
special offerings and any and all other material which Authority, in its sole
judgment, deems undesirable. Concessionaire agrees to promptly remove all such
material and matter from public view upon instruction of an authorized
representative of Authority to do so.
P. Concessionaire shall promptly respond to any and all written complaints of patrons
within 48 hours of receipt of such complaint and shall promptly deliver to Authority
a copy of such complaint and a copy of such written response to such complaining
patron.
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Q. Concessionaire shall provide and maintain on or conveniently close to the Airport, at
Concessionaire's sole expense, adequate facilities to service and store vehicles used
in operation of the concession at the Airport. Such facilities, if not already available,
shall be constructed as soon as possible, but in no event later than 90 days following
the commencement date of this Agreement. For purposes of this Paragraph 7.1,
"Conveniently Close" shall mean within a one-way driving time of 10 minutes under
normal traffic conditions.
R. Concessionaire shall, during the term of this Agreement, be qualified to do business
in the Commonwealth of Kentucky and shall obtain and maintain all necessary
business licenses and permits from Louisville Metro Government or other applicable
governmental authority.
SECTION 8. INSTALLATION OF IMPROVEMENTS AND TENANT FINISHES
8.1 The existing rental car counter located on the Premises is available to the Concessionaire “as
is” in its present condition. On the back wall behind the counter, Concessionaire will
provide a sign identifying Concessionaire, said sign to be of a size, color, style and material
selected solely by Authority and uniform for all rental car concessionaires.
8.2 Subject to prior written approval by Authority, Concessionaire, at its expense, shall provide
all other improvements and finishes desired by Concessionaire, or required but not provided
by Authority pursuant to Paragraph 8.1 above. The improvements and/or finishes to be
provided by Concessionaire include, but are not necessarily limited to, the counter insert(s)
and office area floor and wall covering. The Concessionaire shall be required to modify or
improve the leased space in the Landside Terminal at its expense to comply with new design
standards or guidelines promulgated by the Authority from time to time. Concessionaire
shall use the ceiling and lighting as provided by Authority and shall not be permitted to alter,
change or augment such fixtures.
8.3 Concessionaire shall prepare, and submit to Authority for its written approval, plans and
specifications for construction of improvements and tenant finishes to the Premises,
pursuant to Paragraph 8.2 above, for operation of its terminal counter and office area for the
Rental Car Concession in the Landside Building at the Airport and the kiosk in the QTA
(hereinafter referred to as the "Initial Improvements"). Concessionaire agrees that it shall,
not later than 60 days after direction by the Authority, submit detailed plans and
specifications for the proposed Initial Improvements to be made to the Premises to Authority
for approval. Authority agrees that it shall either approve said plans and specifications as
submitted, or transmit to Concessionaire all reasonable revisions that must be made to said
plans and specifications in order to obtain Authority approval, within 30 Calendar Days of
receipt of said plans from Concessionaire. If Authority requires revisions of the original
plans and specifications, Concessionaire shall have not more than 30 Calendar Days from
the date of receipt of said proposed revisions to resubmit the plans and specifications for
Authority approval. Upon receiving final Authority approval of the plans and specifications,
Concessionaire shall engage a qualified contractor(s) to construct said Initial Improvements.
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Construction shall commence promptly and shall be completed in a diligent manner. Initial
Improvements constructed pursuant to this provision shall become the property of Authority
during and upon final completion of construction except the rental car kiosk.
8.4 While it is agreed and understood that Concessionaire is not hereby granted any such right
nor is Authority hereby obligated to confer any such approval, Concessionaire may be
permitted to construct, or otherwise make, other improvements in addition to the Initial
Improvements specified in Paragraph 8.3 above, to the Premises from time to time
(hereinafter referred to as "Subsequent Improvements") subject to prior written Authority
approval, at Concessionaire's sole cost and expense. Concessionaire agrees that it shall
submit detailed plans and specifications for all of the proposed Subsequent Improvements to
Authority for written approval prior to commencing any such work. Upon receiving final
Authority written approval, if such approval is given, of the plans and specifications,
including a construction time schedule, Concessionaire shall engage a qualified contractor(s)
to construct said Subsequent Improvements. Subsequent Improvements undertaken
pursuant to this provision shall become the property of Authority during and upon final
completion of construction.
8.5 Concessionaire shall not allow renovations or construction, including the Initial
Improvements or any Subsequent Improvements, to commence on the Premises without first
assuring Authority that all applicable Equal Employment Opportunity/ Nondiscrimination
and Minority or Disadvantaged Business Enterprise provisions have been included as part of
the contract for such renovation or construction work. Concessionaire shall indemnify and
hold Authority, its officers, agents and employees, free and harmless from any and all
claims, suits, loss or damage, or injury to persons or property resulting from or arising out of
construction or renovation on the Premises unless such acts result from the sole negligence
of Authority, its employees, agents and representatives. Concessionaire shall not commence
or undertake any such permitted work nor will allow or permit any agent, independent
contractor or subcontractor ("Contractor") to commence work until all performance and
payment bonds and all insurance certificates required hereunder have been approved and are
in Authority's possession. Approval of the insurance by Authority shall not relieve or
decrease the liability of Concessionaire or its agents, independent contractors, or
subcontractors. Concessionaire shall furnish Authority, at Concessionaire's sole expense the
following:
A. Performance and Payment Bonds. These bonds shall have surety satisfactory to
Authority, in a sum equal to 100% of the amount of the improvements to be made,
payable to Authority, to insure the execution of the entire work according to the
approved plans and specifications, and for payment of labor and material suppliers.
B. Kentucky Unemployment Insurance Bonds. Under the provisions of KRS 341.315
and 341.317, provide a separate bond, or have specific provisions made in the
Payment Bond to assure payment of all unemployment contributions which become
due and payable under the Kentucky Unemployment Insurance Law.
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C. Public Liability and Property Damage. This insurance shall protect the Contractor,
and Concessionaire and Authority as additional insureds, against liability, claims, or
costs thereof, for personal injury or property damage resulting from the performance
of the construction contract, including personal injury, death, or property damage,
resulting from operations of subcontractors under the construction contract, in
combined single limits of not less than $1,000,000 resulting from any one accident.
D. Automobile Public Liability and Property Damage. This insurance shall protect the
Contractor, and Concessionaire and Authority as additional insureds, against
liability, claims, or costs for personal injury or death, and property damage in the
combined single limits of not less than $1,000,000.
E. Workers' Compensation and Employer's Liability. The Contractor shall provide the
statutory limits of coverage for all of the Contractor's employees engaged in work on
the Premises and shall assure that its subcontractors provide such coverage for each
of their employees engaged in work on the Premises.
8.6 Concessionaire shall have the right, at its own expense for construction, erection and
maintenance, to place in or on the Premises, a sign identifying Concessionaire, and to install
corporate identification, as deemed appropriate by Authority. Said sign and corporate
identification shall be of a size, shape, design and at a location approved in advance and in
writing by Authority and in conformance with Authority's overall directional graphics and
informational sign program. It is understood, however, that said sign and location may be
changed and altered from time to time as mutually agreed upon. Notwithstanding any other
provision of this Agreement, said sign and corporate identification shall remain the property
of Concessionaire. Concessionaire, at the direction of Authority, shall remove, at
Concessionaire's expense, the sign and corporate identification at the expiration of the term
of this Agreement.
8.7 Authority may construct additional QTA Common Facilities during the term hereof;
including but not limited to additional parking spaces, wash racks, fuel island and weather
canopy. Concessionaire agrees to cooperate with Authority in the installation of such
improvements.
SECTION 9. MAINTENANCE AND REPAIR
9.1 Maintenance and repair of the Premises located in the Landside Building shall be as follows:
A. Authority shall maintain the exterior and public areas of the Landside Building at the
expense of Authority.
B. Concessionaire shall, at its expense, maintain, restore, repair or replace all
improvements and finishes which Concessionaire constructed as part of the Initial
Improvements or Subsequent Improvements in or on its Premises in the Landside
Building in a workmanlike manner, including but not limited to all furnishings,
equipment, exterior facades, interior partitions, walls, ceilings, doorways, and doors,
floors, signs and fixtures, and Authority shall not in any way be called upon for such
18
maintenance, repairs or replacement. In addition, throughout the term of this
Agreement, Concessionaire shall be obligated, without cost to Authority, to maintain
the Premises and every part thereof in good appearance, repair and safe condition,
normal use only excepted, and free of any claims or liens or similar claims. All such
maintenance, repairs, restorations and replacements shall be of quality equal to the
original in materials and workmanship, and all exposed surface finish shall be
subject to the prior written approval of Authority.
9.2 Maintenance and repair of the QTA shall be as follows:
A. Common Facilities, Pavement and Exterior Surfaces. Concessionaire and all other
Rental Car Companies using the QTA shall have the joint and several obligation to
keep the Common Facilities clean, tidy and free of unsafe or dangerous conditions.
The Concessionaire and Rental Car Companies shall provide the Authority a list of
which Rental Car Companies, including Concessionaire, are responsible for each
individual area of the Common Facilities.
B. Authority will provide, at Concessionaire's expense, general maintenance, periodic
maintenance and repair of the exterior surfaces of the Common Facilities and QTA
Parking Spaces (including all pavement, parking, parking space company sign posts,
but not signs; including landscaped areas, and exterior walls, doors, windows, roofs,
etc. of all structures and buildings that constitute part of the QTA). Authority
maintenance shall not include the rest rooms, snow removal or the pick up and
disposal of trash or debris on the Premises. The maintenance and repair shall be
performed at the level deemed reasonably necessary by Authority to keep the QTA
in good condition and repair. If the Authority deems that the above maintenance, for
which the Concessionaire and Rental Car Companies are responsible, is not
completed in a satisfactory manner, the Authority shall have the option of using its
own employees or of contracting for such maintenance and repair and
Concessionaire shall be invoiced at actual costs for materials and labor, plus 30%
markup.
C. The costs of such maintenance and repair, including all administrative expenses
associated therewith, shall be charged no more frequently than on a monthly basis to
all Rental Car Companies and Concessionaire and shall be payable by
Concessionaire within 15 days after an invoice for the same is sent to
Concessionaire. The total monthly cost shall be divided on a per space basis among
those Rental Car Companies and Concessionaire actually using the QTA.
Extraordinary maintenance or repair costs reasonably attributable to one Rental Car
Company shall be charged to individual Rental Car Company or Concessionaire as
appropriate and shall be payable within 15 days after an invoice is sent to
Concessionaire.
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D. Rest Rooms. Concessionaire shall be jointly and severally responsible with the
other Rental Car Companies for the maintenance and repair of the rest rooms
(including all utilities, systems and fixtures) and shall keep them in good condition
and repair and sanitary, clean, and free of unsafe or dangerous conditions, all at no
cost to Authority. This obligation shall include but shall not be limited to the
obligation to provide daily janitorial service at no cost to Authority. Concessionaire
shall, before hiring janitorial service, provide the name of the janitorial service in
writing to Authority. The janitorial service provided shall be subject to the prior
approval of Authority, such approval shall not be unreasonably withheld.
E. Common Facilities. Except for Authority responsibility for exterior maintenance
provided in Paragraph 9.2 B. hereof, Concessionaire shall be jointly and severally
responsible with the other users of Common Facilities for the general maintenance,
periodic maintenance, and repair of the Common Facilities (including all utilities,
systems, equipment and fixtures), all at no cost to Authority. The Common
Facilities shall be kept in good condition and repair and clean, tidy and free of any
unsafe or dangerous conditions.
F Exclusive Space. Concessionaire shall be solely responsible for the maintenance
and repair of its Exclusive Space (including all utilities, systems, equipment, and
fixtures) and shall keep it in good condition and repair and clean, tidy and free of
unsafe or dangerous conditions, all at its own expense and at no cost to Authority.
G. Fuel Tanks. Concessionaire shall be solely responsible for the maintenance and
repair of any exclusively used fuel tank, piping, dispensing and related equipment
and systems ("fuel system"). Concessionaire shall be jointly and severally
responsible with the other users thereof for the maintenance and repair of any shared
fuel tank and related equipment and systems. The fuel system shall be kept in good
condition and repair and in compliance with all Environmental Laws.
H. Authority shall have the right, but not the obligation, to hire a responsible
environmental engineer or other expert ("Engineer") to inspect the fuel system
located at the QTA on a regular basis, and the cost thereof shall be charged no more
frequently than on a monthly basis to all Rental Car Companies and Concessionaire
and shall be payable by Concessionaire within 15 days after an invoice for the same
is sent to Concessionaire. The total monthly cost shall be divided on a per space
basis among those Rental Car Companies and Concessionaire using the QTA.
I. Any items determined by the Engineer to require maintenance, repair or replacement
with respect to a fuel system component used by Concessionaire shall be remedied
by Concessionaire within 30 days after written notice of the same is sent to
Concessionaire, or earlier if such maintenance, repair or replacement is required,
either in the professional opinion of the Engineer, to protect the environment. If the
required maintenance, repair or replacement is not accomplished within such time,
then Authority may accomplish the same and Concessionaire shall pay the cost
thereof; provided, however, that if Concessionaire shares the use of a fuel system,
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Concessionaire shall be jointly and severally responsible with the other users for the
cost. All fines, penalties, or charges by any controlling agency levied on the
Authority for the fuel system becoming out of repair shall be paid to the Authority
forthwith.
J. Concessionaire shall allow access to the QTA to Authority and its employees,
agents, contractors and designees at all reasonable times for the purpose of
inspecting, maintaining or repairing all or any portion of the QTA
9.3 If Concessionaire fails to perform its obligations under this Section 9 and if such failure
shall continue, Authority may, at its sole option, after 30 days notice to Concessionaire, or
24 hours for the pick up and disposal of trash and debris, undertake and complete any such
maintenance, repairs or replacements, and the cost plus 30% markup plus $500.00 thereof
shall be paid by Concessionaire to Authority no later than 30 days following receipt of
proper invoice from Authority for completion of such maintenance, repairs or replacements.
SECTION 10. UTILITIES
10.1 Authority will provide utilities to meet the reasonable demands of Concessionaire, and
Concessionaire shall have the right to use such utility service facilities located on the
Premises at the commencement of the term hereof. In addition, should Concessionaire's
operations require any utility connections which are not in place or installed at the time of
the commencement of the term of this Agreement, Authority will, at Concessionaire's
expense, extend such facilities to the Premises. Authority's obligation hereunder shall be
limited to the availability of any required or requested utilities facilities within the Landside
Building and the QTA and nothing herein shall obligate Authority to provide any utility to
Concessionaire that is not otherwise available to Authority in said building or facility. Such
limitation shall also include the inability of Authority to provide utility facilities or service,
due to the imposition of any limit on consumption, or on the construction of additional
utility service facilities, or due to the allocation of additional utility service facilities, or due
to the allocation or curtailment of utility facilities or service by regulation, act of law or in
any other manner beyond the control of Authority.
10.2 Concessionaire shall provide for the direct payment of all utilities associated with its use of
the QTA including but not limited to its QTA Exclusive Space. Utilities used in QTA
Common Facilities shall be payable on a pro rata basis by all users thereof based upon the
number of spaces of actual users unless the users agree to another method of apportionment.
SECTION 11. QTA MANAGEMENT AND OPERATION
11.1 Except for Authority obligations specified herein, the QTA shall be managed and operated
jointly and severally by Concessionaire and other Rental Car Companies. This management
and operation includes, but is not limited to, the obligations contained in this Agreement and
the ordering, quality control, and accounting and paying for fuel, lubricants, fluids, washing
materials and other products used by Concessionaire and other Rental Car Companies
regarding the QTA.
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11.2 The Concessionaire and Rental Car Companies shall provide the Authority a list of which
Rental Car Companies, including Concessionaire, are responsible for each individual area of
the Common Facilities.
11.3 Concessionaire and other Rental Car Companies may engage the services of a contractor or
other agent to manage and operate the QTA on their behalf, subject to the prior written
approval of Authority.
SECTION 12. ALLOCATION OF QTA SPACES
12.1 QTA Parking Spaces shall be allocated by Authority on October 1, 2005. Authority shall
thereafter allocate the spaces annually, with at least 15 days notice to Concessionaire,
effective the first day of October each year.
12.2 The number of spaces allocated to Concessionaire shall be determined by Concessionaire's
Market Share provided that Concessionaire shall be allocated not less than 25 spaces.
"Market Share" shall be Concessionaire's percentage of those Concession Agreement gross
receipts from all Rental Car Companies, including Concessionaire, using the QTA for the
preceding Authority fiscal year. Concessionaire’s gross receipts from transactions occurring
from locations on the Airport other than from the Landside Terminal Building shall be
excluded in the space allocation.
12.3 The number of spaces allocated to Concessionaire shall be determined by multiplying
Concessionaire's Market Share by the total spaces available.
12.4 If any Concessionaire's number of spaces by such calculation would be less than 25, then
each such Concessionaire shall be allocated 25 spaces.
12.5 If any Rental Car Concessionaires or Companies are allocated 25 spaces in accordance with
paragraph 12.4 above, then the number of spaces to be allocated to the remaining
Concessionaires shall be reduced, if necessary, as follows: One space will be deducted from
each remaining Concessionaire starting with Concessionaire with largest Market Share. The
deduction will continue, if necessary, by returning to Concessionaire with largest Market
Share to start another turn or turns, until enough spaces are deducted to fill out the 25 space
minimum for Paragraph 12.4 Concessionaires.
12.6 Location of Concessionaire's allocated spaces shall be determined at the reasonable
discretion of Authority. Authority shall consider ease of passenger access to all
Concessionaires' spaces and to the terminal building, and benefits of contiguity among
individual Concessionaire spaces.
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12.7 Concessionaire acknowledges that during the term or any additional term of this Agreement
the number of spaces allocated to Concessionaire under Section 12, and the total Rent
payable therefrom may increase or decrease due to changes in Market Share as defined in
Section 12 resulting from more or fewer Concessionaires using the QTA and/or changes in
gross receipts in relation to other Rental Car Companies using the QTA.
12.8 If the termination of a defaulting Concessionaire or Rental Car Company occurs during the
term of this Agreement, spaces shall be reallocated, and assigned, with not less than 15 days
notice, to the remaining Rental Car Companies in accordance with Section 12.
SECTION 13. OWNERSHIP OF QTA
13.1 QTA Facilities, improvements, and appurtenances shall be at all times and remain the sole
and exclusive property of Authority.
SECTION 14. ENVIRONMENTAL RESPONSIBILITIES
14.1 Environmental Law. As used herein, the term "Environmental Laws" shall mean for
purposes of this Agreement, all local, state and federal environmental laws, rules,
regulations and ordinances governing the maintenance and use of underground storage
tanks, the storage, dispensing and cleanup of petroleum and its related products, and the
handling, release and cleanup of any Regulated Substances as they are defined in this
Agreement.
14.2 Regulated Substances. As used herein, "Regulated Substances" shall include without
limitation, glycol and other similar substances and shall also have the meaning ascribed in
and shall include without limitation those substances listed in the Comprehensive
Environmental Response, Compensation and Recovery Act of 1980, 42 U.S.C. Section 9601
et seq. and the regulations promulgated thereunder (as amended from time to time) and
includes oil and oil waste as those terms are defined in the Clean Water Act, 33 U.S.C.
Section 2501 et seq. and regulations promulgated thereunder (as amended from time to
time) and the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et
seq. and shall also include any other elements, compounds, mixtures and other substances
listed by the United States Environmental Protection Agency (USEPA) and any toxic
pollutants designated by the U.S. Congress or the USEPA or defined by any other federal,
state or local statute, law, ordinance, code, rule, regulation, order or decree relating to,
regulating, or imposing liability or standards of conduct concerning any hazardous, toxic or
dangerous waste, substance or material, as now or at any time hereafter in effect. This
definition shall specifically include petroleum hydrocarbons in any form.
14.3 Concessionaire shall comply with all Environmental Laws as they are defined in this
Agreement. In addition, any release to the environment of a Regulated Substance occurring
on the leased premises as a result of the actions of Concessionaire's employees, agents,
contractors, subcontractors, customers, or petroleum jobbers shall be reported to Authority
immediately. Concessionaire shall retain the responsibility to report said release to those
regulatory agencies specified by statute.
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14.4 In the event of a release of a Regulated Substance during Concessionaire's occupancy of the
QTA under this Agreement or otherwise due to Concessionaire's actions, negligence, or
failure to comply with this Section, Concessionaire shall be responsible for all costs related
to the environmental remediation of the QTA. Concessionaire agrees to indemnify
Authority and hold Authority harmless from and against any and all claims, losses,
liabilities, including strict liability, damages, injuries, costs, and/or expenses, including
reasonable attorneys' fees, claims for damage to the environment, claims for fines or civil
penalties, costs of any settlement or judgment and claims of any and every kind whatsoever
paid, incurred or suffered by, or asserted against Authority by any person or entity or
governmental agency for, with respect to, or as a direct or indirect result of, such
environmental contamination and/or remediation.
14.5 Concessionaire agrees that if Concessionaire shall violate or fail to comply with any of the
provisions of this section, breach of Agreement shall have occurred and Authority shall be
entitled to exercise its remedies for breach herein.
SECTION 15. TAXES
15.1 Concessionaire shall at its own expense pay all federal, state and local taxes that may be
assessed against it, its leasehold interest or its equipment while in or upon the Premises or
elsewhere on the Airport, as well as all federal, state and local taxes assessed in connection
with the operation of its business authorized and permitted hereunder. Authority is a body
politic and corporate, and by virtue of KRS 183.138, property of Authority is exempt from
taxation. If at any time during the term of this Agreement, or any extension thereof, the
statutory tax exemptions of Authority become void or inoperative for any reason, then
Concessionaire shall pay any taxes which are imposed upon Authority on the Premises.
Concessionaire may, however, at its sole cost and expense, protest and challenge any such
tax levy or assessment; provided, however, such protest or challenge shall not relieve
Concessionaire of any obligation under this Section.
SECTION 16. LAWS AND REGULATIONS
16.1 Concessionaire shall comply with all federal, state and local laws, rules and regulations,
including Regulations of Authority as the same may be amended from time to time,
which may apply to the service herein contemplated and Concessionaire shall keep in
effect all licenses or permits necessary and/or required by law. Authority shall be held
free and harmless from any act or failure by Concessionaire to comply with this
provision.
16.2 Nothing herein contained shall be construed as granting or authorizing the granting of an
exclusive right within the meaning of Section 308 of the Federal Aviation Act. This
Agreement shall be subordinate to the provisions of any existing or future agreement
between the Authority and the United States of America or any department or agency
thereof relative to the operation or maintenance of the Airport, the execution of which has
been or may be required by the provisions of the Federal Aviation Act, or any future
statute affecting the operation or maintenance of the Airport.
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16.3 In the event that the Federal Aviation Administration (“FAA”) requires, as a condition
precedent to the granting of funds for the improvement of the Airport or otherwise,
modifications, revisions, supplements or deletions of any of the terms, conditions or
requirements of this Agreement, then Concessionaire agrees that such changes as may be
reasonably required to enable the Authority to obtain such funds shall be permitted.
SECTION 17. INDEMNIFICATION
17.1 Concessionaire agrees to indemnify and save Authority, its officers, agents, and employees
harmless from any liability, including, but not limited to, claims, judgments, an amount
equal to any fines, costs, and reasonable attorneys' fees, to persons or property resulting
from or arising out of the use or occupancy of the Premises or other facilities on the Airport,
or caused by or resulting from the exercise of the rights and privileges granted hereunder.
SECTION 18. INSURANCE
18.1 Concessionaire agrees to carry and furnish Authority a certificate(s) of insurance, in single
limit amounts not less than $2,000,000 for public liability, property damage and bodily
injury and in single limit amounts of not less than $1,000,000 for automobile liability, both
licensed and unlicensed, in a company or companies acceptable to Authority, in which
policy Authority shall be named an additional insured, and Concessionaire shall furnish
satisfactory evidence that such insurance is in effect and will not be canceled during the term
of this Agreement without 30 days prior written notice of such cancellation to Authority.
Concessionaire shall carry Workers' Compensation Insurance covering its employees
employed at the Airport.
18.2 Authority shall provide, as a part of its overall insurance program, all risk property insurance
in an amount equal to not less than 80% of the full replacement value of the Premises and
any and all leasehold improvements, tenant finishes, or additions made on or to the Premises
by Concessionaire, but not the personal property or other contents, to the extent that such are
insurable under all risk property insurance policies, and Concessionaire agrees that it shall
reimburse Authority, in addition to the rent, its pro rata share of the cost of such insurance
upon the presentation of proper invoice and satisfactory evidence of the cost of said
insurance provided that said insurance is in force during the term of this Agreement. In the
event of fire or other insured damage, the proceeds of such insurance shall be used to restore
the Premises to the condition existing prior to such damage, within 60 days after such
damage shall occur, to the extent that the insurance proceeds are sufficient for that purpose,
unless the parties agree to a termination of this Agreement, in which event the proceeds shall
be divided between the parties as their respective interests may appear. Concessionaire shall
be entitled to an abatement of the rent, otherwise due Authority during such 60 day period,
in proportion to the untenantable part of the Premises to the whole; provided the damage
does not result from acts, omissions, or negligence of Concessionaire. For the purpose of
dividing the insurance proceeds hereunder, the percentage due each party shall be computed
as follows: Concessionaire's undepreciated cost of leasehold improvements, but not the cost
of inventory, contents or other personal property, shall be divided by the then-current
insured value of Premises, the quotient being Concessionaire's percentage of the insurance
proceeds; provided, however, Concessionaire shall not be entitled to, nor paid, a sum greater
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than its then-current undepreciated cost of leasehold improvements. Authority shall be
entitled to and receive the balance of the insurance proceeds.
18.3 Concessionaire shall at no time use the Premises or permit them to be used in such a manner
as to increase the rate of Authority's insurance thereon. In case of Concessionaire's violation
of this paragraph, Concessionaire agrees to reimburse Authority the increase in cost of
insurance as additional rent. In case the Premises are so used that Authority cannot effect
insurance thereon, Concessionaire agrees to become the insurer thereof, but Authority shall
nonetheless have the right to cancel this Agreement forthwith.
SECTION 19. AUTHORITY NOT LIABLE FOR DAMAGE
19.1 Authority shall not be liable to Concessionaire for any damage either to person or property,
sustained by Concessionaire or by other persons, due to the Airport or any improvements
thereon or any part thereof or any appurtenances thereof becoming out of repair, or due to
the happening of any accident in or about the Airport, or due to any act or neglect of any
tenant or occupant of the Airport, or of any other person except to the extent caused by the
negligence of Authority, its officers, employees, agents and representatives. Without
limiting the generality of the foregoing, Authority shall not be liable for damage caused by
water, steam, sewerage, gas, bursting or leaking of pipes or plumbing or electrical causes, or
the negligence of contractors, employees, agents, or licensees of Authority, unless the
damage is proved to be the result of the negligence of Authority, its officers, employees,
agents and representatives.
SECTION 20. INDEPENDENT CONTRACTOR
20.1 In its occupancy of the Premises and in conducting its business hereunder, Concessionaire
acts as an independent contractor and not as an agent of Authority. The selection, retention,
assignment, direction, and payment of Concessionaire's employees shall be the sole
responsibility of Concessionaire. Authority shall not attempt to exercise any control over
the daily performance of duties by Concessionaire's employees, except to the extent and in
the manner required by law or regulation or in order to meet security obligations mandatory
for continued operation or certification of the Airport.
SECTION 21. ASSIGNMENT, TRANSFER OR SUBLEASE
21.1 Neither this Agreement nor any of the rights and privileges of Concessionaire hereunder, or
any part thereof, may be assigned, transferred, or subleased by Concessionaire by process or
operation of law or in any other manner whatsoever, without the written consent of
Authority.
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21.2 Concessionaire may sublease one or more of the parking spaces allocated to it under this
Concession Agreement provided that 1) any such sublessee has a concession agreement or
permit to operate as a rental car company on the Airport, 2) rent paid by the sublessee to
Concessionaire does not exceed rent due Authority from Concessionaire hereunder, and 3)
Concessionaire obtains prior written consent to sublease in accordance with Paragraph 21.1,
which shall not be unreasonably withheld.
21.3 Concessionaire recognizes Authority's interest in proving continuity of services for users of
the Airport, and agrees that Authority shall be notified in advance of any proposed change of
control of Concessionaire, including notice in the event that control of Concessionaire is
proposed to be transferred to a subsidiary or affiliate of Concessionaire. Such new
controlling interest shall be subject to prior written approval by Authority.
SECTION 22. NONDISCRIMINATION AND DISADVANTAGED BUSINESS
ENTERPRISES
22.1 The Concessionaire for itself, its successors in interest, and assigns, as a part of the
consideration hereof, does hereby covenant that in the event facilities are constructed,
maintained, or otherwise operated on the said property described in this Agreement for a
purpose for which a U.S. Department of Transportation (“DOT”) program or activity is
extended or for another purpose involving the provision of similar services or benefits,
the Concessionaire 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 (“Part 21”) and as said
Part 21 may be amended.
22.2 The Concessionaire for itself, its successors in interest, and assigns, as a part of the
consideration hereof, does hereby covenant and agree 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 the Concessionaire shall use the Premises in compliance with
all other requirements imposed by or pursuant to Part 21, and as said Part 21 may be
amended.
22.3 During the term of this Agreement, the Concessionaire, for itself, its assignees and
successors in interest agree as follows:
(1) Compliance with Part 21. The Concessionaire shall comply with the
provisions of Part 21 relative to nondiscrimination in federally assisted programs of the
DOT, as such may be amended from time to time, and which are herein incorporated by
reference and made a part of this Agreement.
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(2) Nondiscrimination. The Concessionaire, with regard to the work
performed by it during the term of this Agreement, shall not discriminate on the grounds
of race, color, or national origin in the selection and retention of subconcessionaire or
sub-contractors, including procurements of materials and leases of equipment. The
Concessionaire shall not participate either directly or indirectly in the discrimination
prohibited by Section 21.5 of Part 21, including employment practices when this
Agreement covers a program set forth in Appendix B of Part 21.
(3) Solicitations for Subconcession Agreements and Subcontracts, Including
Procurements of Materials and Equipment. In all solicitations either by competitive
bidding or negotiations made by the Concessionaire for work to be performed under a
subcontract, including procurements of materials or leases of equipment, each potential
subcontractor or supplier shall be notified by the Concessionaire of the Concessionaire’s
obligations under this Agreement and Part 21 relative to nondiscrimination on the
grounds of race, color, or national origin.
(4) Information and Reports. The Concessionaire shall provide all
information and reports required by Part 21 or directives issued pursuant thereto and shall
permit access to its books, records, accounts, other sources of information, and its
facilities as may be determined by the Authority or the Federal Aviation Administration
(“FAA”) to be pertinent to ascertain compliance with such Part 21, orders, and
instructions. Where any information required of the Concessionaire is in the exclusive
possession of another who fails or refuses to furnish this information, the Concessionaire
shall so certify to the Authority or the FAA, as appropriate, and shall set forth what
efforts it has made to obtain the information.
(5) Sanctions for Noncompliance. In the event of the Concessionaire’s
noncompliance with the nondiscrimination provisions of this Agreement, the Authority
shall impose such Agreement sanctions as it or the FAA may determine to be appropriate,
including, but not limited to:
a) Withholding of payments to the Concessionaire under the Agreement until
the Concessionaire complies, and/or
b) Cancellation, termination, or suspension of the Agreement, in whole or in
part.
(6) Incorporation of Provisions. The Concessionaire shall include the
provisions of paragraphs 22.3 (1) through (5) in every subconcession agreement or
subcontract, including procurements of materials and leases of equipment, unless exempt
by Part 21or directives issued pursuant thereto. The Concessionaire shall take such
action with respect to any subcontract or procurement as the Authority or the FAA may
direct as a means of enforcing such provisions including sanctions or noncompliance.
Provided, however, that in the event a Concessionaire becomes involved in, or is
threatened with, litigation with a subcontractor or supplier as a result of such direction,
the Concessionaire may request the Authority to enter into such litigation to protect the
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interests of the Authority and, in addition, the Concessionaire may request the United
States to enter into such litigation to protect the interests of the United States.
SECTION 23. AIRPORT CONCESSION DISADVANTAGE BUSINESS ENTERPRISES
(ACDBE).
23.1 Compliance with Part 23. This Agreement is subject to the requirements of DOT's
regulations, 49 CFR Part 23, Participation by Disadvantaged Business Enterprises in
Airport Concessions (“Part 23”). 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, management
contract, or subcontract, purchase or lease agreement, or other agreement covered by Part
23.
23.2 Incorporation of Provision. Concessionaire agrees to include the above statements in any
subsequent concession agreement or contract covered by Part 23, that it enters and cause
those businesses to similarly include the statements in further agreements.
23.3 ACDBE Goal. The ACDBE goal for this Agreement is 2%, as measured as a percentage
of Concessionaire’s total annual gross receipts. Concessionaire covenants that it shall
take all necessary and reasonable steps to achieve this goal. ACDBE participation shall
be counted toward this goal as provided in Part 23. Concessionaire agrees to submit
information to the Authority as required concerning the participation of certified ACDBE
firms. If Concessionaire cannot achieve the stated goal, it shall provide documentation to
the Authority that it has taken Good Faith Efforts, as defined in Part 23, in attempting to
achieve the stated goal.
SECTION 24. PENDING CONSTRUCTION AND NON DEFAULT TERMINATION
24.1 Concessionaire acknowledges that under Authority sponsored projects, construction
activities may result in disruption and/or relocation of the Airport roadways, parking and
driveway facilities. Concessionaire waives any claim of breach or default of this Agreement
by Authority as a result of any such construction activities and/or relocation under such
projects.
24.2 Authority, in its sole discretion, may terminate Concessionaire's use of the QTA and those
provisions of this Agreement pertaining thereto, effective as determined by the Authority,
upon not less than one year’s written notice. In the event of such termination,
Concessionaire shall not be obligated to pay QTA rentals accruing after the effective date of
such termination.
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SECTION 25. TERMINATION BY CONCESSIONAIRE; ABATEMENT OF CERTAIN
PAYMENT
25.1 Upon the occurrence of A or B below, the Concessionaire shall have the right to terminate
this Agreement upon 30 days written notice to the Authority. Upon the occurrence of C
below or in lieu of terminating the Agreement upon the occurrence of A or B below, the
Concessionaire shall not be obligated to pay the portion of the Concession Fee required by
4.1.B. and 4.1.C. and the portion of the Concession Fee required by 4.1.A. shall be
determined solely by 4.1.A.1. and the minimum guarantee provided for in 4.1.A.2. shall be
inapplicable, so long as such condition remains uncorrected.
A. The abandonment of Louisville International Airport as an air terminal for
certificated passenger air carriers for a continuous period of 90 days or longer.
B. The lawful assumption by the United States of America, or any authorized agency
thereof, of the operation, control or use of the Airport, or any substantial part or
parts thereof in such a manner as to substantially restrict Concessionaire from
operating therefrom for a period in excess of 90 days.
C. The damage or destruction of all or a material part of the Premises used or occupied
by Concessionaire hereunder or damage or destruction of all or a material part of the
Airport or Airport facilities, including access to public roads, which is necessary to
the operation of Concessionaire's business except to the extent and in the event such
damage or destruction results from acts or negligence of Concessionaire.
SECTION 26. TERMINATION BY AUTHORITY
26.1 In addition to all other termination rights contained herein, this Agreement shall be subject
to termination by Authority should any one or more of the following events or defaults
occur:
A. If Concessionaire should fail to perform any of the terms, covenants, or conditions
of this Agreement or fail to keep in force any of the required insurance policies or
performance sureties specified herein.
B. If Concessionaire should fail to abide by all Applicable Laws, including statutes,
ordinances, rules and regulations of the United States, the Commonwealth of
Kentucky, the City of Louisville, Jefferson County, and Authority.
C. If Concessionaire should abandon and discontinue the operation of its business at the
Airport for a continuous period of seven days, except when such abandonment and
cessation is due to fire, earthquake, governmental action, or other cause beyond
Concessionaire's reasonable control.
D. If Concessionaire should default in or fail to make any payments at the times and in
the amounts as required under this Agreement.
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26.2 Upon the happening of any of the acts of default recited in paragraphs 26.1 A, B, and C
above, Authority shall give notice to Concessionaire to correct or cure such default, failure
or breach. If, within 10 days from the date of such notice in the event of a default under
paragraph 26.1 A or B and within 24 hours from the date of such notice in the event of
default under paragraph 26.1 C, Concessionaire has not corrected such condition or
conditions in a manner satisfactory to Authority, then, and in such event, Authority shall
have the right, at once and without further notice to Concessionaire, to declare this
Agreement terminated and to enter upon and take full possession of Premises.
26.3 In addition, Authority may in like manner declare this Agreement terminated and canceled,
upon the giving of five days notice thereof, in the event Concessionaire files a voluntary
petition in bankruptcy, or if a receiver is appointed for the property or affairs of
Concessionaire and such receivership is not vacated within 30 days after the appointment of
such receiver, or should the right of Concessionaire to operate be lost by operation of law.
26.4 If Authority exercises its right to cancel and terminate this Agreement and Authority
appoints or otherwise engages a substitute firm to conduct the business contemplated under
this Agreement, the obligation of Concessionaire under this Section shall be reduced by any
payments received by Authority from such substitute firm after deducting therefrom the
costs and expenses of Authority in obtaining such substitute firm and the costs to restore the
Premises to the conditions existing prior to the commencement of this Agreement if
Authority in its sole option so elects, or, as an alternative to restoration of the Premises, the
costs of readying the Premises for occupancy by such substitute firm, excluding the costs of
additional leasehold improvements.
SECTION 27. OBLIGATIONS IN EVENT OF DEFAULT
27.1 No cancellation or termination of this Agreement in accordance with the rights of either
party under this Agreement to cancel or terminate shall be considered a forfeiture, such
rights being a part of the consideration for this Agreement and of the essence hereof.
27.2 Neither party shall be in breach hereof because of any failure to perform any of its
obligations hereunder if said failure is due to any cause for which it is not responsible and
over which it has no control; provided, however, that the foregoing provision shall not
prevent either party from exercising any right it may have under this Agreement to terminate
the term hereof or to cancel this Agreement in whole or in part. The waiver of any breach,
violation or default in the performance or observation of the covenants and conditions herein
shall not constitute a waiver of any subsequent breach, violation, or default in the same or
any other covenant or condition.
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27.3 Upon the expiration or termination of this Agreement for any reason, Concessionaire, at its
sole expense, shall remove from the property and premises of Authority all signs, personal
property, equipment and materials Concessionaire is permitted to remove under this
Agreement, and Concessionaire shall restore said property and premises to the condition that
existed immediately prior to the commencement of this Agreement, reasonable wear and
tear excepted. If Concessionaire shall fail to do so within 30 days, then Authority may
effect such removal or restoration at Concessionaire's expense and Concessionaire shall pay
Authority such expense promptly upon receipt of proper invoice therefor.
27.4 If this Agreement is canceled or terminated because of an uncured breach or default by
Concessionaire prior to expiration, all Initial and Subsequent Improvements, other than free-
standing furniture, fixtures, and equipment, shall become the sole property of Authority
without cost or expense, and Authority shall owe Concessionaire nothing therefor.
SECTION 28. GOVERNMENTAL AND BOND RESOLUTIONS
28.1 Any other provision in this Agreement to the contrary notwithstanding, this Agreement is
subject and subordinate to the following: (i) War Assets Administration Instruments of
Transfer: (Standiford Field) dated February 6, 1948, in Deed Book 2332, page 378; in the
Office of the Clerk of the County Court of Jefferson County, Kentucky, as the same may
have been modified, inter alia, by Instruments of Release recorded December 17, 1953, in
Deed Book 3101, page 549; February 8, 1957, in Deed Book 3434, page 5; August 8, 1960,
in Deed Book 3647, page 264; and July 13, 1961, in Deed Book 3701, page 351; in the
office of the Clerk aforesaid; (ii) rights of parties in possession; (iii) any state of facts that a
full and complete survey and inspection of the Premises may reveal; (iv) leases, easements,
restrictions and stipulations of record or of which Concessionaire has notice; and (v) the
Airport System Revenue Bond Resolution Authorizing Airport System Revenue Bonds
dated March 16, 1983, including particularly Section 711 thereof, as amended, and now in
effect, and as may be amended hereafter from time to time, or by any future bond resolution
adopted by Authority.
SECTION 29. NOTICES
29.1 Notices to either party provided for herein shall be in writing and shall be sufficient if hand
delivered, sent by overnight courier service, or sent by certified or registered mail, postage
prepaid, addressed as follow:
To Authority: Louisville Regional Airport Authority
ATTN: Director of Properties
P.O. Box 9129
Louisville, Kentucky 40209-0129
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To Concessionaire: Vanguard Car Rental USA Inc. d/b/a Alamo
ATTN: Barbara Mathey
Properties and Airport Relations
6929 North Lakewood Avenue, Suite 100
Tulsa, Oklahoma 74117
And: Vanguard Car Rental USA Inc. d/b/a Alamo
ATTN: General Counsel
6929 North Lakewood Avenue, Suite 100
Tulsa, Oklahoma 74117
or to such other respective addresses as the parties may designate to each other in writing
from time to time. Notices shall be deemed to be received on the date delivered, if hand
delivered, or the day after depositing with an overnight courier service, or three days after
mailing, if sent by certified or registered mail.
SECTION 30. WAIVER AND SEPARABILITY OF TERMS
30.1 No waiver by either party of any default by the other shall be construed as, or operate as, a
waiver by such party of any subsequent default of any of the terms, covenants or conditions
herein contained to be performed, kept and observed by the other.
30.2 If a provision hereof shall be finally declared unenforceable or illegal by any court or
administrative agency having jurisdiction, the entire Agreement shall not be unenforceable,
but the remaining provisions shall continue as nearly as possible in accordance with the
original intent of the parties.
SECTION 31. HEADINGS
31.1 Section, paragraph, or subparagraph headings contained herein are solely for convenience
and shall have no bearing upon the construction of any of the provisions hereof.
SECTION 32. NO BROKERS INVOLVED
32.1 Concessionaire warrants and represents to Authority that no person or selling agency has
been employed or retained by it to solicit or secure this Agreement or the Concession
granted hereunder and that no person is entitled to receive commission, percentage,
brokerage, or contingent fee arising out of or as a result of the award of this Concession.
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SECTION 33. INCORPORATION OF DOCUMENTS; ENTIRE AGREEMENT
33.1 A. This Agreement, including the attached exhibits together with the following
documents, all of which are incorporated herein by reference, sets forth all the
promises, covenants, conditions and understandings between Authority and
Concessionaire relative to the Concession herein granted, and there are no promises,
covenants, conditions or understandings, either oral or written, with respect to the
Concession or this Agreement between them other than as are herein set forth:
1. Concessionaire's Bid Form
2. Addenda (if any)
3. Performance and Payment Bonds
4. Bank Letter of Credit or Surety Bond
5. Invitation to Submit Bids
6. Definition of Terms
7. Instructions to Bidders
8. General Conditions
9. Bidder's Experience and Qualifications Questionnaire
10. Insurance Certificate(s)
Except as herein otherwise provided, no subsequent alterations, amendments,
changes or additions to this Agreement shall be binding upon Authority or
Concessionaire unless reduced to writing and signed by them.
B. The above documents are to be considered as one and whatever is called for by any
one of the documents shall be as binding as if called for by all.
SECTION 34. GOVERNING LAW; TIME
34.1 This Agreement shall be governed by the laws of the Commonwealth of Kentucky. Time
shall be of the essence.
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IN WITNESS WHEREOF, the parties hereto have duly affixed their signatures on the date
hereinabove stated.
WITNESS: LOUISVILLE REGIONAL
AIRPORT AUTHORITY
____________________________ By:
C.T. “Skip” Miller, A.A.E.
Title: Executive Director
WITNESS: VANGUARD CAR RENTAL USA INC.
D/B/A ALAMO
____________________________ By:
Title:
This Agreement has been approved
for the Authority as to legality of
form and content by:
_____________________________
STITES & HARBISON, PLLC
400 West Market Street, Suite 1800
Louisville, Kentucky 40202-3352
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CERTIFICATIONS:
I, ____________________________, certify that I am the _________________________
of the Corporation named as Concessionaire herein, that _______________________________
who signed this Concession Agreement on behalf of Concessionaire, was then
__________________ of said corporation; that said Concession Agreement was duly signed for
and in behalf of said corporation by authority of its governing body, and is within the scope of its
corporate powers.
SEAL VANGUARD CAR RENTAL USA INC.
D/B/A ALAMO
By:________________________________
\\RAA_SERVER4\FILES\Properties\Concessions\Rental Cars\Alamo RAC 2005\Alamo Agreement 2005.doc
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