Bid PB 18-10 Second Amendment.pdf

Palm Beach County Board of County Commissioners County Administrator Melissa McKinlay, Mayor Verdenia C. Baker Mack Bernard, Vice Mayor Hal R. Valeche Paulette Burdick Dave Kerner Steven L. Abrams Department of Airports Mary Lou Berger www.pbia.org

AMENDMENT NO. 2

INVITATION FOR BID # PB 18-10

SEPTEMBER 6, 2018

RENTAL CAR LEASE AND CONCESSION AT THE

PALM BEACH INTERNATIONAL AIRPORT

This Amendment No. 2 is issued to provide additional information and clarification to the Invitation For Bids (IFB).

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

1. 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” attached as Attachment “1” to this Amendment No. 2. Additions and deletions are shown in underline/strikeout format.

2. Exhibit “4” to the IFB, Schedule 1 - List of Proposed ACDBE Firms, is deleted in its entirety and replaced with Attachment “2” to this Amendment No. 2.

3. Attachment “B” to the IFB, Schedule 3 - Demonstration of Good Faith Efforts to Achieve ACDBE, is deleted in its entirety and replaced with Attachment “3” to this Amendment No. 2.

4. Written Comments/Questions related to this Amendment No. 2 may be submitted to the Contact

Person(s) listed in Special Condition No. 9 of the IFB until 5:00 p.m., local time, Tuesday, September 11, 2018. Parties should reference the specific section(s) of this Amendment in such comments/questions.

5. The following questions were submitted to the Department of Airports (DOA):

Q1: Will the airport please clarify that the ACDBE participation goal of 3.19% is based on gross revenue or purchases of goods and services?

A1: The ACDBE goal for IFB PB 18-10 is based on purchases of goods and services not gross receipts or revenue.

Q2: If the Airport specifies that the ACDBE goal is based upon total purchase of goods and services vs. gross revenue or receipts then Schedule 1 and Schedule 2 appears to be inconsistent with the Airport’s goal of goods and services. Please clarify how we are to complete Schedule 1 and Schedule 2 which calls for calculations against annual gross receipts or revenue?

A2: Schedule 1 calculations should be based on anticipated purchases of goods and services not gross receipts or gross revenue. Schedule 1 has been updated to remove the reference to gross receipts (see Paragraph 2 above).

Q3: With regard to Schedule 1, irrespective that we need clarification regarding annual gross receipts as set forth in the questions above, where if any place does this airport expect us to indicate the amount used to base the percentage for each properly certified ACDBE firm.

A3: Bidders should estimate their anticipated purchases of goods and services for purposes of determining the percentages of participation by each ACDBE firm; however, the DOA is not requiring the estimates to be included on Schedule 1.

Q4: With regard to Schedule 1 in order not to “double-dip” will this airport please give precise instructions on completing Schedule 1 and Schedule 2? For example, if we have a properly certified ACDBE firm who is a minority and a woman how do you wish us to enter both race and gender without thereby doubling the percentage for this vendor.

A4: Under the category of “Women”, you should only include non-minority females. Minority females should be listed under the remaining categories. For instance, an ACDBE firm owned by a Hispanic female should only be listed under the “Hispanic” category.

Q5: Irrespective of ACDBE percentages how do we maintain consistency in completing these forms if the bidder commits to an ACDBE participation goal of 3.19%? Or are we to complete these forms consistently as per our ACDBE compliance percentage (if it is higher than 3.19%) upon submission? To make it very clear we are completing each form consistent in numbers and percentages which add up to where we actually are which may be higher than the ACDBE compliance goal of 3.19% requested by this airport however, we are committing to the airports goal of 3.19%.

A5: The percentage listed on Schedules 1 and 3 should reflect the Bidder’s contract commitment for the new contract term, not an incumbent Bidder’s actual achievement under the current contract term. The ACDBE goal for the new contract term is 3.19% of total purchases of goods and services. Bidders may elect to commit to a higher percentage of ACDBE participation on Schedules 1 and 3.

Q6: What reporting period should be used to compute our numbers to complete Schedule 1, Schedule 2 and Schedule 3.

A6: Although the DOA will be reporting participation to the FAA on a federal fiscal year (October 1 – September 30), Bidders should use the contract periods established in the Invitation for Bid for determining ACDBE participation for purposes of the bid response.

Q7: Special Conditions 14(E) on page 9 of the IFB, ACDBE Plan – If the bidder is meeting the ACDBE goal of 3.19% at the time of bid submission, then how does this same bidder show in Schedule 3, Demonstration of Good Faith Efforts to Achieve ACDBE Goal (Attachment “B”) submitted as part of the bid response? Is Schedule 3 only to be completed by a bidder who is not meeting the goal of 3.19% at the time of submission? If this is correct, then what does a compliance bidder do with Schedule 3.

A7: All Bidders must complete Schedule 3, Demonstration of Good Faith Efforts to Achieve ACDBE Goal (Attachment “B”) and submit it with the Bid Response. Failure to submit Schedule 3 will result in rejection of a Bid as nonresponsive to the IFB requirements.

Bidders proposing 3.19% or greater ACDBE participation must indicate the proposed percentage of ACDBE participation on the first blank and ensure that the form is signed by an authorized representative of the Bidder. If a Bidder proposes less than 3.19% ACDBE participation, the Bidder must complete Schedule 3 in its entirety and submit written documentation of the Bidder’s good faith efforts to achieve the ACDBE goal. Bidders should refer to slides 7-12 of the PowerPoint Presentation attached as Attachment “B” to

Amendment No. 1, for additional guidance for completing Schedule 3.

Q8: Special Condition 17, on page 9 of the IFB, states “THE FOLLOWING ATTACHMENTS

MUST BE COMPLETED AND RETURNED WITH YOUR BID RESPONSE – What must a bidder who commits to a minimum of 3.19% ACDBE participation submit with this bid response for Attachment “B”?

A8: See Answers 7 and 16.

Q9: In Section 20.04, Airport Concession Disadvantaged Business Enterprise Participation

Goal, of the Concession Agreement, please confirm this airport will be placing 3.19% ACDBE goal into this provisions blank space or is each bidder placing their own pledged goal into said blank space? In addition, can the airport please clarify that the ACDBE participation percentage is based on gross revenue or purchases of goods and services.

A9: The blank in Section 20.04(A) of the Concession Agreement form will be completed by the DOA with each Bidder’s ACDBE participation percentage commitment listed on the first page of Schedule 3, Demonstration of Good Faith Efforts to Achieve ACDBE Goal (Attachment “B”).

Q10: In Section 20.04(D), Airport Concession Disadvantaged Business Enterprise Participation Goal, of the Concession Agreement, may we submit our compliance reports which are accepted by the majority of airports in the United States? The present reporting format of this airport is extremely burdensome and time consuming.

A10: No. The information requested in the compliance reports is necessary for accurate reporting to the Federal Aviation Administration. The compliance reports submitted by rental car companies in the past were generally insufficient; however, the DOA will consider reasonable recommendations to streamline the process.

Q11: In Section 20.04(D), Airport Concession Disadvantaged Business Enterprise Participation Goal, of the Concession Agreement, this bidder’s ACDBE compliance reports cannot be submitted until 15 to 20 days in the month subsequent to the last reporting month in the requested reporting period. We do not receive our accounts payable data load with finalized numbers until this time.

A11: Reports are due the 20th day of the month subsequent to the end of each quarter. For instance, if the quarter ends on December 31, the report would not be due until January 20th.

Q12: In Section 20.04(D), Airport Concession Disadvantaged Business Enterprise Participation Goal, of the Concession Agreement, What does the airport mean that the compliance reports must be certified.

A12: Section 20.04(D) has been amended as provided in Paragraph 1 above.

Q13: As a follow up to question 12 above, can the reports be certified (as per the response to the question above) by an authorized representative of the concessionaire.

A13: Yes, see Answer 12 above.

Q14: In Section 20.04(G), Airport Concession Disadvantaged Business Enterprise Participation

Goal, of the Concession Agreement, this bidder objects to supplying any contract, subcontracts and /or agreements in their entirety. The specific terms of said agreements contain proprietary and confidential information. Bidder will, upon request and where appropriate, supply a copy of the initial and signature pages.

A14: 49 CFR §23.25 provides, in part, that the “administrative procedures applicable to contract goals in part 26, §26.51-53, apply with respect to concession-specific goals.” 49 CFR § 26.53 states that an airport sponsor “must require the contractor awarded the contract to make available upon request a copy of all DBE subcontracts.” In addition, 49 CFR §23.29 requires the airport sponsor to include a mechanism in its concession program to ensure that work committed by ACDBEs is actually performed by the ACDBEs, which “must include a written certification that [the airport sponsor] has reviewed a record of all contracts….” FAA annual reporting requires contract specific information to be reported regarding ACDBEs.

Q15: As per Attachment “A”, is Attachment “B” (Schedule 3), Demonstration of Good Faith Efforts to Achieve ACDBE Goals completed and attached as required? Once again, question is renewed and instructions necessary for this bidder if said bidder is meeting their ACDBE participation goal of 3.19%.

A15: Yes; please see Answers 7, 8 and 16.

Q16: Is this documentation required if the bidder is committing to a minimum of 3.19% of ACDBE participation on Attachment B-Schedule 3? This conflicts with the airports direction that documentation of good faith efforts is not required if the bidder is committing to the airports ACDBE goal of 3.19%. Please clarify.

A16: All Bidders must complete Schedule 3, Demonstration of Good Faith Efforts to Achieve ACDBE Goal (Attachment “B”) and submit it with the Bid Response. A Bidder may demonstrate its good faith efforts by: (a) committing to achieve or exceed the ACDBE goal by completing the first blank on the first page of Schedule 3, Demonstration of Good Faith Effort to Achieve ACDBE Goal (Attachment B) and signing the form; or (b) completing Schedule 3 in its entirety and providing sufficient backup documentation indicating that the Bidder took all reasonable and necessary steps to secure ACDBE participation by certified ACDBE firms. Mere pro forma will not be considered as a good faith effort. In addition, the ability or desire of the Bidder to perform the work with its own organization does not relieve the Bidder of the responsibility to make good faith efforts. Efforts, such as sending blanket faxes or e-mail messages, to all ACDBE firms alone shall not be considered a good faith effort.

In determining whether a Bidder has made good faith efforts, the DOA may take into account the performance of other Bidders in meeting the ACDBE goal. Failure to demonstrate good faith efforts by either achieving or exceeding the ACDBE goal OR providing written documentation sufficiently demonstrating the Bidders good faith efforts to achieve the goal as required by the Invitation to Bid shall result in a bid being found to be nonresponsive.

Bidders should refer to slides 7 -12 of Attachment B to Amendment No. 1 for additional guidance for completing Schedule 3, Demonstration of Good Faith Efforts to Achieve ACDBE Goal.

Q17: When will the “New ACDBE Forms” be available for review?

A17: IFB No. PB 18-10 included updated ACDBE Schedules from those schedules included in the previously-issued IFB No. PB 18-7. Bidders are advised that Schedules 1 and 3 are further updated with this Amendment (See Paragraphs 2 and 3 above).

Q18: We would prefer some method to ensure that at least 4 companies operate at least one of the counters goes to an “independent operator”. This will ensure competition and maximize customer service. San Francisco (SFO) used some similar parameters on its most recent bid:

“The Airport Commission approved the Airport to require that no fewer than four individual entities or holding companies are awarded leases under this RFB. In the event the top nine bids are received from three entities or three entities belonging to the same holding company, the lowest bid will be bypassed and award will be made to the next highest bid tendered by an entity other than the three entities or holding companies represented by the top nine bids.”

A18: Special Condition No. 11, Award, of the IFB, provides that Palm Beach County will award contracts (“Concession Agreements”) to as many as eight (8) responsive, responsible Bidders offering the highest return to the County, meeting or exceeding the “Minimum Period Guarantee”. There is no restriction or limitation on the number of companies/entities that may bid. 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.

Q19: Will the Airport consider language such as the following examples in recently-issued solicitations at other airports:

• Tallahassee: “Incumbents may elect to remain in their current counter spaces and office spaces regardless of Minimum Annual Guarantee amount bid.”

• Chattanooga: “Counters will remain unchanged during the upcoming term. In the event a new operator is awarded a contract during this process, successful incumbents’ counters will continue to remain unchanged, and the new operator will be allocated only vacant counter(s).”

A19: See Answer A20 below.

Q20: In response to Paragraph 9, Answer A1, in Amendment No. 1 to this IFB, and as discussed in the pre-bid meeting, given the 2 and ½ year concession agreement term and the potential cost for each incumbent to move counters, we proposed the ability for incumbent RACs to be grandfathered with respect to existing RAC counter operating space. The details of this proposal are as follows:

• Incumbent RACs remain in existing concession areas during the new concession agreement term (1/1/19 – 6/30/21).

• In the event two incumbent RACs dual brand, the successful dual-branded bidder shall have its preference of one of the two existing incumbents’ counters.

• A new entrant can buildout the 8th counter (if there are 8 successful bidders) or the new entrant can pick-up the remaining 7th counter (if there are 7 successful bidders), and so on

Our question is, will PBIA allow for the incumbent RAC’s counters to be grandfathered as outlined in the above example?

A20: After considering the variety of possible outcomes and the potential issues associated with each outcome, the DOA does not feel that it is in the County’s best interest to “grandfather” the rental car counter positions of incumbent concessionaires, but rather to award positions as outlined in Special Condition #12, Terminal Reservation Space, of the IFB. As an accommodation, Section 5.03, Facility Rental, of the Concession Agreement will be modified to provide that payment of Facility Rental (as defined in the Concession Agreement) will be delayed until April 1, 2019 for any incumbent concessionaire who is displaced from its current counter position (See Attachment “1” to this Amendment). Facility Rental will also be deferred until April 1, 2019 for the Bidder constructing the eighth counter, if applicable. In other words, the County will provide a three (3) month transition period with no Facility Rental in the event an incumbent concessionaire is required to relocate to a new counter position.

Q21: Have you had any discussions with peer-to-peer car operators such as Turo.

A21: There are no known peer-to-peer operators at PBI. We do communicate with other airports and share information, and based on recent communications with Ft. Lauderdale (FLL), it appears Turo has made attempts to operate at FLL. We have checked Turo’s website, and while it indicates cars are “available” at PBI, the cars appear to be located in the central-Miami area, and it appears unlikely that transactions actually occur at PBI. DOA staff will continue to monitor, and we ask that any actionable information on non-permitted operators be provided to staff for follow-up.

Q22: What does Uber pay and where do they pick up?

A22: The pick-up fee for Transportation Network Companies (TNCs) such as Uber and Lyft (the only TNCs who currently have permits to operate at PBI) is $2.50 per trip. Pickups occur curbside, in the general public lanes outside Level One, Baggage Claim. Florida law prohibits charging TNCs for drop-off.

Q23: What type of design will the Airport approve for the new rental car reservation counter? Can we custom-paint the back wall? Can we paint the column?

A23: DOA will approve a counter that is consistent in style, form and function as the other rental car counters, and that is in harmony with other features at the Terminal. The column will need to remain the color it is. If a back wall is constructed, it may be painted or covered in the brands’ thematic color and logo, but the side “return” wall must be neutral. The front of the counter may not be customized in terms of color or logo, and the design should be consistent with other design elements in the Terminal.

Summary of Attachments “1” thru “3” to Amendment No. 2:

Attachment “1” – Exhibit “1” – Agreement for Rental Car Lease and Concession

Attachment “2” – Exhibit “4” - Schedule 1, List of Proposed ACDBE Firms

Attachment “3” – Attachment “B” – Schedule 3, Demonstration of Good Faith Efforts to Achieve ACDBE Goal

ATTACHMENT “1”

TO

AMENDMENT NO. 2

EXHIBIT “1”

AGREEMENT FOR RENTAL CAR LEASE AND CONCESSION

AGREEMENT FOR RENTAL CAR LEASE AND CONCESSION

AT THE PALM BEACH INTERNATIONAL AIRPORT

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 PBIA, Invitation for Bid No. PB 18-10, which opened , 2018 (“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 hereafter 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 “Airline Agreement” has the meaning set forth in Section 5.03.

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

2.03 “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.

2.04 “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.

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

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

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

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

2.09 “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.

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

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

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

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

2.14 “Concession Recoupment Fee” has the meaning set forth in Section 5.12.

2.15 {Insert it applicable: “Construction Credit” has the meaning set forth in Section

6.01.}

2.16 “Contract Period” has the meaning set forth in Section 3.02.

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

2.18 “FAA” means the Federal Aviation Administration.

2.19 “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

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

2.21 “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 Recoupment 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.

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

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

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

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

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

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

2.28 “Local Revenue” means revenue derived from a vehicle rental transaction with a customer who has not deplaned at the Airport, as evidenced by the customer’s driver license number, 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.

2.29 “Minimum Period Guarantee” or “MPG” means a minimum amount to be paid to County for each Contract Period as set forth in Section 5.01.

2.30 “Percentage Payment” means ten percent (10%) of Concessionaire’s Gross

Revenues.

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

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

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

2.34 “Schedule 1” has the meaning set forth in Section 20.04(E).

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

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

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

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

2.39 “TSA” means the Transportation Security Administration.

2.40 “Year-to-Date Concession Payments” means the sum of monthly Concession Fee payments made to County for the then - current Contract Period.

2.41 “Year-to-Date Minimum Period Guarantee” shall mean the prorated portion of the

Minimum Period Guarantee based on the number of completed months in the then-current Contract Period. For example, the Minimum Period Guarantee is Five Hundred Thousand Dollars ($500,000). It is April 20; therefore, three (3) full months of the Contract Period have been completed (January through March).

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

2.42 “Year-to-Date Percentage Payment” shall be determined by multiplying ten percent (10%) times the Gross Revenues for the then-current Contract Period through the last full month of the Contract Period. For example, it is April 20, and Gross Revenues are Two Million Dollars ($2,000,000) through March 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 January 1, 2019 (the

“Commencement Date”), and terminate on June 30, 2021 (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 on a month-to-month basis, or for multiple monthly periods, not to exceed a total of twelve (12) months (each, a “Renewal Term”). County shall provide written notice to Concessionaire of its desire to renew this Agreement for one (1) or more renewal terms at least ninety (90) days prior to the expiration of the Initial Term, or if renewed, at least thirty (30) days prior to the expiration of the then-current Renewal Term. In the event County elects to renew this Agreement, effective upon the date specified in County’s written notice to Concessionaire, this Agreement shall automatically be considered to be renewed for the term specified in County’s notice, upon the same terms and conditions. In the event County does not renew this Agreement at the end of the Initial Term, or at the end of any Renewal Term, this Agreement shall terminate at the end of the then-current Term, and Concessionaire shall have no further rights hereunder. The Term shall consist of the following divisions of time, each a “Contract Period”:

A. The First Contract Period shall commence on January 1, 2019, and expire on December 31, 2019.

B. The Second Contract Period shall commence on January 1, 2020, and expire on December 31, 2020.

C. The Third Contract Period shall commence on January 1, 2021, and expire on June 30, 2021.

D. If this Agreement is renewed, the Fourth Contract Period shall commence on

July 1, 2021, and expire at the end of the final Renewal Term.

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 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. Concessionaire acknowledges and agrees that Concessionaire shall not be entitled to substitute, modify or add to the Brands of rental car service companies being marketed or operated from the Assigned Premises during the Term. The Brand(s) permitted to be marketed or operated from the Assigned Premises shall be ______________. In the event Concessionaire markets or operates two (2) Brands of rental car services companies from the Assigned Premises, Concessionaire shall provide a separate Statement of Gross Revenues (as hereinafter defined) for each Brand pursuant to Section 5.08 below and shall provide separate schedules of revenues and vehicle transactions for each Brand pursuant to Sections 5.10 (A) and (B) below.

4.07 Transition. Concessionaire shall fully cooperate with the Department in the transition of Assigned Premises from the existing concessionaire or tenant to Concessionaire. Concessionaire shall likewise fully cooperate with the Department in the transition of the Assigned Premises to a new concessionaire or tenant upon the expiration or earlier termination of this Agreement.

ARTICLE 5

CONCESSION FEES, FACILITY RENTAL AND ACCOUNTABILITY

5.01 Concession Fees. For the concession privileges granted hereunder, Concessionaire shall pay to County Concession Fees equal to the greater of the Minimum Period Guarantee or Percentage Payment as provided herein.

Concession Fees shall be payable by monthly installment throughout the Term of this Agreement and shall be reconciled on an annual basis in accordance with the provisions of Section 5.10 below.

A. Within twenty (20) days after the close of each and every month throughout the Term of this Agreement, Concessionaire shall pay to County the difference between: (i) the greater of the Year-to-Date Minimum Period Guarantee or the Year-to-Date Percentage Payment; and (ii) the Year-to- Date Concession Payments.

B. The Minimum Period Guarantee for each Contract Period shall be as follows:

1. {INSERT MPG $ FOR THE FIRST CONTRACT PERIOD FROM BID

RESPONSE}.

2. {INSERT MPG $ FOR THE SECOND CONTRACT PERIOD FROM

BID RESPONSE}.

3. {INSERT MPG $ FOR THE THIRD CONTRACT PERIOD FROM BID

RESPONSE}.

4. During the Fourth Contract Period, if any, no Minimum Period Guarantee shall be due.

5.02 Abatement of Minimum Period Guarantee. In the event for any reason the number of passengers deplaning on scheduled airline flights at the Airport during any calendar month shall be less than eighty-five percent (85%) of the number of such deplaning passengers in the same month in the base calendar year of 2018, the Minimum Period Guarantee payment for such month(s) for purposes of calculating the Year-to-Date Minimum Period Guarantee for that calendar month shall be zero (0). Concessionaire acknowledges and agrees that Concessionaire shall remain liable for payment of the Annual Percentage Payment notwithstanding County’s waiver of its right to receive any portion of the Minimum Period Guarantee.

5.03 Facility Rental. In addition to the Concession Fees, Concessionaire shall pay to

County for the use and occupancy of the Assigned Premises, an annual Facility Rental determined in accordance with this Section, payable in equal monthly installments, in advance, without demand, deduction, holdback, or setoff, by the first day of each and every month throughout the Term of this Agreement, together with applicable sales tax thereon. Payment of Facility Rental by Concessionaire to County shall commence upon the Commencement Date. {In the event of construction of an eighth/additional counter by Concessionaire, or in the event an incumbent Concessionaire relocates to another counter location, insert the following: Payment of Facility Rental by Concessionaire to County shall commence on April 1, 2019.} Facility Rental as of the Commencement Date shall be at the rate of Seventy-Seven Dollars and Eighty-Four Cents ($77.84) per square foot of the Assigned Premises. Each October 1st throughout the Term of this Agreement, the annual Facility Rental shall be adjusted in accordance with the rate for non-signatory airlines for similar space within the Terminal as set forth in the Rate and Fee Schedule. For purposes of this Agreement, “Rate and Fee Schedule” means Exhibit “E” to the current standard form Signatory Airline Agreement adopted pursuant to Resolution No. 2014-1033, as may be amended from time to time and any successor resolution or agreement establishing rental rates for space in the Terminal (the “Airline Agreement”). This Agreement shall be considered amended to reflect the new Facility Rental, without formal amendment hereto.

5.04 Unpaid Fees. In the event Concessionaire fails to make payment of any fees or charges when due and payable in accordance with the terms of this Agreement, interest at the rate of one and one-half percent (1.5%) per month shall accrue against the delinquent payments(s) from the date due until the date payment is received by the Department. Notwithstanding the foregoing, the Department, in its sole and absolute discretion, may elect to waive the aforementioned late fees in appropriate circumstances as determined by the Department. Nothing in this provision shall be construed as preventing County from terminating this Agreement for default in payment due to County pursuant to this Agreement or from exercising any other remedies contained herein or implied by law.

5.05 Sales and Use Tax. Concessionaire shall pay monthly to County any sales, use or other tax, or any imposition in lieu thereof (excluding State and/or Federal Income Tax) now or hereinafter imposed upon the rents, use or occupancy of the

Assigned Premises and any License Area imposed by the United States of America, the State of Florida, or Palm Beach County, notwithstanding the fact that the statute, rule, ordinance or enactment imposing the same may endeavor to impose the tax on County.

5.06 Net Agreement. This Agreement in every sense shall be without cost or expense to County, including, without limitation, cost and expenses relating to the development, maintenance, improvements and operation of the Assigned Premises or any License Area.

5.07 Place of Payments. All payments required to be made by the Concessionaire under this Agreement shall be made payable to “Palm Beach County,” and shall be paid to the Finance Division, Department of Airports, 846 Palm Beach International Airport, West Palm Beach, Florida 33406-1470, or to such other office or address as may be substituted therefor.

5.08 Monthly Statement of Gross Revenues. Within twenty (20) days after close of each and every month throughout the Term of this Agreement, Concessionaire shall submit to the Department, in a form and detail satisfactory to the Department, a Statement of Gross Revenues that: (1) details Gross Revenues by category as listed in Section 2.21 for the prior calendar month; (2) details the Year-to-Date Gross Revenues; (3) details the Year-to-Date Minimum Period Guarantee; (4) details the Year-to-Date Concession Fee Payments; and (5) separately identifies any exclusions from Gross Revenues. Concessionaire shall provide a separate Statement of Gross Revenues for each Brand. The Department may require the Statement of Gross Revenues to be submitted electronically.

5.09 Accounting Records. Concessionaire shall keep, throughout the Term of this

Agreement, all books of accounts and records customarily used in this type of operation, and as from time to time may be required by the Department, in accordance with Generally Accepted Accounting Principles prescribed by the American Institute of Certified Public Accountants or any successor agency thereto. Such books of accounts and records shall be retained and be available for three (3) years from the end of each Contract Period, including three (3) years following the expiration or termination of this Agreement. County shall have the right to audit and examine during normal business hours all such books of accounts and records relating to Concessionaire’s operations hereunder. If the books of accounts and records are kept at locations other than the Airport, Concessionaire shall, at its sole cost and expense, arrange for them to be brought to a location convenient to the auditors for County in order for County to conduct the audits and inspections as set forth in this Section. Concessionaire shall maintain a record of each vehicle rental agreement written at the Airport, including a copy of each original agreement signed by Concessionaire’s customer.

Concessionaire shall also maintain a copy of the customer’s drivers license number and the zip code included on the customer’s driver license indicating that the customer resides in Palm Beach County with each vehicle rental agreement resulting in “Local Revenue” 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. The vehicle rental agreement shall indicate that the Airport is the originating location. Accountability for the numerical sequence of contracts issued and unissued shall be maintained.

Accounting records of Concessionaire shall be stored sequentially, or in such other manner approved by the Department, to provide reasonable and expeditious access for audit purposes hereunder. Failure to maintain books of accounts and records as required under this Section shall be deemed to be a material breach of this Agreement. The obligations arising under this Section shall survive the expiration or termination of this Agreement.

5.10 Audit Requirements. Within ninety (90) days following the end of each Contract

Period, Concessionaire shall provide to the Department an audit report on all Gross Revenues from operations at the Airport and from the operations of any of Concessionaire’s subsidiaries, contractors, management companies, or related or affiliated companies involved in providing services covered by this Agreement.

The audit report shall cover the preceding Contract Period. In the event this Agreement is renewed beyond the third Contract Period, as provided in Section 3.02, the audit report shall be due within ninety (90) days following the end of the fourth Contract Period. The audit report shall be in the format required by the Department and shall be prepared by an independent Certified Public Accountant, not a regular employee of Concessionaire, in accordance with Generally Accepted Auditing Standards prescribed by the American Institute of Certified Public Accountants or any successor agency thereto. The audit report shall include the following:

A. Schedule of all Gross Revenues by category, including, but not limited to the categories of Gross Revenue, defined in Article 2 of this Agreement, and month and a schedule of the payments made to County by month.

B. Schedule summarizing the total number of vehicle rental transactions and any sales taxes collected by month.

C. The total amount of Concession Fees that have been paid to County in accordance with this Agreement.

D. The audit report shall include an opinion on each of the schedules required to be submitted with the audit report.

Delivery of an audit report containing a qualified opinion, an adverse opinion, or a disclaimer of opinion, as defined by the American Institute of Certified Public Accountants or any successor agency thereto, shall be deemed to be a material breach of this Agreement. If the audit report indicates that the amount of Concession Fees (together with any sales taxes thereon) due and owing for any Contract Period is greater than the amount paid by Concessionaire to County during such Contract Period, the Concessionaire shall pay the difference to County with the audit report. If amount of Concession Fees actually paid by Concessionaire to County during any Contract Period exceeds the Concession Fees due and owing for such Contract Period, the Department shall credit the overpayment in the following order: (i) against any past due amounts owed to County by Concessionaire, including interest and late fees; (ii) against currently outstanding, but not yet due, Concession Fees owed to County by Concessionaire; (iii) against future Concession Fees which will become due during the succeeding Contract Period; and (iv) against any other sums payable…