RENTAL CAR CONCESSION AGREEMENT
BETWEEN
CASPER/NATRONA COUNTY INTERNATIONAL AIRPORT
AND
OVERLAND WEST, INC.
d/b/a HERTZ RENT-A-CAR
P.O. BOX 590
OGDEN, UT 84402
Table of Contents
Article 1General Agreement
Article 2Term
Article 3Leased Premises
Article 4Fees and Rentals
Article 5Gross Receipts
Article 6Rights and Privileges of Concessionaire
Article 7Rights and Privileges of Lessor
Article 8Obligations of Concessionaire
Article 9Obligations of Lessor
Article 10Insurance
Article 11Indemnification and Hold Harmless
Article 12Sublease; Responsibility of Sublessees
Article 13Defaults and Remedies
Article 14Additional Termination Rights
Article 15Cancellation by Concessionaire
Article 16Waiver of Subrogation
Article 17Remedies Cumulative; No Waiver
Article 18Damage to Property of Concessionaire and Others
Article 19Damage to Leased Premises and Property of Concessionaire and Others
Article 20Lessor Representative
Article 21Subordination
Article 22Governing Law; Venue for Disputes
Article 23Counterparts
Article 24Severability
Article 25Independence of Contract
Article 26Survival of Obligations/Successors and Assigns Bound
Article 27Entire Agreement
Article 28No Assignment
Article 29Holdover Posession of Leased Premises by Concessionaire
Article 30Paragraph Headings
Article 31Notices
Article 32Exhibits
RENTAL CAR CONCESSIONAGREEMENT
Overland West, Incorporated
d/b/a Hertz Rent-A-Car
Article 1
General Agreement
THIS AGREEMENT made and entered into this 1st day of May, 2008, by and between the Board of Trustees of Casper/Natrona County International Airport,County of Natrona, State of Wyoming, a corporate body, hereinafter referred to as the "LESSOR", and Overland West, Inc., a Utah Corporation, hereinafter referred to as the "CONCESSIONAIRE".
PRELIMINARY RECITALS
WHEREAS, the Lessor is the owner and operator of Casper/Natrona County International Airport, an airport situated in Casper, Wyoming (the "Airport"); and
WHEREAS, automobile rental services at the Airport are essential for the proper accommodation of passengers arriving at and departing from the Airport; and
WHEREAS, the Concessionaire is engaged in the operation of an automobile rental business and is prepared, equipped, and qualified to supply an adequate number of late model automobiles in good mechanical condition and appearance for the operation of an automobile rental business at the Airport, at rates comparable for similar rental services to those generally prevailing in the Casper/Natrona County area; and
WHEREAS, the Lessor desires to have said services available, and the Concessionaire has represented to the Lessor that it has a franchise from Hertz Rent-A-Car, a corporation, and said franchise is current and in good standing, and, therefore, the Concessionaire is qualified, ready, and able to perform and provide the rental services mentioned above, and to furnish the facilities for use in connection with the provision of said services.
NOW, THEREFORE, for and in consideration of the rents, fees, covenants, and agreements contained herein, and for other good and valuable consideration, it is mutually agreed and understood between the Lessor and the Concessionaire the following.
Article 2
Term
The term of this Agreement shall be for a period of seven (7) years commencing in full force and effect on the 1stday of May, 2008, through the 30th day of April, 2015, unless sooner terminated or canceled as herein provided.
Article 3
Leased Premises
The Lessor hereby leases to the Concessionaire, subject to the terms and conditions herein, the following spaces hereinafter referred to as the Leased Premises.
3.1Terminal Building – Approximately Five Hundred Fourteen (514) square feet of space on the main floor of the terminal building, more particularly depicted on Exhibit "A", attached hereto and made part hereof.
3.2Storage Wash Facility – An approximately Four Thousand Three Hundred Twenty (4,320) square foot storage building located at 3812 Jourgensen Avenue, more particularly depicted on Exhibit "B”, attached hereto and made part hereof
The Concessionaire shall provide all leasehold improvements necessary for its operation, including equipment, furniture, furnishings, and fixtures.
Article 4
Fees and Rentals
4.1AirportTerminalBuilding Space - The Concessionaire agrees to pay to the Lessor, as rental for the exclusive space occupied in the TerminalBuilding, the following sums:
5/1/08 – 4/30/11 Six Hundred Thirty Three and 97/100 ($633.97) dollars per month;
5/1/11 – 4/30/14 Six Hundred Seventy Two and 01/100 ($672.01) dollars per month; and
5/1/14 – 4/30/15 Seven Hundred Twelve and 33/100 ($712.33) dollars per month.
4.2Vehicle Wash Facility - The Concessionaire agrees to pay the Lessor, as rental for said building, the following sums:
5/1/08 – 4/30/11 Five Hundred Seventy Two and 40/100($572.40) dollars per month;
5/1/11 – 4/30/14 Six Hundred Six and 74/100 ($606.74) dollars per month; and
5/1/14 – 4/30/15 Six Hundred Forty Three and 14/100 ($643.14) dollars per month.
4.3Payment of Utilities - Concessionaire agrees to pay all utility chargesfor the utilities provided to the Leased Premises, including those utilities provided by the Lessor, and if required by a utility agency as a condition of providing utility service, the Concessionaire will install and pay for standard metering devices for the measurement of such services. In the event it shall become necessary to make utility service or facility changes, the Concessionaire will either make such changes and installations, at its expense, as directed and required by the utility organizations, or pay the utility organization for such changes made. Concessionaire understands that Lessor may from time to time increase the utility rate for utilities Lessor provided to the Leased Premises.
4.4Water Lines and Pipes - Concessionaire agrees to protect all interior water lines and pipes and all exterior water spigots from breakage or damage due to freezing. Concessionaire specifically agrees to repair or replace any damage caused to the water lines, pipes, or spigots caused by freezing, and to repair other damage to the Leased Premises and/or surrounding areas resulting therefrom.
4.5Percentage of Gross Revenue and Minimum Rental - In addition to the rental space and fees outlined in sections 4.1, 4.2, and 4.3 above, Concessionaire shall pay to Lessor, for the rights and privileges herein granted, a minimum annual fee as follows:
From May 1, 2008 through April 30, 2015not less than Ninety Thousand Dollars ($90,000.00) annually or a facility fee in the amount of ten (10%) percent of Concessionaire’s “gross revenue” as hereinafter defined, whichever sum is greater. The facility fee may be added to each rental contract provided annual receipts to the Lessor do not decrease. A determination of receipts increasing or decreasing will be made annually, on the anniversary date of this Agreement. A percentage decrease in revenue less than a percentage decrease in air carrier passenger enplanements will not be considered a decrease in receipts.
4.6Rental and Fee Payment - Monthly rentals and fees as set out herein shall be due and payable to the Lessor on or before the 20thday of the following calendar month. No demand for rent or fees need at any time be given, and it shall be the duty of Concessionaire to pay all monies when due. Payments received later than this date are subject to interest in the amount of 1½% per month. The implementation of the interest provision shall not preclude the Lessor from terminating this Agreement for default in the payment of rentals and fees as specified in Article 13, Defaults and Remedies.
4.7Adjustments - Any adjustments for deficiencies between the percentage of gross revenue set forth above for any preceding Agreement year and the minimum annual guaranteed amount shall be payable within twenty-five (25) days after the close of each Agreement year. Settlement for any deficiency between the annual guaranteed amount and the percentages payable during a period of less than one (1) complete Agreement year shall be made to the Lessor on a pro rata basis within twenty-five (25) days following the end of such period.
4.8Suspension or Reduction of Fees - The Concessionaire may negotiate with the Lessor for the suspension or reduction of the payment of fees called for under this Agreement during any period in excess of thirty (30) days that the Airport does not havecertified scheduled air carrier operations.
Article 5
Gross Receipts
5.1Definition of Gross Receipts - Gross receipts shall mean all monies paid or payable to the Concessionaire for all sales and services authorized under this Agreement excepting only those items specifically set forth below under "Exclusions". Gross receipts shall include, but not by definition be necessarily limited to, the following.
5.1.1The aggregate amount of all monies paid, or payable, to the Concessionaire for all sales and rentals made and services performed at the airport.
5.1.2The reasonable market value of any goods received by the Concessionaire in exchange for services.
5.1.3All monies paid, or payable, for sales, rentals, services, and exchanges performed elsewhere for customers whose business originates at the Airport.
5.1.4The total sum, whether fully retained by the Concessionaire or not, for rentals of vehicles owned, controlled, or operated by persons other than the Concessionaire.
5.1.5The entire time and mileage charged for Foreign and Floating Fleet Vehicles without deduction for the amount remitted to the agency owning the vehicle. In order that the Lessor may secure accurate information regarding the rental of Foreign or Floating Fleet vehicles, the Concessionaire specifically agrees that its local manager shall provide the Lessor with a monthly affidavit, the falsification of which shall subject the Concessionaire and the manager to the penalties for perjury prescribed by the laws of the State of Wyoming, providing complete and detailed information regarding the rentals of all such Foreign or Floating Fleet vehicles within the previous thirty (30) days.
5.1.6Any credits given to customers to offset charges for rentals made by said customers for such as out-of-pocket purchases regardless of where made.
5.1.7All of the above listed transactions are included whether for cash, credit, or otherwise, of any kind, name and nature, and regardless of when or whether paid for or not.
5.2Exclusions - Gross receipts shall exclude the following.
5.2.1Charges to the Concessionaire's customers for repairs to automobiles damaged by such customers.
5.2.2Uncollected items resulting from theft, conversion, or illegal use of Concessionaire's automobiles, unless and until the charges are collected.
5.2.3Monies collected from customers for any governmental taxes separately stated and collected from the customer.
5.2.4Separately stated fees received by the Concessionaire for collision damage waivers or personal accident insurance elections by customers.
5.2.5Any charge paid by a customer for gasoline, which is, in essence, a pass-through expense.
5.2.6Charges made and collected from customers which are classified as "drop charges" for one-way rentals. However, all other charges for one-way rentals shall be included in gross receipts, including time, mileage, and all other items mentioned in this Agreement.
5.2.7Receipts from sales of office equipment or other assets necessary to conduct the Concessionaire's business.
5.2.8Facility fee paid to the Airport provided the fee is added to each contract.
Article 6
Rights and Privileges of Concessionaire
Subject to the terms and conditions hereinafter set forth, the Concessionaire is hereby given the following rights and privileges.
6.1Leased Premises Use - The Leased Premises described herein shall be used by Concessionaire for the purpose of providing automobile rental services at the Airport, and for the purpose of arranging for such services for passengers using the Airport. The Lessor hereby grants to Concessionaire, subject to the terms of this Agreement, the right, license, and privilege to conduct and operate an automobile rental concession at the Airport.
The rights granted by this Agreement are not exclusive rights, and the Lessor shall have the right to deal with and perfect arrangements with any other individual, company, or corporation engaging in like activities at the Airport; provided, however, that any other or future nonexclusive right for car rental operations shall not be on terms or conditions more favorable than those granted to Concessionaire herein. The Concessionaire understands that the right granted herein applies to the Casper/Natrona County International Airport property.
The Concessionaire shall not engage in any other business, operation, or activity without the written consent of the Lessor. The Concessionaire understands that a violation of this paragraph is a material default and breach of this Agreement that gives the Lessor the rights set forth in Article 13, Defaults and Remedies.
6.2Ingress and Egress - Subject to rules and regulations governing the use of the Airport as may be established by the Airport Manager, the Concessionaire, its customers, employees, suppliers of materials, furnishers of service, subleases, business visitors, and invites shall have the right of ingress and egress to and from the Leased Premises.
6.3Quiet Enjoyment - The Lessor covenants that upon paying the rent and fees specified here, and performing the covenants and conditions herein contained, the Concessionaire shall peacefully and quietly have, hold, and enjoy the Leased Premises for the term of this Agreement. The Concessionaire agrees that temporary inconveniences, such as noise, disturbances, traffic detours and the like, caused by or associated with the construction of Airport improvements or Airport events shall not constitute a breach of quite enjoyment of the Leased Premises. Further, the Concessionaire understands that access to the Leased Premises may be obstructed or prevented during and after snow events. The Concessionaire further agrees not to disturb Lessor or any other tenant of the Airport by creating or permitting any disturbance or other unusual noise or other undesirable condition on or about the Airport.
Article 7
Rights and Privileges of Lessor
In addition to other rights and privileges, the Lessor has the following rights and privileges:
7.1Airport Development - The Lessor has the right, but shall not be obligated to Concessionaire, to develop or improve the landing areas and other portions of the Airport as it sees fit, regardless of the desires or views of the Concessionaire, and without interference or hindrance. In the event that Lessor makes improvements which benefit Concessionaire, Concessionaire agrees to negotiate with Lessor fair and reasonable modifications to the Fees and Rentals as specified in Article 4, or the establishment of new fees as the case may be.
The Lessor shall have the right, without cost to Concessionaire, to install and maintain in, on or across the Leased Premises, sewer, water, gas, electric, and telephone lines, electric substations, or other installations necessary to the operation of the Airport, or to service other tenants of the Lessor; provided, however, that the Lessor shall carry out such work and locate any above-ground structures in a manner so as not to unreasonably interfere with Concessionaire's use of the Leased Premises.
7.2Aerial Approaches - The Lessor has the right to take any action it considers necessary to protect the aerial approaches and transition surfaces of the Airport against obstruction, together with the right to prevent the Concessionaire or sub-lessees from erecting or permitting to be erected any building or other structure on the Airport, which, in the opinion of the Airport Board of Trustees would limit the usefulness of the Airport or constitute a hazard to aircraft.
7.3War, National Emergency, Riot, or Natural Disaster - During time of war, national emergency, riot or natural disaster, the Lessor shall have the right to lease the entire Airport or any part thereof to the United States or State of Wyoming for military or National Guard use and, in such event, the provisions of this Agreement, insofar as they are inconsistent with the provisions of any lease to any such unit of government, shall be suspended for the term of such government lease.
7.4Access to Leased Premises - To the extent necessary to protect the rights and interests of the Lessor, or to investigate compliance with the terms of this Agreement, the Airport Manager or his designee shall at any and all times have the right to inspect the Leased Premises, including all buildings, structures, and improvements erected thereon. If entry is required during non-business hours, except when an emergency exists, entry shall be made only after notice is given to the Concessionaire.
7.5Unrestricted Right of Flight – The Lessor, for the use and benefit of the public, has a free and unrestricted right of flight for the passage of aircraft in the airspace above the surface of the Leased Premises, together with the right to cause in said airspace such noise as may be inherent in the operation of aircraft, now known or hereafter used for navigation of or flight in the air, using said airspace or landing at, taking off from, or operating on or about the Airport.
7.6Government Use of Airport - This Agreement shall be subordinate to the provisions of any existing or future agreement between the Lessor and the United States Government, relative to the operation or maintenance of the Airport, the execution of which has been, or may be required as a condition precedent to the expenditure of federal funds for the development of the Airport.
7.7Audit- For the purpose of further determining the accuracy of reporting gross receipts, the Lessor may make spot audit tests, which spot audit tests shall include at least twenty-five (25%) percent of the total time of the period being audited. The spot audit tests shall be at the expense of the Lessor unless the results of such spot audit reveal a discrepancy of more than five (5%) percent of the gross receipts reported and the gross receipts as determined by the audit. In this event the entire period shall be audited and the entire cost of the spot audit, as well as the annual audit, shall be borne by the Concessionaire.
If the Lessor determines, in its sole discretion, that it desires to conduct an audit by an independent certified public accountant licensed to practice in Wyoming of other auto rental operations conducted directly or indirectly by the Concessionaire, or in which the Concessionaire has any interest, or which the Concessionaire conducts with any other business entity, the Concessionaire hereby specifically agrees that it shall permit the Lessor to conduct such audit, and will, in all ways, cooperate in permitting the audit to be conducted by the Lessor. By this provision the Concessionaire specifically agrees, on behalf of itself, and any other business entity with which it transacts business, to permit the Lessor to conduct an audit of auto rental operations for the purpose of determining the accuracy of the reports made by the Concessionaire to the Lessor. Should such audit reveal a discrepancy of more than five (5%) percent between the gross receipts reported in accordance with this Agreement and the gross receipts as determined by the audit, the full cost of the audit shall be borne by the Concessionaire.