Rental Car Concession - __________ 1
RENTAL CAR CONCESSION LEASE AND OPERATING AGREEMENT BETWEEN BROWARD
COUNTY AND _____________________________
This Rental Car Concession Lease and Operating Agreement ("Agreement") is made and
entered into by and between Broward County, a political subdivision of the State of Florida
("County"), and ______________________________________________________________, a
__________________________________________ authorized to transact business in the State
of Florida ("Concessionaire") (collectively referred to as the "Parties").
RECITALS:
A. County owns and operates Fort Lauderdale-Hollywood International Airport,
located in Broward County, Florida ("Airport").
B. County owns and operates a Joint-Use Facility at the Airport, a portion of which is
used by rental car companies for the operation of nonexclusive rental car businesses.
C. Concessionaire is an entity engaged in the rental car business and seeks to operate
its business from the Joint-Use Facility.
Now, therefore, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties agree as follows:
ARTICLE 1. DEFINITIONS
1.1 Affiliate(s) means a Person who (i) is directly or indirectly controlled by, or under common
control with Concessionaire; or (ii) owns directly or indirectly thirty-five percent (35%) or more
of equity securities of Concessionaire; or (iii) is a general partner, officer, director, non-financial
institution trustee, or fiduciary of any Person described in (i) or (ii).
1.2 Agreement Year means the twelve (12) month period beginning on the Effective Date and
ending twelve (12) months thereafter ("Agreement Year 1"), and each twelve (12) month period
thereafter until the date this Agreement expires or terminates.
1.3 Airport Customer(s) means a person, firm, or entity that rents, picks-up, or enters into an
arrangement for the rental of a vehicle or other equipment from one of the Concessionaires at
the Airport.
1.4 Applicable Laws means all Environmental Laws and any and all applicable laws, codes,
advisory circulars, rules, regulations, ordinances, and resolutions of any governmental or quasi-
governmental entity relating to the Airport, the Premises, or activities at the Airport or the
Premises that have been or may hereinafter be adopted, including, but not limited to, all
applicable federal, state, county, and local, quasi-governmental agency laws, codes, advisory
circulars, rules, regulations, ordinances, resolutions, development orders, grant agreements,
permits, licenses, approvals, orders, and the Minimum Standards.
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1.5 Aviation Department means the Broward County Aviation Department or such other
named County organization that from time to time may exercise functions equivalent or similar
to those now exercised by the Aviation Department.
1.6 Board means the Board of County Commissioners of Broward County, Florida.
1.7 Common Busing System means a County-managed transportation system that transports
persons between the Terminals and the Joint-Use Facility.
1.8 Common Concessionaire Area means that portion of the Joint-Use Facility designated for
nonexclusive use in common by all the Concessionaires, which includes, but is not limited to,
roadways, ramps, and other facilities within the Joint-Use Facility.
1.9 Concessionaire's Parties means all sublessees, officers, agents, Affiliates, contractors,
subcontractors, vendors, employees, and invitees of Concessionaire.
1.10 Concessionaires means all entities and their permitted successors in interest that have
entered into Concession/Lease Agreements with County.
1.11 Concession/Lease Agreement(s) means each agreement entered into by and between
County and each of the Concessionaires for operation of a nonexclusive rental car concession at
the Airport from the Joint-Use Facility.
1.12 Concession Recovery Fee means a separate statement of and charge for the Percentage
Fee on Airport Customer invoices or rental agreements, which is not required, but will not be
prohibited by County provided that such Concession Recovery Fee meets all of the following
conditions: (a) such Concession Recovery Fee is permitted by Applicable Laws, including, without
limitation, the requirements of the United States Federal Trade Commission, as in effect from
time to time, as well as any commitment to or contractual obligation by Concessionaire with the
Attorney General of the State or any group of State Attorneys General; (b) such Concession
Recovery Fee shall be titled "Concession Recovery Fee," "Concession Recoupment Fee," or such
other name as approved in advance by County in writing; (c) such Concession Recovery Fee must
be shown on the Airport Customer rental car agreement and invoiced with other charges (i.e.,
"above the tax line"); (d) such Concession Recovery Fee does not exceed eleven and 11/100
percent (11.11%) of Gross Revenues from such transaction (for clarity, the Concession Recovery
Fee is included in Gross Revenues, including for purposes of this calculation); and (e)
Concessionaire shall neither identify, treat, or refer to the Concession Recovery Fee as a tax or
levy, nor state or imply that County is requiring the pass-through or collection of such Concession
Recovery Fee.
1.13 Consolidated Rental Car Center ("RCC") means that portion of the Joint-Use Facility that
is designated for use by the Concessionaires for rental car concession operations and for pick up
and drop off of customers by off-Airport rental car companies, as such area may be expanded,
modified, or changed. The RCC includes the associated structures, roadways, facilities,
infrastructure improvements to utilities, and other infrastructure on Levels 1 through 5 of the
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Joint-Use Facility, including, but not limited to: (i) the Customer Service Area, (ii) the
Ready/Return Area, (iii) the QTA, (iv) the Storage Area, and (v) the Common Concessionaire Area.
1.14 Contract Administrator means the Director, or his or her designee, pursuant to written
delegation by the Director, or any other employee expressly designated as Contract
Administrator in writing by the County Administrator.
1.15 Contract Day means each twenty-four (24) hour period or fraction thereof for which an
Airport Customer is provided the use of a rental vehicle regardless of the duration or length of
the rental term. If the same rental vehicle is rented to more than one Airport Customer within
such continuous twenty-four (24) hour period, then each such rental transaction shall be
separately calculated as one or more Contract Days.
1.16 Customer Service Area means that portion of the Joint-use Facility that includes the
administrative office area and the customer service counter space used by the Concessionaires
in connection with their operations.
1.17 Day(s) means, unless otherwise specified within the Agreement, calendar day(s) and not
business day(s).
1.18 Director means the Director of Aviation or the Acting Director of Aviation, or such other
person or persons as may from time to time be authorized in writing by the Board, the Broward
County Administrator, or the Director of Aviation to act for the Director of Aviation with respect
to any or all matters pertaining to this Agreement.
1.19 Environmental Assessment means a document based on one or more environmental site
assessments, examinations, inspections, tests, inquiries, and surveys necessary to identify
Recognized Environmental Conditions, contamination, pollutants, and the presence of hazardous
materials, hazardous substances, or other Materials in, on, or under the surface of the Premises
or real property impacted by the condition of the Premises. Environmental Assessments include
Environmental Site Assessments conducted in accordance with American Society for Testing and
Materials ("ASTM") Standards ASTM E1527-13 and ASTM E2247-16, or in accordance with Rule
62-780, Florida Administrative Code.
1.20 Environmental Laws means any and all applicable federal, state, county, and local
statutes, ordinances, regulations, codes, rules, laws, permits, licenses, approvals, orders, advisory
circulars, resolutions, development orders, grant agreements, and directives of any federal,
state, or local court, or governmental or quasi-governmental entity with jurisdiction of such
matter, that have been, or may hereinafter be adopted, including, but not limited to, those
relating to the generation, use, handling, storage, transportation, or disposal of hazardous
materials or hazardous substances, and those relating to surface water management. Such laws
include, but are not limited to: the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 USC § 9601, et seq.); the Resources Conservation and Recovery Act of
1976 (42 USC § 6901, et seq.); the Clean Water Act (33 USC § 1251 et seq.); the Safe Drinking
Water Act (42 USC § 300 et seq.); the Hazardous Materials Transportation Act (49 USC § 5101 et
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seq.); the Toxic Substance Control Act (15 USC § 2601, et seq.); Chapters 373, 376, and 403,
Florida Statutes, and rules adopted thereunder; and Chapter 27 of the Broward County Code of
Ordinances.
1.21 Federal Aviation Administration ("FAA") means that agency of the United States
Government established in 49 U.S.C. § 106, or its successor.
1.22 Gross Revenues means the charges for all services provided by Concessionaire in, at, and
from the Airport for cash, credit, or otherwise, without reservation or deduction for uncollected
amounts, credit card fees, charges, or collection costs, including, but not limited to: (a) all charges
for rentals of vehicles, including, but not limited to, time and mileage charges and separately
stated fees, other related or incidental services or merchandise, and any other items or services
made at or from the Airport regardless of where the vehicles or services are delivered or
returned; (b) all amounts charged to Airport Customers for insurance offered by Concessionaire
incidental to the rental of vehicles; (c) all charges attributable to any vehicle originally rented at
the Airport that is exchanged at any other location; (d) all proceeds from the long term lease of
vehicles from any location on the Airport; (e) all amounts charged to Airport Customers that are
separately stated on the rental agreement between Airport Customers and Concessionaire as an
optional charge for waiver by Concessionaire of its right to recover from Airport Customers for
damage to or loss of the vehicle rented; (f) all amounts charged to Airport Customers at the
commencement or the conclusion of the rental transaction for the cost of furnishing or replacing
fuel provided by Concessionaire, including the fuel itself; (g) all amounts charged by
Concessionaire as a pass-through to Airport Customers of the Percentage Fee; (h) any other
amounts, whether "above the line" or "below the line," associated with any rental transaction;
(i) all monies, fees, or other consideration received from airlines, travel agents, or other
consolidators/organizers as part of any package or promotion that includes Concessionaire's
services, fees, or rates as part of a package; (j) total revenue from the operation of a car sharing
business; (k) daily and weekly service fees for toll transponders or similar license plate
recognition services; (l) revenues from the rental of cellular phones, global positioning navigation
systems, and child restraints; (m) intercity and drop charges; (n) fees for additional, underage,
and overage drivers; (o) guaranteed reservation fees; (p) vehicle sharing and valet services; and
(q) revenues from the sale of permitted mobile phone and other accessories.
Excluded from Gross Revenues shall be: (a) only those sales, excise, or taxes imposed by a
governmental authority and collected from Airport Customers and then directly paid by
Concessionaire to the governmental authority; (b) any amounts received as insurance proceeds
or otherwise for damage to vehicles or other property of Concessionaire, or for loss, conversion,
or abandonment of such vehicles; (c) revenue from the wholesale transfer of salvage vehicles;
(d) all nonrevenue rentals to employees of Concessionaire; (e) sums received by Concessionaire
from its Airport Customers, including all associated administrative charges, for traffic tickets,
parking tickets, towing charges, impound fees, toll violations, and other similar governmental
fines and charges actually paid by Concessionaire on behalf of such Airport Customers (without
mark-up or additional fees); and (f) Customer Facility Charges. Corporate or volume discounts or
rebates or any other discounts that are not stated on the face of the rental agreement at the
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time the rental is returned may not reduce Gross Revenues and cannot be deducted from Gross
Revenues. Concessionaire shall not pass through, unbundle, or list any fees payable to County
as a separate item on customer invoices without County's prior written approval, except for the
Concession Recovery Fee and Customer Facility Charges.
1.23 Joint-Use Facility means the nine-level garage structure constructed and owned by
County, a part of which is the RCC.
1.24 Market Share means each of the Concessionaires' total Gross Revenues for Airport
Customers for the applicable Market Share Measurement Period divided by the aggregate Gross
Revenues for Airport Customers of all the Concessionaires for the same Market Share
Measurement Period. Market Share shall be determined based upon the reports of Gross
Revenues that are submitted by the Concessionaires to County pursuant to the Concession/Lease
Agreements, except the Market Share as of the Effective Date ("Benchmark Market Share"),
which shall be calculated based upon the Concessionaires' Gross Revenues for Airport Customers
for calendar year 2018 divided by the aggregate Gross Revenues of all the Concessionaires for
calendar year 2018.
1.25 Market Share Measurement Date means the second (2
nd
), fifth (5
th
), and seventh (7
th
)
anniversary of the Effective Date.
1.26 Market Share Measurement Period means the twelve (12) month period immediately
before the applicable Market Share Measurement Date.
1.27 Materials means any pollutant, contaminant, petroleum product, hydrocarbon
contamination, hazardous substances, hazardous materials, or other materials regulated by
Applicable Laws.
1.28 Minimum Standards means the Fort Lauderdale-Hollywood International Airport
Minimum Standards for Commercial Aeronautical Activities, a/k/a Minimum Standards Policy for
General Aviation at Broward County Airports, as may be amended from time to time.
1.29 Person means any individual, firm, trust, estate, partnership, joint venture, company,
corporation, association, or other legal entity or business enterprise. The reference in this
Agreement to any one of the foregoing types of persons is a reference to all other types of
persons.
1.30 Quick Turnaround Area ("QTA") means that portion of the Joint-Use Facility located on
Level 1 consisting of: (a) the queuing/maneuvering area, (b) the fuel fill pad area, (c) the
fuel/wash area, (d) the stacking/storage area, and (e) the administrative area.
1.31 Ready/Return Area means that portion of the Joint-Use Facility located on Levels 2, 3,
and 4 where Airport Customers pick up and drop off vehicles and where vehicles are to be stored.
1.32 Recognized Environmental Conditions means the presence or likely presence of any
hazardous substances, hazardous materials, pollution, contamination, or petroleum products in,
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on, or at a property: (1) due to release to the environment; (2) under conditions indicative of a
release to the environment; or (3) under conditions that pose a material threat of a future release
to the environment and as described in the Standard Practice for Environmental Site
Assessments: Phase 1 Environmental Site Assessment Process ASTM E1527-13.
1.33 Storage Area means that portion of the Joint-Use Facility located on Level 5 where
vehicles are stacked, stored, and staged.
1.34 Terminals means the airline terminal buildings located at the Airport, including any
expansion thereof or any improvements thereto.
1.35 Transportation Security Administration ("TSA") means that agency of the United States
Government created and established under the Aviation and Transportation Security Act of 2001,
as codified in the United States Code, Title 49, or its successor.
ARTICLE 2. TERM AND TERMINATION FOR CONVENIENCE
2.1 Effective Date. This Agreement shall become effective on the date it is fully executed by
the Parties ("Effective Date").
2.2 Term. The term of this Agreement ("Term") shall commence on the Effective Date and
shall terminate ten (10) years thereafter unless otherwise extended or terminated earlier as
provided in this Agreement.
2.3 Termination for Convenience. In addition to any other rights provided in this Agreement,
this Agreement may be terminated for convenience by the Board. Termination for convenience
by the Board shall be effective on the termination date stated in the written notice provided by
County, which termination date shall be not less than one (1) year after the date of such written
notice and which termination date shall be effective no earlier than the fifth (5
th
) annual
anniversary of the Effective Date. Concessionaire acknowledges that it has received good,
valuable, and sufficient consideration from County, the receipt and adequacy of which are
acknowledged by Concessionaire, for County's right to terminate this Agreement for
convenience.
ARTICLE 3. PRIVILEGES AND OBLIGATIONS OF CONCESSIONAIRE
3.1 Premises. County leases to Concessionaire the premises described on Exhibit A
("Premises"), which includes space shared with other Concessionaires ("Shared Premises") as
designated in Exhibit A (collectively, the Premises and Shared Premises shall be referred to as the
Premises). Concessionaire accepts the Premises being given by County in "as is" condition with
absolutely no warranties as to the condition or suitability for use, and releases County from any
liability in connection with such condition. Concessionaire shall occupy the Premises by no later
than sixty (60) Days after the Effective Date.
3.2 Use. During the Term, Concessionaire shall have the right, privilege, and obligation to
conduct and operate a high-quality, well-managed rental car concession from the Premises,
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which shall be limited to renting passenger car vehicles to Airport Customers, including the sale
of any insurance or fuel related thereto, and providing any other incidental services, items, and
equipment reasonably associated therewith. The terms "passenger car," "car," "vehicle," and
similar terms, as used in this Agreement, do not include buses, commercial vehicles, or similar
vehicles. Concessionaire shall not use the Premises for any purpose other than as expressly
provided in this Agreement.
3.3 Rental Car Brands. Concessionaire shall use the rental car brands listed below for its
operations at the RCC, which Concessionaire represents are wholly owned, controlled, or
licensed by Concessionaire. Concessionaire shall not use any other rental car brands for its
operations at the RCC other than the rental car brands listed below, or remove any of the rental
car brands listed below from its operations at the RCC, unless such action has been approved by
the Parties through an amendment to this Agreement, with County acting through its Director of
Aviation.
3.3.1 [Brand 1]
3.3.2 [Brand 2]
3.3.3 [Brand 3]
3.4 Nonexclusive Use. Concessionaire acknowledges that Concessionaire has no exclusive
rights to conduct a rental car concession at the Airport, and that County may arrange with other
Concessionaires for similar activities at the Airport. County also reserves the right to enter into
agreements and permits with companies providing rental car services from off-Airport locations.
3.5 Common Busing System. Concessionaire shall require its Airport Customers to use the
Common Busing System for transportation between the Terminals and the Joint-Use Facility.
Concessionaire may not provide or offer any other means of transportation to its Airport
Customers between the Terminals and the Joint-Use Facility, including, but not limited to,
curbside pickups and drop offs.
3.6 Public Areas. Subject to all applicable County ordinances, rules, regulations, and policies
governing the use of the Airport, County grants to Concessionaire the nonexclusive right to use,
in common with others and all Airport Customers, certain areas of the Airport designated by
County to be public or common use areas, including, but not limited to, the Common
Concessionaire Area and any and all walkways, streets, roadways, waiting rooms, hallways,
restrooms, and other passenger conveniences ("Public Areas"). Such Public Areas may only be
used for the purposes for which the Public Areas were designed. Concessionaire's rights under
this section shall include the right of ingress and egress to and from the Premises. County
reserves the right to modify the Public Areas at any time and in any way it deems appropriate
including, but not limited to, reconfiguration of the Public Areas, expansion or contraction of the
Public Areas, or changing access points to and from the Public Areas.
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3.7 Reallocation by Market Share. The Director, in his or her sole discretion, may reallocate
Concessionaire's Premises amongst the Concessionaires within sixty (60) Days after any Market
Share Measurement Date if the Market Share of any of the Concessionaires as of any Market
Share Measurement Date has increased or decreased by at least fifteen percent (15%) from the
Benchmark Market Share for that concessionaire. In the event that the Director desires that
Concessionaire operate at a different location, additional locations, or in reduced space, as
compared to the Premises reflected on Exhibit A, because of such reallocation, then upon written
notice from the Director, Concessionaire shall be required to occupy such different, additional,
or reduced areas, as the case may be, without expense to County, and within the timeframe
required by the Director. In the event of any change in the Premises as provided in this section,
Exhibit A shall be automatically amended to reflect the revised Premises as of the date the move
is complete, which date shall be determined by the Contract Administrator, and the Facility Rent
payable under this Agreement shall be immediately adjusted as of the date the move is complete
based on the rates stated in this Agreement. Concessionaire, if affected by any reallocation,
acknowledges that such revised Premises might not be similar in size or configuration to the
Premises.
In the event that the Director approves reallocation pursuant to this Section 3.7, any and all costs
and expenses associated therewith, including, without limitation, relocation costs incurred by all
Concessionaires affected by such reallocation, must be paid proportionally by the
Concessionaire(s) that gain leased space based on the amount of leased space gained compared
to the amount of leased space gained by the other Concessionaires that gain leased space.
3.8 Reallocation by Director of Aviation. The Director, in his or her sole discretion, may
reallocate Concessionaire's Premises amongst the Concessionaires based on the then current
Market Share in the event that County desires to make any capital improvements to the Joint-
Use Facility. In the event that the Director desires that Concessionaire operate at a different
location, additional locations, or in reduced space, as compared to the Premises reflected on
Exhibit A, because of such reallocation, then upon written notice from the Director,
Concessionaire shall be required to occupy such different, additional, or reduced areas, as the
case may be, within the timeframe required by the Director. In the event of any change in the
Premises as provided in this section, Exhibit A shall be automatically amended to reflect the
revised Premises as of the date the move is complete, which date shall be determined by the
Contract Administrator, and the Facility Rent payable under this Agreement shall be immediately
adjusted as of the date the move is complete based on the rates stated in this Agreement.
Concessionaire, if affected by any reallocation, acknowledges that such revised Premises might
not be similar in size or configuration to the Premises.
Subject to the terms in this Section 3.8, County shall reimburse Concessionaire its expenses of
relocating if such relocation is required by County pursuant to Section 3.8. The total amount to
be reimbursed by County to Concessionaire pursuant to the provisions of this section is referred
to as the "Reimbursable Amount." Only documented, reasonable, and necessary actual out-of-
pocket costs incurred by Concessionaire in relocating, as determined solely by County, shall be
included in the Reimbursable Amount. The Reimbursable Amount shall not be credited to
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Concessionaire until County receives documentation substantiating Concessionaire's payment of
qualifying costs and expenses, and such other documentation as County may request. County
shall reimburse Concessionaire for the Reimbursable Amount through a dollar for dollar credit
against Facility Rent due from Concessionaire to County. Such rental credit shall be applied
pursuant to credit memo(s) issued by County and shall be in monthly credits in an amount
determined by County.
3.9 Permitted Uses. The Premises shall be used by Concessionaire only for the following
purposes and only in the permitted areas for such purposes as indicated below, and for no other
purposes whatsoever, unless otherwise allowed in writing by the Contract Administrator:
3.9.1 QTA - Level 1: Vehicles may be fueled, vacuumed, and washed only within those
areas on Level 1 designated by the Contract Administrator. Vehicle stacking, storing, and
staging may occur only within those areas on Level 1 designated for such purpose by the
Contract Administrator. Minor servicing of vehicles, including, but not limited to,
checking fuel levels, oil changes, changing tires, and other minor maintenance, as
determined by the Contract Administrator, may occur only within those areas on Level 1
designated for such purpose by the Contract Administrator. Notwithstanding the above,
Concessionaire shall not use Level 1 or any other part of the Premises for the heavy
maintenance of vehicles. Heavy vehicle maintenance shall mean any activity not
approved by the Contract Administrator to be conducted at the Premises including, but
not limited to, windshield replacement and repair, and body damage repairs.
3.9.2 Ready/Return Area - Levels 2, 3, and 4: Counter/office, customer check-in, and
ready-return services are allowed only within those areas on Levels 2, 3, and 4 that are
designated for such purpose by the Contract Administrator.
3.9.3 Storage Area - Level 5: Stacking, storing, and staging of vehicles within those areas
on Level 5 designated for such purpose by the Contract Administrator.
3.10 Vacant Areas. The Premises shall be deemed vacant ("Vacant Areas") if any of the
following occur:
3.10.1 The Agreement is terminated; or
3.10.2 Concessionaire does not actively use any or all of its Premises for the permitted
uses of such areas (e.g., counter locations must be actively and continuously used to enter
into rental car contracts with Airport Customers of Concessionaire), or abandons or
vacates such areas for a period of thirty (30) Days or more, and such nonuse or
abandonment continues for at least fifteen (15) Days following the date written notice is
sent from the Contract Administrator to Concessionaire.
Concessionaire shall immediately surrender Vacant Areas to County. County may, in its sole
discretion: (i) leave vacant all or part of such Vacant Areas on a temporary basis; (ii) offer such
Vacant Areas to one or more remaining Concessionaires; or (iii) offer the Vacant Areas through a
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solicitation for one or more new Concessionaires. The provisions of this section shall supersede
any conflicting provisions of this Agreement.
3.11 Transition. Concessionaire shall cooperatively work with County and the other
Concessionaires to transition to its Premises, and to allow the other Concessionaires to transition
to their premises, and shall comply with all requests from the Contract Administrator regarding
such transition, including, but not limited to, any deadlines and meeting requests. Any disputes
regarding the aforementioned transition shall be resolved by the Contract Administrator in his or
her sole discretion.
ARTICLE 4. FEES; AUDITS; BOOKS AND RECORDS; SECURITY DEPOSIT
4.1 Facility Rent. During the Term, Concessionaire shall pay rent, together with all applicable
sales taxes thereon, to County for the Premises based on the rates then in effect pursuant to this
Agreement ("Facility Rent"). Except as otherwise expressly stated in this section, Facility Rent
shall be paid by Concessionaire in advance and without demand, set off, or deduction. Facility
Rent shall be paid in equal monthly installments on the first Day of each calendar month. If the
Effective Date is a Day other than the first Day of a calendar month, then the first installment
payment for Agreement Year 1 shall be prorated based on the number of Days occurring between
the Effective Date and the first Day of the following month. The payment due for the last month
of the Term shall be prorated based on the number of Days in the last month of the Term. The
payment due for any month where a rate changes (e.g., where the rate changes form Agreement
Year 2 to Agreement Year 3) shall be prorated based on the amount of Days the applicable rates
are in effect.
4.1.1 Facility Rent.
4.1.1.1 Agreement Year 1. Facility Rent for the Premises for Agreement Year 1
shall be two dollars and 35/100 cents ($2.35) per year per square foot of space
within the Premises.
4.1.1.2 Agreement Year 2. Facility Rent for the Premises for Agreement Year 2
shall be two dollars and 35/100 cents ($2.35) per year per square foot of space
within the Premises.
4.1.1.3 Agreement Year 3. Facility Rent for the Premises for Agreement Year 3
shall be four dollars and 69/100 cents ($4.69) per year per square foot of space
within the Premises.
4.1.1.4 Agreement Year 4. Facility Rent for the Premises for Agreement Year 4
shall be four dollars and 69/100 cents ($4.69) per year per square foot of space
within the Premises.
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4.1.1.5 Agreement Year 5. Facility Rent for the Premises for Agreement Year 5
shall be four dollars and 69/100 cents ($4.69) per year per square foot of space
within the Premises.
4.1.1.6 Agreement Year 6. Facility Rent for the Premises for Agreement Year 6
shall be six dollars and 26/100 cents ($6.26) per year per square foot of space
within the Premises.
4.1.1.7 Agreement Year 7. Facility Rent for the Premises for Agreement Year 7
shall be six dollars and 26/100 cents ($6.26) per year per square foot of space
within the Premises.
4.1.1.8 Agreement Year 8. Facility Rent for the Premises for Agreement Year 8
shall be six dollars and 26/100 cents ($6.26) per year per square foot of space
within the Premises.
4.1.1.9 Agreement Year 9. Facility Rent for the Premises for Agreement Year 9
shall be six dollars and 26/100 cents ($6.26) per year per square foot of space
within the Premises.
4.1.1.10 Agreement Year 10. Facility Rent for the Premises for Agreement Year 10
shall be six dollars and 26/100 cents ($6.26) per year per square foot of space
within the Premises.
4.1.2 Annual Adjustment of Facility Rent for CPI. Facility Rent for Agreement Years 2, 4,
5, 7, 8, 9, and 10 shall be adjusted in accordance with this section. On the first Day of
each applicable Agreement Year (each such date being referred to as an "Adjustment
Date"), Facility Rent shall be increased to an amount equal to the greater of either: (i) the
product of the Facility Rent in effect immediately preceding the Adjustment Date,
multiplied by the "CPI Multiplier" (as hereinafter defined); or (ii) the product of the Facility
Rent in effect immediately preceding the Adjustment Date, multiplied by 1.03. The
product of such multiplication shall be the Facility Rent for that Agreement Year,
commencing on the Adjustment Date. Upon determining such adjustment, the Contract
Administrator shall advise Concessionaire of the new Facility Rent and Concessionaire's
adjusted monthly Facility Rent payment.
4.1.2.1 The "CPI Multiplier" is a fraction, the numerator of which shall be the "CPI
Index Number" (as hereinafter defined) indicated for the month that is three (3)
months prior to the Adjustment Date, and the denominator of which shall be the
CPI Index Number indicated for the month that is fifteen (15) months prior to the
Adjustment Date.
4.1.2.2 The "CPI Index Number" is the index number of retail commodity prices
designated "CONSUMER PRICE INDEX FOR ALL URBAN CONSUMERS -UNITED
STATES CITY AVERAGE - ALL ITEMS" (1982-1984 =100) (Consumer Price Index)
Rental Car Concession - __________ 12
issued by the Bureau of Labor Statistics, United States Department of Labor. The
adjustments made based upon the provisions of this section shall be made solely
by the Aviation Department. Any publication by either the United States
Department of Labor or the United States Department of Commerce in which such
Index numbers are published shall be admissible in evidence in any legal or judicial
proceeding involving this Agreement without further proof of authenticity.
Should the Bureau of Labor Statistics cease publishing the above-described Index,
then such other Index as may be published by the United States Department of
Labor that most nearly approximates the discontinued Index shall be used in
making the adjustments described above. Should the United States Department
of Labor discontinue publication of an Index approximating the Index
contemplated, then such Index as may be published by another United States
governmental agency that most nearly approximates the Index first above
referenced shall govern and be substituted as the Index to be used.
4.1.3 Shared Premises. Facility Rent for the Shared Premises shall be split evenly
between the Concessionaires occupying the Shared Premises.
4.2 Privilege Fees. In addition to the Facility Rent and other fees payable in accordance with
this Agreement, Concessionaire shall pay to County the fees described below ("Privilege Fees").
During the Term, the monthly Privilege Fees shall be paid on or before thirty (30) Days after the
applicable month.
4.2.1 Privilege Fees due for each calendar month shall be the greater of the Percentage
Fees calculated pursuant to Section 4.2.1.1 ("Percentage Fees") or the monthly installment
of the Minimum Annual Guarantee ("MAG") payment described in Section 4.2.1.2.
4.2.1.1 Percentage Fees shall be equal to ten percent (10%) of Concessionaire's
monthly Gross Revenues from the applicable month.
4.2.1.2 The MAG shall be calculated as follows:
4.2.1.2.1 The MAG shall be ________________ annually. The MAG
shall be paid in equal monthly installments (adjusted pro rata for any
partial month), subject to the adjustment stated below.
4.2.1.2.2 Annual Adjustment of the MAG: Forty-five (45) Days after the
end of Agreement Year 1, and forty-five (45) Days after the end of each
Agreement Year thereafter, the annual MAG shall be adjusted to equal
the greater of the following: (i) Eighty-five percent (85%) of the total
Privilege Fees due to County by Concessionaire for its operations for the
preceding Agreement Year; or (ii) the previous Agreement Year's MAG.
If the audit report issued pursuant to Section 4.12 of this Agreement
demonstrates an over-adjustment or under-adjustment of the MAG
Rental Car Concession - __________ 13
pursuant to this subsection of at least three percent (3%) of the pre-
adjusted amount, then the Annual Adjustment of the MAG shall be
recalculated for such year within fifteen (15) Days after receipt of such
audit report. Any overpayment by Concessionaire as of the date of
recalculation shall be applied as a payment and credited toward Privilege
Fees due in such year. Any underpayment by Concessionaire as of the
date of recalculation shall be paid within thirty (30) Days after receipt of
an invoice from County, with interest at eighteen percent (18%) per
annum from the date such additional Privilege Fees were due, without
further demand. If the audit report issued pursuant to Section 4.12 of
this Agreement demonstrates an over-adjustment or under-adjustment
of the MAG pursuant to this subsection of less than three percent (3%)
of the pre-adjusted amount, then there will be no further adjustment of
the Annual Adjustment of the MAG.
4.2.1.2.3 The adjusted annual MAG during the Term shall never be less
than the initial annual MAG specified in Section 4.2.1.2.1.
4.2.2 In no event shall the aggregate amount of Privilege Fees payable under this section
in any Agreement Year exceed the greater of: (a) the MAG for such year; or (b) the total
Percentage Fees for such year. Within sixty (60) Days after the issuance of the audit
report issued pursuant to Section 4.12 of this Agreement, the Parties will meet and review
the Privilege Fees paid and Gross Revenues for the period. Any overpayment by
Concessionaire shall be applied as a payment and credited toward Privilege Fees due in
the succeeding year. Any overpayment in the last year of the Term shall be refunded
within thirty (30) Days following receipt of an invoice for such overpayment. If the total
Privilege Fees actually paid by Concessionaire during any Agreement Year are less than
the Privilege Fees due and owing for such Agreement Year, then Concessionaire shall
immediately pay the difference to County with interest thereon, at eighteen percent
(18%) per annum from the date such additional Privilege Fees were due, without further
demand.
4.2.3 On or before the twentieth (20
th
) Day of each month, Concessionaire shall submit
to County a report of Gross Revenues for the preceding calendar month. The report shall
be on a form supplied by County (Exhibit B or as otherwise supplied by County) and signed
by an officer, a partner, or other person authorized to sign on behalf of Concessionaire.
For the last month of the Term, the report of monthly Gross Revenues, and payment of
the Privilege Fees attributable thereto, shall be delivered by Concessionaire to County
prior to County accepting the surrender of the Premises.
4.3 Customer Facility Charges. During the Term, Concessionaire shall collect a Customer
Facility Charge, together with any applicable sales taxes thereon, from each Airport Customer of
Concessionaire pursuant to Section 2-122 of the Broward County Code of Ordinances and
Chapter 39 of the Broward County Administrative Code, as each may be amended ("Customer
Rental Car Concession - __________ 14
Facility Charge(s)"). The Customer Facility Charge shall be identified on a separate line on the
rental car customer contract in the amount established by the Board, and shall be described as
the "Rental Car Facility Charge." The Customer Facility Charge shall be collected by
Concessionaire and remitted to County as follows:
4.3.1 All Customer Facility Charges collected by Concessionaire shall be held in trust by
Concessionaire for County. All Customer Facility Charges collected and held by
Concessionaire shall be considered County's property. Concessionaire shall hold only a
possessory interest, not an equitable interest, in such revenues.
4.3.2 Concessionaire shall remit to County all Customer Facility Charges required to be
collected by Concessionaire for the preceding month on or before thirty (30) Days after
the end of the preceding month.
4.3.3 Concessionaire shall maintain records and controls which are sufficient to
demonstrate the correctness of the Customer Facility Charges collected by
Concessionaire and the amount of Customer Facility Charges paid to County.
4.3.4 Concessionaire shall separately state any sales or use tax liability that must be
collected from its Airport Customers on the Customer Facility Charges, and shall collect
and remit any required sales and use taxes on the Customer Facility Charges to County.
4.3.5 On or before the twentieth (20
th
) Day of each month, Concessionaire shall submit
to County a report of the Customer Facility Charges collected and the number of rental
car transactions and Contract Days for the preceding calendar month. The report shall be
on a form supplied by County (Exhibit B or as otherwise supplied by County) and signed
by an officer, a partner, or other person authorized to sign on behalf of Concessionaire.
For the last month of the Term, the report of the Customer Facility Charges collected and
the number of rental car transactions and Contract Days for the preceding calendar
month, and payment of the Customer Facility Charges attributable thereto, shall be
delivered by Concessionaire to County prior to County accepting the surrender of the
Premises.
4.4 Utilities and Utility Charges. County will impose a utility charge for Concessionaire's use
of the utilities at the Premises based on a pro rata share calculation made by the Contract
Administrator, comparing the square footage of the leased space of all Concessionaires.
Concessionaire must pay its pro rata share of the utility charges invoiced by County within thirty
(30) Days after receipt of such invoice. In the event Concessionaire wishes to install any utility
other than those provided by County, Concessionaire shall obtain the prior written approval from
the Contract Administrator and pay all expenses related to such additional utilities. County shall
not be responsible in any way to Concessionaire for any failure or defect in the supply or
character of electrical energy, water, sewer, or other utility service furnished to the Premises.
County shall have the right to shut down electrical or any other utility services to the Premises
when necessitated by safety, repairs, alterations, connections, upgrades, relocations,
reconnections to the utility system, or for any other reason, regardless of whether the need for
Rental Car Concession - __________ 15
utility work arises in respect of the Premises. Whenever possible, County shall give
Concessionaire no less than two (2) Days' prior notice for utility shutdown by County.
4.5 Taxes and Fees. Concessionaire shall pay, on or before the respective due dates, all
federal, state, county, and local taxes and fees, and all special assessments of any kind that are
now or may hereafter be levied upon the Premises, including upon the Improvements
(hereinafter defined) thereto, or the estate hereby granted, or upon Concessionaire, or upon the
business conducted on the Premises by Concessionaire, or upon any of Concessionaire's property
used in connection therewith, or upon any rent or other sums payable under this Agreement,
including, but not limited to, any ad valorem taxes (based upon Concessionaire's pro rata share
according to the area of the Premises), and sales or excise taxes on rent, and personal property
taxes against tangible and intangible personal property.
4.6 Interest. Payments received by County more than five (5) Days after the due date shall
be subject to interest at the rate of eighteen percent (18%) per annum on the unpaid amount
from the date on which the payment was due. The acceptance by County of any payment shall
not be construed as a waiver of the interest charges.
4.7 Other Fees and Charges. Concessionaire acknowledges that County has or will establish,
from time to time, various fees and charges for the use of various facilities, equipment, and
services provided by County, and not leased to or specifically provided to Concessionaire, and
the procedures relating to payment of same. Concessionaire shall pay for its use of such facilities,
equipment, and services at the rates and in the manner prescribed by County.
4.8 Additional Facility Rent and Charges. If County is required or elects to pay any sum or
sums or incur any obligations or expense by reason of the failure, neglect, or refusal of
Concessionaire to perform or fulfill any one or more of the conditions, covenants, or agreements
contained in this Agreement, or as a result of any act or omission of Concessionaire contrary to
said conditions, covenants, or agreements, Concessionaire shall pay the sum or sums so paid by
County or the expense so incurred by County, including all interest, costs, damages, and
penalties, and the same may be added to any installment of Facility Rent thereafter due, and
each and every part of the same shall be and become additional Facility Rent recoverable by
County in the same manner and with like remedies as if it were originally a part of the Facility
Rent payable under this Agreement. All such sums of money shall be paid by Concessionaire
within thirty (30) Days after written demand therefore.
4.9 Dishonored Check or Draft. In the event County receives a dishonored check or draft in
payment of any obligation arising under this Agreement, Concessionaire shall pay County a
service charge in the amount established by County from time to time. In such event, and in
addition to any other remedies available to County under this Agreement, at law, or in equity,
County may require that future payments be made by cashier's check or other means acceptable
to County.
4.10 Place of Payments. All payments required to be made by Concessionaire under this
Agreement shall be made payable to "Broward County," and shall be paid to the Finance Division,
Rental Car Concession - __________ 16
Broward County Aviation Department, 2200 SW 45
th
Street, Suite 101, Dania Beach, FL 33312, or
to such other office or address as specified by the Aviation Department.
4.11 Weekends and Holidays. Should any payment due date fall on a weekend day or holiday,
such payment shall be due and payable on the immediately preceding County business day.
4.12 Special Audit Report. Concessionaire shall provide to the Finance Division of the Aviation
Department a special audit report of all Gross Revenues and Customer Facility Charges from its
operations at the Airport and from the operations of related or affiliated companies involved in
providing services covered by this Agreement. The special audit report shall be prepared by an
independent certified public accountant in accordance with generally accepted auditing
standards. The special audit report shall be submitted to the Aviation Department within one
hundred and twenty (120) Days after the end of each Agreement Year and shall include, but not
be limited to, the following:
4.12.1 Schedule of all revenues broken down by category and by month, and a schedule
of the payments to County for such Agreement Year.
4.12.2 Schedule of all rental car transactions, the Contract Days for each rental car
transaction, and all Customer Facility Charges, and any sales taxes collected for the
Agreement Year broken down by category and by month.
4.12.3 Schedule of the MAG and Percentage Fee payments to the Aviation Department
for the Agreement Year.
4.12.4 A calculation to determine that the total annual Privilege Fees have been paid in
accordance with this Agreement.
4.12.5 The preparing accountant's opinion on the schedule of all revenues by calendar
month, the schedule of payments to the Aviation Department, and the calculation of
Privilege Fees and Customer Facility Charges.
4.13 Audit Rights and Retention of Records. Concessionaire shall keep and maintain copies of
all invoices, cash receipts, financial records, supporting records, supporting documents, statistical
records, and all other documents related to this Agreement (collectively, "books and records").
The books and records of Concessionaire shall, among other things, show all sales made for cash
or credit or otherwise, without regard to whether paid or not; all labor, overhead, and all sales
taxes collected, as well as the Gross Revenues and Customer Facility Charges of said business and
the aggregate amount of all sales and services and orders of all Concessionaire's business done
upon or within the Premises of, or in connection with, the Airport. Concessionaire agrees to
operate its business so that a duplicate rental agreement invoice and numbered receipt will be
issued with each sale or transaction, whether for cash, credit, or some other comparable
documentation acceptable to the Aviation Department. Concessionaire shall maintain numbered
records that can be retrieved to provide a summary of rental agreements for any day.
Concessionaire shall keep its books and records in accordance with generally accepted
Rental Car Concession - __________ 17
accounting principles and shall maintain such other books and records as the Aviation
Department may request. Concessionaire shall keep separate books and records for its Airport
operations.
4.13.1 Concessionaire's books and records shall be kept and maintained during the
"Retention Period" (as hereinafter defined). The "Retention Period" is defined as the
longer of: (a) the required retention period of the Florida Public Records Act (Chapter 119,
Fla. Stat.), if applicable; or (b) the period of time covering the Term and the later of three
(3) years after the end of the Term or, if any audit has been initiated, resolution of the
audit findings. If the Florida Public Records Act is determined by County to be applicable
to Concessionaire's records, Concessionaire shall comply with all requirements thereof;
however, no confidentiality or non-disclosure requirement of either federal or state law
shall be violated by Concessionaire. Concessionaire shall make all books and records
required to be maintained under this Agreement available to the Aviation Department at
the Airport or at the corporate headquarters of Concessionaire, as may be directed by the
Aviation Department.
4.13.2 County shall have the right, upon reasonable notice to Concessionaire, to audit
Concessionaire's books and records in order to determine the correctness of the Privilege
Fees and Customer Facility Charges paid by Concessionaire to County for any yearly period
that ended no more than three (3) years prior to the date of commencement of such
audit, and to determine the accuracy of the figures used to determine the Benchmark
Market Share, and all such records shall be made available upon fourteen (14) Days'
notice. In the event that any such audit reflects that the total Privilege Fees or Customer
Facility Charges actually paid by Concessionaire during such yearly period are less than
the Privilege Fees or Customer Facility Charges due and owing for such yearly period, then
Concessionaire shall immediately pay the difference to County with interest thereon at
eighteen percent (18%) per annum from the date such additional Privilege Fees or
Customer Facility Charges were due. If, as a result of any audit, it is established that
Concessionaire has understated or underpaid the Privilege Fees or Customer Facility
Charges by three percent (3%) or more (after any deductions and exclusions provided for
in this Agreement) during the period covered by the audit, the entire expense of said audit
shall be borne by Concessionaire.
4.13.3 The provisions of this section shall survive the expiration or termination of this
Agreement.
4.14 Security Deposit. As security for the payment of all monies due pursuant to this
Agreement and the performance of Concessionaire's obligations under this Agreement,
Concessionaire shall post a security deposit with County equal to the sum of one-fourth (1/4) of
Concessionaire's MAG for Agreement Year 1 plus three (3) months of Concessionaire's Facility
Rent for the Agreement Year 1 ("Security Deposit"). The Security Deposit shall be submitted to
County simultaneously with submission to County of this Agreement as executed by
Concessionaire. The Security Deposit shall be either in the form of cash, an irrevocable letter of
Rental Car Concession - __________ 18
credit ("Letter of Credit") in form and substance satisfactory to County, or a payment and
performance bond ("Bond") in form and substance satisfactory to County. No interest shall be
due or paid on the Security Deposit. Upon at least fourteen (14) Days' notice to Concessionaire,
County may increase the amount of the required Security Deposit to reflect any increases in the
monies due pursuant to this Agreement. In addition, upon at least fourteen (14) Days' notice to
Concessionaire, County may increase the amount of the required Security Deposit if County
determines, in its sole discretion, that an increase is warranted due to increased obligations
under this Agreement or based upon Concessionaire's payment or performance history at the
Airport. In the event of any Event of Default (hereinafter defined), in addition to any other rights
and remedies available to County at law or in equity, County shall be entitled to draw down up
to the full amount of the Security Deposit and apply same to any and all amounts owed, whether
before or after the expiration or earlier termination of this Agreement. Within five (5) business
days after notice from County of any such draw, Concessionaire shall replenish the Security
Deposit with cash, a new Letter of Credit, or a new Bond, as applicable, so it equals the full
amount of the required Security Deposit. If a Letter of Credit is posted, the initial term and all
renewal terms of the Letter of Credit shall be for a period of not less than one (1) year, and the
Letter of Credit shall be kept in full force and effect throughout the Term and for a period of six
(6) months following the expiration or earlier termination of this Agreement. If a Bond is posted,
the Bond shall provide coverage and be kept in full force and effect throughout the Term and for
a period of six (6) months following the expiration or earlier termination of this Agreement. If
Concessionaire posts a cash deposit, then such cash deposit shall be retained by County
throughout the Term and for a period of six (6) months following the expiration or earlier
termination of this Agreement. Not less than one hundred twenty (120) Days prior to any
expiration date of the Letter of Credit or Bond, Concessionaire shall submit evidence in form
satisfactory to County that said security instrument has been renewed. Each Letter of Credit shall
be provided by a financial institution authorized to do business in the State of Florida and that
has a resident agent in Broward County and has been in business with a record of successful
continuous operation for at least five (5) years. Each Bond shall be executed by a surety company
authorized to do business in the State of Florida, having a resident agent in Broward County, and
having been in business with a record of successful continuous operation for at least five (5)
years. Furthermore, such surety company must have at least an "A" rating in the latest revision
of Best's Insurance Report. Any failure by Concessionaire to strictly comply with the terms of this
section shall constitute an Event of Default, and the obligations of this section shall survive the
expiration or earlier termination of this Agreement.
ARTICLE 5. OPERATIONAL STANDARDS
5.1 Hours of Service. Concessionaire shall keep the Premises open for business during such
times necessary to meet reasonable demands for vehicle rental services from potential Airport
Customers, as determined by the Contract Administrator. At a minimum, Concessionaire shall
provide vehicle rental services to Airport Customers during all hours of passenger air carrier
operations at the Airport. Except in case of an emergency, customer service counters shall be
staffed during all hours of operation. In the event that customer service counters cannot be
staffed because of an emergency, Concessionaire shall post a toll-free telephone number in a
Rental Car Concession - __________ 19
place visible to the public that provides the public with direct communication to staff who can
provide services to potential Airport Customers.
5.2 Employee Standards. Concessionaire shall at all times recruit and retain a sufficient
number of qualified, competent, and experienced employees at the Airport to conduct its
operations. Concessionaire's employees shall be clean, professional, courteous, efficient, and
neat in appearance. All employees shall be appropriately and professionally attired and must
wear Concessionaire's identification name tag at all times. Concessionaire's identification name
tag shall clearly display the name of Concessionaire and the name of the employee.
Concessionaire's employees shall not use improper language or act in a loud, boisterous, or
otherwise improper manner, and must comply with all Airport regulations (including security and
RCC regulations). The Contract Administrator shall be the sole judge as to whether the conduct
or actions of any employee is objectionable pursuant to this section, and if so judged,
Concessionaire shall take all steps necessary to eliminate the conditions that have occasioned
such judgment. Concessionaire and its employees shall maintain a friendly, cooperative
(although competitive) relationship with the Concessionaires, and shall not engage in open or
public disputes, disagreements, or conflicts that may deteriorate the quality of the vehicle rental
services or be incompatible to the best interests of the public or the Airport.
5.3 Airport Issued Identification Media, Public Area Business Purpose Media, and Emergency
Response Training. All employees, agents, representatives, contractors, and subcontractors of
Contractor shall obtain any Airport Issued Identification Media or Public Area Business Purpose
Media, and complete any emergency response training, required by Section 2-43 of the Broward
County Code of Ordinances. Contractor shall comply with the requirements of Section 2-43 of
the Broward County Code of Ordinances, including the requirement that Contractor compensate
its employees, agents, representatives, contractors, and Subcontractors for time spent
completing the emergency response training.
5.4 Vehicle Driving. Concessionaire's employees, agents, representatives, contractors, and
subcontractors shall operate vehicles in a safe manner and in accordance with all applicable
Airport rules and procedures. Such individuals shall strictly observe all posted speed limits and
other traffic and safety signs. The Contract Administrator reserves the right to ban from the
Airport any individuals that violate this section.
5.5 Management. The operation and management of the Premises shall be under the
constant and direct supervision of a well-trained, qualified, and experienced manager employed
by Concessionaire ("Manager"). The Manager shall have the authority to make all decisions
necessary in the day-to-day operations of Concessionaire on the Premises, including, without
limitation, decisions regarding services, equipment, returns or credits, customer complaints and
concerns, Aviation Department complaints and concerns, quality and price of services or
equipment, and employee conduct. The Manager shall be available on the Premises at least eight
(8) hours per Day, five (5) Days per week, and when not on the Premises, the Manager shall
appoint an assistant manager or shift lead with authority to act on the Manager's behalf and the
ability to immediately contact the Manager to promptly respond to all concerns. Concessionaire
Rental Car Concession - __________ 20
may be required to employ more than one (1) Manager to meet the requirements set forth in
this section. The Contract Administrator, with the consent of the Director of Aviation, shall have
the right to require the replacement of the Manager if operating standards are consistently not
being met, as determined by the Contract Administrator and the Director of Aviation.
Concessionaire shall give the Contract Administrator at least twenty four (24) hours advance,
written notice of any replacement of the Manager. Concessionaire shall provide the Contract
Administrator with emergency telephone numbers at which the Manager may be reached on a
24-hour basis.
5.6 Vehicle Standards. Concessionaire shall maintain a fleet adequate in number to meet all
reasonable demands for the services offered by Concessionaire. Vehicles shall be models of the
current year, or the year immediately prior to the current year. All vehicles shall be maintained
in good and safe operating order, free from any known mechanical defects, and be in clean, neat,
and attractive condition inside and outside. Concessionaire shall furnish good, prompt, and
efficient service. All vehicles shall comply with the height restrictions of the Joint-Use Facility.
5.7 Fuel and Supplies. Concessionaire shall bear all costs of fuel and oil acquisition for its
operations and any other materials required for its operations, including any materials required
for rental vehicles.
5.8 Service Standards. The Contract Administrator shall have the right to make reasonable
objections to the quality and appearance of the vehicles available for rent, the quality of the
service rendered to the public, the appearance and condition of Concessionaire's Premises, and
other aspects of Concessionaire's operations. Concessionaire agrees to promptly discontinue or
remedy any such objectionable practice upon written notice from the Contract Administrator
within the time period specified in such notice. The Contract Administrator may from time to
time establish operational and procedural requirements, rules, regulations, and policies to
govern the conduct of rental car operations at the Airport or from the Joint-Use Facility.
Concessionaire shall comply with all such requirements, rules, regulations, and policies.
5.9 Reservation System/Credit Cards. Concessionaire shall provide a national reservation
system for all services Concessionaire provides at the Airport. Concessionaire shall accept at least
three (3) nationally recognized credit cards for payment of vehicle rentals.
5.10 Complaints. If the Contract Administrator receives and forwards to Concessionaire any
complaint concerning Concessionaire's operations, Concessionaire shall promptly respond to the
complaining person in writing, copying the Contract Administrator, within five (5) Days after
receipt, and shall make a good faith attempt to resolve the cause of the complaint.
5.11 Signs. County will permit Concessionaire to install and operate signs on the Premises;
however, Concessionaire shall not install any sign until the sign has been approved, in writing, by
the Contract Administrator. Concessionaire shall request the Contract Administrator's approval
by submitting a written request, accompanied by a detailed rendering or drawing of the proposed
sign. Signs must conform to all Airport standards. Nonprofessionally produced signs, hand
Rental Car Concession - __________ 21
written signs or graphics, and similar signs are prohibited at all times and are not to be displayed
on the Premises or on the Airport.
5.12 Licenses. Concessionaire shall maintain in current status all federal, state, county, and
local licenses and permits required for the operation of the business conducted by
Concessionaire.
5.13 Emergency Evacuation and Hurricane Plan. Within sixty (60) Days following the Effective
Date, Concessionaire shall provide the Contract Administrator with emergency evacuation and
hurricane plans consistent with County's plans for the Airport. These plans shall be detailed
procedures of actions to be taken by Concessionaire if an evacuation need or hurricane alert
warning is present. Hurricane plans are to be annually updated, if requested by the Contract
Administrator.
5.14 Fire Safety. Concessionaire shall exercise due and reasonable care and caution to prevent
and control fire in the Joint-Use Facility, and to that end, shall provide and maintain such fire
suppression and other fire protection equipment on the Premises as may be required pursuant
to applicable governmental laws, ordinances, statutes, and codes for the purpose of protecting
the Joint-Use Facility adequately and restricting the spread of any fire from the Premises to any
property adjacent to the Premises.
5.15 Security. Within sixty (60) calendar days after the Effective Date, unless such deadline is
otherwise extended in writing by the Contract Administrator, and continually thereafter,
Concessionaire, at its own expense, shall secure all exit lanes on its Premises in a method and
manner approved in writing by the Contract Administrator to prevent the theft of vehicles.
Concessionaire, at its own expense, shall also provide any additional or supplemental security
services or devices required in writing by the Contract Administrator, including private security
services. Concessionaire may also provide any additional or supplemental security services or
devices that Concessionaire may desire, at its own expense, except that such additional security
must be approved, in writing, by the Contract Administrator. Any extra security shall be subject
to the authority granted to the Broward Sheriff’s Office and shall in no way interfere with the
duties of the Broward Sheriff’s Office.
5.16 Disincentive Fees. The following table sets forth a schedule of Disincentive Fees for
violations of operating standards or failure to adhere to contractual requirements ("Disincentive
Fees"). Written notice of any violation shall be given by the Contract Administrator to
Concessionaire. If the violation requires the payment of a Disincentive Fee, said fee shall be paid
by Concessionaire within thirty (30) Days after receipt of the notice. Each infraction in a category
is considered a violation and a subsequent infraction is considered a 2
nd
or 3
rd
(or further)
violation. Concessionaire acknowledges and agrees that the damages that would be incurred
by County upon Concessionaire's nonperformance are difficult to quantify and not readily
ascertainable. Concessionaire acknowledges and agrees that the Disincentive Fees are fair
and reasonable. Concessionaire waives any and all challenges and legal defenses to the
validity of any Disincentive Fee amounts, including that the Disincentive Fees are void as
penalties. The imposition of a Disincentive Fee shall not operate to limit or otherwise affect
Rental Car Concession - __________ 22
County's rights under this Agreement, or at law or in equity, for Concessionaire's breach of this
Agreement, or as a limit on County's damages for any breach except for those enumerated
below.
Infraction
1
st
Violation
2
nd
Violation
3
rd
(or further)
Violation
Parking/storing vehicles other than as
allowed by this Agreement
$15 per Day per vehicle
Parking/storing vehicles in areas
marked as Fire Lane as set by the Fire
Marshal
As cited by Fire Marshal, plus $15 per Day per vehicle
Doing, or permitting to be done, any
Express Prohibitions (hereinafter
defined)
Written Warning
$250 per
incident
$500 per incident
Failing to comply with the operations
standards in Article 5
Written Warning
$100 per
incident
$250 per incident
Failing to comply with the
maintenance standards in Article 7
Written Warning
$100 per
incident
$250 per incident
Employee violating Section 6.8
Written Warning
$100 per
incident
$250 per incident
Employee violating the employee
standards set forth in Section 5.2
Written Warning
$100 per
incident
$250 per incident
*In the event of any overlap in the breaches outline in the chart above, the more specific shall
apply.
ARTICLE 6. PROHIBITED USES
Except as otherwise provided in this Agreement, Concessionaire shall not do, nor permit or allow
to be done, any of the following ("Express Prohibitions"):
6.1 Conduct or solicit business in any location other than the Premises.
6.2 Sell fuel or vehicle services at the Airport other than to its Airport Customers.
6.3 Sell food or beverages, lottery tickets, news or gift items, or any other retail activity at the
Airport, or install or operate vending machines, public telephones, or similar equipment at the
Airport, unless: (a) the Contract Administrator gives his or her prior written consent, (b) such
activity does not conflict with any existing contract entered into by County, and (c) such activity
is on the Premises. County reserves the right to provide for the sale of food and beverages,
lottery tickets, news and gift items, and any other retail activity, including the installation and
operation of vending machines, public telephones, or similar equipment, in any location at the
Airport other than the Premises.
Rental Car Concession - __________ 23
6.4 Accept or authorize the delivery or return of vehicles to the Airport by truck.
6.5 Conduct any vehicle sales activities at the Airport.
6.6 Knowingly divert any automobile rental business from the Airport to another location of
Concessionaire, or of any Affiliate of Concessionaire in Broward County or the adjacent counties.
Concessionaire acknowledges that any such diversion would limit and reduce the lawful revenues
due to County. Intentional diversion shall include, without limitation, Concessionaire advising,
directing, or otherwise suggesting to a customer or prospective customer arriving or at the
Airport that such customer or prospective customer rent a vehicle at any off-Airport location,
whether from Concessionaire or another rental car provider, regardless of the basis or reason for
such advice, direction, or suggestion. If any such diversion does occur, the diverted transaction
shall be deemed to have occurred at the Airport and as such shall be included in the Gross
Revenues calculation.
6.7 Store or park, whether temporarily or permanently, at the Airport, any aircraft, boats,
motor homes, inoperable vehicles, or any other vehicle not permitted to be rented by
Concessionaire under this Agreement, or any equipment or machinery which is inoperable,
damaged, or that is not used in support of Concessionaire's day-to-day operations. The Premises
may not be used for public parking. Notwithstanding the foregoing, (a) Concessionaire may allow
on-duty employees to park employee-owned vehicles on the Premises, (b) Concessionaire may
arrange for towing of inoperable vehicles from the Joint-Use Facility; and (c) all deliveries of
supplies will be made in a manner and location established by the Contract Administrator.
6.8 Store or park any vehicles in any location on the Airport (including the public parking lots)
other than Concessionaire's Premises; except, however, employees may park in accordance with
Section 15.4 of this Agreement. All employees must comply with this Express Prohibition.
6.9 Do anything at the Airport that may interfere with the effectiveness or accessibility of the
navigational aids, drainage and sewage systems, fire hydrants and hoses, heat, air-conditioning,
elevators, electrical systems, domestic hot or cold water, gas, fire suppression systems, fire alarm
systems, storm water harvesting systems, non-potable water systems, and plumbing installed or
located at the Airport. Concessionaire shall report to the Contract Administrator any malfunction
of any such systems installed or located on the Premises.
6.10 Reference County, any of County's departments or divisions, or the Airport, in any media
for any purpose other than to provide the address of the business to be conducted by
Concessionaire.
6.11 Do anything that may confuse or mislead the public as to the relationship between County
and Concessionaire.
6.12 Maintain separate advertising concessions or agreements for the dissemination of local
or national advertising at the Airport.
Rental Car Concession - __________ 24
6.13 Engage in any conduct that may conflict with any advertising concessions or agreements
now or hereafter entered into by County.
6.14 Install, publish, or distribute any advertising media at the Airport unless otherwise
approved by the Contract Administrator and in accordance with any applicable advertising
concessions or agreements now or hereafter entered into by County.
6.15 Do anything that: (a) adversely affects or is likely to adversely affect the Joint-Use Facility;
(b) creates any condition that may be a safety hazard or violates FAA regulations; (c) creates or
tends to create a hazard or a nuisance; (d) adversely interferes in any way with Airport
operations; (e) increases the insurance rates of the Joint-use Facility; or (f) obstructs or interferes
with the rights of others.
6.16 Transport Airport Customers in any manner without the prior written consent of the
Contract Administrator, except to accommodate disabled Airport Customers.
6.17 Commit any waste at the Airport.
6.18 Use the Premises for any unlawful or objectionable purpose.
6.19 Place any loads upon the floors, walls, or ceiling that endanger the structure or obstruct
the sidewalks, passageways, stairways, or escalators.
6.20 Do anything tending to injure the reputation of County or the appearance of the Airport.
ARTICLE 7. MAINTENANCE OF PREMISES; FACILITY MANAGER
7.1 Concessionaire Maintenance and Repair Responsibilities. Concessionaire shall, at its sole
expense, maintain and repair the Premises and the fixtures, equipment, Improvements, and
appurtenances thereon, including, but not limited to, car wash stations, in a clean, safe, neat,
orderly, sanitary, and presentable condition, and free and clear of all trash, rubbish, debris,
rodents, insects, and other pests. Concessionaire shall furnish and pay for its own janitorial
service in the Premises and shall cause all waste, garbage, and rubbish to be removed from the
Premises on a daily basis. Such waste, garbage, and rubbish may not be deposited on any part
of the Airport. All maintenance and repairs completed by Concessionaire or on its behalf shall
be of first class quality in both materials and workmanship. All maintenance and repairs shall be
completed in conformity with the rules and regulations prescribed from time to time by federal,
state, county, and local authorities having jurisdiction over the work. Upon failure of
Concessionaire to perform its obligations set forth in this section, after reasonable notice to
Concessionaire, County may perform or cause the obligations to be performed at
Concessionaire's expense, and all charges shall be deemed additional rent to be added to the
Facility Rent paid by Concessionaire. The maintenance obligations of Concessionaire for any
Shared Premises shall be shared between the Concessionaires occupying the Shared Premises.
Rental Car Concession - __________ 25
Any disputes regarding the aforementioned maintenance between the Concessionaires of the
Shared Premises shall be resolved by the Contract Administrator in his or her sole discretion.
7.2 County Maintenance and Repair Responsibilities. County shall, at its sole expense,
maintain and repair the structural elements of the Joint-Use Facility, including the Premises, and
all aspects of the Common Concessionaire Areas and Public Areas.
County shall not be liable to Concessionaire for any damage to persons or property of any kind
caused by water leakage from the roof, water lines, sprinkler, or heating and air conditioning
equipment, or caused by any damage to any structural or permanent portion of the Joint-Use
Facility, any other facility, or the Premises. Further, County shall not be liable to Concessionaire
for any damage to persons or property of any kind caused by any other damage or disrepair to
the structural or permanent portions of the Joint-Use Facility, any other facility, or the Premises,
unless (i) County has had reasonable opportunity to perform repairs after being notified in writing
of the need for same by Concessionaire; and (ii) any such damage or disrepair shall not have been
due to any actions or negligence of Concessionaire or Concessionaire's Parties.
Notwithstanding any other provision contained in this Agreement, County shall have the absolute
right to maintain and to make repairs, alterations, and additions to the Premises, as well as the
right to enter the Premises for the purpose of doing so, free from any and all liability to
Concessionaire for any loss of business or damages sustained by Concessionaire as a result of
County's making any such repairs, alterations, or additions. County shall endeavor to provide
advance notice to Concessionaire of such repairs, alterations, and additions.
7.3 Industry Agreement. Within at least ninety (90) Days after the Effective Date,
Concessionaire shall enter into an agreement with the other Concessionaires for the joint use,
maintenance, and operation of the Joint-Use Facility ("Industry Agreement"). Pursuant to the
Industry Agreement, Concessionaire and the other Concessionaires shall form a management
committee ("Management Committee"). The Contract Administrator shall be entitled to appoint
a non-voting representative to the Management Committee who shall receive all
communications, meeting notices, or other communications that would otherwise be afforded a
voting member of the Management Committee. The appointment of a County representative is
for information and advisory purposes only and does not obligate or bind County in any way to
the actions, duties, and obligations of the Management Committee. The terms and conditions
of the Industry Agreement shall be reviewed and approved by the Contract Administrator.
Concessionaire must continue full participation in the Industry Agreement and meet all
obligations thereunder for the term of the Industry Agreement.
7.4 Facility Manager. No later than one hundred and twenty (120) Days after the Effective
Date, pursuant to the Industry Agreement, Concessionaire and the other Concessionaires, at
their sole expense and at no expense to County, shall retain a third party manager ("Facility
Manager") to ensure full performance of the obligations and responsibilities of Concessionaire
under this Agreement and the Concessionaires under their Concession/Lease Agreements, and
to serve as a direct liaison with the Contract Administrator regarding the Concessionaires' use
and operation of all portions of the Joint-Use Facility and performance in accordance with the
Rental Car Concession - __________ 26
Concession/Lease Agreements. The Contract Administrator shall participate in the selection
process and must approve, in advance, the proposed scope of duties and obligations of the
Facility Manager which shall include, at a minimum, those set forth in this Agreement. Once
selected, there shall be no change of the Facility Manager without the Contract Administrator's
prior written approval. At least thirty (30) Days prior to engaging a Facility Manager, and at least
ninety (90) Days prior to changing the Facility Manager or the terms of any contract with the
Facility Manager, unless another timeframe is approved by the Contract Administrator, the
Management Committee shall submit to the Contract Administrator for his or her review and
approval any such information as the Contract Administrator may reasonably request regarding
the experience, financial strength, and operational plan associated with any such Facility
Manager, and a complete copy (including all exhibits or attachments) of any proposed contract(s)
between the Concessionaires and the Facility Manager. Such contract(s) shall, at a minimum: (a)
be consistent with the provisions of this Agreement; (b) be consistent with operating agreements
customary at consolidated rental car facilities at large hub airports; (c) require the Facility
Manager to defend and indemnify County from any damages, claims, or the like resulting from
the Facility Manager's acts or omissions; (d) require the Facility Manager to procure insurance of
like kind and amount required of Concessionaire as set forth in this Agreement and cause County
to be an additional insured under such policies, and provide to County certificates of insurance
naming County as an additional insured; (e) provide that such contracts may not be cancelled or
terminated without prior written notice to County; (f) allow for amendments and or extensions
of term, if necessary; and (g) require that the Facility Manager perform the duties set forth in the
Industry Agreement and approved by County. Unless otherwise agreed by the Contract
Administrator, the Facility Manager shall have at least five (5) years of experience in the
management and operation of commercial facilities similar to the RCC in a competent and
professional manner in accordance with operating standards and policies standard in the
industry, and financial strength and management competency, with personnel having
appropriate experience to operate, maintain, and manage the RCC. The contract(s) between the
Concessionaires and the Facility Manager shall specifically bind the Facility Manager to those
obligations to be performed by the Facility Manager under this Agreement, and County shall
specifically be a third party beneficiary of any such contract(s). The Facility Manager shall
participate in a County orientation within thirty (30) Days after being appointed. The
Management Committee shall give County the name and telephone number for the Facility
Manager, who shall be available twenty-four (24) hours per Day, seven (7) Days a week for issues
related to this Agreement.
7.5 Duties of Facility Manager. The duties of the Facility Manager shall include, but not be
limited to, the following:
7.5.1 Receive and review information and documents from the Concessionaires,
County, and third party contractors related the operations of a rental car business;
7.5.2 Prepare and solicit proposals for the maintenance of the premises leased to the
Concessionaires;
Rental Car Concession - __________ 27
7.5.3 Comply and abide by the directions of the Management Committee;
7.5.4 Report to the Management Committee;
7.5.5 Act in accordance with the agreement(s) between the Concessionaires and the
Facility Manager;
7.5.6 Keep minutes of meetings of the Management Committee and provide them to
the Contract Administrator after every meeting;
7.5.7 Provide the Contract Administrator with an executed copy of the agreement(s)
the Facility Manager has entered into with the Concessionaires, and any and all
amendments;
7.5.8 Make available to the Contract Administrator all books, records, vouchers, checks,
papers, and documents kept or maintained by the Facility Manager related to this
Agreement, the Concession/Lease Agreement(s), or the Industry Agreement;
7.5.9 Train the Concessionaires' employees, and oversee vendors, contractors, and
invitees;
7.5.10 Ensure that all maintenance required by the Concessionaires is performed;
7.5.11 Schedule, coordinate, monitor, respond to, and notify the Contract Administrator
about required maintenance and preventative maintenance that is the responsibility of
County;
7.5.12 Create and enforce a training program for operations at the RCC, which shall be
approved in advance by the Contract Administrator;
7.5.13 Facilitate the timely and orderly collection, sorting, and removal of trash and all
waste and recyclable materials;
7.5.14 Manage and coordinate locks, keys, and access control cards for the RCC in
accordance with this Agreement, the Concession/Lease Agreement(s), and County
policies;
7.5.15 Monitor and order window washing fluid and other associated supplies as needed
by the Concessionaires;
7.5.16 Manage access to the RCC by the Concessionaires' employees, vendors,
contractors, and invitees;
7.5.17 Coordinate with the Contract Administrator any Improvements and changes made
by the Concessionaires; and
Rental Car Concession - __________ 28
7.5.18 Provide to the Contract Administrator a billing address for the Facility Manager for
notifications regarding billing.
7.6 Operations Manual. No later than sixty (60) Days after the effective date of the contract
with the Facility Manager, Concessionaire, in common with all Concessionaires and through the
Facility Manager, shall prepare and provide to the Contract Administrator an operations manual
("Operations Manual") that addresses the operation of the RCC for the Contract Administrator's
review and approval. The Operations Manual shall: (a) be updated as required to be consistent
with the standards and operating requirements at consolidated rental car facilities at large hub
airports; (b) be prepared in coordination with the Contract Administrator; and (c) with respect to
any equipment located in, on, or about the RCC, be consistent with warranty requirements,
manufacturer's recommendations, and best management practices approved by County.
7.7 Quarterly Condition Survey. County and the Concessionaires, through the Facility
Manager, shall conduct an inspection of the RCC on a quarterly basis to observe and note the
condition of, cleanliness of, and existing damage to the RCC, and to determine repairs and
maintenance required to be performed.
7.8 Failure to Hire Facility Manager. Failure on the part of the Concessionaires to enter into
an Industry Agreement and to hire a Facility Manager in accordance with the terms of this article
shall entitle County to procure a Facility Manager and to charge all expenses related thereto to
the Concessionaires as additional Facility Rent. Under no circumstances shall County be charged
for any services under this article except for its maintenance obligations under Section 7.2.
ARTICLE 8. IMPROVEMENTS
8.1 Required Approval. No improvements, alterations, additions, or renovations (collectively,
"Improvements") may be constructed on the Premises unless Concessionaire obtains the prior
written approval of the Contract Administrator. All Improvements must conform to any tenant
improvement project process and tenant improvement standard requirements, policies, or
procedures of County applicable to tenants of the RCC.
8.2 Required Contract Documents for Construction of Improvements. Prior to the
commencement of construction of any Improvements, Concessionaire shall submit to the
Contract Administrator six (6) sets of the contract documents for approval by the Contract
Administrator. Contract documents shall include, at a minimum, a site plan and complete plans
and specifications of the contemplated construction. The plans and specifications shall be
certified by an architect or engineer licensed to practice in the State of Florida and shall consist
of: (i) working drawings, (ii) technical specifications, (iii) schedule for accomplishing the
Improvements, and (iv) such other information as may be required by the Contract
Administrator. All Improvements must be made in accordance with the requirements set forth
in this Agreement. All of the plans and specifications shall be in such detail as may reasonably
permit the Contract Administrator to make a determination as to whether the construction will
be consistent with the standards set forth in this Agreement. Any plans and specifications that
have received the Contract Administrator's written approval, and any amendments and changes
Rental Car Concession - __________ 29
thereto that have received the Contract Administrator's written approval, are hereinafter
referred to collectively as the "Approved Plans." No construction may be performed on the
Premises except pursuant to Approved Plans.
8.3 Changes to Approved Plans. No material changes shall be made to any Approved Plans
without the prior written approval of the Contract Administrator. Any change that requires the
issuance of a building permit or modifies an existing building permit shall be considered a
material change.
8.4 Compliance with law. All Improvements constructed or installed by Concessionaire, its
agents, or contractors, including the plans and specifications relating to same, shall conform to
all applicable state, federal, County, and local agency (including divisions and departments of
County) statutes, ordinances, building codes, fire codes, rules and regulations, and design
standards. The approval by the Contract Administrator of any plans, specifications, or designs
shall not constitute a representation or warranty as to such conformity, and the responsibility
therefor shall at all times remain with Concessionaire.
8.5 Ownership. All Improvements to the Premises shall become County's property upon the
expiration or earlier termination of this Agreement and shall be surrendered with and remain on
the Premises (without cost to, or reimbursement by County), excluding furnishings, equipment,
and trade fixtures that are not permanently affixed to the Premises. Any addition, fixture, or
other Improvement that is nailed, bolted, stapled, or otherwise affixed to the Premises and is not
readily removable, shall become part of the Premises as a leasehold improvement, whether or
not such may be deemed a trade fixture. If any personalty is removed by Concessionaire,
Concessionaire shall restore any damage to the Premises caused thereby. Notwithstanding any
other provisions of this Agreement, the Contract Administrator shall have the right, in his or her
sole discretion, to require Concessionaire, at Concessionaire's sole cost, to remove any leasehold
improvements installed by Concessionaire prior to the date this Agreement terminates.
8.6 Certified Statements. Within one hundred and twenty (120) Days after the installation of
any Improvements, Concessionaire must provide to the Contract Administrator: (a) a certified
statement from the construction contractor(s) stating that the Improvements are free and clear
of all liens, claims, or encumbrances by any material supplier, subcontractors, or laborers, and
that all such fees and charges have been paid; and (b) a certified statement from the architect or
engineer stating that the Improvements have been constructed in accordance with the Approved
Plans and in compliance with all applicable federal, state, local, and County laws, rules,
ordinances, regulations, and building codes. Concessionaire shall provide, upon request, such
back-up documentation and releases of lien as may be required by the Contract Administrator.
8.7 Liens. Concessionaire represents, warrants, and covenants to County that the Premises
and all Improvements constructed or placed thereon shall be at all times free and clear of all
liens, claims, and encumbrances created by Concessionaire or Concessionaire's agents,
contractors, employers, officers, or invitees. If any such lien or notice of lien shall be filed against
the Premises or any Improvements, Concessionaire shall, within thirty (30) Days after notice of
Rental Car Concession - __________ 30
the filing thereof, cause the same to be discharged of record by payment, deposit, bond, or order
of a court of competent jurisdiction.
8.8 As Built Plans and Specifications. Within one hundred twenty (120) Days after the
installation of any Improvements, Concessionaire shall, at its expense, provide the Contract
Administrator with a complete set of "as built" plans and specifications, including mylar
reproducible "record" drawings, and one set of machine readable disks containing electronic data
in an AUTOCAD format that meets the Contract Administrator's graphic standards of the 'as-
constructed' or 'record' plans for such Improvements.
8.9 Approval from Other Governmental Agencies for Concessionaire's Improvements. In
addition to the Contract Administrator's approval, Concessionaire shall be responsible for
obtaining all construction permits, complying with inspection requirements of the Broward
County edition of the current South Florida Building Code, and obtaining any other required
approval from all other agencies having jurisdiction over any Improvements, including, but not
limited to, departments, divisions or offices of County, the State of Florida, and the federal
government. All Improvements must be coordinated with the FAA, including the filing of required
forms and the provision of any documentation the FAA may request.
8.10 Americans with Disability Act Compliance. All Improvements made to Concessionaire's
Premises shall be in conformity and consistent with the Americans with Disability Act of 1990, as
same may be amended from time to time.
8.11 Failure to Obtain Approval. In the event any Improvement is made without the approvals
required pursuant to this article, then, upon notice in writing, Concessionaire shall remove the
same, or at the option of the Contract Administrator, cause the same to be changed to the
satisfaction of the Contract Administrator. In the case of any failure on the part of Concessionaire
to comply with such notice, County may affect the removal or change and Concessionaire shall
pay the cost thereof to County within ten (10) Days following written demand for said payment,
together with interest thereon at the rate of eighteen percent (18%) per annum from the date
the expense was incurred by County.
8.12 Impact on Public Areas. During construction of any Improvements, Concessionaire shall
maintain the Public Areas in the Joint-Use Facility in the same manner and cleanliness as provided
by County. Any such Improvements shall be made within the time specified in the written
approval from the Contract Administrator and shall be undertaken with the least disturbance
possible to the public and the operation of the Joint-Use Facility.
8.13 Joint Possession of the Premises during Construction. At all times during installation of
Improvements, possession of the Premises for installation and construction purposes shall be
joint between Concessionaire and County. Moreover, Concessionaire and Concessionaire's
agents, servants, employees, and independent contractors shall cooperate with and coordinate
activities and work with the Contract Administrator and other Concessionaires located within the
Joint-Use Facility. Concessionaire and Concessionaire's agents, servants, employees, and
Rental Car Concession - __________ 31
independent contractors shall at all times be responsible for damage resulting from their acts or
omissions to the person or property of any third party and County.
8.14 Prevailing Wage Requirement. If construction work in excess of Two Hundred Fifty
Thousand Dollars ($250,000.00) is required of, or undertaken by, Concessionaire as a result of
this Agreement, Section 26-5, Broward County Code of Ordinances, shall be deemed to apply to
such construction work. Concessionaire shall fully comply with the requirements of such
ordinance and shall satisfy, comply with, and complete the requirements set forth in Exhibits C
and D.
8.15 Construction and Labor and Material Bonds. Concessionaire agrees that before
commencing any work or construction of Improvements, Concessionaire shall obtain or require
the contractor to maintain, at all times, a valid payment bond and a valid performance bond,
each of which shall be in form and content satisfactory to County and in an amount not less than
the amount covering the full amount of the work being performed. Such bonds must guarantee
to County the completion and performance of the work being performed as well as full payment
of all suppliers, laborers, or subcontractors employed in the performance of the project.
ARTICLE 9. FIRE AND OTHER DAMAGE
9.1 In the event that structural or permanent portions of the Premises are partially damaged by
fire or other casualty for which Concessionaire is not responsible, Concessionaire shall give
immediate notice thereof to the Contract Administrator and the same shall be repaired at the
expense of County without unreasonable delay unless the Contract Administrator determines, in his
or her sole discretion, that the damage is so extensive that the repair or rebuilding is not feasible.
From the date of such casualty until said portion of the Premises is so repaired, if ever, the monthly
installments of the MAG and Facility Rent shall abate in such proportion as the part of the Premises
thus destroyed or rendered untenantable; provided, however, that if any area is so slightly injured
in any such casualty as not to be rendered unfit for occupancy, as determined exclusively by the
Contract Administrator, such installment payments shall not cease or be abated during any repair
period. In the event the Contract Administrator determines, in his or her sole discretion, that the
damage is so extensive that the repair or rebuilding is not feasible, then, at the option of the
Contract Administrator and upon notice to Concessionaire, the damaged area shall be removed
from the Agreement and Exhibit A shall be amended automatically. Notwithstanding anything in
the section, Concessionaire shall continue to pay to County the Percentage Fees.
9.2 County's obligations to rebuild or repair under this article shall be limited to restoring only
the structural or permanent portions of the building in which the Premises are located to
substantially the condition that existed prior to the casualty, and shall further be limited to the
extent of the insurance proceeds available to County for such restoration. Concessionaire agrees
that if the Contract Administrator elects to repair or rebuild as provided in this article, then
Concessionaire will proceed with reasonable diligence and at its sole cost and expense to rebuild,
repair, and restore its signs, fixtures, furnishings, equipment, Improvements, and other items
provided or installed by Concessionaire in or about the Premises in a manner and to a condition at
least equal to that which existed prior to its damage or destruction.
Rental Car Concession - __________ 32
9.3 In the event said damage is caused by the act or omission of Concessionaire or
Concessionaire's officers, agents, employees, partners, contractors, subcontractors,
subconcessionaires, sublessees, guests, invitees, or Affiliates, Concessionaire's payments shall not
abate and Concessionaire shall be responsible, at its expense, for making all the necessary repairs
as approved by the Contract Administrator. If Concessionaire fails to make the necessary repairs in
a timely manner as determined by the Contract Administrator, then the Contract Administrator
may, at his or her option, cause such repairs to be completed and Concessionaire shall reimburse
County for the costs and expenses incurred in such repair, plus an administrative fee as permissible
under the Broward County Administrative Code.
ARTICLE 10. INDEMNIFICATION AND INSURANCE
10.1 Indemnification. Concessionaire shall indemnify, hold harmless, and defend County and
all of County’s officers, agents, servants, and employees (collectively, “Indemnified Party”) from
and against any and all causes of action, demands, claims, losses, liabilities, and expenditures of
any kind, including attorneys’ fees, court costs, and expenses, including through the conclusion
of any appellate proceedings, raised or asserted by any person or entity not a party to this
Agreement, and caused or alleged to be caused, in whole or in part, by any intentional, reckless,
or negligent act or omission of Concessionaire, its officers, employees, agents, or servants, arising
from, relating to, or in connection with this Agreement (collectively, a “Claim”). In the event any
Claim is brought against an Indemnified Party, Concessionaire shall, upon written notice from
County, defend each Indemnified Party against each such Claim by counsel satisfactory to County
or, at County’s option, pay for an attorney selected by the County Attorney to defend the
Indemnified Party. The obligations of this section shall survive the expiration or earlier
termination of this Agreement. To the extent considered necessary by the Contract
Administrator and the County Attorney, any sums due Concessionaire under this Agreement may
be retained by County until all Claims subject to this indemnification obligation have been settled
or otherwise resolved. Any amount withheld shall not be subject to payment of interest by
County.
10.2 Insurance. For the duration of the Agreement, Concessionaire shall, at its sole expense,
maintain the minimum insurance coverages stated in Exhibit E in accordance with the terms and
conditions of this article. Concessionaire shall maintain insurance coverage against claims
relating to any act or omission by Concessionaire, its agents, representatives, employees, or
subcontractors in connection with this Agreement. County reserves the right at any time to
review and adjust the limits and types of coverage required under this article.
10.2.1 Concessionaire shall ensure that “Broward County” is listed and endorsed as an
additional insured as stated in Exhibit E on all policies required under this article.
10.2.2 On or before the Effective Date or at least fifteen (15) Days prior to
commencement of services, Concessionaire shall provide County with a copy of all
Certificates of Insurance or other documentation sufficient to demonstrate the insurance
coverage required in this article. If and to the extent requested by County, Concessionaire
Rental Car Concession - __________ 33
shall provide complete, certified copies of all required insurance policies and all required
endorsements within thirty (30) Days after County’s request.
10.2.3 Concessionaire shall ensure that all insurance coverages required by this article
shall remain in full force and effect for the duration of this Agreement and until all
performance required by Concessionaire has been completed, as determined by Contract
Administrator. Concessionaire or its insurer shall provide notice to County of any
cancellation or modification of any required policy at least thirty (30) Days prior to the
effective date of cancellation or modification, and at least ten (10) Days prior to the
effective date of any cancellation due to nonpayment, and shall concurrently provide
County with a copy of its updated Certificates of Insurance evidencing continuation of the
required coverage(s). Concessionaire shall ensure that there is no lapse of coverage at
any time during the time period for which coverage is required by this article.
10.2.4 Concessionaire shall ensure that all required insurance policies are issued by
insurers: (1) assigned an A. M. Best rating of at least “A-” with a Financial Size Category of
at least Class VII; (2) authorized to transact insurance in the State of Florida; or (3) a
qualified eligible surplus lines insurer pursuant to Section 626.917 or 626.918, Florida
Statutes, with approval by County’s Risk Management Division.
10.2.5 If Concessionaire maintains broader coverage or higher limits than the minimum
insurance requirements stated in Exhibit E, County shall be entitled to any such broader
coverage and higher limits maintained by Concessionaire. All required insurance
coverages under this article shall provide primary coverage and shall not require
contribution from any County insurance, self-insurance or otherwise, which shall be in
excess of and shall not contribute to the insurance required and provided by
Concessionaire.
10.2.6 Concessionaire shall declare in writing any self-insured retentions or deductibles
over the limit(s) prescribed in Exhibit E and submit to County for approval at least fifteen
(15) Days prior to the Effective Date or commencement of services. Concessionaire shall
be solely responsible for and shall pay any deductible or self-insured retention applicable
to any claim against County. County may, at any time, require Concessionaire to purchase
coverage with a lower retention or provide proof of ability to pay losses and related
investigations, claim administration, and defense expenses within the retention.
Concessionaire agrees that any deductible or self-insured retention may be satisfied by
either the named insured or County, if so elected by County, and Concessionaire agrees
to obtain same in endorsements to the required policies.
10.2.7 Unless prohibited by the applicable policy, Concessionaire waives any right to
subrogation that any of Concessionaire’s insurer may acquire against County, and agrees
to obtain same in an endorsement of Concessionaire’s insurance policies.
10.2.8 Concessionaire shall require that each subcontractor maintains insurance
coverage that adequately covers the services provided by that subcontractor on
Rental Car Concession - __________ 34
substantially the same insurance terms and conditions required of Concessionaire under
this article. Concessionaire shall ensure that all such subcontractors comply with these
requirements and that “Broward County” is named as an additional insured under the
subcontractors’ applicable insurance policies.
10.2.9 In the event Concessionaire or any subcontractor fails to maintain the insurance
required by this Agreement, County may pay any costs of premiums necessary to maintain
the required coverage and deduct such costs from any payment otherwise due to
Concessionaire. Concessionaire shall not permit any subcontractor to provide services
under this Agreement unless and until the requirements of this article are satisfied. If
requested by County, Concessionaire shall provide, within one (1) business day, evidence of
each subcontractor’s compliance with this section.
10.2.10 If any of the policies required under this article provide claims-made
coverage: (1) any retroactive date must be prior to the Effective Date; (2) the required
coverage must be maintained after termination or expiration of the Agreement for at
least the duration stated in Exhibit E, and (3) if coverage is canceled or nonrenewed and
is not replaced with another claims-made policy form with a retroactive date prior to the
Effective Date, Concessionaire must obtain and maintain “extended reporting” coverage
that applies after termination or expiration of the Agreement for at least the duration
stated in Exhibit E.
10.2.11 Environmental Impairment Liability Coverage.
10.2.11.1 County, in its sole discretion, may obtain environmental impairment
liability insurance covering the Joint-Use Facility or portions thereof. Any costs
related to obtaining the insurance under this Section 10.2.11.1, including, but not
limited to, the insurance premium, self-retention, and reasonable administrative
costs related to any claim made under the aforementioned insurance policy shall
be paid by Concessionaire. Administrative costs shall be for the oversight and
management of the claim, and for cleanup/remediation.
10.2.11.2 County, in its sole discretion, may require that Concessionaire obtain
environmental impairment liability insurance covering the Joint-Use Facility or
portions thereof. If County makes such election under this Section 10.2.11.2, then
Concessionaire shall provide and keep said insurance in the amount set forth in
Exhibit E. If County requires insurance under this Section 10.2.11.2, then the cost
of any insurance obtained by County pursuant to Section 10.2.11.1 shall not be
charged to Concessionaire, unless otherwise agreed to in writing by the Parties.
10.2.11.3 Environmental and impairment liability insurance is defined as a
specialized insurance policy that covers liability and clean-up costs associated with
discharge of Materials.
Rental Car Concession - __________ 35
ARTICLE 11.
DEFAULT BY CONCESSIONAIRE
11.1 Event of Default by Concessionaire. The occurrence of any of the following shall
constitute an "Event of Default" by Concessionaire under this Agreement:
11.1.1 Concessionaire fails to pay any monies when due, and shall continue in its failure
to pay for a period of fifteen (15) Days following the date written notice to cure is sent by
the Contract Administrator to Concessionaire;
11.1.2 Concessionaire fails to comply with any provision of this Agreement and (a) such
failure continues for a period of fifteen (15) Days following the date written notice to cure
is sent by the Contract Administrator to Concessionaire; (b) in the case of any obligation
that cannot be cured with due diligence and good faith within fifteen (15) Days, as
determined by the Contract Administrator, Concessionaire fails to proceed promptly and
with due diligence and good faith to begin to cure the default within fifteen (15) Days
after such notice is sent by the Contract Administrator; or (c) having begun to cure the
default in a timely manner, Concessionaire thereafter fails to diligently prosecute the cure
to completion;
11.1.3 Concessionaire assigns all or substantially all of Concessionaire's assets for the
benefit of Concessionaire's creditors;
11.1.4 Concessionaire abandons, deserts, or vacates the Premises, or ceases to operate
in the Premises in compliance with this Agreement, for a period of thirty (30) consecutive
Days, and such nonuse or abandonment continues for at least fifteen (15) Days following
written notice is sent from the Contract Administrator;
11.1.5 By or pursuant to, or under authority of any legislative act, resolution, or rule or
any order or decree of any court or governmental board, agency, or officer having
jurisdiction, a receiver, trustee, or liquidator shall take possession or control of all or
substantially all of the property of Concessionaire, and such possession or control shall
continue in effect for a period of ninety (90) Days;
11.1.6 Concessionaire, or an officer, director, executive, partner, member,
shareholder, employee, or agent who is active in the management of Concessionaire, is
found guilty or convicted of illegal conduct or activity (with or without an adjudication of
guilt) as a result of a jury verdict, nonjury trial, or entry of a plea of guilty or nolo
contendere, where the illegal conduct or activity (i) is considered to be a Public Entity
Crime as defined by Chapter 287, Florida Statutes, as amended; (ii) is customarily
considered to be a "white collar crime" or theft-related crime such as fraud, smuggling,
bribery, embezzlement, or misappropriation of funds; (iii) involves an act of moral
turpitude, meaning conduct or acts that tend to degrade the person in society or bring
them into public hatred, contempt, scorn, or ridicule, or that tends to shock, insult, or
offend the community, or to ridicule public morals, or decency, or to harm the image of
Rental Car Concession - __________ 36
County by virtue of its association with Concessionaire; or (iv) results in a felony
conviction. Notwithstanding, Concessionaire may abate this triggering event by
submitting evidence satisfactory to the Contract Administrator that Concessionaire has
implemented best business practices seeking to prevent and address such illegal conduct
or activity from reoccurring, and requiring the offending person(s) to resign and has
otherwise removed the person from Concessionaire's management activities related to
this Agreement;
11.1.7 Suspension or revocation of Concessionaire's operations by a governmental unit
or agency having jurisdiction over the Premises or the business as being conducted
thereon;
11.1.8 The material inaccuracy of any representation or warranty made or given by
Concessionaire in this Agreement and Concessionaire's failure to cure such inaccuracy to
the satisfaction of the Director within fifteen (15) Days after written notice to cure is sent
to Concessionaire;
11.1.9 Concessionaire defaults under any other agreement it enters into with County
including an Off-Airport Rental Car Permit.
11.2 County's Remedies for Concessionaire's Default. If one or more of the Events of Default
occurs, County may, at its sole option, exercise one or more of the following rights:
11.2.1 Terminate this Agreement;
11.2.2 Sue Concessionaire for all damages, costs, and expenses arising from the Event of
Default, and recover all such damages, costs, and expenses, including reasonable costs
and attorneys' fees at both trial and appellate levels;
11.2.3 Seek an injunction or specific performance of any such term or provision of this
Agreement. Concessionaire waives any and all requirements that County post any
security or collateral that may be otherwise required as a condition for County to obtain
specific performance, injunctive relief, or other equitable relief. The Parties agree and
stipulate that County may not have an adequate remedy at law for an Event of Default
and, if such is such determination is made by County, Concessionaire agrees that
injunctive relief or specific performance are required to protect the public from
irreparable harm;
11.2.4 Draw down on the Security Deposit;
11.2.5 Exercise any and all other remedies available to County under this Agreement, at
law, or in equity; or
11.2.6 Accelerate and declare immediately due and payable all unpaid Facility Rent and
Privilege Fees.
Rental Car Concession - __________ 37
11.3 Remedies under Federal Bankruptcy Laws. Neither this Agreement nor any rights or
privileges under his Agreement shall be an asset of Concessionaire in any bankruptcy, insolvency,
or reorganization proceeding. If County is not permitted to terminate this Agreement because
of the provisions of any Applicable Laws, including, but not limited to, the United States
Bankruptcy Code, Concessionaire or any trustee for it shall, within fifteen (15) Days, upon request
by County to the applicable court of administrative body, assume or reject this Agreement,
provided, however, that Concessionaire may not assume this Agreement unless all Events of
Default have been cured, County shall have been compensated for any monetary loss resulting
from such Events of Default, and County shall be provided with adequate assurance of full and
timely performance of all provisions, terms, and conditions of this Agreement on the part of
Concessionaire to be performed.
Notwithstanding the foregoing, to the greatest extent permitted under applicable law, upon the
filing by or against Concessionaire of any proceeding under federal bankruptcy laws, if there has
been an Event of Default within the six (6) months preceding such filing, County shall have the
right to immediately terminate this Agreement, in addition to other remedies provided under
provisions of any Applicable Laws, including, but not limited to, the United States Bankruptcy
Code. Such termination shall be by written notice to Concessionaire within sixty (60) Days after
the date of Concessionaire's initial filing in bankruptcy court.
11.4 Payment under Protest. Notwithstanding anything to the contrary in this Agreement, if a
dispute arises between County and Concessionaire with respect to any obligation or alleged
obligation of Concessionaire to pay money, the payment under protest by Concessionaire of the
amount claimed by County to be due shall not waive any of Concessionaire's rights, and if any
court or other body having jurisdiction determines that all or any part of the protested payment
was not due, then County shall as promptly as reasonably practicable reimburse Concessionaire
any amount determined as not due. County shall not be required to pay any interest on any such
reimbursed sums.
11.5 Holdover. Any holding over of Concessionaire after the expiration or earlier termination
of this Agreement shall not renew and extend same, but shall operate and be construed as a
tenancy at sufferance, pursuant to Section 83.04, Florida Statutes, as amended, and
Concessionaire shall be required to pay to County during any holdover period monthly rent equal
to double the Facility Rent for the Premises based on the rates then in effect under this
Agreement. All other provisions of this Agreement shall remain in effect during such holdover
period. Concessionaire shall be liable to County for all loss or damage on account of any such
holding over after the expiration or earlier termination of this Agreement, whether or not such
loss or damage may be contemplated as of the Effective Date. County reserves the right to
pursue all remedies available to it under Applicable Laws as a result of Concessionaire's holdover.
Acceptance of any payments by County in the event that Concessionaire fails or refuses to
surrender possession shall not operate as County's consent to Concessionaire's continued
possession nor shall it constitute a waiver by County of its right to immediate possession of the
Premises.
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11.6 Habitual Default. In the event that Concessionaire has frequently, regularly, or
repetitively breached any of the terms, covenants, or conditions of this Agreement, regardless of
whether Concessionaire has cured each or any individual breach, Concessionaire may be
determined by County to be a "Habitual Violator." At the time that such determination is made,
County shall issue to Concessionaire a written notice advising of such determination and citing
the circumstances therefore. Such notice shall also advise Concessionaire that there shall be no
further notice or cure periods to correct any subsequent breach and that any subsequent breach
of whatever nature, taken with all previous breaches, considered cumulative and collectively,
shall constitute a condition of noncurable default and grounds for immediate termination of this
Agreement. In the event of any such subsequent breach, County may terminate this Agreement
upon the giving of written notice of termination to Concessionaire, such termination to be
effective upon delivery of the notice to Concessionaire.
ARTICLE 12.
SURRENDER OF PREMISES
12.1 Surrender and Condition. Upon the expiration or earlier termination of this Agreement,
Concessionaire shall surrender possession of the Premises in the same condition as it was
received on the first Day of occupancy, less reasonable wear and tear, and all of the Premises
and Improvements located thereon shall be free and clear of all liens, encumbrances, and security
interests. The required condition of the Premises at the time of Concessionaire's surrender shall
include, but not be limited to, the following: (i) all flooring must be cleaned as reasonably
required by the Contract Administrator; (ii) all doors and walls must be patched and painted with
in a color approved by the Contract Administrator; (iii) all ceiling tiles shall be in place, clean, and
matching; (iv) all Concessionaire-installed conduit and wiring shall be removed if requested by
the Contract Administrator; and (v) all personal property and Improvements (except
Improvements that are owned by County as provided in Article 8 and any Improvements that are
provided by County that are to remain installed) shall be removed. A final exit walkthrough
inspection shall be conducted prior to surrender by Concessionaire and the Contract
Administrator to determine compliance with this provision and the Contract Administrator's
acceptance of the condition of the Premises. In the event Concessionaire fails to comply with
the terms of this section, County reserves the right to perform all necessary work to bring
the Premises to the required condition and Concessionaire shall be required to reimburse County
for all reasonable expenses incurred. The provisions of this section shall survive the expiration
or other termination of this Agreement.
12.2 Removal. Concessionaire has the right at any time during the term of this Agreement to
remove any furnishings, trade fixtures, or equipment it has installed in, on, or about the Premises,
subject to the provisions of this Agreement and any lien County may have thereon for unpaid
fees, charges, or other amounts payable under this Agreement, and provided that Concessionaire
shall restore any damage to the Premises and the Premises shall be returned to County in the
same condition as defined in Section 12.1. Any such property not removed by Concessionaire by
the expiration or earlier termination of this Agreement shall become part of the Premises or, if
elected by the Contract Administrator, may be removed, stored, or sold by County, at
Rental Car Concession - __________ 39
Concessionaire's expense, with such obligation to pay surviving the expiration or earlier
termination of this Agreement.
12.3 Failure to Surrender. In the event Concessionaire fails to surrender the Premises in the
condition required by this article or fails to complete any of the obligations due under this
Agreement, Concessionaire, from the date of the expiration or earlier termination of this
Agreement until the acceptance of surrender by the Contract Administrator as set forth in
Section 12.4, shall be considered a holdover tenant under the terms set forth in Section 11.5.
12.4 Acceptance of Surrender. No agreement of surrender or to accept a surrender of the
Premises under this Agreement shall be valid unless and until approved in writing by the Contract
Administrator and Concessionaire, provided that the Contract Administrator's approval shall not
be unreasonably withheld. Except as expressly provided in this Agreement, neither the doing of
nor any omission to do any act or thing by any of the officers, agents, or employees of County
shall be deemed an acceptance of a surrender.
ARTICLE 13.
EQUAL EMPLOYMENT OPPORTUNITY AND ACDBE COMPLIANCE
13.1 No party to this Agreement may discriminate on the basis of race, color, sex, religion,
national origin, disability, age, marital status, political affiliation, sexual orientation, pregnancy,
or gender identity and expression in the performance of this Agreement. Concessionaire shall
comply with all applicable requirements of County's CBE Program, as established by Broward
County Business Opportunity Act of 2012, Section 1-81, Broward County Code of Ordinances (the
"Act"), in the award and administration of this Agreement.
Concessionaire shall include the foregoing or similar language in its contracts with any
subcontractors, except that any project assisted by the U.S. Department of Transportation funds
shall comply with the non-discrimination requirements in 49 C.F.R. Parts 23 and 26.
Failure by Concessionaire to carry out any of the requirements of this section shall constitute a
material breach of this Agreement, which shall permit County to terminate this Agreement or to
exercise any other remedy provided under this Agreement, Broward County Code of Ordinances,
Broward County Administrative Code, or under other applicable law, all such remedies being
cumulative.
13.2 Airport Concession Disadvantaged Business Enterprise. The Airport Concession
Disadvantaged Business Enterprise ("ACDBE") regulations (49 CFR Part 23) establish
requirements for setting an overall goal for ACDBE participation in all concessions activities. This
rule requires recipients of federal funds to use a methodology based on demonstrable data of
relevant market conditions, and is designed to reach a goal the recipient would expect ACDBEs
to achieve in the absence of discrimination. This Agreement is subject to the requirements of
the U.S. Department of Transportation's regulations, 49 CFR Parts 23 and 26. Concessionaire
agrees that it will not discriminate against any business owner because of the owner's race,
gender, color, national origin, religion, sexual orientation, marital status, political affiliation, age,
Rental Car Concession - __________ 40
or physical or mental disability in connection with the award or performance of this Agreement,
which is covered by 49 CFR, Parts 23 and 26. Concessionaire agrees to include the above
statements in any subsequent agreements that it enters into for services under this Agreement
and shall cause those businesses to similarly include the statements in further agreements.
13.2.1 Concessionaire has committed to two percent (2%) ACDBE participation to be
achieved pursuant to Concessionaire's ACDBE participation plan as set forth in Exhibit F.
13.2.2 County has a Federal Aviation Administration ("FAA") approved nondiscriminatory
management agreement and corresponding County policy governing ACDBE participation
in County contracts and other selected activities which includes management contracts.
County has established a policy relating to Disadvantaged Business Enterprises ("DBE")
participation in all County contracts and other selected activities, which includes
concessions under an ACDBE program. In order for the concession to be considered an
ACDBE under federal requirements, firms must be certified ACDBE.
13.2.3 It is the policy of County to ensure that ACDBEs, as defined in 49 CFR Part 23, can
compete fairly for opportunities as subcontractors and suppliers on all contracts awarded
by the County to ensure a level playing field.
13.3 Contract Assurances. In the event the following clauses conflict with any other terms or
provisions of this Agreement section, the clauses set forth in this ACDBE shall control.
13.3.1 Nondiscrimination/Remedies. Concessionaire or subcontractor shall not
discriminate on the basis of race, color, national origin, or sex in the performance of this
Agreement. Concessionaire shall carry out applicable requirements of 49 CFR Part 23 in
the award and administration of contracts subject to United States Department of
Transportation requirements. Failure by Concessionaire to carry out these requirements
is a material breach of this Agreement which may result in the termination of this
Agreement or such other remedy as County deems appropriate.
13.3.2 Participation by ACDBEs. It is the policy of Broward County that ACDBE firms, as
defined herein, can compete fairly for opportunities as Concessionaire, prime contractor,
subcontractors, and suppliers on all contracts awarded by County to ensure a level playing
field. Concessionaire hereby agrees to take all necessary and reasonable steps, including
compliance with the matters set forth in this section in accordance with 49 CFR Part 23,
as amended, to ensure that the ACDBE firms have fair opportunity to compete for and
perform contracts.
13.3.3 Prompt Payment. Concessionaire hereby agrees to pay its subcontractors and
suppliers within thirty (30) Days following receipt of invoices. A finding of nonpayment
to subcontractors and suppliers is a material breach of this Agreement. Concessionaire
shall include the foregoing prompt payment language in all of its contracts with
subconcessionaires who participate on federally funded County projects and concessions.
Rental Car Concession - __________ 41
Designated staff of the OESBD will conduct meetings with parties involved in prompt
payment disputes to facilitate an amicable resolution.
13.4 Contract Compliance Monitoring. Compliance monitoring shall be conducted to
determine if Concessionaire and/or subcontractors are complying with the requirements of the
ACDBE program. Failure of Concessionaire to comply with this provision may result in County
imposing penalties or sanctions pursuant to the provisions of the 49 CFR Part 23 and 26 and the
County's ACDBE program plan. Contract compliance will encompass monitoring for contract
dollar achievement and ACDBE subcontractors utilization. OESBD shall have the authority to
audit and monitor all contracts and contract-related documents related to County projects. The
requirements of the ACDBE program are applicable to Concessionaire and its subcontractors.
Concessionaire shall be responsible for ensuring proper documentation with regard to its
utilization and payment of ACDBE subcontractors.
Concessionaire shall inform County immediately when a ACDBE subcontractor is not able to
perform or if Concessionaire believes the ACDBE subcontractor should be replaced for any other
reason, so that OESBD may review and verify the good faith efforts of Concessionaire to
substitute the ACDBE subcontractor with another ACDBE subcontractor. Concessionaire may
change its ACDBE subcontractor only upon receiving the prior written approval of the OESBD.
13.5 Concessionaire's ACDBE participation plan is set forth in Exhibit F. Subject to the approval
of the OESBD, said participation plan may be revised and updated by Concessionaire, and upon
OESBD's approval, Exhibit F shall be revised and deemed automatically incorporated herein as so
revised.
13.6 Within twenty (20) Days after the end of each quarter of County's fiscal year,
Concessionaire shall submit a report detailing its ACDBE participation for the previous calendar
quarter. The report shall be on a form provided by OESBD as set forth on Exhibit G. This report
shall be submitted to:
Director, Office of Economic and Small Business Development
115 South Andrews Avenue, A-680
Fort Lauderdale, FL 33301
with a copy provided to:
Small Business Development Specialist
Broward County Aviation Department
2200 SW 45
th
Street, Suite 101
Dania Beach, FL 33312
and an additional copy to:
RCC Manager
Fort Lauderdale-Hollywood International Airport
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2200 SW 45
th
Street, Suite 101
Dania Beach, FL 33312
13.7 By execution of this Agreement, Concessionaire represents that it has not been placed on
the discriminatory vendor list as provided in Section 287.134, Florida Statutes, and that
Concessionaire is not precluded from entering into this Agreement due to any basis stated in
Section 287.135, Florida Statutes. County hereby materially relies on such representations in
entering into this Agreement. An untrue representation of the foregoing shall entitle County to
terminate this Agreement and recover from Concessionaire all monies paid by County pursuant
to this Agreement, and may result in debarment from County's competitive procurement
activities.
ARTICLE 14.
ENVIRONMENTAL
14.1 No Representations or Warranties. County makes no representations or warranties
whatsoever as to whether any Materials exist on or under the Premises or in the Improvements
in violation of Applicable Laws. Concessionaire shall make sufficient inspection of the Premises
and the Improvements to satisfy itself as to the presence or absence of any such Materials.
14.2 Environmental Assessment. The Parties acknowledge that County will be obtaining an
Environmental Assessment of the Premises either prior to the Effective Date or during the Term.
14.2.1 If the Environmental Assessment is performed prior to the Effective Date, then the
scope of the Environmental Assessment and the firm selected to perform the
Environmental Assessment ("Environmental Firm") shall be at the sole discretion of the
Aviation Department.
14.2.2 If the Environmental Assessment is performed during the Term or in association
with the expiration or termination of the Agreement, then County and Concessionaire
shall mutually agree on the scope of the Environmental Assessment and the
Environmental Firm, as set forth in Exhibit H. If the Parties cannot agree, County shall
make a determination of the scope of the Environmental Assessment.
Concessionaire, the Aviation Department, and the applicable County agencies shall be
given five (5) Day advance written notice by the Environmental Firm of the
commencement of the work scope activities of the Environmental Assessment so that
they shall have an opportunity to review the assessment activities.
In the event that the Aviation Department or any of the other County agencies or
Concessionaire shall disagree with any of the findings of the Environmental Assessment,
such concerns and areas of disagreement shall be provided, in writing, by the Parties to
each other within sixty (60) Days following the completion of the Environmental
Assessment and its receipt by County and Concessionaire.
Rental Car Concession - __________ 43
The Environmental Assessment, together with any written comments provided by
Concessionaire, the Aviation Department, or other County agencies pursuant to the
foregoing sentence shall be initialed by Concessionaire and the Director and kept on file
with the Aviation Department.
The Environmental Assessment shall not be deemed to in any way release any party from
any liability under any federal, state, county, or local laws, ordinances, rules, or
regulations, or in any way to limit the regulatory powers of County or any of its agencies.
The Aviation Department, other applicable County agencies, and the contractors and
consultants retained to perform the Environmental Assessment shall have entry to the
Premises at all times for such purpose and the right to perform such examinations,
inspections, soil borings, other tests, inquiries, and surveys necessary or desirable in the
performance of the Environmental Assessment and to inspect and copy all relevant
records of Concessionaire.
14.3 Environmental Responsibilities. Concessionaire shall at all times be responsible for any
Recognized Environmental Condition and any release, discharge, or disposal of any Material at
the Premises or upon any other Airport property occupied, utilized, or accessed by
Concessionaire in any manner whatsoever, that was caused by Concessionaire or any of
Concessionaire's Parties, or caused by any trespasser on the Premises at any time that
Concessionaire was in possession of the Premises. Concessionaire shall, at Concessionaire's sole
expense, and upon County's demand or demand of any County agencies or any local, state, or
federal regulatory agency, immediately contain, remove, abate, and remediate any Recognized
Environmental Conditions and Materials released, discharged, or disposed of on the Premises by
Concessionaire, Concessionaire's Parties, or Concessionaire's actions, or upon any other Airport
property occupied, utilized, or accessed by Concessionaire or Concessionaire's Parties, in any
manner whatsoever. If Concessionaire does not take action immediately to have such
Recognized Environmental Conditions and Materials contained, removed, abated and
remediated, County or any of its agencies may, upon reasonable notice to Concessionaire (which
notice must be written unless an emergency condition exists, as determined by County, at its sole
discretion), undertake the containment, removal, abatement, or remediation of the Recognized
Environmental Conditions and Materials; however, any such action by County or any of its
agencies will not release Concessionaire from its obligations under this or any other provision of
this Agreement or as imposed by law. No action taken by either Concessionaire or County to
contain, remove, abate, or remediate Recognized Environmental Conditions, or a release,
discharge, or disposal, whether such action is taken voluntarily or not, is an admission of liability
as to the source of, or the person who caused, the Recognized Environmental Conditions or a
release, discharge, or disposal. Concessionaire shall contain, remove, abate, and remediate any
impacted property as aforesaid, in accordance with timetables acceptable to County and within
the Applicable Laws. County may pursue damages and any and all other available remedies from
Concessionaire if Concessionaire does not comply with any of its obligations.
Rental Car Concession - __________ 44
14.4 No Release from Other Liability. Any Environmental Assessment obtained by either
County or Concessionaire does not in any way release any party from any liability under
Applicable Laws or in any way limit the regulatory powers of County or any of its agencies.
14.5 Completion of Environmental Documents. Concessionaire shall complete the form
attached hereto as Exhibit I with respect to matters pertaining to the Premises and shall deliver
same to County contemporaneously with its execution of this Agreement. Concessionaire
represents that the matters disclosed on such form are accurate and complete as of the date of
execution of this Agreement by Concessionaire. At any time as may be requested by the Aviation
Department, Concessionaire shall provide an accurate and complete update of the Premises as
to the matters set forth on Exhibit I. Concessionaire shall provide the Aviation Department, if
requested at any time, with a list of all hazardous, bio-hazardous, or other Materials stored, used,
handled, generated, released, discharged, or disposed of on, or transported to, or from, the
Premises.
14.6 Compliance. Concessionaire agrees to comply with Applicable Laws, and the
requirements of any development order covering the Airport, issued to County under
Chapter 380, Florida Statutes, including, without limitation, those addressing the following:
14.6.1 Proper protection, use, storage, treatment, and disposal of Materials, including
contracting with a licensed hazardous waste transporter and/or treatment and disposal
facility to assure proper transport and disposal of hazardous waste and other regulated
Materials.
14.6.2 Proper protection, use, disposal, and treatment of storm water runoff, including
the construction and installation of adequate pre-treatment devices or mechanisms on
the Premises, if applicable. Concessionaire shall have in place, and make available to the
Aviation Department for review, all required environmental permits, licenses, approvals,
and documents including, but not limited to, a site specific Storm Water Pollution
Prevention Plan, and a Spill Prevention and Countermeasures Plan.
14.6.3 Adequate inspection, licensing, insurance, and registration of existing or future
storage tanks, storage systems, and ancillary facilities to meet all county, local, state, and
federal standards, including the installation and operation of adequate monitoring
devices and release detection systems.
14.6.4 Adequate facilities on the Premises for management and, as necessary,
pretreatment of industrial waste, industrial wastewater, and regulated Materials, and the
proper storage, handling, use, and disposal thereof.
14.6.5 Compliance with reporting and notification requirements of Title III of the
Superfund Amendment, Chapters 373, 376, 403 of the Florida Statutes and rules
promulgate thereunder, and Chapter 27 of the Broward County Code of Ordinances, as
applicable and as such laws may be amended from time to time.
Rental Car Concession - __________ 45
14.7 Release or Discharge of Materials. Concessionaire is responsible for the release or
discharge of any Materials and the associated impacts to the environment from such a release of
Materials, which release was directly or indirectly caused by: (a) Concessionaire or any of
Concessionaire's Parties that occurs at the Premises or occurs upon any other Airport property
whether before or after the Effective Date; or (b) any trespasser on the Premises at any time
during the Term or at any time Concessionaire is in possession and control of the Premises,
whether before or after the Effective Date, that is in an amount that violates any federal, state,
County or local law, rule, or regulation, or violates an order or directive of any federal, state, or
local court or governmental authority. At Concessionaire's sole expense, and upon demand of
County or any of its agencies or any local, state, or federal regulatory agency, Concessionaire
shall immediately contain, remove, abate, and remediate any release or discharge of Materials
and associated impacts to the environment to meet the requirements of all Applicable Laws to
the Aviation Department's and County's satisfaction.
14.8 Environmental Assessment and Remediation. County may require Concessionaire to
actively perform and complete an environmental assessment and remediation that may be
required as the result of any release or discharge of Materials as referenced above. Such
activities will be performed at Concessionaire's sole expense, despite the acceptance of any site
into any government funded cleanup program that might not require immediate assessment or
remediation based on a site ranking or scoring within that program. If County requires
environmental assessment or remediation of any such site, then, upon County's demand and at
Concessionaire's sole expense, Concessionaire shall immediately contain, remove, abate, and
remediate the site to the Aviation Department's and County's satisfaction. Concessionaire shall
assess and remediate any impacted property in accordance with timetables acceptable to County
and within Applicable Laws so as to achieve a timely remediation of the site that does not impede
any County development or other County plans.
14.9 Containment Removal or Abatement of Remaining Materials. If Concessionaire does not
immediately contain, remove, and abate any release or discharge of Materials and the associated
impacts to the environment, as required by this article, County or any of its agencies may, upon
reasonable notice to Concessionaire (which notice will be written unless an emergency condition
exists), undertake the containment, removal, or abatement of the Materials and all other
appropriate actions. However, any such actions by County or any of its agencies shall not release
Concessionaire from its obligations under this or any other provision of this Agreement or as
imposed by Applicable Laws. Any action taken by either Concessionaire or County to contain,
remove, or abate a release or discharge of Materials, whether such action is taken voluntarily or
not, is not an admission of liability as to the source of, or the person who caused the pollution or
its release. Concessionaire shall assess or remediate any impacted property in accordance with
timetables acceptable to County and within Applicable Laws. County may pursue damages and
any and all other available remedies from Concessionaire if Concessionaire does not comply with
any of its obligations hereunder.
14.10 Reports or Notices of Releases or Discharges. Concessionaire shall provide the Aviation
Department with reporting or notice of releases or discharges of Materials occurring at any area
Rental Car Concession - __________ 46
used by Concessionaire, Concessionaire's Parties, or occasioned due to Concessionaire's
operations at the Airport, which notices will be provided in accordance with the requirements of
the Aviation Department's policies and procedures manual and Applicable Laws. Concessionaire
shall maintain a log of all such reports and notices and shall also maintain all records required by
all Applicable Laws and also such records as are reasonably necessary to adequately assess
environmental compliance in accordance with all Applicable Laws. Upon request by the Aviation
Department, Concessionaire shall make all documentation required by this section available for
review by County's representatives.
14.11 Reports or Notice of Spills, Leaks, or Discharges. As required by Applicable Laws,
Concessionaire shall provide the federal, state, County and local regulatory agencies with reports
or notice of spills, releases, leaks or discharges (collectively, "release") of Materials on the
Premises or on Airport property that exceed an amount required to be reported to any local,
County, state, or federal regulatory agency under all Applicable Laws, which notice will be in
accordance with all Applicable Laws. Concessionaire shall further provide the Aviation
Department and the County Environmental Protection and Growth Management Department (or
successor agency) with written notice within one (1) Day following commencement of same, of
the containment, removal, or abatement measures, remediation efforts, or monitoring activities
to be effected on the Premises. Concessionaire shall have an updated contingency plan in effect
relating to releases that provides minimum standards and procedures for storage of regulated
Materials and other Materials, prevention and containment of releases, and transfer and disposal
of regulated Materials and other Materials. The contingency plan will describe design features,
response actions, and procedures to be followed in case of releases or other accidents involving
hazardous substances, hazardous materials, bio-hazardous Materials, petroleum products, or
other Materials. Concessionaire shall permit entry at all reasonable times of inspectors of
County's Environmental Protection and Growth Management Department (or successor agency)
and of other regulatory authorities with jurisdiction.
14.12 Right to Inspect Documents Relating to Environmental Conditions. The Aviation
Department, upon written notice to Concessionaire, may inspect all documents relating to the
environmental condition of the Premises, including without limitation, the release of any
Materials or any Recognized Environmental Conditions on the Premises, or any curative,
remediation, or monitoring efforts. The Aviation Department shall also have the right, upon
written notice to Concessionaire, to inspect any documents Concessionaire must maintain under
all Applicable Laws or any development order issued to County pertaining to the Airport,
including, but not limited to, manifests evidencing proper transportation and disposal of
Materials, environmental assessments, and sampling and test results. If requested at any time
by the Aviation Department, Concessionaire shall provide the Aviation Department with copies
of any such documents at Concessionaire's sole cost. Concessionaire shall allow inspection of the
Premises by appropriate federal, state, county, and local agency personnel in accordance with all
Applicable Laws and as required by any development order issued to County pertaining to the
Airport.
Rental Car Concession - __________ 47
14.13 County's Removal of Materials. If County arranges for the removal of any Materials or
the associated impacts to the environment from a release of Materials which release was directly
or indirectly: (a) caused by Concessionaire or any of Concessionaire's Parties or that occurs at
the Premises or occurs at any other Airport property after the Effective Date; or (b) caused by
any trespasser on the Premises at any time during the Term of this Agreement or during any
period that Concessionaire was in possession and control of the Premises before or after the
Effective Date, Concessionaire shall pay all costs of the removal that are incurred by County and
such payment must be made within ten (10) Days after County's written demand, with interest
at the rate of eighteen percent (18%) per annum thereafter accruing.
14.14 Duty to Cooperate. Nothing in this article shall release Concessionaire of its general duty
to cooperate with County in ascertaining the source and in containing, removing, abating, and
remediating any Materials. The Aviation Department shall cooperate with Concessionaire with
respect to Concessionaire's obligations under these provisions, including making public records
available to Concessionaire in accordance with Florida law. However, nothing herein releases
Concessionaire of its obligations hereunder or creates any affirmative duty of County to abrogate
its sovereign right to exercise its police powers and governmental powers by approving or
disapproving or taking any other action in accordance with all Applicable Laws. The Aviation
Department and its employees, contractors, and agents, upon reasonable written notice to
Concessionaire, and the federal, state, local and other County agencies and their employees,
contractors, and agents, at all times in accordance with all Applicable Laws, have the right to
enter the Premises for the foregoing activities and to conduct all appropriate environmental
assessments, inspections, testing, sampling, examinations, and audits as deemed appropriate by
County.
14.15 Facility Inspections and Updated Initial Environmental Assessment. County may require
Concessionaire to conduct and allow County's Environmental Protection and Growth
Management Department (or successor agency) to conduct facility inspections of the Premises
and to provide an update to the Initial Environmental Assessment of the Premises, at
Concessionaire's sole expense: (a) prior to any assignment of this Agreement; or (b) at any time
during the Term.
14.16 Rent Abatement for Removal of Materials. If County arranges for the removal of
Materials on the Premises that are not Concessionaire's responsibility to correct, and if any such
clean-up activities by County prevents Concessionaire from using the Premises for the purposes
intended, as determined solely by the Contract Administrator, the Facility Rent will be abated for
such portion not usable from the date that the use is precluded and until it again become
available for Concessionaire's use. County shall use reasonable efforts to not disrupt
Concessionaire's business. In no event is Concessionaire entitled to any amount on account of
lost profits, lost rents, or other damages as a result of County's clean-up activities.
14.17 Exit Environmental Assessment. Two (2) years before the termination date of this
Agreement, or if the Agreement is terminated earlier under the provisions of the Agreement,
then within one hundred eighty (180) Days after that termination, Concessionaire and County
Rental Car Concession - __________ 48
shall conduct an inspection of the Premises and Concessionaire shall cause to be performed an
exit environmental assessment of the Premises ("Exit Environmental Assessment") at
Concessionaire's sole expense which may include, but is not limited to, soil and water sampling
and analysis consistent with a Phase II Environmental Assessment. Concessionaire must develop
the scope of the work for the Exit Environmental Assessment with the Aviation Department. If
the Exit Environmental Assessment or inspections indicate that further actions should be
conducted, then County may have such further actions conducted by Concessionaire at
Concessionaire's sole expense to County's satisfaction. Nothing herein will limit County's right of
entry onto the Premises under other provisions of this article or of this Agreement, or under its
regulatory powers. County shall have the right to split any soil or water samples obtained by
Concessionaire and Concessionaire shall have the right to split any soil or water samples obtained
by County.
14.17.1 If County performs the inspections or the Exit Environmental Assessment due to
Concessionaire's denial or failure to perform as required in this provision, then
Concessionaire will reimburse County for the cost of such Exit Environmental Assessment
and inspections, plus any administrative costs, within fifteen (15) Days following written
demand for same, with interest at the rate of eighteen percent (18%) per annum
thereafter accruing.
14.17.2 If an Exit Environmental Assessment discloses Recognized Environmental
Conditions or Materials on the Premises caused by Concessionaire or Concessionaire's
Parties beyond those levels established in the Initial Environmental Assessment's baseline
and the Agreement naturally expires or is terminated, and Concessionaire has not
completed the environmental remediation, then Concessionaire shall revert to a holdover
tenant until completion and will be subject to double rent.
14.18 No Limitation of Rights. All rights and remedies contained in the sections and
subparagraphs of this article are cumulative and are not in limitation of any other rights or
remedies under this article, or under any other provisions of this Agreement.
14.19 Survival. The provisions of this article shall survive the expiration or any other termination
of this Agreement.
ARTICLE 15.
OTHER PROVISIONS
15.1 Rights in Documents and Work. Any and all reports, photographs, surveys, and other data
and documents provided or created in connection with this Agreement are and shall remain the
property of County, and, if a copyright is claimed, Concessionaire grants to County a nonexclusive
license to use the copyrighted item(s) indefinitely, to prepare derivative works, and to make and
distribute copies to the public. In the event of termination of this Agreement, any reports,
photographs, surveys, and other data and documents prepared by Concessionaire, whether
finished or unfinished, shall become the property of County and shall be delivered by
Concessionaire to the Contract Administrator within seven (7) Days of termination of this
Rental Car Concession - __________ 49
Agreement. Any compensation due to Concessionaire shall be withheld until all documents are
received as provided herein. Concessionaire shall ensure that the requirements of this section
are included in all agreements with its subcontractor(s).
15.2 Compliance with Public Records Law. To the extent Concessionaire is acting on behalf of
County as stated in Section 119.0701, Florida Statutes, Concessionaire shall:
a) Keep and maintain public records required by County to perform the services
under this Agreement;
b) Upon request from County, provide County with a copy of the requested records
or allow the records to be inspected or copied within a reasonable time and at a cost that
does not exceed that provided in Chapter 119, Florida Statutes, or as otherwise provided
by law;
c) Ensure that public records that are exempt or confidential and exempt from public
record requirements are not disclosed except as authorized by law for the duration of this
Agreement and following completion or termination of this Agreement if the records are
not transferred to County; and
d) Upon completion or termination of this Agreement, transfer to County, at no cost,
all public records in possession of Concessionaire or keep and maintain public records
required by County to perform the services. If Concessionaire transfers the records to
County, Concessionaire shall destroy any duplicate public records that are exempt or
confidential and exempt. If Concessionaire keeps and maintains public records,
Concessionaire shall meet all applicable requirements for retaining public records. All
records stored electronically must be provided to County upon request in a format that is
compatible with the information technology systems of County.
The failure of Concessionaire to comply with the provisions of this section shall constitute a
material breach of this Agreement entitling County to exercise any remedy provided in this
Agreement or under applicable law.
A request for public records regarding this Agreement must be made directly to County, who will
be responsible for responding to any such public records requests. Concessionaire will provide
any requested records to County to enable County to respond to the public records request.
Any material submitted to County that Concessionaire contends constitutes or contains trade
secrets or is otherwise exempt from production under Florida public records laws (including
Florida Statutes Chapter 119) ("Trade Secret Materials") must be separately submitted and
conspicuously labeled "EXEMPT FROM PUBLIC RECORD PRODUCT – TRADE SECRET." In addition,
Concessionaire must, simultaneous with the submission of any Trade Secret Materials, provide a
sworn affidavit from a person with personal knowledge attesting that the Trade Secret Materials
constitute trade secrets under Florida Statutes Section 812.081 and stating the factual basis for
same. In the event that a third party submits a request to County for records designated by
Concessionaire as Trade Secret Materials, County shall refrain from disclosing the Trade Secret
Rental Car Concession - __________ 50
Materials, unless otherwise ordered by a court of competent jurisdiction or authorized in writing
by Concessionaire. Concessionaire shall indemnify and defend County and its employees and
agents from any and all claims, causes of action, losses, fines, penalties, damages, judgments and
liabilities of any kind, including attorneys' fees, litigation expenses, and court costs, relating to
the non-disclosure of any Trade Secret Materials in response to a records request by a third party.
IF CONCESSIONAIRE HAS QUESTIONS REGARDING THE APPLICATION OF FLORIDA
STATUTES CHAPTER 119 TO CONCESSIONAIRE'S DUTY TO PROVIDE PUBLIC
RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC
RECORDS AT (954) 359-2330, AMU[email protected], 2200 SW 45
TH
STREET,
SUITE 101, DANIA BEACH, FLORIDA 33312.
15.3 No Smoking. The Airport is a nonsmoking facility except for designated areas as
determined by County. Smoking is not permitted within the Premises.
15.4 Employee Parking. Nothing in this Agreement shall be deemed to require County to
provide parking to Concessionaire's employees. County may, at its sole discretion, provide
parking accommodations to Concessionaire's employees in common with employees of other
concessionaires and users of the Airport subject to the payment of reasonable charges therefor
as may be established from time to time by County.
15.5 County's Right of Access. The representatives of County shall have the right to enter the
Premises to: (a) inspect the Premises at any time to determine whether Concessionaire has
complied with and is complying with the terms and conditions of this Agreement and other
health/operational standards; (b) perform any and all things that Concessionaire is obligated to
perform and has failed after reasonable notice to perform; and (c) exercise County's police
power. Notwithstanding the above, in the event of an emergency condition, the representatives
of County shall have the right to enter the Premises at any time to perform maintenance, repair,
and/or replacement.
15.6 Damage to Airport Facilities. Concessionaire shall be responsible for any and all damage
to the Airport caused by the negligence of Concessionaire, including, but not limited to, damage
to Terminal areas, ramp and taxiway areas, engine run-up areas, runways, hangar facilities, and
any and all areas where any activities are performed by Concessionaire.
15.7 Services to other Airport Tenants. Concessionaire shall make its services available to
customers utilizing facilities at the Airport that are located in areas other than the Premises
including, but not limited to, customers utilizing facilities of tenants of County at the Airport such
as fixed base operators. In the event that any agreement is entered into between Concessionaire
and any other party for placement of direct line telephones in any facility at the Airport for
representation as a rental car agent, or for occupancy of space on premises held under lease by
another, such agreement shall specifically provide that it is nonexclusive and that other
concessionaires of County engaged in the rental car business at the Airport shall have equal rights
and privileges. Such agreement shall be in writing and shall be subject to the written approval of
Rental Car Concession - __________ 51
Aviation Department prior to becoming effective. Such agreement shall in no way be used to
gain an advantage not available to others authorized by County to conduct a rental car business
at the Airport, and shall not provide for consideration by Concessionaire to others for services
rendered, of such scope or magnitude that Concessionaire would gain an advantage not
contemplated herein.
15.8 Development and Expansion of Airport. County shall have the right to develop, maintain,
and operate the Airport as it deems advisable and desirable in accordance with such appropriate
governmental authority and regulation as may be applicable, and County shall have the right to
make such agreements as County deems necessary or advisable in connection with federal and
state funding of Airport improvements, alterations, or modifications. If at any point County seeks
federal, state, or local government approval regarding the operation or modification of the
Airport, Concessionaire shall provide any and all reasonably requested cooperation and support,
including, without limitation, supporting County's efforts to obtain any such approvals and
executing any documents or instruments reasonably requested by County. Concessionaire shall
not be required to bear any additional expense and shall not be deemed an agent of County.
15.9 Airport as a Public Facility. It is understood and agreed between County and
Concessionaire that County maintains and operates the Airport as a public facility, and that in
order to render proper Airport services to the public, the Premises must be used only for the
purposes specifically set forth in this Agreement. Concessionaire agrees that it shall provide and
make available to the public upon its Premises the services set forth in this Agreement and no
other services.
15.10 Closure of Airport Roads. County may at any time temporarily or permanently close, or
consent to or request the closing of any entrance roadway or Airport roadway, and any other
area at the Airport presently or hereafter used as such, so long as an alternate means of ingress
and egress is made available to the Premises. Concessionaire hereby releases and discharges
County of and from any and all claims, demands, or causes of action which Concessionaire may
now or at any time hereafter have against any of the foregoing arising or alleged to arise out of
the closing of any street, roadway, or other area used as such, whether within or outside the
Airport, provided that County makes available an alternate means of ingress and egress to the
Premises.
15.11 Federal Aviation Act, Section 308. Nothing contained in this Agreement shall be deemed
to grant Concessionaire any exclusive right or privilege within the meaning of Section 308 of the
Federal Aviation Act, as codified in Title 49 USC Section 40103, et seq., for the conduct of any
activity on the Airport. The rights granted under this Agreement are nonexclusive and County
reserves the right to grant similar privileges to another lessee or other users of the Airport
facilities.
15.12 Right of Flight. County reserves unto itself, for the use and benefit of the public, at any
and all times, a right of flight for the passage of aircraft in the airspace above the Premises
together with the right to cause in that airspace such noise and other intrusions as may be
Rental Car Concession - __________ 52
inherent in the operations of any aircraft for navigation or flight in that airspace, and for aircraft
landing on, taking off from, or operating at the Airport.
15.13 Compliance with FAR Part 77. Concessionaire shall restrict the height of structures,
objects of natural growth, and other obstructions on the Premises to such height as to comply
with all applicable Federal Aviation Regulations, including, but not limited to, 14 CFR Part 77.
15.14 Airport Hazard. Concessionaire shall prevent any use of the Premises which would
interfere with or adversely affect the operation or maintenance of the Airport or otherwise
constitute a hazard.
15.15 Airspace Rights. Except to the extent required for the performance of any of the
obligations of Concessionaire under this Agreement, nothing contained in this Agreement shall
grant to Concessionaire any rights whatsoever in the air space above the Premises. In that
regard, County reserves the right to take any action whatsoever that it considers necessary to
protect the aerial approaches of the Airport against obstruction, including, but not limited to,
demolition or removal of structures upon the Premises, together with the right to prevent
Concessionaire from erecting or permitting to be erected any building or other structure at the
Airport which, in the opinion of County, would limit the usefulness of or interfere with the
operations at the Airport, or constitute a hazard to aircraft.
15.16 Utility Easement Reservation. County reserves the right to maintain such utility
easements and licenses on the Premises as may now or in the future be determined to be
necessary to serve the needs of the Airport, and Concessionaire agrees to take the Premises
subject to said easement and license requirements. Such easements and licenses will be used
for, but not limited to, the installation of water distribution, sewage collection, underground
electrical and telephone conduits, above ground street lighting, and power poles. However, it is
understood and agreed that County will restore any Improvements which Concessionaire has
made to its Premises if such Improvements are materially damaged by any installation made by
County. Furthermore, County shall take reasonable steps to ensure that any such installation be
the least disruptive to Concessionaire's operations.
15.17 Subordination of Agreement. This Agreement is subject and subordinate to the terms
and conditions of the instruments and documents under which County acquired the Airport from
the United States of America, and shall be given only such effect as will not conflict or be
inconsistent with the terms and conditions contained in such instruments and documents and
any existing or subsequent amendments thereto. This Agreement is subject and subordinate to
any ordinances, rules, or regulations which have been, or may hereafter be adopted by County
pertaining to the Airport. This Agreement is subject and subordinate to the provisions of any
agreement heretofore or hereafter made between County and the United States Government
relative to the operations or maintenance of the Airport, the execution of which has been
required as a condition precedent to the transfer of federal rights or property to County for
Airport purposes, or the expenditure of federal funds for the improvements or development of
the Airport under the provisions of the Federal Aviation Act of 1958, as codified in the United
States Code, Title 49. In addition, this Agreement is subordinate and subject to the provisions of
Rental Car Concession - __________ 53
all resolutions heretofore and hereafter adopted by County in connection with any revenue
bonds issued by County with respect to the operations of the Airport, or any improvements to
the Airport or any of its facilities, and to the provisions of all documents executed in connection
with any such bonds, including, but not limited to, any pledge, transfer, hypothecation, or
assignment made at any time by County to secure any such bonds.
15.18 Assignment. Concessionaire shall not sublet the Premises or any part thereof, or transfer,
assign, pledge, or otherwise encumber this Agreement or any rights or obligations under this
Agreement, or allow this Agreement to be assigned by operation of law or otherwise (any such
action being called an "Assignment"), without the prior written consent of County. Any such
Assignment without the prior written consent of County shall be null and void and of no force or
effect.
15.19 Transfer. Any transfer or merger of controlling ownership between Concessionaire and
any other entity(ies), or any sale or transfer of a majority of the ownership interest in
Concessionaire (whether accomplished by one transaction or a series of transactions) without
the prior written consent of County shall affect an immediate termination of this Agreement and
an Event of Default. Notwithstanding the foregoing, the provisions of this section shall not apply
to any public trades of registered stock that occurs on a national stock exchange.
15.20 Law, Jurisdiction, Venue, Waiver of Jury Trial. This Agreement shall be interpreted and
construed in accordance with and governed by the laws of the State of Florida. The exclusive
venue for any lawsuit arising from, related to, or in connection with this Agreement shall be in
the state courts of the Seventeenth Judicial Circuit in and for Broward County, Florida. If any
claim arising from, related to, or in connection with this Agreement must be litigated in federal
court, the exclusive venue for any such lawsuit shall be in the United States District Court or
United States Bankruptcy Court for the Southern District of Florida. BY ENTERING INTO THIS
AGREEMENT, CONCESSIONAIRE AND THE COUNTY HEREBY EXPRESSLY WAIVE ANY RIGHTS
EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO THIS
AGREEMENT. IF A PARTY FAILS TO WITHDRAW A REQUEST FOR A JURY TRIAL IN A LAWSUIT
ARISING OUT OF THIS AGREEMENT AFTER WRITTEN NOTICE BY THE OTHER PARTY OF
VIOLATION OF THIS SECTION, THE PARTY MAKING THE REQUEST FOR JURY TRIAL SHALL BE
LIABLE FOR THE REASONABLE ATTORNEYS' FEES AND COSTS OF THE OTHER PARTY IN
CONTESTING THE REQUEST FOR JURY TRIAL, AND SUCH AMOUNTS SHALL BE AWARDED BY THE
COURT IN ADJUDICATING THE MOTION.
15.21 Agent for Service of Process. If Concessionaire is not a resident of the State of Florida, is
an association or partnership without a member or partner resident of said State, or is a foreign
corporation, then Concessionaire hereby designates the Secretary of State of the State of Florida
as its agent for the purpose of service of process in any court action between it and County arising
out of or based upon this Agreement, and service shall be made as provided by the laws of the
State of Florida for service upon a nonresident who has designated the Secretary of State as agent
for service. If for any reason service of such process is not possible, as an alternative method of
service of process, Concessionaire may be personally served with such process out of this State
Rental Car Concession - __________ 54
by certified mailing to Concessionaire at the address set forth in this Agreement. Any such service
out of this State shall constitute valid service upon Concessionaire as of the date of mailing.
Concessionaire is amenable to and agrees to the process so served, submits to the jurisdiction,
and waives any and all objections and protest thereto.
15.22 Materiality and Waiver of Breach. Each requirement, duty, and obligation set forth in this
Agreement was bargained for at arm's-length and is agreed to by the Parties. Each requirement,
duty, and obligation set forth in this Agreement is substantial and important to the formation of
this Agreement, and each is, therefore, a material term of this Agreement. County's failure to
enforce any provision of this Agreement, or acceptance of any Rent or any partial performance
by Concessionaire, shall not be deemed a waiver of any provision of this Agreement or
modification of this Agreement. A waiver of any breach of a provision of this Agreement shall
not be deemed a waiver of any subsequent breach and shall not be construed to be a
modification of the terms of this Agreement.
15.23 Time of Essence. Time is of the essence with respect to this Agreement and shall apply to
all terms and conditions contained in this Agreement.
15.24 Severability. In the event any part of this Agreement is found to be unenforceable by any
court of competent jurisdiction, that part shall be deemed severed from this Agreement, and the
balance of this Agreement shall remain in full force and effect.
15.25 Independent Contractor. Concessionaire is an independent contractor under this
Agreement. In providing services under this Agreement, neither Concessionaire nor its agents
shall act as officers, employees, or agents of County. Concessionaire shall not have the right to
bind County to any obligation not expressly undertaken by County under this Agreement.
15.26 Third-Party Beneficiaries. Neither Concessionaire nor County intends to directly or
substantially benefit a third party by this Agreement. Therefore, the Parties agree that there are
no third-party beneficiaries to this Agreement, and that no third party shall be entitled to assert
a right or claim against either of them based upon this Agreement.
15.27 Priority of Provisions. Unless otherwise stated in this Agreement, if there is a conflict or
inconsistency between any term, statement, requirement, or provision of any document or
exhibit attached hereto or referenced or incorporated in this Agreement and any provision of
Articles 1 through 15 of this Agreement, the provisions contained in Articles 1 through 15 shall
prevail and be given effect.
15.28 Joint Preparation. This Agreement has been jointly prepared by the Parties hereto, and
shall not be construed more strictly against either Party.
15.29 Incorporation of Required Provisions. The Parties incorporate herein by this reference all
provisions lawfully required to be contained herein by any governmental body or agency.
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15.30 Incorporation by Reference. Any and all Recital clauses stated above are true and correct
and are incorporated herein by reference. The following Exhibits are incorporated into and made
a part of this Agreement:
Exhibit A Premises
Exhibit B Report
Exhibit C Prevailing Wages
Exhibit D Statement of Compliance
Exhibit E Insurance Requirements
Exhibit F ACDBE Letter of Intent
Exhibit G ACDBE Quarterly Activity Report
Exhibit H Initial Environmental Assessment
Exhibit I Environmental Documents
Exhibit J Nondiscrimination Requirements
Exhibit K Security Requirements
15.31 Incorporation of Proposal Documents. The RFP issued by County and Concessionaire's
response to the RFP, including all documents submitted by Concessionaire to County for
evaluation in the concession award process pursuant to which the concession represented by
this Agreement was awarded to Concessionaire, are hereby incorporated by reference into this
Agreement and made a part hereof (the RFP and all documents filed by Concessionaire in
response thereto are referred to, collectively, as the "Proposal Documents"). RFP means Request
for Proposals #20180430-0-AV-01 issued by County seeking proposals from rental car firms
desiring to operate rental car concessions at the Airport. Concessionaire shall be bound by all
terms, conditions, representations, and commitments contained in the Proposal Documents. In
the event Concessionaire shall fail to abide by and comply with any of the terms, conditions,
representations, or commitments contained in the Proposal Documents, then, at the option of
County, such failure shall be deemed a default of this Agreement. In the event of any conflict
between this Agreement and the Proposal Documents, this Agreement shall prevail.
15.32 Amendments. No modification, amendment, or alteration in the terms or conditions
contained in this Agreement shall be effective unless contained in a written document prepared
with the same or similar formality as this Agreement and executed by authorized signatories of
both the Board and Concessionaire.
In the event that the United States Government, or any of its departments or agencies require
modifications or changes in this Agreement as a condition precedent to the granting of funds for
the improvement of the Airport, or otherwise, Concessionaire shall consent to such
amendments, modifications, revisions, supplements, or deletions of any of the terms, conditions,
or requirements of this Agreement as may be reasonably required (collectively, a "Required
Amendment"). Notwithstanding the foregoing, in the event any such Required Amendment
would unreasonably interfere with the business operations of Concessionaire, then
Concessionaire may refuse to consent to such Required Amendment, but Concessionaire must
give immediate notice to County of any such refusal to consent and such notice must state with
Rental Car Concession - __________ 56
specificity the reasons for any such refusal. County shall have the right to immediately terminate
this Agreement upon the failure of Concessionaire to consent to any such Required Amendment.
15.33 Prior Agreements. This Agreement represents the final and complete understanding of
the Parties regarding the subject matter of this Agreement and supersedes all prior and
contemporaneous negotiations and discussions regarding that subject matter. There is no
commitment, agreement, or understanding concerning the subject matter of this Agreement that
is not contained in this written document. No deviation from the terms of this Agreement shall
be predicated upon any prior representations or agreements, whether oral or written.
15.34 Interpretation. The headings contained in this Agreement are for reference purposes only
and shall not in any way affect the meaning or interpretation of this Agreement. All personal
pronouns used in this Agreement shall include the other gender, and the singular shall include
the plural, and vice versa, unless the context otherwise requires. Terms such as "herein,"
"hereof," "hereunder," and "hereinafter" refer to this Agreement as a whole and not to any
particular sentence, paragraph, or section where they appear, unless the context otherwise
requires. Whenever reference is made to a section or article of this Agreement, such reference
is to the section or article as a whole, including all of the subsections of such section, unless the
reference is made to a particular subsection or subparagraph of such section or article.
15.35 Survival. Upon termination or expiration of this Agreement, Concessionaire shall remain
liable for all obligations and liabilities that have accrued prior to the date of termination or
expiration. Notwithstanding any provision of this Agreement to the contrary, no obligation which
accrued but has not been satisfied under any prior agreements between the Parties shall
terminate or be considered canceled upon execution of this Agreement. Rather, such obligation
shall continue as if it had accrued under this Agreement until the obligation is satisfied.
15.36 No Set Off. Concessionaire acknowledges that, through the Effective Date, it has no
claims against County with respect to any of the operations of Concessionaire at the Airport or
any of the matters covered by this Agreement or any other agreement it may have with County.
Concessionaire further acknowledges that it has no right of set off or counterclaims against any
of the amounts payable by Concessionaire to County under this Agreement or any other
agreement it may have with County.
15.37 Waiver of Claims. Concessionaire hereby waives any claim against County and its officers,
commissioners, and employees for any consequential damages, including, without limitation, any
loss of anticipated profits caused by (a) any failure of County to comply with any obligations
hereunder; (b) any suit or proceedings directly or indirectly attacking the validity of this
Agreement or any part thereof; (c) any judgment or award in any suit or proceeding declaring
this Agreement null, void, or voidable, or delaying the same or any part thereof from being
carried out; or (d) any change in the operation or configuration of, or any change in procedures
governing the use of the Airport.
15.38 Non-Liability of Government Representatives. No commissioner, director, officer, agent
or employee of County shall be charged personally or held contractually liable under any term or
Rental Car Concession - __________ 57
provisions of this Agreement or of any supplement, modification, or amendment to this
Agreement or because of any breach thereof or because of its or their execution or attempted
execution.
15.39 No Remedy Exclusive. No remedy conferred in this Agreement upon or reserved to
County or Concessionaire is intended to be exclusive of any other remedy herein provided or
otherwise available, and each and every remedy shall be cumulative and shall be in addition to
every other remedy given in this Agreement or now or hereafter existing at law or in equity.
15.40 Condemnation. In the event the Premises or any part thereof shall be condemned and
taken by authority of eminent domain, with or without litigation, or transferred in lieu of or under
threat of such action (collectively, a "Condemnation"), any award shall be paid to County, it being
understood that title to all Improvements thereon remains fully vested in County (except for
Concessionaire's trade fixtures), free and clear of any liens and encumbrances, and there shall be
no apportionment. Concessionaire shall not be entitled to any award for the value of the
unexpired portion of the term of this Agreement or any business damages or any other damages
whatsoever. In the event a Condemnation results in a partial taking of the Premises, rental for
that portion of the Premises condemned shall be abated from the date Concessionaire is
dispossessed. If the remainder of the Premises does not, in Concessionaire's reasonable
judgment, constitute an economically viable property sufficient for Concessionaire's operations
as conducted prior to such taking, this Agreement may be terminated by Concessionaire upon
written notice to County, in which event this Agreement shall be terminated on the date the
Premises are completely vacated and surrendered by Concessionaire in accordance with
Article 12.
15.41 Notices. In order for a notice to a party to be effective under this Agreement, notice must
be sent via U.S. first-class mail, with a contemporaneous copy via e-mail to the addresses listed
below and shall be effective upon mailing. The addresses for notice shall remain as set forth in
this section unless and until changed by providing notice of such change in accordance with the
provisions of this section.
FOR BROWARD COUNTY:
County Administrator
Governmental Center
115 South Andrews Avenue
Fort Lauderdale, Florida 33301
Email address: [email protected]
with a copy to:
Director of Aviation
2200 SW 45 Street, Suite 101
Dania Beach, Florida 33312
Email address: [email protected]
Rental Car Concession - __________ 58
FOR CONCESSIONAIRE:
________________________
________________________
________________________
Email address: _________________
15.42 Compliance with Laws. Concessionaire shall comply with all present and future applicable
federal, state, and local laws, codes, ordinances, rules, and regulations in performing its duties,
responsibilities, and obligations pursuant to this Agreement, including any governing the
operation, maintenance, and use of the Airport.
15.43 Civil Rights - General. Concessionaire shall comply with pertinent statutes, executive
orders, and such rules as are promulgated to ensure that no person shall, on the grounds of race,
creed, color, national origin, sex, age, or disability, be excluded from participating in any activity
conducted with or benefiting from Federal assistance.
15.44 Civil Rights - Title VII Assurances. Concessionaire shall abide by and comply with the
nondiscrimination requirements set forth on Exhibit J to the extent same are applicable by law,
rule, or regulation, or federal grant requirements.
15.45 Federal Fair Labor Standards Act (Federal Minimum Wage). This Agreement incorporates
by reference the provisions of 29 CFR Part 201, the Federal Fair Labor Standards Act ("FLSA"),
with the same force and effect as if given in full text. The FLSA sets minimum wage, overtime
pay, recordkeeping, and child labor standards for full and part time workers. Concessionaire has
full responsibility to monitor compliance to the referenced statute or regulation. Concessionaire
must address any claims or disputes that arise from this requirement directly with the U.S.
Department of Labor – Wage and Hour Division.
15.46 Occupational Safety and Health Act of 1970. This Agreement incorporates by reference
the requirements of 29 CFR Part 1910 with the same force and effect as if given in full text.
Concessionaire must provide a work environment that is free from recognized hazards that may
cause death or serious physical harm to the employee. Concessionaire retains full responsibility
to monitor its compliance and its subcontractors' compliance with the applicable requirements
of the Occupational Safety and Health Act of 1970 (20 CFR Part 1910). Concessionaire must
address any claims or disputes that pertain to a referenced requirement directly with the U.S.
Department of Labor – Occupational Safety and Health Administration.
15.47 Security Regulations. Concessionaire certifies and represents that it will comply with the
Airport Security Requirements attached hereto as Exhibit K.
15.48 Public Entity Crime Act. Concessionaire represents that it is familiar with the
requirements and prohibitions under the Public Entity Crime Act, Section 287.133, Florida
Statutes, and represents that its entry into this Agreement will not violate that Act. In addition
to the foregoing, Concessionaire further represents that there has been no determination that it
committed a "public entity crime" as defined by Section 287.133, Florida Statutes, and that it has
Rental Car Concession - __________ 59
not been formally charged with committing an act defined as a "public entity crime" regardless
of the amount of money involved or whether Concessionaire has been placed on the convicted
vendor list. Notwithstanding any provision in this Agreement to the contrary, if any
representation stated in this section is false, County shall have the right to immediately terminate
this Agreement and recover all sums paid to Concessionaire under this Agreement.
15.49 Scrutinized Companies List. The Agreement may also be terminated for cause if
Concessionaire is placed on the Scrutinized Companies with Activities in Sudan List or the
Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List created pursuant
to Section 215.473, Florida Statutes, or if Concessionaire provides a false certification submitted
pursuant to Section 287.135, Florida Statutes.
15.50 Police/Regulatory Powers. County cannot, and hereby specifically does not, waive or
relinquish any of its regulatory approval or enforcement rights and obligations as it may relate to
regulations governing the Premises, any Improvements thereon, or any operations at the
Premises. Nothing in this Agreement shall be deemed to create an affirmative duty of County to
abrogate its sovereign right to exercise its police powers and governmental powers by approving
or disapproving or taking any other action in accordance with its zoning and land use codes,
administrative codes, ordinances, rules, and regulations, federal laws and regulations, state laws
and regulations, and grant agreements. In addition, nothing in this Agreement shall be
considered zoning by contract.
15.51 Visual Artists' Rights Act. With respect to construction or installation of any
Improvements at the Premises and regarding the requirements of the federal Visual Artists Rights
Act of 1990, 17 USC §§ 106A and 113 (the "Act"), Concessionaire shall not (i) hire any artist or
permit any sublessee to hire any artist for the purpose of installing or incorporating any work of
art into or at the Premises, or (ii) permit the installation or incorporation of any work of art in or
at the Premises without the prior written approval of County. Concessionaire shall provide such
reasonable documentation as County may request in connection with any request for such
approval and the approval of County may be conditioned upon the execution by the artist of a
waiver of the provisions of the Act, in form and substance acceptable to County.
15.52 Contingency Fee. Concessionaire represents that it has not paid or agreed to pay any
person or entity, other than a bona fide employee working solely for Concessionaire, any fee,
commission, percentage, gift, or other consideration contingent upon or resulting from the
award or making of this Agreement. If County learns that this representation is false, County
shall have the right to terminate this Agreement without any further liability to Concessionaire.
Alternatively, if such representation is false, County, at its sole discretion, may deduct from the
compensation due Concessionaire under this Agreement the full amount of such fee,
commission, percentage, gift, or consideration.
15.53 Drug-Free Workplace. It is a requirement of County that it enter into contracts only with
firms that certify the establishment of a drug-free workplace in accordance with
Section 21.31(a)(2) of the Broward County Code of Ordinances. Execution of this Agreement by
Concessionaire shall serve as Concessionaire's required certification that it has a drug-free
Rental Car Concession - __________ 60
workplace program in accordance with Section 287.087, Florida Statutes, and Section 21.31(a)(2)
of the Broward County Code of Ordinances, and that it will maintain such drug-free workplace
program for the full term of this Agreement.
15.54 MOA for Land Use Controls. To the extent applicable, this Agreement is subject to the
Memorandum of Agreement for Land Use Controls, dated July 1, 2015, between County and the
Division of Waste Management, Florida Department of Environmental Protection, recorded on
July 23, 2015, at instrument # 113129335 of the Public Records of Broward County, Florida, which
enables County to assess and remediate contamination at the Airport consistent with applicable
standards and procedures.
15.55 Radon Gas. Radon is a naturally occurring radioactive gas that, when it has accumulated
in a building in sufficient quantities, may present health risks to persons who are exposed to it
over time. Levels of radon that exceed federal and state guidelines have been found in buildings
in Florida. Additional information regarding radon and radon testing may be obtained from your
county health department.
15.56 Contract Administrator Authority. Unless expressly stated otherwise in this Agreement
or otherwise set forth in an applicable provision of the Broward County Procurement Code,
Broward County Code of Ordinances, or Broward County Administrative Code, the Contract
Administrator may act on behalf of County under this Agreement.
15.57 Use of County Logo. Concessionaire shall not use County's name, logo, or otherwise refer
to this Agreement in any marketing or publicity materials without the prior written consent of
County.
15.58 No Recordation of Agreement. Concessionaire shall not record this Agreement or any
memorandum thereof in the Official Records of Broward County, Florida.
15.59 Representation of Authority. Each individual executing this Agreement on behalf of a
party hereto hereby represents and warrants that he or she is, on the date he or she signs this
Agreement, duly authorized by all necessary and appropriate action to execute this Agreement
on behalf of such party and does so with full legal authority.
15.60 Successors and Assigns Bound. This Agreement shall be binding upon and inure to the
benefit of the successors and permitted assigns of the Parties hereto.
15.61 Counterparts and Multiple Originals. This Agreement may be executed in multiple
originals, and may be executed in counterparts, each of which shall be deemed to be an original,
but all of which, taken together, shall constitute one and the same agreement.
THE REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY
Rental Car Concession - __________ 61
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement:
BROWARD COUNTY through its BOARD OF COUNTY COMMISSIONERS, signing by and through its
Mayor or Vice-Mayor, authorized to execute same by Board action on the _____ day of
_________________, 20__, and CONCESSIONAIRE, signing by and through its
__________________________________, duly authorized to execute same.
COUNTY
ATTEST:
_______________________________
Broward County Administrator, as
Ex-officio Clerk of the Broward County
Board of County Commissioners
BROWARD COUNTY, by and through its
Board of County Commissioners
By _________________________________
Mayor
____ day of ___________________, 20___
Approved as to form by
Andrew J. Meyers
Broward County Attorney
Aviation Office
2200 SW 45
th
Street, Suite 101
Dania Beach, Florida 33312
Telephone: (954) 359-6100
Telecopier: (954) 359-1292
By_________________________________
Carlos A. Rodriguez-Cabarrocas (Date)
Assistant County Attorney
By_________________________________
Sharon Thorsen (Date)
Senior Assistant County Attorney
___/___ (initials)
Rental Car Concession - ___
04/30/18
File No.
Rental Car Concession - __________ 62
RENTAL CAR CONCESSION LEASE AND OPERATING AGREEMENT BETWEEN BROWARD COUNTY,
FLORIDA AND ______________________________________
CONCESSIONAIRE
ATTEST:
__________________________________
Secretary
(CORPORATE SEAL)
_________________________________
By:_______________________________
Print Name:
Title:______________________________
___ day of ___________________, 201__
WITNESS:
_________________________________
_________________________________
Rental Car Concession - __________ 63
EXHIBIT A
Premises
[Inserted upon award]
Rental Car Concession - __________ 64
EXHIBIT B
Report
(see next five pages)
Rental Car Concession - __________ 65
MONTHLY ACTIVITY REPORT - EXHIBIT B
Page 1 of 3
CONCESSIONAIRE: Sample Reporting Period (Month/Year): January-2019
Schedule 1 - Calculation of Gross Revenues TOTAL
REVENUES
Gross Revenues (A)
(1) All charges for rental of vehicles, including but not limited to:
a. Time and Mileage $ 10,000,000.00
b. Any amounts charged to customers for fuel. $ 100,000.00
c. Airport Access Fee $ 2,000.00
d. Inter-city Fee (drop charge) $ 5,000.00
e. Vehicle License Fee (driver record check) $ 0.00
f. Guaranteed Reservation (customer is obliged to pay in full in case of no show) $ 5,000.00
g. Battery & Tire Surcharge Fee $ 5,000.00
h. Energy Surchage Fee $ 10,000.00
i. Other Revenue $ 0.00
(2)
All insurance offered incidental to rental of such vehicles, including but to
limited to:
a. Collision Damage Waiver $ 100,000.00
b. Limited Damage Waiver $ 50,000.00
c. Liability Insurance Supplement $ 75,000.00
d. Personal accident insurance $ 10,000.00
e. Personal effects and cargo (excess Liability) $ 8,000.00
f. Life insurance $ 0.00
g. Loss of Use Fee $ 0.00
h. Emergency Sickness Plan (ESP) $ 0.00
i. Other Insurance Related Fees $ 0.00
(3)
Cellular telephones (after subtracting amounts payable to any vendor of the
cellular telephone that is not the Concessionaire or an affiliate of the
Concessionaire) and infant seats and other equipment and gear rented in
conjunction with rental of vehicles to customers
$ 2,000.00
(4) Any add-on fees, including but not limited to:
a. Extra driver $ 4,000.00
b. Underage driver $ 2,000.00
c. Upgrade of vehicle $ 10,000.00
d. Plate Pass fee (Sunpass, E-PASS, E-Z Pass, I-Pass, etc) less portion
remitted to toll authority
$ 6,000.00
e. Vehicle Sharing and Valet Services $ 1,000.00
Gross Revenues (B)
*Revenue from discounts on rentals. $ 50,000.00
Loyalty or Reward Programs $ 1,000.00
*"Gross Revenues" shall include any payments made to the Concessionaire by
any person, firm, or entity in order to obtain any "Discount Arrangement" from the
Concessionaire. A "Discount Arrangement" is an arrangement by any airlines,
cruise lines, or any other person, firm or entity whereby the Concessionaire
provides discounts on rentals
Total Gross Revenues from (A & B) above
$ 10,446,000.00
BROWARD COUNTY AVIATION DEPARTMENT
ON-AIRPORT RENTAL CAR CONCESSION
FORT LAUDERDALE-HOLLYWOOD INTERNATIONAL AIRPORT
Rental Car Concession - __________ 66
CONCESSIONAIRE: Sample Reporting Period (Month/Year): January-2019 Page 2 of 3
Schedule 2 - Calculation of Monthly Exclusion from Gross Revenues
TOTAL
REVENUES
Less Exclusions from Gross Revenues (C):
(1)
Any Federal, State and municipal taxes separately stated and collected from
customers of the Concessionaire.
$ 10,000.00
(2)
Amounts received as insurance proceeds or otherwise for damage to vehicles or
other property of the Concessionaire, or for loss conversion or abandonment of
such vehicles.
$ 5,000.00
(3)
All sales of used rental vehicles. $ 2,000.00
(4)
The Customer Facility Charges (CFC) collected by the Concessionaire. $ 125,000.00
(5)
All nonrevenue rentals to employees of the Concessionaire $ 10,000.00
(6)
Traffic and Toll Violations and Fees $ 5,000.00
Total Exclusions from Gross Revenues (C) Lines 1-6
$ 157,000.00
Gross Revenue A&B 10,446,000.00$
Less Exclusions C 157,000.00$
10,289,000.00$
Base Privilege Fee
(D)
10% 1,028,900.00$
Total Gross Revenues $ 11,317,900.00
(A+B+D) - C
Schedule 3 - Calculation of Monthly Installments of Privilege Fees
THE PRIVILEGE FEE IS CALCULATED AS THE GREATER OF THE FOLLOWING (A) or (B) BELOW PER SECTION 5.5 (i) TO (ii) OF THE AGREEMENT FOR RENTAL CAR CONCESSION AND LEASE:
(A) Privilege Fee (ii) " is the annual Percentage Fee…":
(1) Total Gross Revenues (Adjusted) Per Schedule 2 (1) $ 11,317,900.00
(2) Percentage Fee Rate Per Section 1.47 (2) 10%
Privilege Fee Total (A) Per Section 5.5 (1) x (2) (A) $ 1,131,790.00
(B)
Privilege Fee (i) " 1/12th of the Minimum Annual Guarantee":
(1) Gross Revenues of the most recent 12 month period ending July 31 per Section 1.4 (1) $ 125,000,000.00
(2) Annual Minimum Percentage Fee rate per Section 1.4(c) (2) 8.5%
(3) Minimum Annual Guarantee (1) x (2) (3) $ 10,625,000.00
(4) Monthly Fraction (4) 1/12
Privilege Fee Total (B) per Section 5.5(i) (1/12th of the Minimum Annual Guarantee) (3) x (4) (B) $ 885,416.67
Privilege Fee amount due (The greater of (A) or (B) above) $ 1,131,790.00
CFC amount due (From page 3 of 3) $ 1,591.85
Total Amount Submitted with Activity Report $ 1,133,381.85
Calculation of Percentage Fee Based on Gross Revenues (As Adjusted)
Rental Car Concession - __________ 67
BROWARD COUNTY AVIATION DEPARTMENT
FORT LAUDERDALE-HOLLYWOOD INTERNATIONAL AIRPORT
ON-AIRPORT RENTAL CAR CONCESSION
CUSTOMR FACILITY CHARGE DETAIL
MONTHLY ACTIVITY REPORT
Schedule 4 - Schedule of Transactions and Contract Days
CONCESSIONAIRE:
Sample
Reporting Period (Month/Year):
January-2019
Page 3 of 3
(a)
(b)
(a x b)
Rate
Day
Number of Contracts
Number of Rental Days
3.95
1
5
5
$ 19.75
2
6
12
$ 47.40
3
7
21
$ 82.95
4
8
32
$ 126.40
5
10
50
$ 197.50
6
11
66
$ 260.70
7
15
105
$ 414.75
8
14
112
$ 442.40
9
0
$ -
10
0
$ -
11
0
$ -
12
0
$ -
13
0
$ -
14
0
$ -
15
0
$ -
16
0
$ -
17
0
$ -
18
0
$ -
19
0
$ -
20
0
$ -
21
0
$ -
Rental Car Concession - __________ 68
22
0
$ -
23
0
$ -
24
0
$ -
25
0
$ -
26
0
$ -
27
0
$ -
28
0
$ -
29
0
$ -
30
0
$ -
31
0
$ -
32
0
$ -
33
0
$ -
34
0
$ -
35
0
$ -
36
0
$ -
37
0
$ -
38
0
$ -
39
0
$ -
40
0
$ -
41
0
$ -
42
0
$ -
43
0
$ -
44
0
$ -
45
0
$ -
46
0
$ -
47
0
$ -
48
0
$ -
49
0
$ -
50
0
$ -
51
0
$ -
52
0
$ -
53
0
$ -
54
0
$ -
55
0
$ -
56
0
$ -
57
0
$ -
58
0
$ -
59
0
$ -
Rental Car Concession - __________ 69
60
0
$ -
0
0
$ -
0
0
$ -
0
0
$ -
0
0
$ -
0
0
$ -
0
0
$ -
76
403
1,591.85
Rental Car Concession - __________ 70
EXHIBIT C
Prevailing Wage Rates
Pursuant to Section 26-5, Broward County Code of Ordinances:
A. The rate of wages and fringe benefit payments for all laborers, mechanics, and
apprentices shall not be less than those payments for similar skills in classifications of work in a
like construction industry as determined by the Secretary of Labor and as published in the Federal
Register (latest revision).
B. All mechanics, laborers, and apprentices, employed or working directly upon the site of
the work shall be paid in accordance with the above-referenced wage rates. Concessionaire shall
post notice of these provisions at the site of the work in a prominent place where it can be easily
seen by the workers.
C. If the Parties cannot agree on the proper classification of a particular class of laborers or
mechanics or apprentices to be used, the Contract Administrator shall submit the question,
together with its recommendation, to the County Administrator for final determination.
D. In the event it is found by the Contract Administrator that any laborer or mechanic or
apprentice employed by Concessionaire, or any subcontractor directly on the site of the work has
been or is being paid at a rate of wages less than the rate of wages required by the ordinance,
the Contract Administrator may: (1) by written notice to Concessionaire terminate its right to
proceed with the work or such part of work for which there has been a failure to pay said required
wages; and (2) prosecute the work or portion thereof to completion by contract or otherwise.
Whereupon, Concessionaire and its sureties shall be liable to County for any excess costs
occasioned to County thereby.
E. These provisions shall apply to the Concessionaire and any subcontractors.
F. Concessionaire shall maintain payrolls and basic records relating thereto during the
course of the work and shall preserve such for a period of three (3) years thereafter for all
laborers, mechanics, and apprentices working at the site of the work. Such records shall contain
the name and address of each such employee; its current classification; rate of pay (including
rates of contributions for, or costs assumed to provide, fringe benefits); daily and weekly number
of hours worked; deductions made; and actual wages paid.
G. Concessionaire shall submit, with each requisition for payment, a signed and sworn
"Statement of Compliance" attesting to compliance with Broward County Ordinance No 83-72.
The Statement shall be in the form attached as Exhibit D.
H. The Contract Administrator may withhold or cause to be withheld from Concessionaire as
much of the payments requisitioned as may be considered necessary to pay laborers and
mechanics, including apprentices, trainees, watchpersons, and guards employed by
Rental Car Concession - __________ 71
Concessionaire or any subcontractor on the work, the full amount of wages required by this
Agreement.
I. If Concessionaire or any subcontractor fails to pay any laborer, mechanic, or apprentice
employed or working on the site of the work all or part of the wages required by this Agreement,
the Contract Administrator may, after written notice to Concessionaire, take such action as may
be necessary to cause suspension of any further payments or advances until such violations have
ceased.
Rental Car Concession - __________ 72
EXHIBIT D
Statement of Compliance (Prevailing Wage Rate Ordinance No. 83-72)
No. ______________
Agreement No. _____________ Project Title ____________________________
The undersigned Concessionaire hereby swears under penalty of perjury that, during the period
covered by the application for payment to which this statement is attached, all mechanics,
laborers, and apprentices, employed or working on the site of the Project, have been paid at
wage rates, and that the wage rates of payments, contributions, or costs for fringe benefits have
not been less than those required by Section 26-5, Broward County Code of Ordinances, and the
applicable conditions of this Agreement.
Dated _____________, _____, ________________________________
Concessionaire
By______________________________
(Signature)
By______________________________
(Name and Title)
STATE OF )
) SS.
County OF )
The foregoing instrument was acknowledged before me this _____ day of
_______________, ____, by _____________________ who is personally known to me or who
has produced ______________________ as identification and who did/did not take an oath.
WITNESS my hand and official seal, this ______ day of ___________, 20__.
(NOTARY SEAL) ___________________________________________
(Signature of person taking acknowledgment)
___________________________________________
(Name of officer taking acknowledgment)
typed, printed, or stamped
___________________________________________
(Title or rank)
___________________________________________
(Serial number, if any)
My commission expires:
Rental Car Concession - __________ 73
EXHIBIT E
Minimum Insurance Requirements
[Inserted by Risk]
Rental Car Concession - __________ 74
EXHIBIT F
ACDBE Letter of Intent
Rental Car Concession - __________ 75
EXHIBIT G
ACDBE Quarterly Activity Report
Rental Car Concession - __________ 76
EXHIBIT H
General Outline for Initial Environmental Assessment
The purpose of the environmental testing activities is to establish the environmental conditions
of the property. At a minimum, the initial stages of the process should include sufficient
non-intrusive activities to identify the current and historical use of the property, the regulatory
compliance record of the property, and any other information deemed necessary to evaluate the
potential impacts from hazardous substances, hazardous materials, and petroleum products to
soil, surface water, and groundwater at the site. These non-intrusive activities should be
consistent with methodologies outlined in ASTM E1527-13 Standard Practice for Phase 1
Environmental Site Assessments.
Information identified during the initial Phase 1 stage will be used to make recommendations for
Phase 2 testing activities. Prior to implementation, these recommendations must be reviewed
by Aviation Department staff. The depth and breadth of these activities will be dependent on
the findings of the Phase 1 activities, and may include, but not be limited to, the installation of
soil borings and monitor wells; soil screening; and chemical analysis of soil, surface water, and
groundwater samples.
Should the Phase 1 activities identify no Recognized Environmental Conditions, sufficient testing
will still be required to establish a quantitative baseline of the site's soil, surface water, and
groundwater conditions against which future impacts can be measured.
Rental Car Concession - __________ 77
EXHIBIT I
ENVIRONMENTAL DOCUMENTS
Company Name:
___________________________________________________________
Mailing Address:
____________________________________________________________
Street or Post Office Box
City: _______________________________ State: _____ Zip Code: _____
Type of Agreement:
_____________________________________________________________
Please describe the activities performed and services provided on leasehold:
_______________________________________________________
_______________________________________________________
_______________________________________________________
_______________________________________________________
Will there be fueling: Yes __ No __
Will there be maintenance: Yes __ No __
Will there be plane washing: Yes __ No __
Concessionaire has the following documents, if applicable, which may be requested by County
for review: If not applicable, denote "NA."
1. Best Management Plan, dated __________.
2. Storm water Pollution Prevention Plan, dated __________.
3. Spill Prevention Control and Countermeasures Plan, dated __________.
4. Hazardous Materials Plan, dated __________.
5. Other applicable environmental plans:
___________________________________________________
Is Concessionaire required to file the SARA Title III Reporting? Yes __ No __
If Yes, was last filed on (date) __________________________________.
Rental Car Concession - __________ 78
Is Concessionaire a generator of hazardous waste pursuant to 40 CFR 261?
Yes ___ No ___.
If Yes, the status is _____ Conditionally Exempt; _____ Small Quantity Generator; _____ Large
Quantity Generator.
If required, reports were filed on (date) ____________________.
The following environmental permits, licenses, approvals, or orders (County, State, Federal) are
issued to Concessionaire: (These permits, licenses, approvals and orders include, but are not
limited to, storage tanks, hazardous material, air, solid waste, hazardous waste, industrial
wastewater pretreatment, and storm water.)
Permit Name/Type License No. Date Expires
1. ________________________________________________________________
2. ________________________________________________________________
3. ________________________________________________________________
4. ________________________________________________________________
5. ________________________________________________________________
6. ________________________________________________________________
Rental Car Concession - __________ 79
EXHIBIT J
Nondiscrimination Requirements
During the performance of this Agreement, Concessionaire, for itself, its assignees, and successors
in interest (hereinafter referred to as the "contractor") agrees as follows:
1. Compliance with Regulations: The contractor (hereinafter includes consultants) will
comply with the Title VI List of Pertinent Nondiscrimination Statutes and Authorities, as
they may be amended from time to time, which are herein incorporated by reference and
made a part of this contract.
2. Non-discrimination: The contractor, with regard to the work performed by it during the
contract, will not discriminate on the grounds of race, color, or national origin in the
selection and retention of subcontractors, including procurements of materials and leases
of equipment. The contractor will not participate directly or indirectly in the
discrimination prohibited by the Acts and the Regulations, including employment
practices when the contract covers any activity, project, or program set forth in Appendix
B of 49 CFR Part 21.
3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In
all solicitations, either by competitive bidding, or negotiation made by the contractor for
work to be performed under a subcontract, including procurements of materials, or leases
of equipment, each potential subcontractor or supplier will be notified by the contractor
of the contractor's obligations under this contract and the Acts and the Regulations
relative to Non-discrimination on the grounds of race, color, or national origin.
4. Information and Reports: The contractor will provide all information and reports
required by the Acts, the Regulations, and directives issued pursuant thereto and will
permit access to its books, records, accounts, other sources of information, and its
facilities as may be determined by the sponsor or the Federal Aviation Administration to
be pertinent to ascertain compliance with such Acts, Regulations, and instructions.
Where any information required of a contractor is in the exclusive possession of another
who fails or refuses to furnish the information, the contractor will so certify to the sponsor
or the Federal Aviation Administration, as appropriate, and will set forth what efforts it
has made to obtain the information.
5. Sanctions for Noncompliance: In the event of a contractor's noncompliance with the
Non-discrimination provisions of this contract, the sponsor will impose such contract
sanctions as it or the Federal Aviation Administration may determine to be appropriate,
including, but not limited to:
a. Withholding payments to the contractor under the contract until the contractor
complies; and/or
b. Cancelling, terminating, or suspending a contract, in whole or in part.
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6. Incorporation of Provisions: The contractor will include the provisions of paragraphs one
through five in every subcontract, including procurements of materials and leases of
equipment, unless exempt by the Acts, the Regulations and directives issued pursuant
thereto. The contractor will take action with respect to any subcontract or procurement
as the sponsor or the Federal Aviation Administration may direct as a means of enforcing
such provisions including sanctions for noncompliance. Provided, that if the contractor
becomes involved in, or is threatened with litigation by a subcontractor, or supplier
because of such direction, the contractor may request the sponsor to enter into any
litigation to protect the interests of the sponsor. In addition, the contractor may request
the United States to enter into the litigation to protect the interests of the United States.
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EXHIBIT K
Security Requirements
Airport Security Program and Aviation Regulations.
Concessionaire agrees to observe all security requirements and other requirements of the
Federal Aviation Regulations applicable to Concessionaire, including without limitation, all
regulations of the United States Department of Transportation, the Federal Aviation
Administration, and the Transportation Security Administration. Concessionaire also agrees to
comply with the County's Airport Security Program and the Air Operations Area ("AOA") Vehicle
Access Program, and any amendments thereto, and to comply with such other rules and
regulations as may be reasonably prescribed by the County, including any regulations pertaining
to emergency response training, and to take such steps as may be necessary or directed by the
County to ensure that subconsultants/subcontractors, employees, invitees and guests of
Concessionaire observe these requirements. If required by the Aviation Department,
Concessionaire shall conduct background checks of its employees in accordance with applicable
Federal Regulations. If as a result of the acts or omissions of Concessionaire, its
subconsultants/subcontractors, employees, invitees or guests, the County incurs any fines
and/or penalties imposed by any governmental agency, including without limitation, the United
States Department of Transportation, the Federal Aviation Administration, or the Transportation
Security Administration, or any expense in enforcing any Federal regulations, including without
limitation, airport security regulations, or the rules or regulations of the County, and/or any
expense in enforcing the County's Airport Security Program, then Concessionaire agrees to pay
and/or reimburse to County all such costs and expenses, including all costs of administrative
proceedings, court costs, and attorney's fees and all costs incurred by County in enforcing this
provision. Concessionaire further agrees to rectify any security deficiency or other deficiency as
may be determined as such by the County or the United States Department of Transportation,
Federal Aviation Administration, the Transportation Security Administration, or any other
Federal agency with jurisdiction. In the event Concessionaire fails to remedy any such deficiency,
the County may do so at the sole cost and expense of Concessionaire. The County reserves the
right to take whatever action is necessary to rectify any security deficiency or other deficiency.
(a) Access to Security Identification Display Areas and Identification Media. Concessionaire
shall be responsible for requesting the Aviation Department to issue Airport Issued
Identification Media to all employees who are authorized access to Security Identification
Display Areas ("SIDA") on the Airport, as designated in the Airport Security Program. In
addition, Concessionaire shall be responsible for the immediate reporting of all lost or
stolen Airport Issued Identification Media and the immediate return of the media of
Concessionaire's personnel transferred from the Airport, or terminated from the employ
of Concessionaire, or upon termination of this Agreement. Before an Airport Issued
Identification Media is issued to an employee, Concessionaire shall comply with the
requirements of applicable Federal regulations with regard to fingerprinting for criminal
history record checks and security threat assessments, and shall require that each
employee complete security training programs conducted by the Aviation Department.
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Concessionaire shall pay or cause to be paid to the Aviation Department such charges as
may be established from time to time for lost or stolen Airport Issued Identification Media
and those not returned to the Aviation Department in accordance with these provisions.
The Aviation Department shall have the right to require Concessionaire to conduct
background investigations and to furnish certain data on such employees before the
issuance of Airport Issued Identification Media, which data may include the fingerprinting
of employee applicants for such media.
(b) Operation of Vehicles on the AOA: Before Concessionaire shall permit any employee of
Concessionaire or of any subconsultant/subcontractor to operate a motor vehicle of any
kind or type on the AOA (and unless escorted by an Aviation Department approved
escort), Concessionaire shall ensure that all such vehicle operators possess current, valid,
and appropriate Florida driver's licenses. In addition, any motor vehicles and equipment
of Concessionaire or of any subconsultant/subcontractor operating on the AOA must have
an appropriate vehicle identification permit issued by the Aviation Department, which
identification must be displayed as required by the Aviation Department.
(c) Consent to Search/Inspection: Concessionaire agrees that its vehicles, cargo, goods, and
other personal property are subject to being inspected and searched when attempting to
enter or leave and while on the AOA. Concessionaire further agrees on behalf of itself
and its subconsultant/subcontractors, that it shall not authorize any employee or other
person to enter the AOA unless and until such employee or other person has executed a
written consent-to-search/inspection form acceptable to the Aviation Department.
Concessionaire acknowledges and understands that the foregoing requirements are for
the protection of users of the Airport and are intended to reduce incidents of cargo
tampering, aircraft sabotage, thefts and other unlawful activities at the Airport. For this
reason, Concessionaire agrees that persons not executing such consent-to-
search/inspection form shall not be employed by Concessionaire or by any
subconsultant/subcontractor at the Airport in any position requiring access to the AOA or
allowed entry to the AOA by Concessionaire or by any subconsultant/subcontractor.
(d) Concessionaire understands and agrees that if any of its employees, or the employees of
any of its subconsultants/subcontractors, are required in the course of the work to be
performed under this Agreement to access or otherwise be in contact with Sensitive
Security Information ("SSI") as defined and construed under Federal law, that individual
will be required to execute a Sensitive Security Information Non-Disclosure Agreement
promulgated by the Aviation Department.
(e) The provisions hereof shall survive the expiration or any other termination of this
Agreement.
