Amendment 3 PB-22-3.pdf

Board of County Commissioners County Administrator

Robert S. Weinroth, Mayor Verdenia C. Baker Greg K. Weiss, Vice Mayor Maria G. Marino Dave Kerner Maria Sachs Melissa McKinlay Department of Airports Mack Bernard www.pbia.org

AMENDMENT NO. 3

INVITATION FOR BID # PB 22-3

RENTAL CAR LEASE AND CONCESSION AT THE

PALM BEACH INTERNATIONAL AIRPORT

Date Issued: April 8, 2022

This Amendment No. 3 to Bid No. PB 22-3, Rental Car Lease and Concession at the Palm Beach International Airport (the “IFB”) is issued to provide additional information and clarification to the IFB.

Proposers are advised of the following information pertaining to the IFB:

1. Written Comments/Questions related to this Amendment No. 3 may be submitted to the Contact

Person(s) listed in Special Condition No. 11 of the IFB until 5:00 p.m., local time, Wednesday, April 13, 2022. Parties should reference the specific section(s) of this Amendment in such comments/questions.

2. The deadline for submittal of Bid Responses is hereby extended to Wednesday, May 25, 2022, at

3:30 p.m., local time. Bid submittals may be mailed, or sent overnight addressed to: Department of Airports, 846 Palm Beach International Airport, West Palm Beach, FL 33406. Directions to the Department of Airports Administrative Offices is attached as Exhibit “4” to the IFB document, to assist bidders who may wish to hand-deliver the bid response.

3. Potential bidders are advised that Exhibit “1” to the IFB, Agreement for Rental Car Lease and Concession, (the “Concession Agreement”) is deleted in its entirety and replaced with Exhibit “1” - Agreement for Rental Car Lease and Concession (rev. per Amendment 3), attached as Exhibit “1” to this Amendment No. 3. Changes are shown in redline/strikeout.

4. Potential bidders are advised that Attachment “B” to the IFB, Schedule 3 - Demonstration of Good

Faith Efforts, (“Schedule 3”) is deleted in its entirety and replaced with Schedule 3 - Demonstration of Good Faith Efforts (rev. per Amendment 3), attached as Exhibit “2” to this Amendment No.

3. Changes to the Schedule 3 form are limited to references such as “bid” versus “proposal”, “IFB” versus “RFP”, etc. Although use of the updated Schedule 3 form is preferred, Bid Responses that use the former version of Schedule 3 will be accepted.

5. Potential bidders are advised that Attachment “D” to the IFB, Schedule 1, List of Proposed ACDBE

Firms), (“Schedule 1”) is deleted in its entirety and replaced with Schedule 1 - List of Proposed ACDBE Firms) (rev. per Amendment 3), attached as Exhibit “3” to this Amendment No. 3.

Changes to the Schedule 1 form include an estimate of purchases of goods and services for the First Contract Year. Schedule 1 is not required to be submitted with the Bid Response; however, bidders should have this form prepared at the time of bid submittal since it will be required to be submitted to the Department shortly after the deadline for submission for the Bid Response. “Clean” and “redline” versions are attached to more clearly show what was modified.

http://www.pbia.org/

IFB PB 22-3

Amendment No. 3

6. Potential bidders are advised that the Department is working with the concessionaires under the seven

(7) existing Agreements for Rental Car Lease and Concession that were scheduled to expire on June 30, 2022, to extend the terms of such agreements to September 30, 2022. Consequently, Concession Agreements anticipated to be awarded under this IFB would commence on October 1, 2022, and provisions related to a “Transition Period" have been stricken from the Concession Agreement.

7. Potential bidders are advised that the Office of the Inspector General has initiated an audit which may result in findings that County may desire to incorporate in the Concession Agreement; however, the results of such audit will not be available until this IFB process is completed. Section 21.26, Inspector General, of the Concession Agreement has been amended to incorporate the following language in Section 21.26(B):

Concessionaire acknowledges that as of the Effective Date of this Agreement, the Office of the Inspector General is conducting an audit of certain concession agreements managed by the Department of Airports, including Agreements for Rental Car Lease and Concession. County, in its sole and absolute discretion, may desire to amend this Agreement to incorporate provisions from the results of the Inspector General’s review, when received. In such event, County shall deliver written notification to Concessionaire detailing such amended terms and conditions, at least sixty (60) days prior to the effective date of such amendment to this Agreement (the “Amendment Review Period”). In the event Concessionaire desires to not accept such amended terms and conditions, Concessionaire shall deliver written notice to County prior to expiration of the Amendment Review Period and in such event this Agreement shall be terminated in its entirety thirty (30) days following expiration of the Amendment Review Period, whereupon the parties shall be released from all further obligations under this Agreement with the exception of those obligations accruing prior to the date of such termination and those obligations which expressly survive termination of the Agreement.

8. The following questions/comments have been submitted.

Questions pertaining to Exhibit “1” to the IFB, Agreement for Rental Car Lease and Concession, (the “Concession Agreement”):

Q1: Section 3.02, Term. Will the County consider making the renewal option mutual to both parties?

A1: Section 3.02 has been modified; renewal will be upon mutual agreement.

Q2. The following questions were submitted pertaining to Section 5.01, Concession Fees, and Section 5.02, Adjusted Minimum Annual Guarantee, of the Concession Agreement:

i. Will the County modify the annual MAG adjustment provision in Section 5.01(B) of the Concession Agreement to provide for a floating MAG?

ii. MAG for Second Contract Year and each Contract Year thereafter. As discussed in the pre-bid meeting, the proposers requested that the chart be updated to account for any adjustment of the MAG per Sec. 5.02. Will the County please add the following language to the chart in Sec. 5.01.B: “…for the prior Contract Year, or the Minimum Annual Guarantee (or as adjusted per Sec. 5.02 below) for the prior Contract Year…”?

iii. Sections 5.01 and 5.02 of the Concession Agreement: How will the baseline year for MAG be determined? Can 2019 be used as a baseline year?

iv. We request that the calculation of a MAG beyond year one, be the greater of 90% of the Annual Percentage payment for the prior year or the minimum guarantee bid.

v. can a baseline year such as 2019 be used for determining adjustment of the Minimum Annual Guarantee (“MAG”) in the event passenger traffic falls below a certain percentage? If a base year is not established, can an average of a few years be taken to use in determining the

MAG.

vi. Section 5.02 Adjustment of Minimum Annual Guarantee. As discussed in the pre-bid meeting, the proposers requested that the Baseline Year be updated to Calendar Year 2019 versus the ‘preceding’ or ‘prior’ calendar year. Will the County please update Sec. 5.02 with Calendar Year 2019 as the Baseline Year for determining if an adjustment of the MAG is necessary?

vii. Please confirm whether a conditional adjustment of the MAG would involve a Concessionaire withholding portions of the MAG in advance and then having to repay. What is the timeline of a conditional adjustment, i.e. how much notice would Concessionaire be provided and what would the payback schedule look like?

A2: The provisions of Sections 5.01 and 5.02 of the Concession Agreement have been substantially modified, and several new definitions that are used in Sections 5.01 and 5.02 have been added in Article 2 of the Concession Agreement. Calendar year 2019 will be used as the “baseline” year for determining declines in deplaning passengers which may result in an Adjusted Monthly Minimum Guarantee, and those passenger volume values are included as a table in Section 5.02. Lowering the Minimum Annual Guarantee in Section 5.01 based on declines, as well as allowing for Adjusted Monthly Minimum Annual Guarantee in Section

5.02 would be duplicative; adjustments in 5.02 will apply for the duration of any threshold declines in passenger levels. Section 5.02 enables the County to exercise discretion in issuing a “conditional adjustment” when the County determines it is more likely than not that an Adjusted Monthly Minimum Annual Guarantee would apply; however, if actual passenger reports indicate that such adjustment is not warranted, the full/scheduled Monthly Minimum Annual Guarantee would be due. It is premature to speculate on applicability, or whether such conditional adjustment may need to be issued at all, or reversed, and bidders should be aware that any “conditional adjustment” is not final until actual passenger reports are available to confirm that an adjustment does, in fact, apply.

Q3. The following questions were submitted pertaining to “Local Revenue” as that term/provision applies to the Concession Agreement:

i. Section 2.28, Local Revenue. Asking each customer whether or not they have deplaned is a burdensome process for our rental agents. We believe the zip code requirement is sufficient in determining locality, and all other customers would NOT be considered local revenue.

ii. Will the County please update the definition of “Local Revenue” in Sec. 2.28 as follows:

“Local Revenue” means revenue derived from a vehicle rental transaction with a Palm Beach County resident, as evidenced by appropriate documentation such as the zip code included on the customer’s driver license or rental profile indicating the customer resides in Palm Beach County.”

iii. Will the County please remove the following language in the “Local Revenue” statement in Section 5.09 of the Concession Agreement: “…along with a written statement signed by the customer certifying that the customer did not deplane at the Airport prior to renting the vehicle described in the vehicle rental agreement.”?

iv. Section 5.09 Accounting Records. As stated previously, we believe that the zip code requirement is sufficient in determining locality, and all other customers would NOT be considered local revenue. Will the County please remove the customer deplanement certification requirement, and accept the zip code method only to determine local revenue?

A3: The criteria for “Local Revenue” has two (2) elements: (i) not deplaning at the Airport;

and (ii) being a local resident. The Concession Agreement has been modified; however, each Concessionaire is, and shall remain, responsible for verifying the criteria is met and for obtaining and maintaining appropriate documentation.

Q4: Concession Agreement: Article 2, Definitions – request for new definition. Due to the influx of various modes of non-traditional “car rental” in recent years, it is important to define a “Rental Car Company” in the agreement: Will County please incorporate the following definition into the agreement: A “Rental Car Company” is any business that, directly or indirectly, provides, procures and/or brokers rent vehicles as part of its business and/or manages vehicle rental activities as part of its business. This includes, but is not limited to, traditional rental car businesses, brokers for car rental businesses, rental car delivery companies, peer-to-pear car rental businesses and car sharing businesses.

A4: The Department is aware of the rise in activity by “peer-to-peer” operators at airports across the country. We are reviewing agreements developed by, and in use at, other airports and it is likely that a new permit will be developed for use at the Palm Beach International Airport. Rather than adding a new definition in the Concession Agreement, we believe that it is more appropriate for the County to develop a specific-purpose permit for such operators and to amend the commercial ground transportation section of the Airport Rules & Regulations at:

https://library.municode.com/fl/palm_beach_county/codes/code_of_ordinances?nodeId=VO

II_APXBAIRE_ARTXCOGRTR.

Q5: Article 4, Premises, of the Concession Agreement: It is very costly and disruptive to relocate: Will the County consider grandfathering counters for incumbent rental car companies (RACs) – those currently operating at the airport?

A5: The location of terminal rental car reservation counter space (the “Assigned Premises” also referred to as “counters”) will be assigned and allocated in accordance with Special Condition No. 15, Terminal Rental Car Reservation Counter Space, of the IFB document.

Q6: Section 4.03, Restrictions of Privileges, Uses and Rights, of the Concession Agreement: Please add to the end of first sentence, “unless agreed to by the County in writing,” as it relates to Use of the Premises. Please also confirm that any company doing “similar activities at the airport” shall have terms more favorable than those presented in this Concession Agreement. ID – a Most Favored Nation provision.

A6: It is the Department’s intention that the rights granted under the Concession Agreement are expressly limited to the operation and management of a rental car concession. We do not anticipate approving other rights or activities. It is the Department’s intention that similar rental car operators will be treated similarly; specifically, that “concession” or “on-airport” rental car operators would operate under an agreement substantially similar to the Concession Agreement.

Q7: Section 4.06, Dual Branding, of the Concession Agreement: Please add to end of first sentence, “unless agreed to by the County in writing” as it relates to substituting, modifying or adding Brands of rental car service.

A7: Special Condition No. 2, General Description of the Concession Agreement, provides that “Bidders may propose marketing or operating a maximum of two (2) brands of rental car service companies from its Assigned Premises provided that Bidder has a majority ownership interest in each of the brands of rental car service companies, as described in Section 4.06 of the Concession Agreement. A single legal entity that controls more than one https://library.municode.com/fl/palm_beach_county/codes/code_of_ordinances?nodeId=VOII_APXBAIRE_ARTXCOGRTR https://library.municode.com/fl/palm_beach_county/codes/code_of_ordinances?nodeId=VOII_APXBAIRE_ARTXCOGRTR car rental brand may submit more than one bid, provided each individual bid is for no more than two (2) brands. For example, an entity that controls three (3) brands may submit three

(3) separate bids; or two (2) bids: one (1) bid with two (2) brands, and one (1) bid with one (1) brand. The entity could not submit a single bid for three (3) brands. Bidders must identify on the Bid Response Form the brand(s) of rental car services it is proposing to market from its Assigned Premises. No change, addition or substitution of brand(s) will be permitted during the Term; however a concessionaire will be permitted to delete a brand upon written approval by County.” The brand(s) to be marketed/operated at the Airport under the Concession Agreement should be listed on the Bid Response Form, Attachment “A” to the

IFB.

Q8: Two (2) questions were received pertaining to Section 4.08, Temporary Displacement/Relocation of the Assigned Premises, of the Concession Agreement:

i. The last sentence of this section discusses rent abatement during the term of temporary displacement or relocation. As counters are the essential and actually the only assets awarded during this RFP, displacement or relocation should also be accompanied by an abatement of MAGs during the displaced period.

ii. Section 4.08 of the Concession Agreement outlines that during the term the county may update or replace the existing rental car counters. Renderings were included in the RFP package. We request that we be allowed to install our “corporate identity” counters. We are installing them in as many locations throughout our system as possible. I have attached a few renderings to this email for examples. I understand there may be a concern of replacing the premises to its original intended form should we no longer occupy the area. We would love to discuss an appropriate cost sharing procedure should our location change in the future.

A8: Section 4.08 of the Concession Agreement has been modified to address financial impacts associated with the period of displacement/relocation. Final design of the counter millwork has not been determined, and input from operators will be solicited prior to implementation; however, it is important that all counter areas maintain a consistent appearance.

Q9: Section 5.12, Concession Pass-Through, of the Concession Agreement: We request that the County place a cap on the amount permitted to be passes through. Will the County cap the pass though at 11.11% using the following standard language: “The County does not require, but will not prohibit, a separate statement of and charge for the Concession Fee on customer invoices or rental agreements (“Recovery Fee”), provided that such Recovery Fee meets all of the following conditions:

(a) such Recovery Fee must be titled “Concession Recovery Fee,” “Concession Recoupment Fee” or such other name first approved by the County’s Airport Director in writing; (b) the Recovery Fee must be shown on the customer rental car agreement and invoiced with other Concessionaire charges (i.e.

“above the line”); (c) the Recovery Fee as stated on the invoice and charged to the customer shall be no more than 11.11% of Gross Revenues and shall be specifically included in the Definition of Gross Revenues for purposes of remittance to the County’ (d) Concessionaire shall neither identify, treat or refer to the Recovery Fee as a tax, nor imply that the County is requiring the pass through of such fee.”?

A9: The Concession Agreement has been modified. The fee is now referred to as “Concession Recovery Fee” and Section 5.12 now states that “Concession Recovery Fees charged to Concessionaire’s customers should generally not exceed the amount necessary to recoup the amount paid by Concessionaire to County”.

Q10: Section 5.14, Employee Parking, of the Concession Agreement: Please consider placing a cap on any increase of the Employee Parking Fee.

A10: The Department of Airports has established a uniform fee for employee parking for all tenants at the Airport. A Concessionaire may elect to not utilize the employee parking area if it chooses.

Q11: Section 8.02(B), Concession Service Standards, of the Concession Agreement: In the event there is a mishap and Concessionaire’s Assigned Premise is not staffed per the terms of the Agreement, will the County provide an opportunity to cure prior to being deemed “abandoned?”

A11: Section 13.02(C), Default, of the Concession Agreement provides for a minimum thirty

(30) day cure period, with allowance that “if the nature of Concessionaire’s default is such that more than thirty (30) days are reasonably required for its cure, then Concessionaire shall not be deemed to be in default if Concessionaire commenced such cure within such thirty

(30) day period and thereafter diligently pursues such cure to completion.”

Q12: Section 9.08, Right to Review or Reject Insurance, of the Concession Agreement: We request that this section be removed from the agreement. Our policies are blanket and cover thousands of locations. Not only is the information confidential, but we also cannot change our policy to placate a single, 3rd party entity. Will the County please remove Sec. 9.08?

A12: Unfortunately, this provision is standard and required in each of the County’s agreements. We are not aware of material changes to the insurance requirements in the past, nor do we anticipate material changes in the future, but we are unable to delete or modify this section. It is noted that this provision has been used in the past to exercise discretion in accepting lesser coverage than required.

Q13: Article 11, Indemnification, of the Concession Agreement: Will the County please provide for mutual indemnification of Concessionaire that mirrors this language?

A13: Unfortunately, this provision is standard and required in each of the County’s agreements and we are unable to accept the requested change.

Q14: Article 21, Miscellaneous, of the Concession Agreement: Will the County please consider adding a Most Favored Nations provision to the agreement? We suggest the following language: “In the event that any contract granted by the County to any other Rental Car Company shall contain any terms and conditions more favorable to such company than the terms and conditions herein described (other than the number of allocate parking spaces and the location of the concession area, etc.), then this Agreement shall be amended to include such more favorable terms and any offsetting burdens that may be imposed on any such other company. The intent of this provision is to ensure that the County shall give due diligence to ensure all rental car companies will be able to compete on terms as equal as possible with all other rental car companies, and to ensure that no individual rental car company or companies shall enjoy any rights or privileges more favorable to any such individual company or companies than those enjoyed by all rental car companies.”

A14: We are unable to accept the requested change. Our goal would be to maintain consistency among the same class of operators/concessionaires, but in the unlikely event there is a material change in circumstances in the future, we would not be able to automatically amend an agreement. We would be open to considering formal amendment to the terms when circumstances warrant.

Q15: Concession Agreement: Article 21 Miscellaneous. Will the County please consider adding a Force Majeure clause to the agreement? We suggest the following language: “Except as herein provided, neither the County nor the Concessionaire shall be deemed to be in default hereunder if either party is prevented from performing any of the obligations of this Agreement, by reason of circumstances beyond the party's reasonable control, such as strikes, boycotts, labor disputes, embargoes, shortages of energy or materials, acts of God, acts of the public enemy, acts of the federal government, riots, rebellion, or sabotage; provided, however, the Concessionaire shall pay all rentals, fees, and charges associated with performance prior to the force majeure event when due.”

A15: Section 21.17 of the Concession Agreement has been revised.

Q16: Concession Agreement: Article 21 Miscellaneous. Will the County please consider adding a Quiet Enjoyment provision to the Agreement? We suggest the following language: “The County agrees that if the Concessionaire pays all amounts due to the County under the Agreement, the Concessionaire shall peaceably have and enjoy the assigned premises and all rights, services, licenses and privileges granted under this agreement without any interruption or disturbance from the County.”

A16: The County does not typically include an express “quiet enjoyment” clause in leases or agreements, and we do not believe it is necessary in the Concession Agreement. The covenants, terms and conditions of the Concession Agreement provide the same as such a clause would afford.

Questions pertaining to Invitation For Bid document (the “IFB”):

Q17: Due to supply chain shortages, kindly allow successful Bidder to have fleet no greater than the immediately preceding three (3) years.

A17: Specification No. 4(A), Successful Bidders’/Concessionaires' Responsibilities, of the IFB is deleted in its entirety and replaced with the following:

A. [Concessionaire shall] Provide and maintain a fleet of vehicles, the model year of which for at least seventy-five percent (75%) of the fleet shall be not greater than the immediately preceding two (2) years; and not greater than the immediately preceding three (3) years for the remainder.

Q18: Can some of the Invitation For Bid (IFB) requirements be waived?

A18: We have carefully reviewed the requirement(s) of the IFB. Those requirements that we determined could be modified or amended are addressed in this Amendment No. 3. The remaining requirements remain unchanged.

Q19: Special condition No. 13 (A) of the IFB. It seems excessive to list fifteen (15) airport contacts, please limit to five (5), excluding PBI.

A19: Special Condition No. 13(A), Qualification of Bidders, of the IFB is amended to provide that bidders shall list the required fifteen (15) airport locations; however, at least five (5) reference contacts shall be listed, for airports where the number of deplanements for calendar year 2019 (or earlier) was at least two million passengers.

Q20: Section 13 Qualifications of Bidders, please waive A, B, C, E, F, G for current ON airport brands. Please “grandfather” the counters for successful incumbent bidders/brands.

A20: See A19 which modifies Special Condition No. 13(A). The requirements and qualifications cannot be waived for incumbent bidders/brands. Although information listed in these sections “should” be provided, and we recommend that bidders include sufficient detail to support that the bidder meets the listed qualifications; however, if not included, it shall be the responsibility of the bidder to submit all evidence, as solicited, within a time frame specified by the County (normally within two (2) working days of request).

Q21: Specifications, Section 3.C Revenue Data of the IFB: Will the County please provide this revenue data back to 2017, and also broken out by brand by year?

A21: Rental car revenue data for the past twenty (20) years is posted on the Airport website at http://www.pbia.org/business/-business-reports/. Unfortunately, the data is presented by month. Interested parties would need to organize and evaluate the data themselves in the manner they find necessary.

Q22: Exhibit 6 to the IFB, Bid Submittal Checklist: Is Bid Submittal Checklist required to be submitted with bids?

A22: The Bid Submittal Checklist is provided as a courtesy, solely for informational purposes and does not need to be submitted (or referenced) with bid responses.

Q23: Will the County please confirm what companies/brands (as indicated below) are eligible to submit a bid proposal under IFB No. PB 22-3: Enterprise Leasing Company of Florida, LLC (aka Enterprise Holdings), which has the right to operate the Alamo, Enterprise and National brands;

The Hertz Corporation, which has the right to operate the Hertz, Dollar and Thrifty brands; Avis Budget Group, which has the right to operate the Avis, Budget, Payless and Zipcar brands; Fox, which operates the Fox brand; Sixt, which operates the Sixt brand.

A23: Bidders must be able to demonstrate that a representative attended the March 2, 2022, Mandatory Pre-Bid Conference. The sign-in sheet from the March 2, 2022, Mandatory Pre-Bid Conference was provided as Attachment “A” to Amendment No. 1 to the IFB, and the companies listed were present. Bidders were not asked, or required, to state or declare at the Pre-Bid Conference the brand(s) they might operate under the Concession Agreement;

this information must be included in the Bid Response.

Questions pertaining to Airport Concession Disadvantaged Business Enterprise (“ACDBE”) requirements:

Q24: Can the morning ACDBE outreach on March 30, 2022 be changed to an in person event and not virtual?

A24: Key representatives of potential bidders (national rental car firms) who are most familiar with ACDBE matters are typically based out of state and many ACDBE firms are located outside of the immediate area. The March 30, 2022 ACDBE Conference (see Special Condition No. 10 of the IFB) was organized to occur “virtually” to facilitate attendance by both potential bidders and ACDBE firms alike, without need for travel, with sessions scheduled for both morning and evening to further enable participation by interested ACDBE firms at the most convenient time of day.

http://www.pbia.org/business/-business-reports/

Q25: Will it be mandatory for the car rental concessionaires to attend the outreach sessions with the ACDBEs, and will it be advertised as a match maker?

A25: Although attendance at the March 30, 2022 ACDBE Conference (see Special Condition No. 10 of the IFB) by potential bidders was not mandatory, each bidder at the March 2, 2022 mandatory Pre-Bid Conference committed to, and did, participate in both the morning and evening sessions.

Q26: Will airport staff in the ACDBE outreach make a presentation to car rental concessionaires, explaining legal contractual FAA requirements for meeting their individual goals? If not, I highly recommend a second mandatory pre bid for car rental concessionaires so that ACDBEs have firsthand knowledge of their legal mandatory requirements for ACDBE participation; and a pre-bid is also an opportunity for ACDBEs to utilize this time to make one on one contact with decision makers.

A26: ACDBE requirements of the IFB have been explained in extensive detail through direct outreach including, but not limited to, the March 30, 2022 ACDBE Conference.

Q27: What is the individual assigned ACDBE goal for each car rental concessionaire for this IFB, and what is the legal language inserted into their cpntracts that ef sure they must remain compliant throughout the contract, and if the goal increases quring the Jeng ,h of their contract, the County can legally adjust their goals contractually. I

I' I I

A27: See Section 3(C) of the IFB ~nd, Section 20

.03 of Exhibiit "1 ", Agreement for Rental Car Lease and Concession, to the IFB. 1

Q28: How does the county explain the quality ofwood faith effi , rts to car rental concessionaires, and how does the County intend to rigorously examine good faith ,lefforts to ensure they were indeed good faith independently of just the carirental cont essionaires s bmit?

A28: See A27 above.

All other terms and conditions of IFB No. PB 22-3 remain the same and unchanged.

Real Estate & Concession

Exhibit “1” to Amendment No. 3

Exhibit “1” - Agreement for Rental Car Lease and Concession (rev. per Amendment 3) Changes are shown in redline/strikeout.

AGREEMENT FOR RENTAL CAR LEASE AND CONCESSION

AT THE PALM BEACH INTERNATIONAL AIRPORT

(________ BRAND)

THIS AGREEMENT FOR RENTAL CAR LEASE AND CONCESSION (this “Agreement”) is made and entered into , by and between Palm Beach County, a political subdivision of the State of Florida (“County”), and doing business as , a LLC/corporation, having its office and principal place of business at (“Concessionaire”).

W I T N E S S E T H:

WHEREAS, County, by and through its Department of Airports, owns and operates Palm Beach International Airport (“Airport”), located in Palm Beach County, Florida; and

WHEREAS, Concessionaire submitted a response to County's public solicitation for competitive bids for the Rental Car Lease and Concession at the Palm Beach International Airport (“PBIA”), Invitation for Bid No. PB 22-3, which opened , 2022 (“Invitation for Bid”); and

WHEREAS, Concessionaire was selected to operate a rental car concession at the Airport, which includes the non-exclusive right to lease space in the Terminal (as hereinafter defined) for the purpose of conducting Concessionaire’s business; and

WHEREAS, Concessionaire desires to operate and manage an Airport concession in accordance with the terms of this Agreement.

NOW, THEREFORE, in consideration of the premises and of the mutual convents herein contained, and for such other good and valuable consideration, the receipt of which the parties hereby expressly acknowledge, the parties hereto covenant and agree to the following terms and conditions:

ARTICLE 1

RECITALS

The foregoing recitals are true and correct and are hereby incorporated herein by reference.

ARTICLE 2

DEFINITIONS

2.01 “Adjusted Minimum Annual Guarantee” has the meaning set forth in Section 5.02.

2.02 “Adjusted Monthly Minimum Annual Guarantee” has the meaning set forth in Section 5.02.

2.03 “Airline Agreement” has the meaning set forth in Section 5.03.

2.01

2.022.04 “Airport” has the meaning set forth in the recitals to this Agreement.

2.032.05 “Airport Concession Disadvantaged Business Enterprises” or “ACDBE” has the meaning set forth in Title 49, Part 23 of the Code of Regulations, as now or hereafter amended or any successor regulation.

2.042.06 “Airport Rules and Regulations” means the Palm Beach County Airport Rules and Regulations adopted by Resolution No. R-98-220, as now or hereafter amended, and any successor ordinance or resolution regulating activities or operations on the Airport, which is hereby incorporated herein by reference and made a part hereof.

2.07 “Amendment Review Period” has the meaning set forth in Section 21.26(B).

2.052.08 “Assigned Premises” means __________ square feet of reservation counter and office area in the Terminal, as more particularly described on Exhibit “A”.

2.062.09 “Assignment” has the meaning set forth in Article 14.

2.072.10 “Bid Response” means the bid response submitted by Concessionaire in response to the Invitation for Bid.

2.082.11 “Bond” has the meaning set forth in Section 5.13.

2.092.12 “Bond Resolution” means the Palm Beach County Airport System Revenue

Bond Resolution dated April 3, 1984 (R-84-427), as amended and supplemented, which is hereby incorporated herein by reference and made a part hereof.

2.102.13 “Brand” means a word, mark, symbol, design, term or combination of these used for the purpose of identifying a product or service.

2.112.14 “Commencement Date” has the meaning set forth in Section 3.02.

2.122.15 “Concession” means the rental car concession operated by Concessionaire pursuant to the terms and conditions of this Agreement.

2.132.16 “Concession Fees” means the fees payable by Concessionaire to County pursuant to Section 5.01.

2.142.17 “Concession RecoupmentRecovery Fee” has the meaning set forth in Section

5.12.

2.152.18 {Insert ift applicable: “Construction Credit” has the meaning set forth in

Section 6.01.}

2.162.19 “Contract Year” means the period beginning on October 1, 2022the

Commencement Date and ending the following September 30, and each twelve-month period of October 1 through September thereafter, until the expiration or earlier termination of this Agreement.

2.172.20 “Department” means the Palm Beach County Department of Airports.

2.21 “Effective Date” has the meaning set forth in Section 3.01.

2.182.22 “FAA” means the Federal Aviation Administration.

2.192.23 “Facility Rental” means the annual rental rate payable by Concessionaire to

County for Concessionaire’s use and occupancy of the Assigned Premises pursuant to Section 5.03

2.202.24 “Facilities Use Permit” has the meaning set forth in Section 4.04.

2.212.25 “Gross Revenues” means all monies due Concessionaire, whether paid or unpaid, from any and all customers for the use, rental or lease of vehicles and any additional services or accessories contracted for, delivered, supplied or rented at or from the Airport regardless of where, how (cash, credit, barter or otherwise) or by whom payment is made; whether the customer is transported from the Airport to an off-Airport place of business; or where the vehicle is picked up or returned. Unless revenues are expressly and specifically excluded from Gross Revenues, all revenues derived from, arise out of or become payable on account of the Concession, whether directly or indirectly, shall be included in Gross Revenues.

A. Gross Revenues shall include, but shall not be limited to:

1. time and/or mileage charges, after discounts, assessed by

Concessionaire to its customers;

2. premiums on any and all insurance sold, including personal accident insurance, personal effects and cargo insurance, life insurance and any other insurance sold in connection with a vehicle rental;

3. any and all add-on fees and charges including extra driver coverage, underage driver coverage and vehicle upgrade charges;

4. any and all fees and charges for equipment, supplies and incidental items which are made available and charged for separate from the vehicle including, but not limited to, sporting equipment, cellular telephones, pagers, electronic equipment and devices such as GPS or other navigation aid devices and toll passes, child restraint seats, video equipment, and any other incidental items and services;

5. charges commonly referred to as “drop charges” or “intercity fees”;

6. any fee or charge to Concessionaire’s customers related to the

Concession Fee, including, but not limited to Concession RecoupmentRecovery Fees as defined in Section 5.12; and

7. any amount charged by Concessionaire as an administrative, processing or other similar fee for items such as “toll-by-plate”, “plate pass” or “open road tolling”, parking violations or traffic infractions; whether such administrative, processing or other similar fee is charged directly by, or through, Concessionaire or a third-party vendor or contractor.

B. Gross Revenues shall not include:

1. the amount of any sales taxes or other similar excise taxes, now or hereafter levied or imposed, which are separately stated and collected from customers;

2. sums received from customers for Collision Damage Waiver (CDW) protection and Loss Damage Waiver (LDW) protection;

3. sums received as insurance proceeds, or payments from

Concessionaire’s customers or insurers for damage to vehicles or other property of Concessionaire;

4. sums received as the result of the loss, conversion, or abandonment of

Concessionaire’s vehicles;

5. sums received from the sale of vehicles or other equipment used in the operation of the Concession, the use of which Concessionaire wishes to discontinue;

6. amounts charged to customers for fuel;

7. Local Revenue; and

8. the amount of any governmental fines or penalties for traffic infractions

(such as parking, red light and toll infractions), which are separately stated and collected from customers, and paid directly to the imposing governmental authority by Concessionaire. Notwithstanding the foregoing, any amount charged by Concessionaire as an administrative, processing or other similar fee shall be considered Gross Revenues in accordance with subsection(A)(7) above.

2.222.26 “Improvements” has the meaning set forth in Section 7.01.

2.232.27 {Insert ift applicable: “Initial Leasehold Improvements” has the meaning set forth in Section 6.01}

2.242.28 “Initial Term” has the meaning set forth in Section 3.02.

2.252.29 “Invitation for Bid” has the meaning set forth in the Recitals to this Agreement.

2.262.30 “Letter of Credit” has the meaning set forth in Section 5.13.

2.272.31 “License Area” has the meaning set forth in Section 4.04.

2.282.32 “Local Revenue” means revenue derived from a vehicle rental transaction with a customer who has not deplaned at the Airport, as evidenced by appropriate documentation such as the zip code included on the customer’s driver license indicating the customer resides in Palm Beach County and the certification provided in Section 5.09 below.

2.292.33 “Minimum Annual Guarantee” or “MAG” means a minimum amount to be paid to County for each Contract Year as set forth in Section 5.01.(B).

2.302.34 “Minimum Hours of Operation” has the meaning set forth in Section 8.02(B).

2.35 “Monthly Minimum Annual Guarantee Payment” means one-twelfth (1/12) of the then current Minimum Annual Guarantee Payment, unless adjusted pursuant to Section 5.02.

2.312.36 “Percentage Payment” means ten percent (10%) of Concessionaire’s Gross Revenues for each Contract Year.

2.322.37 “Public Areas” has the meaning set forth in Section 4.02(A).

2.332.38 “Rate and Fee Schedule” has the meaning set forth in Section 5.03.

2.342.39 “Renewal Term” has the meaning set forth in Section 3.02.

2.352.40 “Schedule 1” means the ACDBE Schedule 1, List of Proposed ACDBE Firms, in Section 20.03.

2.362.41 “Security Deposit” has the meaning set forth in Section 5.13.

2.372.42 “Statement of Gross Revenues” has the meaning set forth in Section 5.08.

2.382.43 “Term” means the Initial Term and any Renewal Term.

2.392.44 “Terminal” means the passenger terminal building located at the Airport.

2.40 "Transition Period" means the period commencing on the Commencement Date and expiring on September 30, 2022.

2.412.45 “TSA” means the Transportation Security Administration.

2.422.46 “Year-to-Date Concession Payments” means the sum of monthly Concession

Fee payments made to County for the then-current Contract Year.

2.432.47 “Year-to-Date Minimum Annual Guarantee” shall mean the prorated portionsum of the Monthly Minimum Annual Guarantee payments, or Adjusted Monthly Minimum Annual Guarantee payments if an adjustment is made pursuant to Section 5.02, which is due based on the number of completed months in the then-current Contract Year. For example, the Minimum Annual Guarantee is Five Hundred Thousand Dollars ($500,000). It is January 20; therefore, three (3) full months of the Contract Year have been completed (October through December).

The Year-to-Date Minimum Annual Guarantee would be: $500,000 x 3/12 = $125,000.

2.442.48 “Year-to-Date Percentage Payment” shall be determined by multiplying ten percent (10%) times the Gross Revenues for the then-current Contract Year through the last full month of the Contract Year. For example, it is January 20, and Gross Revenues are Two Million Dollars ($2,000,000) through December 31. The Year-to-Date Percentage Payment would be: $2,000,000 x 0.10 = $200,000.

ARTICLE 3

EFFECTIVE DATE AND TERM

3.01 Effective Date. This Agreement shall become effective when signed by the parties hereto.

3.02 Term. The term of this Agreement shall commence on July 1, 2022 (the

“Commencement Date”), and terminate on September 30, 2027 (the “Initial Term”), unless sooner terminated as provided herein. Upon the expiration of the Initial Term, County shall have the option, in its sole and absolute discretion, to renew this Agreement shall be renewed for one (1) additional two (2) year period (the “Renewal Term”) upon written notice by the Director at least ninety (90) days prior to the expiration datemutual agreement of the Initial Term, without formal amendment to this Agreementparties. Except as otherwise provided for herein or as agreed to by the parties, the Renewal Term shall be upon the same terms and conditions. The Director shall have the authority to sign such amendment on behalf of County.

County shall have the absolute right, in its sole discretion, to elect not to renew this Agreement. In the event County elects not to renew this Agreement at the end of the Initial Term, this Agreement shall terminate at the end of the Initial Term and Concessionaire shall have no further rights hereunder.

ARTICLE 4

PRIVILEGES AND PREMISES

4.01 Description of Specific Privileges, Uses and Rights. County hereby grants to Concessionaire the following non-exclusive specific privileges, uses and rights, all of which shall be subject to the terms, conditions and covenants set forth herein:

A. To conduct and operate a high quality rental car concession at the Airport from the Assigned Premises;

B. To offer for rent additional services, conveniences or accessories to complement the basic vehicle rental from the Assigned Premises. Such additional services or accessories may include the right to offer for sale related loss and collision damage waiver protection, personal injury and accident insurance, supplemental liability, uninsured motorist, and personal effects insurance; and to provide customer service features such as baby car seats and cellular telephones; and

C. To load and unload its customers into and from its courtesy shuttle vehicles within locations at the Airport designated by the Department.

4.02 Description of General Privileges, Uses and Rights. In addition to the specific privileges granted pursuant to Section 4.01, County hereby grants to Concessionaire:

A. the non-exclusive use of the public areas within the Terminal for

Concessionaire, its employees, contractors, patrons, invitees, suppliers of service, agents and authorized sublessees, if any, in connection with its operations hereunder. For purposes of this Agreement, “Public Areas” means the public corridors, restrooms and other areas within the Terminal that the general public has the right to access. Public Areas shall at all times be subject to the exclusive control and management of County. County shall have the full right and authority to make all rules and regulations as County may in its sole discretion deem proper, pertaining to the proper operation and maintenance of the Public Areas; and

B. the non-exclusive right of ingress to, and egress from, the Terminal over and across public roadways and walkways serving the Airport for Concessionaire, its employees, contractors, patrons, invitees, suppliers of service, agents and authorized sublessees, if any, in connection with its operations hereunder.

Nothing herein contained shall be construed to grant to Concessionaire, its employees, contractors, patrons, invitees, suppliers of service, agents or authorized sublessees, if any, the right to use or occupy any space or area at the Airport improved or unimproved that is leased or assigned to a third party, or, except as expressly set forth in subsections (A) and (B) above, County has not leased to

Concessionaire pursuant to this Agreement. The general privileges, uses and rights granted in this Section shall be subject to the terms, conditions and covenants set forth herein.

4.03 Restrictions of Privileges, Uses and Rights. The rights granted hereunder are expressly limited to the operation and management of a rental car concession.

Concessionaire covenants and agrees that the Assigned Premises shall be used solely for the uses permitted in Sections 4.01 and 4.02 above and for no other purposes whatsoever. Concessionaire acknowledges and agrees that Concessionaire shall not have the exclusive right to conduct a rental car concession at the Airport, and County may arrange with others for similar activities at the Airport.

Concessionaire acknowledges that County may enter into agreements and/or permits with companies providing rental car services from off-Airport locations.

4.04 Facilities Use Permit.

A. County acknowledges that, due to the seasonal nature of rental car operations, Concessionaire may require additional space for the parking and storage of rental cars on a short term basis. In the event Concessionaire requires additional space for the parking and storage of rental cars, Concessionaire may submit a request to County for a Facilities Use Permit in the form attached hereto as Exhibit “B”. In the event appropriate space is available, County may issue Concessionaire a Facilities Use Permit for the short-term parking and storage of rental car vehicles in an area designated by County (“License Area”), which identifies the fees and charges payable by Concessionaire to County for use of the License Area for the time period set forth in the Facilities Use Permit. In the event Concessionaire desires to utilize the License Area, Concessionaire shall cause an authorized representative of Concessionaire to sign and return the Facilities Use Permit to the County.

B. Concessionaire shall pay County all fees and charges, including applicable sales tax, for use of License Area(s) pursuant to a Facilities Use Permit within thirty (30) days of the date of County’s invoice, unless otherwise provided for in the Facilities Use Permit.

C. License Areas shall be used solely and exclusively for the parking and storage of rental cars and for no other purpose whatsoever, including, but not limited to, oil changes, vehicle maintenance, repair or detailing, fueling or de-fueling.

All vehicle deliveries shall occur within designated License Areas and shall not occur within the road rights-of-way or other Airport property.

D. Either party may terminate a Facilities Use Permit for convenience upon five

(5) days prior written notice to the other party, whereupon the parties shall be released from all further obligations under the Facilities Use Permit with the exception of those obligations accruing prior to the date of such termination and those obligations which expressly survive termination of the Facilities Use Permit.

E. Except as otherwise provided for in the Facilities Use Permit, Concessionaire acknowledges and agrees that use of the License Area shall be governed by the terms and conditions of this Agreement. Notwithstanding any provision of this Agreement to the contrary, Concessionaire acknowledges and agrees that County is under no contractual obligation whatsoever to provide Concessionaire with a Facilities Use Permit or License Areas and that County’s election to provide Concessionaire with a Facilities Use Permit or License Area shall be in County’s sole and absolute discretion.

F. The provisions of this Section 4.04 shall be effective upon the Effective Date.

4.05 Condition of the Assigned Premises, License Areas and Airport. Concessionaire expressly acknowledges that it has inspected the Assigned Premises and Airport and accepts the same “As Is, Where Is” in the condition existing as of the Effective Date, together with all defects latent and patent, if any. Furthermore, Concessionaire acknowledges and agrees that Concessionaire shall accept any future License Area pursuant to a Facilities Use Permit in its “As Is”, “Where Is” condition existing as of the commencement date of the Facilities Use Permit.

Concessionaire further acknowledges that County has made no representations or warranties of any nature whatsoever regarding the Airport, the Assigned Premises or any future License Area, including, but not limited to, the physical and/or environmental condition of the Assigned Premises, or any improvements located thereon, or the value of the Assigned Premises or improvements, or the suitability of the Assigned Premises, or any improvements, or Concessionaire’s legal ability to use the Assigned Premises for Concessionaire’s intended use thereof.

4.06 Dual Branding.