5b attach 1
Item Number: 5b_Attach 1_
Date of Meeting: November 27, 2012
CONSOLIDATED RENTAL CAR FACILITY
LEASE AGREEMENT
FOR
SEATTLE-TACOMA INTERNATIONAL AIRPORT
TABLE OF CONTENTS
Page
ARTICLE 1 : DEFINITIONS ......................................................................................................... 1
ARTICLE 2 : CONSTRUCTION OF PROJECT ........................................................................... 1
ARTICLE 3 : ISSUANCE OF BONDS; PAYMENT FOR COST OF FACILITY ....................... 7
ARTICLE 4 : LEASE OF PREMISES ........................................................................................... 8
ARTICLE 5 : TERM ..................................................................................................................... 11
ARTICLE 6 : RENT AND OTHER FINANCIAL OBLIGATIONS ........................................... 11
ARTICLE 7 : REMITTANCE; LATE PAYMENT ..................................................................... 18
ARTICLE 8 : ACCOUNTING PROCEDURES; AUDIT ............................................................ 18
ARTICLE 9 : BOND OR OTHER SECURITY ........................................................................... 19
ARTICLE 10 : USE ...................................................................................................................... 20
ARTICLE 11 : INITIAL ALLOCATION AND REALLOCATION ............................................ 23
ARTICLE 12 : COMMON TRANSPORTATION SYSTEM ...................................................... 24
ARTICLE 13 : ALTERATIONS; OWNERSHIP OF CERTAIN INSTALLATIONS ................. 26
ARTICLE 14 : REAL AND PERSONAL PROPERTY TAXES ................................................. 27
ARTICLE 15 : REPAIR AND MAINTENANCE ........................................................................ 27
ARTICLE 16 : UTILITIES AND OTHER OPERATING COSTS .............................................. 34
ARTICLE 17 : INDEMNITY AND INSURANCE ...................................................................... 36
ARTICLE 18 : COMPLIANCE WITH ENVIRONMENTAL LAWS ......................................... 43
ARTICLE 19 : ADDITIONAL ENVIRONMENTAL OBLIGATIONS ...................................... 47
ARTICLE 20 : DAMAGE OR DESTRUCTION ......................................................................... 54
ARTICLE 21 : SURRENDER AND HOLDING OVER ............................................................. 55
ARTICLE 22 : IMPAIRMENT OF TITLE................................................................................... 56
ARTICLE 23 : DEFAULT ............................................................................................................ 57
ARTICLE 24 : TERMINATION; EASEMENTS ........................................................................ 59
ARTICLE 25 : NO WAIVER; LANDLORD'S RIGHT TO PERFORM .................................... 61
ARTICLE 26 : ASSIGNMENT OR SUBLEASE ........................................................................ 63
ARTICLE 27 : AIRPORT CONCESSION DISADVANTAGED BUSINESS ENTERPRISES . 65
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ARTICLE 28 : NON-DISCRIMINATION ................................................................................... 65
ARTICLE 29 : NON DISCRIMINATION IN CONTRACTS ..................................................... 67
ARTICLE 30 : NOTICES ............................................................................................................. 68
ARTICLE 31 : MISCELLANEOUS ............................................................................................. 70
ARTICLE 32 : SIGNATURES ..................................................................................................... 76
ARTICLE 33 : ACKNOWLEDGMENTS .................................................................................... 77
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CONSOLIDATED RENTAL CAR FACILITY
LEASE AGREEMENT
THIS CONSOLIDATED RENTAL CAR FACILITY LEASE AGREEMENT (the "Lease
Agreement") is made as of this ____ day of _______, 2012 by and between the PORT OF
SEATTLE, a Washington municipal corporation, and Sixt Rent A Car LLC., a Delaware
corporation.
For and in consideration of the mutual promises, covenants and conditions hereinafter set
forth, the parties agree as follows:
ARTICLE 1: DEFINITIONS
1.1 Attachment. Definitions of terms utilized in this Lease Agreement are attached hereto
as Attachment 1. Other terms may be defined in other parts of the Lease Agreement.
1.2 Interpretations. All terms defi ned in this Lease Agreement and all pronouns used in
this Lease Agreement shall, unless the context clearly requires otherwise, be deemed to apply equally
to singular and plural and to all genders. The term "or" is specifically used in its logical sense and,
as such, is satisfied whenever one or more of its operands are true. The table of contents, titles and
headings of the articles and sections of this Lease Agreement have been inserted for convenience of
reference only and are not to be considered a part hereof and shall not in any way modify or restrict
any of the terms or provisions hereof. This Lease Agreement and all the terms and provisions hereof
shall be liberally construed to effectuate the purposes set forth herein and, to provide for the full and
timely payment of all Bonds from time to time hereafter issued by the Port, which Bonds may be
secured by a pledge of the Customer Facility Charges for which Operator has an obligation to collect
and remit under this Lease Agreement. In the event of any ambiguity contained herein, it shall not be
construed for or against any party hereto on the basis that such party did or did not author the same.
ARTICLE 2: CONSTRUCTION OF PROJECT
2.1 The Project.
2.1.1 Construction. The Port shall construct the Project substantially in accordance
with the construction documents/description identified on Exhibit D-1; provided, however, the Port
shall have the right to make reasonable changes to the design of the Project as more specifically set
forth in Section 2.3. The Port shall keep the Operators' Construction Manager reasonably apprised
regarding its progress in completing the Project. The Project will specifically include those Special
Building Systems identified on Exhibit D-2. The Port shall have the right to install, either as part of
the initial construction of the Project or later, the Special Airport Systems identified on Exhibit D-3.
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2.1.2 Costs. Except as specifically set forth in Section 2.3.2 for Operator Initiated
Changes, the Operators and each of them shall have no obligation to pay for any Costs of the Project
or the Special Airport Systems. All Cost of the Project and Special Airport Systems will be paid by
the Port; provided, however, Operator acknowledges and agrees that the Port expects to fund the
Cost of the Project (but not the Special Airport Systems) exclusively from a portion of the Customer
Facility Charge and Bonds proceeds.
2.2 Tenant Improvements.
2.2.1 Made by Port.
2.2.1.1 Port-Made Improvements. The Port shall, as part of the construction
of the Project, construct and install the specific tenant improvements identified on Exhibit E (the
"Port-Made Improvements"). The Port shall, with the design-review assistance of the Operator, be
responsible for the preparation of detailed plans and specifications for the Port-Made Improvements.
The Operator shall, within twenty (20) days of receiving any draft plans and specifications related to
the Port-Made Improvements, provide its comments; provided, however, whether to incorporate any
specific comment shall be at the discretion of the Port. A failure to timely respond shall conclusively
be considered an approval of the draft plans by Operator. In the event that Operator, in any
subsequent review of the plans and specifications for the Port-Made Improvements, requests a
change to any design element that was approved (whether by affirmative response or the failure to
respond) earlier in the design process, Operator shall pay for all costs associated with that design
change, unless the need for such change could not have reasonably been anticipated by the Operator
at any point earlier in the design process. Operator will have the right to make reasonable changes to
the Port-Made Improvements during the course of construction, only as set forth in Section 2.3.2.
2.2.1.2 Small Operator Improvements. The Port shall, as part of the
construction of the Project, construct and install the specific tenant improvements identified on
Exhibit F in the Small Operator Area (including the Small Operator Shared Area). The Costs of the
Small Operator Improvements shall not be included within the Costs of the Project, but shall instead
be recovered by the Port pursuant to the Small Operator Improvement Rent.
2.2.1.3 Subsequent Small Operator Improvements. After the initial
construction of the Project, including the Small Operator Improvements, the Port may make
additional improvements in and to the Small Operator Area as, in the Port's sole discretion, may be
necessary or desirable for the continued efficient operation of the Small Operator Area (collectively
the "Additional Small Operator Improvements"). The Costs of the Additional Small Operator
Improvements shall not be included within the Cost of the Project and shall not be funded by the
Customer Facility Charge.
2.2.2 By Operator.
2.2.2.1 Design and Construction. Operator shall be responsible for designing
and constructing all other improvements to Operator's Exclusive Use Premises that Operator deems
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necessary or desirable in connection with Operator's operation of a Rental Car Concession from the
Consolidated Rental Car Facility ("the Initial Tenant Improvements"). Operator shall comply with
the design, construction and opening procedures attached hereto as Exhibit G in connection with
Operator's design and construction of Operator's tenant improvements. The Initial Tenant
Improvements shall also be performed (i) in a good and workmanlike manner, (ii) in compliance
with all Legal Requirements and the Port Standards, and (iii) in a manner that will not unreasonably
interfere with or disturb the Port or its tenants.
2.2.2.2 Port Review Does Not Relieve Operator. Operator agrees that nothing
in the Port's review or approval of Operator's plans shall create responsibility or liability on the part
of the Port for their completeness, design sufficiency, or compliance with all Legal Requirements or
Port Standards, all of which shall be Operator's sole responsibility. Nor shall such review or
approval constitute a waiver by the Port of the right thereafter to require Operator to correct any
failure by Operator to comply with any Legal Requirements (but not Port Standards) later discovered
by the Port.
2.2.2.3 As-Built Documents. Operator shall de liver to the Port not later than
ninety (90) days after the Opening Date full and complete "as built" drawings of the Initial Tenant
Improvements in electronic format in full conformance with the Port's CAD Standards Manual and
three (3) half-size hard copies. For any equipment installed, Operator shall deliver to the Port, two
(2) copies of the complete operations and maintenance manuals.
2.2.2.4 Deadline.
2.2.2.4.1 Substantial Completion. Operator (other than a Small
Operator) agrees that its Initial Tenant Improvements shall be substantially complete not later than
the Deadline for Substantial Completion; provided, however, said time period may be extended to
the extent of delays directly caused by the Port, the Port's contractor and/or events beyond the
reasonable control of Operator.
2.2.2.4.2 Final Completion. Notwithstanding that Operator has
substantially completed the Initial Tenant Improvements, Operator (other than a Small Operator)
shall diligently pursue the Initial Tenant Improvements to final completion, and shall completely
finish the Initial Tenant Improvements no later than fourteen (14) days after the Deadline for
Substantial Completion. The final completion of the Initial Tenant Improvements includes, but is
not limited to, the completion of construction of Operator's Initial Tenant Improvements as defined
in the construction drawings and resolution of all items on the Deficiency List, prepared under and as
defined in Exhibit G.
2.2.2.4.3 Opening Date. Operator including Small Operators
specifically understands that the Port intends to commence rental car operations from the
Consolidated Rental Car Facility on the Opening Date whether (or not) Operator or any particular
Operator has completed its Initial Tenant Improvements and/or is ready to commence operations.
Therefore, Operator including Small Operators shall have installed all furniture, trade fixtures
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and office equipment, completed all systems/process testing, and otherwise be fully and completely
ready to commence operations no later than the Opening Date. In addition, no Operator shall be
permitted to operate from the Airport terminal or Airport garage on or after the Opening Date.
Operator specifically acknowledges and agrees that the Opening Date established by the Port
includes adequate time for construction of Operators' (and each Operator's) Initial Tenant
Improvements as well as not less than forty five days for "burn-in," during which Operators (and
each Operator) is expected to complete the installation of any furniture, trade fixtures and office
equipment not completed as part of the Initial Tenant Improvements, complete all systems/process
testing, and otherwise do anything and everything else necessary to be fully operational on the
Opening Date.
2.3 Changes. The parties shall have the right t o make reasonable changes to the
construction of the Project or Port-Made Improvements as more specifically set forth in this Section
2.3.
2.3.1 Port Initiated Changes. The Port may, without the necessity of consen t of any
of the Operators, make any minor changes to the Project that will not materially affect the nature or
operation of the Consolidated Rental Car Facility, Consolidated Rental Car Facility Site, Off-Site
Roadway Improvements, Bus Maintenance Facility, Common Transportation System, or any
particular Operator's operations within the Consolidated Rental Car Facility and that the Port
considers necessary or advisable; provided, however, the Port shall generally consult with the
Operators' Construction Manager before making any such change to the Project and will generally
keep the Operators' Construction Manager reasonably apprised about any changes made to the
Project. The Port may not, however, make any change to the Project that will materially affect the
nature or operation of the Consolidated Rental Car Facility, Consolidated Rental Car Facility Site,
Off-Site Roadway Improvements, Bus Maintenance Facility, or Common Transportation System
without the prior written approval of a Majority-in-Interest of the Operators. Furthermore, the Port
may not make any change to the Project that will materially affect the nature or operation any
particular Operator's operations within the Consolidated Rental Car Facility without the prior written
approval of the particular Operator. The Port shall also have the right to make reasonable changes to
the Port-Made Improvements or Small Operator Improvements for purposes of facilitating the
construction of or otherwise increasing the efficiency of the Port-Made Improvements or Small
Operator Improvements; provided any such change does not materially and adversely affect any
Operator's intended operation and use of those portions of the Consolidated Rental Car Facility or
Consolidated Rental Car Facility Site in which the Port-Made Improvements or Small Operator
Improvements are located.
2.3.2 Operator Initiated Changes.
2.3.2.1 The Project. Operator shall not, other than with the express consent of
the Port, have any right to make any changes to the Project.
2.3.2.2 Port-Made Improvements. If Operator requests any change to the Port-
Made Improvements, Operator shall submit a request for change together with sufficient detail for
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the Port, its architect and/or contractor to prepare revised plans and specifications for such change.
The Port will, within a reasonable period of time (considering the nature of the requested change)
following the of receipt of such request, notify Operator of the estimated cost (specifically including
costs arising from impacts to other work) that will be chargeable to, and payable by, Operator by
reason of such change and any estimated delay in completion of the Port-Made Improvements caused
by such change. That estimate will include the Port's cost of any delay in completion of the Port-
Made Improvements resulting from such change. Any change to the Port-Made Improvements that
would result in a delay to the Commencement Date will not be allowed. Within five (5) business
days after receiving the Port's estimated cost, Operator shall notify the Port whether Operator desires
to proceed with such change. In the absence of any notification, Operator shall be deemed to have
elected not to proceed with such change. If Operator elects to proceed with such change, Operator
shall, unless otherwise agreed, immediately deposit with the Port the amount of the Port's estimated
cost of such change, and the Port may disburse such amounts as costs associated with the change are
incurred. In the event that the deposit is inadequate to cover the actual costs associated with the
change, Operator shall immediately pay to the Port the amount of such excess costs. In the event the
excess costs are less than the amount of the deposit, the Port shall refund the excess promptly
following the completion of construction of the Port-Made Improvements.
2.4 Permits. The Port shall obtain all necessary permits associated with the Project, Port -
Made Improvements, and Small Operator Improvements including a Certificate of Occupancy prior
to the Opening Date; provided that the Port shall not be responsible for permits associated with the
Tenant Improvements other than the Port-Made Improvements and Small Operator Improvements
(specifically including any Certificate of Occupancy associated with such Tenant Improvements),
unless otherwise agreed between the Port and Operator.
2.5 Additional Special Facilities. The Port may elect to undertake such other and further
improvements (the "Additional Special Facilities") to the Consolidated Rental Car Facility, the
Consolidated Rental Car Facility Site, the Bus Maintenance Facility, the Off-Site Roadway
Improvements, the Common Transportation System, Terminal roadway/curbside improvements
and/or the Additional Special Facilities as follows:
2.5.1 Improvements as of Right. The Port may, with notice to the Operat ors but
without the necessity of any opportunity for objection, make improvements to the Consolidated
Rental Car Facility, the Consolidated Rental Car Facility Site, the Bus Maintenance Facility, the Off-
Site Roadway Improvements, and/or the Common Transportation System for any of the following
reasons:
2.5.1.1 The improvement is required by a federal or state agency (other than
the Port) with jurisdiction over the Airport;
2.5.1.2 The improvement is of an emergency nature, which, if not made,
would substantially impair the current operation of the Consolidated Rental Car Facility,
Consolidated Rental Car Facility Site, Off-Site Roadway Improvements, Bus Maintenance Facility or
Common Transportation System;
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2.5.1.3 The improvement is to repair or replace the Consolidated Rental Car
Facility, Consolidated Rental Car Facility Site, Off-Site Roadway Improvements, Bus Maintenance
Facility, or Common Transportation System property damaged or destroyed by fire or other casualty;
2.5.1.4 The improvement is made to settle claims or lawsuits, satisfy
judgments or comply with judicial or administrative orders against the Port arising from or relating
to its design, construction, ownership, maintenance or use of the Consolidated Rental Car Facility,
Off-Site Roadway Improvements, Consolidated Rental Car Facility Site, the Bus Maintenance
Facility or the Common Transportation System; or
2.5.1.5 The improvement is made, at no cost to the Operators and without use
of Customer Facility Charge proceeds, to any portion of the Reserved Area or to any Special Airport
System.
In the event any such improvement becomes necessary, the Port shall promptly provide the Operators
notice of the necessity of such improvement but the Operators shall have no formal opportunity
under this Lease Agreement to object or otherwise delay the Additional Special Facility (but the
Operators (and each Operator) specifically does not waive their right to petition the Port Commission
regarding any such Additional Special Facility to which they object).
2.5.2 Improvements Subject to Operator Input. The Port may undertake any other
improvement that is, in good faith, intended to increase the capacity and/or efficiency of the
Consolidated Rental Car Facility, the Off-Site Roadway Improvements, the Consolidated Rental Car
Facility Site, the Bus Maintenance Facility or the Common Transportation System as follows:
2.5.2.1 The Port shall notify all Operators in writing of any proposed
improvement subject to this Section 2.5.2 and shall give the Operators an opportunity to determine
whether or not to object to the proposed improvement. The Port's notice shall include (i) a
description of the proposed improvement; (ii) drawings showing its location, to the extent available;
(iii) estimates of its total capital cost; (iv) estimates of its operations and maintenance costs; (v) an
explanation of the benefits it will provide; (vi) a schedule for its implementation; (vii) a summary of
how the improvement will be funded; and (viii) an estimate of the impact the improvement will have
on the Customer Facility Charge. The Port specifically agrees to consult with the Operators in
developing its estimate of the impact the improvement will have on the Customer Facility Charge.
2.5.2.2 In the event a Majority-in-Interest of the Operators deliver to the Port,
within thirty (30) days of the Port's delivery of its notice of the proposed Additional Special Facility,
their objection to the proposed improvement subject to this Section 2.5.2, the Port shall refrain from
proceeding with the Additional Special Facility for a period of ninety (90) days to allow the
Majority-in-Interest to develop and present to the Port the basis of its objections to the proposed
improvement. At the conclusion of that ninety (90) day period, the Port may proceed with the
proposed Additional Special Facility notwithstanding any objection by the Majority-in-Interest,
provided, (i) that at the time the Port elects to proceed with construction of the improvement, the
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Port's then-current estimate (calculated on a consistent basis) of the improvement's capital costs
does not exceed, in constant dollars, one hundred ten percent (110%) of the improvement's estimated
capital cost when the Port gave its notice under Section 2.5.2.1; and (ii) there is no projected increase
in the amount of the Customer Facility Charge over the remaining Lease Term due to such
improvements. If the improvement's then-currentestimated capital cost exceeds the estimated
capital cost by more than ten percent (10%), the Port shall again provide the Operators notice of the
improvement under Section 2.5.2.1 and the Operators shall have an additional opportunity to object
as set forth in this Section 2.5.2.2; provided, however, in the event that a Majority-in-Interest again
objects, the Port shall be required to refrain from proceeding with the Additional Special Facility for
an additional period of only thirty (30) not ninety (90) days. In the event that the Additional
Special Facility is projected to increase the amount of the Customer Facility Charge over the
remaining Lease Term, then the Port shall obtain the consent of a Majority-in-Interest before
proceeding with the improvement. Nothing in this Section 2.5.2 shall constitute a waiver of the
Operators' (or any Operator's) right to petition the Port Commission regarding any such Additional
Special Facility to which they object.
2.5.3 Costs of Additional Special Facilities. Except as may be otherwise agreed by
the Operators in connection with the approval of any Additional Special Facilities under Section
2.5.2.2, the Operators and each of them shall have no obligation to pay for any Costs of the
Additional Special Facilities. All Costs of the Additional Special Facilities will be paid by the Port;
provided, however, Operator acknowledges and agrees that the Port expects to fund, subject to any
necessary concurrence under Section 2.5.2.2, the Costs of the Additional Special Facilities
exclusively from a portion of the Customer Facility Charge or Bonds proceeds.
2.5.4 Special Building Systems and Special Airport Systems. The Port may, as part
of adding any Additional Special Facilities, make changes (whether by addition, subtraction or
modification) to the Special Building Systems and Special Airport Systems. In the event of any
change to either the Special Building Systems or the Special Airport Systems, the Port may, by
notice to Operator, issue a revised Exhibit D-2 or D-3, as appropriate, to take account of the change.
ARTICLE 3: ISSUANCE OF BONDS; PAYMENT FOR COST OF FACILITY
3.1 Issuance of Initial Bonds. As set forth in Section 2.1.2 and 12.4, the Operators shall
have no responsibility for funding the Costs of the Project. Consistent with the Port's obligation to
fund the Costs of the Project, the Port shall subject to the terms and conditions of this Lease
Agreement use reasonable efforts to issue, sell and deliver the Initial Bonds in amounts sufficient
to pay the Costs of the Project.
3.1.1 Notwithstanding that the Operators have no responsibility for funding the
Costs of the Project, the Port acknowledges that the Operators as a result of the Port's intention to
pledge the Customer Facility Charge paid by Airport Customers in support of the Initial Bonds
have an interest in the terms under which the Port issues the Initial Bonds to finance the Costs of the
Project.
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3.1.2 Prior to signing the Lease Agreement, the Port will provide the Operators a
financial forecast developed in consultation with the Operators' consultants, associated with the
Initial Bonds providing (i) a description of the plan for financing, (ii) a reasonable estimate of debt
service based on market rates plus a "spread" of at least 50 basispoints and (iii) a forecast of
Customer Facility Charge revenues and rates.
3.1.3 Subsequent to signing the Lease Agreements and prior to the Port's sale of
Initial Bonds, the Port will provide the Operators an update of the financial forecast developed in
consultation with the Operator's consultants. If the Operators request consideration of a financing
approach that is different from that presented in the Port's financial forecast, the Port specifically
agrees to cooperate with the Operators to develop and consider such an alternative.
3.2 Issuance of Additional Bonds. The Port shall have the right to issue Additional
Bonds: (i) as refunding bonds which are used to achieve debt service savings or to achieve terms
more beneficial than the terms of the Bonds being refunded, (ii) to pay any part of the Costs of the
Project not fully funded or provided for out of the proceeds of the Initial Bonds, (iii) to pay the Costs
of the Additional Special Facilities for any Additional Special Facilities, subject to the Port's
covenant to the Operators in Section 6.2.5.1 of this Lease Agreement, (iv) to pay the costs associated
with the purchase of additional buses for fleet expansion or replacement of any buses required for the
Common Transportation System, (v) to pay any costs of the Major Maintenance or BMF Major
Maintenance, and (vi) subject to any restriction under Sections 6.2.5 and 12.3.5 regarding the use of
the Customer Facility Charge and applicable law, to fund any other obligation imposed on the Port
under this Lease Agreement. In the event that the Port determines that it is necessary or advisable to
issue Additional Bonds, the Port will deliver to Operators a financial forecast and updates associated
with each such Additional Bonds offering as provided in Section 3.1.2 and 3.1.3. The Port
specifically agrees to consult with the Operators regarding this financial forecast.
3.3 No Limitation on Port Commission. Nothing in this ARTICLE 3 shall be construed
as a limitation of the legislative authority of the Port of Seattle Port Commission to issue bonds for
any legal purpose that it elects; instead, any limitation set forth in this ARTICLE 3 shall operate
exclusively to limit whether the obligations under any such bond(s) shall be considered Bond
Obligations under this Lease Agreement.
ARTICLE 4: LEASE OF PREMISES
4.1 Lease of Premises. Subject to all of the terms, covenants and conditions contained in
this Lease Agreement, the Port hereby grants to Operator, and Operator hereby accepts from the Port,
the following rights with respect to the Consolidated Rental Car Facility and Consolidated Rental
Car Facility Site:
4.1.1 Exclusive Use Premises. The Port hereby leases to Operator the Exclusive
Use Premises identified, for Operators who are not Small Operators, on Exhibits B, C-1, C-2, C-3
and C-6 for the Lease Term and, for Small Operators, Exhibits B, C-4 and C-6. The Exclusive Use
Premises shall be initially allocated, and are subject to reallocation, as set forth in ARTICLE 11 of
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this Lease Agreement. The lease set forth in this Section 4.1.1 shall be effective on the respective
Commencement Date for each portion of the Exclusive Use Premises.
4.1.2 Fuel Facilities and QTA Equipment. The Port hereby grants to Ope rator the
exclusive right to utilize (but subject to management in common as more particularly set forth in
Section 19.1.1) the Fuel Facilities and QTA Equipment located in the particular Operator's Exclusive
Use Premises. The Fuel Facilities and QTA Equipment shall be initially allocated, and are subject to
reallocation, in conjunction with the Exclusive Use Premises in which they are located as set forth in
ARTICLE 11 of this Lease Agreement. The grant set forth in this Section 4.1.2 shall be effective on
the Commencement Date for the QTA Space.
4.1.3 Common Use Area. The Port also hereby grants to Operator a nonexclusive
right to use the Common Use Area (other than the Small Operator Shared Area) for the Lease Term.
Unless the Port provides written notice of an earlier date, the grant set forth in this Section 4.1.3 shall
be effective as follows: (i) for the Common Use Area within the Ready Return Area and QTA Space
(other than the Consolidated Rental Car Facility building core), on the respective Commencement
Date for the associated Ready Return Area and QTA Space, and (ii) for the remainder (including the
Consolidated Rental Car Facility building core), on the day following the Deadline for Substantial
Completion.
4.1.4 Small Operator Shared Area. The Port also hereby leases to each Operator
who is a Small Operator, in common with all of the other Operators who are Small Operators, an
undivided interest in the Small Operator Shared Area identified on Exhibit C-4 for the Lease Term;
provided, however, the Small Operator Shared Area is subject to adjustment by the Port from time to
time with the allocation and reallocation of the Small Operator Areas as set forth in ARTICLE 11 of
this Lease Agreement. The lease set forth in this Section 4.1.4 shall be effective on the
Commencement Date for the adjoining Customer Service Building, Ready Return Area and/or QTA
Space, as appropriate.
4.2 Areas Reserved to the Port. The Port specifically reserves to itself those portions of
the Consolidated Rental Car Facility and Consolidated Rental Car Facility Site identified on Exhibit
C-5 (the "Reserved Area"). The Port may utilize the Reserved Area exclusively for: (i) its own
personal use, or that of any Port employee, agent or contractor, engaged in the management and
operation of the Consolidated Rental Car Facility or Common Transportation System, (ii) the
installation and maintenance of any Special Airport Systems or other systems designed to facilitate
the efficient movement and check-in of airline passengers or otherwise to promote smooth Airport
operations, (iii) the operation of any concessions (specifically including advertising) operated by
Non-RAC Concessionaires or (iv) the provision of any goods or services (e.g. pay phones, Internet
kiosks, ATMs, etc.) for the benefit of Airport Customers that is not within the scope of an Airport
concession agreement and which the Port, in its sole discretion, does not permit the Operators or
their Facility Manager to provide. Provided it does not negatively affect the Operators' operation of
the Rental Car Concessions, the Port further reserves to itself the right to increase or decrease the
Reserved Areas (and correspondingly, the Common Use Area) on thirty (30) days written notice to
the Operators.
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4.2.1 Notwithstanding anything to the contrary in Section 4.2, the Port agrees that it
will not grant to a Non-RAC Concessionaire the right to engage in any concession within the
Consolidated Rental Car Facility that will compete directly with the Rental Car Concession or the
lease and/or sale of goods and/or services reasonably incident thereto. By way of example, and not
limitation, the lease of global positioning devices, ski racks, and car seats shall be considered
services reasonably incident to the leasing of rental cars. However, the sale of phone cards, data
services, movie rentals, timeshare sales and the like shall not.
4.2.2 Notwithstanding anything to the contrary in Section 4.2, the Port further
agrees to consult with the Operators and each of them regarding the placement and construction of
any improvements within any portion of the Customer Service Building that has the potential to
restrict sight lines, when viewed from any public point of entry into the Consolidated Rental Car
Facility, of the sign or storefront associated with any particular Operator's Exclusive Use Premises
within the Customer Service Building. The Port agrees that any improvements installed in the
Reserved Areas within the Customer Service Building will not unreasonably block the line of sight
for rental car customers entering the building, as measured from the Customer Service Building
entrance doorways (i.e. those along the common transportation drop-off curb) through the common
lobby to the front of each Operator's Exclusive Use Area.
4.3 Acceptance of the Premises.
4.3.1 Operators, through the Facility Manager and Fuel Facility Manager, shall
participate with the Port in the pre-final and final inspections associated with the construction of the
Consolidated Rental Car Facility and Consolidated Rental Car Facility Site.
4.3.2 As the Premises are turned over to Operator, Operator shall promptly examine
the Premises following the date on which each portion is turned over. Likewise, Operators (and each
of them) shall promptly examine the Common Use Area after it is turned over to the Operators,
which turn over is expected to occur on or about the Deadline for Substantial Completion. Unless
Operator provides the Port with written notice of: (i) any patent defect or problem in Operator's
Exclusive Use Premises within ten (10) days of the date on which the particular portion of the
Exclusive Use Premises in which the patent defect or problem exists is turned over to Operator, and
(ii) any latent defect or problem in any portion of the Exclusive Use Premises or any defect or
problem within the Common Use Area within one hundred eighty (180) days of the date on which
the particular portion of the Exclusive Use Premises is turned over to the particular Operator or the
Common Use Area is turned over to the Operators, Operator shall have accepted the Premises in
their then-present condition subject only to the applicable warranties provided by the Port's
contractor(s) and materials supplier(s). In the event that Operator provides the Port with written
notice of any defect as set forth above, the Port shall promptly remedy any defect at its expense;
provided, however, such expense shall be considered a Cost of the Project.
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4.4 Rights Reserved to the Port. Operator acknowledges that the rights granted under this
Lease Agreement shall all times be subject to the Port's reserved right described in Sections 24.2 and
31.10 or as otherwise described in this Lease Agreement.
ARTICLE 5: TERM
5.1 Term. This Lease Agreement shall be effective, and binding between the parties, as
of the date first signed by both of the parties. The Lease Term of this Lease Agreement, however,
shall commence on the earliest Commencement Date and shall extend until the last day of the
thirtieth (30th) Agreement Year; provided, however, in the event any Bonds have a maturity date in
excess of this Lease Term and one or more provisions of the Bonds documents require a longer term,
the Lease Term shall extend until the earlier of: (i) the date such Bonds are repaid, or (ii) the date any
provision in such Bonds documents that requires a longer term is either satisfied or waived.
ARTICLE 6: RENT AND OTHER FINANCIAL OBLIGATIONS
6.1 Land Rent.
6.1.1 Base Amount. For and in consideration of the rights granted by this Lease
Agreement, Operator shall commencing on the Opening Date and thereafter for the Lease Term
pay to the Port its Pro Rata Share of the Value of the Site ("Land Rent"). The Land Rent shall be
divided into equal monthly amounts and paid to the Port in advance on the first day of each and
every month during the Lease Term, at such place as the Port may designate, without any prior
demand, and without any abatement, deduction or setoff whatsoever. If the Opening Date falls on
any day other than the first day of a calendar month, Land Rent for the first fractional month prior to
the commencement of the first Agreement Year shall be equivalent to the monthly amount to be paid
for the first Agreement Year prorated based upon the actual number of days in such fractional month.
6.1.2 Credit for Timely Completion of Initial Tenant Improvements. In the event
that Operator fully completes (as defined in Section 2.2.2.4.2) its Initial Tenant Improvements and is
otherwise ready to commence operations by the Opening Date as either first established by the Port
or subsequently extended by the Port for reasons not attributable to the Operators or any of them,
Operator shall be entitled to credit against its Land Rent in an amount equal to its Pro Rata share of
two million dollars ($2,000,000). If the Initial Tenant Improvements are not so completed, Operator
shall, subject only to delays beyond Operator's reasonable control, forfeit ten percent (10%) of its
applicable credit amount per day after the Opening Day until Operator has fully completed (as
defined in Section 2.2.2.4.2) its Initial Tenant Improvements. The amount of the credit shall be
divided into twelve equal monthly amounts and applied against the monthly amounts of Land Rent
otherwise payable by the Operator.
6.1.3 Credit of Non-RAC Concessionaire Contract Rent. To the extent that the Port
grants to any Non-RAC Concessionaire the right to operate a concession in the Reserved Area, the
Port agrees to issue a credit against the total amount of Land Rent due by all of the Operators equal
to the contract rent payable by (as specifically defined in the lease and concession agreement with the
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Non-RAC Concessionaire) each such Non-RAC Concessionaire for the period of occupancy;
provided, however, there shall be no credit for any advertising placed or otherwise displayed on any
Special Airport System (e.g. the Flight Information Display). This credit shall be applied annually in
arrears against the Land Rent due for the following Agreement Year. Operator shall not, however,
be entitled to any refund for amounts after the expiration or earlier termination of this Lease
Agreement for the prior Agreement Year.
6.1.4 Credit for North Parcel Rental Amounts. To the extent that the Port leases to
any individual Operator any portion of the North Parcel, the Port agrees to issue a credit against the
total amount of Land Rent due by all of the Operators equal to the total rent payable by each such
Operator for the North Parcel for the period of occupancy. This credit shall, subject to adjustment
during the following Agreement Year, be applied annually against the Land Rent due for that
Agreement Year. Operator shall not, however, be entitled to any refund for amounts after the
expiration or earlier termination of this Lease Agreement for the prior Agreement Year.
6.1.5 Calculation and Notice. Prior to commencement of each Agreement Year, the
Port shall provide the Operators a statement identifying the adjusted Value of the Site and the
amount of any credits under Sections 6.1.3 and 6.1.4 of the Lease Agreement. The Port shall further
provide each operator a statement of its specific Land Rent as well as, for the first Agreement Year,
the amount of any credit under Section 6.1.2 of this Lease Agreement. The Port shall reasonably
endeavor to provide this notice not less than forty five (45) days prior to the commencement of each
Agreement Year.
6.2 Customer Facility Charges.
6.2.1 Collection Required. Operator shall collect a daily Customer Facility Charge
on all vehicle rental transactions with Airport Customers as specifically set forth in the Port of
Seattle Port Commission Resolution adopting the Customer Facility Charge. The Customer Facility
Charge shall be identified on a separate line below the sales tax line on the customer's rental
contract, in the amount established from time to time by the Port, and shall be described as the
"Customer Facility Charge" or "CFC."Each Operator must collect the Customer Facility Charge at
the time the first payment is made for a qualifying vehicle rental transaction, and must remit the full
amount of the Customer Facility Charge to the Port regardless of whether or not the full amount of
such Customer Facility Charge is actually collected by the Operator from the person who rented the
automobile.
6.2.2 Proceeds Held in Trust. Operator agrees that the CFC is not income, revenue
or any other asset of Operator; that Operator has no ownership or property interest in such CFCs; and
that Operator hereby waives any claim to a possessory or ownership interest in the CFCs. Operator
agrees that it holds such CFCs in trust for the benefit of the Port, and that the Port (or a trustee on its
behalf) has complete possessory and ownership rights to such CFCs. Consistent with the nature of
the Customer Facility Charge as funds held in trust for the Port, Operator shall separately account, on
its books and records, for the Customer Facility Charge proceeds collected by it. Notwithstanding
the foregoing, in the event that either: (i) it is determined that the Operator must, as a matter of law,
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establish a separate account into which all Customer Facility Charge proceeds must be deposited, or
(ii) it is determined, by a court of competent jurisdiction, that the failure to maintain the Customer
Facility Charge in a separate account imperils the trust nature of the relationship created by this
Section 6.2.2 and potentially subjects any Customer Facility Charge amounts held by Operator to the
claim (or potential claim) by Operator's creditors, whether in bankruptcy or otherwise, then in that
event the Port shall have the right to require Operator to establish a separate account into which all
Customer Facility Charge proceeds collected shall be deposited and all interest (if any) on the
Customer Facility Charge proceeds held by Operator shall inure to the benefit of, and be payable to,
the Port.
6.2.3 Operator to Promptly Remit. Operator shall remit the Customer Facility
Charge proceeds held by the Operator to the Port on a monthly basis on or before the twentieth (20th)
day of each month following the month in which the Customer Facility Charges were collected;
provided, however, in the event that it is determined that the Operator must, as a matter of law, remit
the Customer Facility Charge more frequently, Operator shall remit such funds with such frequency
as required by law, but Operator shall not otherwise be required to report or reconcile the amounts
remitted other than on a monthly basis on or before the twentieth (20th) day of each month. The
Operator shall remit the Customer Facility Charges by electronic funds transfer or other means
specifically approved by the Port in writing. When remitting such Customer Facility Charge
proceeds, the Operator shall report and reconcile the Customer Facility Charge proceeds remitted by
it on a form required by the Port and shall submit such other and further information as may
reasonably be necessary for the Port to determine any matter related to the Customer Facility Charge.
6.2.4 Records; Audit. The Operator shall maintain records and controls which are
sufficient to demonstrate the correctness of the Customer Facility Charge proceeds collected by the
Operator and the amount of Customer Facility Charge proceeds paid to the Port. Such records shall
be maintained in accordance with, and subject to inspection and audit as set forth in, ARTICLE 8 of
this Lease Agreement.
6.2.5 Amount and Determination of the Customer Facility Charge.
6.2.5.1 Subject only to covenants made in connection with the issuance of any
Bonds, the Port shall have the sole authority to determine the amount of the Customer Facility
Charge. The Customer Facility Charge may specifically be established and set at a level sufficient to
cover any costs authorized by Section 14.08.120(7) of the Revised Code of Washington; provided,
however, the Port agrees that it shall not use the Customer Facility Charge to pay: (i) any Costs of the
Small Operator Improvements or Additional Small Operator Improvements, (ii) any Costs of
Additional Special Facilities unless the Port had the right to undertake the Additional Special
Facilities under Section 2.5.1 or, with respect to any Additional Special Facilities the Port did not
have the right to make under Section 2.5.1, unless the Port complied with Section 2.5.2, (iii) any
costs associated with the Port's maintenance of the Reserved Areas under Section 15.2.2.2, (iv) any
costs associated with the Port's maintenance of the Special Airport Systems under Section 15.2.2.3,
or (v) any costs for restoration of the Consolidated Rental Car Facility under ARTICLE 20 where,
and to the extent, property insurance proceeds are available and paid to the Port. Without limiting
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the foregoing authority, the parties acknowledge and agree that the Port expects to set the amount of
the Customer Facility Charge (when multiplied by the total annual number of Transaction Days) at
an annual level sufficient to cover the Bond Obligations; the Costs of the CFC Administration;
subject to Section 2.5, the Cost of the Additional Special Facilities (if any); subject to Section 12.3.5,
the Common Transportation Costs; plus an amount, as reasonably determined by the Port, sufficient
to fund the future projected costs associated with Major Maintenance. In setting the level of the
Customer Facility Charge the Port specifically has the right to establish one or more reserve funds
that it reasonably believes to be prudent to either minimize significant year-over-year increases or
decreases in the level of the Customer Facility Charge (e.g. a rate stabilization fund) or meet future
needs associated with the Consolidated Rental Car Facility, Consolidated Rental Car Facility Site or
Common Transportation System that are not best funded on a current basis (e.g. a fund to address
Major Maintenance or BMF Major Maintenance). Nothing in the former sentence, however, shall
permit the Port to establish a reserve fund for purposes of funding any Additional Special Facility not
specifically allowed or approved under Section 2.5. The Port further agrees to consider the projected
effect on demand for rental cars at the Airport when establishing the amount of the Customer Facility
Charge.
6.2.5.2 The Port shall regularly, and not less than annually, establish the level
of the Customer Facility Charge and provide Operators not less than forty five (45) days advance
written notice of any change in the anticipated level of the Customer Facility Charge.
Notwithstanding the foregoing, the Port shall have the right to make an unscheduled adjustment to
the level of the Customer Facility Charge in the event that the Port believes there has been a material
change in any of the assumptions utilized in the Port's calculation of the Customer Facility Charge,
which change is best not addressed through deposits into or withdrawals from any reserve funds
established by the Port.
6.2.6 Reviews of Customer Facility Charge.
6.2.6.1 Annual Review. The Port will provide the Operators a review of the
Customer Facility Charge and the method of its calculation, including but not limited to the historical
and projected number of transactions and transaction days, and the amounts budgeted and collected
for purposes of paying the Bond Obligations, the Costs of CFC Administration, the Costs of the
Additional Special Facilities (if any), and the Common Transportation Costs. In addition, the Port
will provide an accounting of the Transportation and Facility Charge collected and credited against
amounts otherwise payable by the Customer Facility Charge as well as the amounts paid into and out
of any reserve funds established by the Port, either as required as part of the Bond Obligations or for
payment of such items as Major Maintenance or BMF Major Maintenance.
6.2.6.2 Independent Review. The Port will also secure an independent
professional review of the Customer Facility Charge every five (5) years or more frequently, as
required by the Bonds documents. In addition to reviewing the matters addressed in the Port's
annual reviews, the independent professional review will also, to the extent required by the Parties or
the Bonds documents, examine the feasibility of current and projected Customer Facility Charge
levels. To the extent consistent with any covenants made by the Port in connection with the issuance
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of any Bonds, the Port agrees to reasonably consult with the Operators regarding the identity and
qualifications of the independent professional retained to conduct a review of the Customer Facility
Charge.
6.2.7 Customer Facility Charge Resolution Controls. In the event of any dispute
between this Section 6.2 and the Port of Seattle Port Commission Resolution under which the
Customer Facility Charge is imposed, the terms of the Port of Seattle Port Commission Resolution
under which the Customer Facility Charge is imposed shall control, unless such Resolution attempts
to unilaterally amend or modify any provision of this Section 6.2 in which event the terms and
provisions of this Lease Agreement shall control.
6.2.8 No Abatement or Offset. Under no circumstances and notwithstanding any
contrary language in this Lease Agreement, the Concession Agreement or otherwise will
Operator's obligation to collect and remit the Customer Facility Charge be subject to abatement,
offset, deduction whatsoever. This mandate specifically includes, but is not limited to, any event of
any damage or destruction subject to ARTICLE 20 of this Lease Agreement or any termination of
this Lease Agreement pursuant to Section 24.1 and in the event of such termination, the Operator
continues to occupy, possess and use any portion of the Consolidated Rental Car Facility.
6.2.9 No Diversion. Operator shall not, directly or indirectly, divert Airport
Customers away from the Consolidated Rental Car Facility or assist any Airport Customer in
avoiding payment of the Customer Facility Charge.
6.3 Reimbursable O&M Costs.
6.3.1 Definition.
6.3.1.1 It is the intention of the parties to transfer day-to-day responsibility
associated with the operations and maintenance of the Consolidated Rental Car Facility and
Consolidated Rental Car Facility Site to the Operators. Nonetheless, there are certain costs and
obligations associated with operation and maintenance of the Consolidated Rental Car Facility and
Consolidated Rental Car Facility Site that will, subject to a right of reimbursement from the
Operators, be undertaken by the Port. Excepting only the costs associated with: (i) Major
Maintenance of the Consolidated Rental Car Facility or Consolidated Rental Car Facility Site, (ii) the
cost of operations, maintenance or repair of the Special Airport Systems, or (iii) the cost of
operations, maintenance or repair of the Reserved Areas not utilized in the management and
operation of the Consolidated Rental Car Facility, Consolidated Rental Car Facility Site or Common
Transportation System, the Operators shall reimburse the Port those costs incurred by the Port in
connection with the operation, maintenance and repair of the Consolidated Rental Car Facility and
Consolidated Rental Car Facility Site (the "Reimbursable O&M Costs"), all as more specifically
described in this Section 6.3.
6.3.1.2 The Reimbursable O&M Costs specifically include the following: (a)
property (including boiler and machinery, if purchased) insurance costs incurred by the Port with
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respect to the Consolidated Rental Car Facility and Consolidated Rental Car Facility Site (including
Additional Special Facilities, if any), where such costs shall be determined based on the schedule of
values and insurance rate; (b) except to the extent attributable to any individual Operator, any Taxes
paid by the Port but payable by the Operators under Section 14.1; (c) the costs of maintaining and
repairing the Special Building Systems under Section 15.2.2.4; (d) except to the extent attributable to
less than all of the Operators or areas that are the responsibility of less than all of the Operators, the
costs of maintaining and repairing the Consolidated Rental Car Facility and Consolidated Rental Car
Facility Site under Section 15.2.2.6; (e) except to the extent billed to and collected from the Facility
Manager, the Utilities Costs for the Common Use Area under Section 16.2.2; (f) in the event that the
Port has not assumed responsibility for the operation, maintenance and repair of the Consolidated
Rental Car Facility and Consolidated Rental Car Facility Site as provided in Section 15.2.2.6.3, the
Operations and Maintenance Cost Offset Amount, (g) in the event that the Port has assumed
responsibility for the operation, maintenance and repair of the Consolidated Rental Car Facility,
Consolidated Rental Car Facility Site and Additional Special Facilities (if any) as provided in
Section 15.2.2.6.3, the actual cost of such operation, maintenance and repair (including a reasonable
allocation of Port overhead), specifically including, but not limited to, the cost of a facility manager
or managers and associated support staff that are responsible for supervising the operation and
management of the Consolidated Rental Car Facility and Consolidated Rental Car Facility Site
(specifically including the Operators compliance with the obligations imposed by this Lease
Agreement); and (h) any other cost or expense incurred by the Port in connection with the Operators'
operations on or occupation of the Consolidated Rental Car Facility and Consolidated Rental Car
Facility Site, together with Additional Special Facilities.
6.3.2 Payment. Beginning on the commencement of "burn-in" on the day following
the Deadline for Substantial Completion and continuing thereafter during the Lease Term, each
Operator shall be responsible for its Pro Rata Share of the Reimbursable O&M Cost, but the
Reimbursable O&M Costs shall be paid by the Operators through the Facility Manager. The
Reimbursable O&M Cost shall be paid to the Port in advance on the first day of each and every
month during the Lease Term, at such place as the Port may designate, without any prior demand,
and without any abatement, deduction or setoff whatsoever.
6.3.3 Calculation. Prior to the Deadline for Substantial Completion and prior to the
commencement of each Agreement Year thereafter, and at any other time the Port deems adjustment
necessary, the Port shall submit to Operator a statement of the Operator's anticipated Pro Rata Share
of the Reimbursable O&M Costs for the following Agreement Year (or for the first Agreement Year,
at any point from the Deadline for Substantial Completion to the end of the first Agreement Year),
and Operator shall pay one-twelfth (1/12) thereof (or for the first Agreement Year, an equal monthly
amount) monthly, concurrent with the payment of Land Rent. The Port shall reasonably endeavor to
provide this statement not less than forty five (45) days prior to the commencement of each
Agreement Year. Within one hundred twenty (120) days after the end of each Agreement Year, the
Port shall give the Operators a statement showing the total actual Reimbursable O&M Costs for the
prior Agreement Year (or for the first Agreement Year, from the Deadline for Substantial
Completion to the end of the first Agreement Year) and each Operator's Pro Rata Share thereof. In
the event that the total of the monthly payments which Operator has made for such Agreement Year
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is less than Operator's actual Pro Rata Share, Operator shall pay the difference within thirty (30) days
after receipt of such statement from the Port. Any overpayment by Operator shall be credited toward
the Operator's Pro Rata Share of the Reimbursable O&M Costs next becoming due or, in the event
that the Lease Agreement has expired (and there is no outstanding default), refunded to Operator.
Notwithstanding the above, any delay or failure of the Port in computing or billing Reimbursable
O&M Costs shall not constitute a waiver of or in any way impair Operator's obligation to pay the
Reimbursable O&M Costs or any other sum hereunder; provided, however, in the event the Port
determines that it has materially underbilled Operator for any Reimbursable O&M Costs as a result
of any error, neglect or unreasonable delay on part of the Port, the Port agrees to work with Operator
to establish a mutually acceptable schedule for repayment of any unbilled amounts (which schedule
shall, in no event, extend beyond the next Agreement Year). In th e event of any such delay or
failure, Operator shall continue paying the Reimbursable O&M Costs currently being paid until
notified by the Port of the adjustment. Operator, at its cost, shall have the right to inspect, in the
Port's offices during usual business hours, the Port's records regarding theReimbursable O&M
Costs referred to in the annual statement for a period of ninety (90) days following delivery of the
statement. If within such ninety day period neither party delivers notice to the other a notice
referring in reasonable detail to one or more errors in such statement or calculation, the information
and calculation in such statement shall conclusively be deemed correct.
6.4 Additional Small Operator Responsibilities. In addition to, and not lie u of, any other
amount payable under this ARTICLE 6, any Operator who is a Small Operator shall also pay the
following amounts:
6.4.1 Small Operator Improvement Rent. Each Operator who is a Small Operator
shall pay to the Port a rental amount associated with the Small Operator Improvements ("Small
Operator Improvement Rent") calculated as set forth on Exhibit N. The Small Operator
Improvement Rent shall be divided into equal monthly amounts and paid to the Port in advance on
the first day of each and every month during the Lease Term, at such place as the Port may designate,
without any prior demand, and without any abatement, deduction or setoff whatsoever. If the Lease
Term commences on any day other than the first day of a calendar month, the Small Operator
Improvement Rent for any fractional month shall be prorated based upon the actual number of days
in such fractional month.
6.5 Additional Financial Obligations. Additional financial obligations of Operator, and
each of the Operators, may appear in other provisions of this Lease Agreement, specifically including
(but not limited to) ARTICLE 15 and ARTICLE 16.
6.6 Contract Rent. The Port and Operator agree that the "Contract Rent," as that term is
defined in Chapter 82.29A of the Revised Code of Washington and Chapter 458-29A of the
Washington Administrative Code, for the rights of possession and use of publicly owned real and
personal property granted by this Agreement shall be calculated as set forth on Exhibit P. By
approving the terms of this Lease Agreement in an open public meeting, it is the intention of the Port
to declare that the "Contract Rent" as set forth in this Section6.6 was the maximum amount
17
attainable for the rights and responsibilities set forth in this Lease Agreement, considering alternative
uses for the Premises, and considering the condition, and any restrictions on the use, of the Premises.
ARTICLE 7: REMITTANCE; LATE PAYMENT
7.1 Remittance Address. Any and all payments due to the Port by Operator shall be
remitted to the following address: Port of Seattle, P. O. Box 34249, Seattle, WA 98124-1249, or at
such other place as the Port may direct in writing.
7.2 Late Payment. If any remittance of Customer Facility Charges is not received by the
Port when due, or if any payment of Land Rent, Reimbursable O&M Costs or other sum or charge
otherwise payable/remittable by Operator is not received by the Port within ten (10) days of when
due, Operator shall pay to the Port a late payment charge equal to five percent (5%) of the amount of
such delinquent payment in addition to the installment of Customer Facility Charges, Land Rent,
Reimbursable O&M Costs or other sum or charge otherwise payable by Operator then owing,
regardless of whether or not a Notice of Default has been given by the Port. Notwithstanding the
foregoing, in the event that the Operator has not, within the prior twenty four months, been subject to
any late payment charge (whether or not assessed), the Port agrees it will waive any late payment
charge provided Operator pays any amounts due within three (3) business days of oral or written
notification from the Port to Operator of the delinquency. In addition, if such delinquent payment of
Customer Facility Charges, Land Rent, Reimbursable O&M Costs or other sum or charge otherwise
payable/remittable by Operator and late charge are not received within fifteen (15) days of when such
delinquent payment was originally due, Operator shall further pay interest on such delinquent
payment/remittance and late charge thereafter at the Default Rate. This provision shall not relieve
Operator from payment of Land Rent, Customer Facility Charges, Reimbursable O&M Costs or
other sum or charge otherwise payable/remittable by Operator at the time and in the manner herein
specified.
ARTICLE 8: ACCOUNTING PROCEDURES; AUDIT
8.1 Accounting Procedures. Operator covenants and agrees that it will es tablish and
maintain an accounting system (specifically including all books of account and records customarily
used in the type of operation permitted by this Lease Agreement) in full and complete accordance
with generally accepted accounting principles and otherwise reasonably satisfactory to the Port for
the determination of any Customer Facility Charges or other computations, or both, which may be
necessary or essential in carrying out the terms of this Lease Agreement. Operator shall maintain its
records relating to the operation permitted by this Lease Agreement for a period of at least three (3)
years after the end of each Agreement Year (or until the close of any ongoing audit thereof being
conducted by, or on behalf of, the Port); provided, however, that the Port may (prior to the expiration
of the relevant retention period) request that any such records be retained for a longer period of time,
in which case Operator, at its option, may deliver such records into the custody of the Port.
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8.2 Audit.
8.2.1 Representative(s) designated by the Port shall be allowed to inspect and audit
Operator's books of accounts and records with reference to the determination of any matters relevant
to this Lease Agreement at all reasonable times. The Port representative shall specifically be entitled
to inspect and audit any records necessary, in the auditor's professional discretion, to complete the
audit consistent in a manner consistent with generally accepted auditing standards; provided,
however, nothing herein shall authorize the Port to make any investigation into the expenses or
expense structure of Operator except to the extent specifically necessary for the verification of any
exclusion from Gross Revenues. The cost of such audit shall be borne by the Port unless the results
of such audit reveal a discrepancy of more than one percent (1%) for the Customer Facility Charge or
three percent (3%) for any other amount for any twelve (12) month audit period. In the event of such
discrepancy, the full cost of the audit shall be borne by the Operator, and Operator shall promptly pay
all additional fees owing to the Port together with interest on such sums from the date originally due
until the date paid at the Default Rate.
8.2.2 In the event that Operator's books of accounts are not maintained in the Puget
Sound region, they shall be made available for audit locally within twenty (20) business days of a
request by the Port, or Operator shall pay in full any travel and related expenses of Port
representative(s) to travel to the location outside the Puget Sound region.
8.2.3 In those situations where Operator's records have been generated from
computerized data (whether mainframe, minicomputer, or PC-based computer systems), Operator
agrees to provide the Port's representative with extracts of data files in a computer readable format on
data disks, e-mail with attached files or suitable alternative computer data exchange formats.
Operator agrees to provide appropriate work space to conduct the audit and free access to copiers;
fax machines and other needed office equipment. Operator shall provide the name and telephone
number of Operator's accounting manager or the like who has a thorough knowledge of the
accounting system as it pertains to this Lease Agreement and who will assist the Port with its audit.
Operator will also allow interviews of past and present employees who were or are involved in the
financial or operational activities of Operator.
ARTICLE 9: BOND OR OTHER SECURITY
9.1 Security. Operator shall, upon execution of this Lease A greement, obtain and deliver
to the Port a good and sufficient corporate surety company bond, irrevocable stand-by letter of credit,
or other security acceptable to the Port (the "Security") to secure Operator's full performance of this
Lease Agreement and the Concession Agreement, including the payment of all fees and other
amounts now or hereafter payable to or required to be remitted to the Port under either this Lease
Agreement or the Concession Agreement in an amount equal to the following:
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9.1.1 For the period from execution of this Lease Agreement until the award of a
Concession Agreement under the Request for Qualifications, an amount equal to twenty five
thousand dollars ($25,000.00);
9.1.2 From the award of a Concession Agreement under the Request for
Qualifications until a date thirty (30) days prior to the earliest Commencement Date, an amount as
set forth in the Port's Request for Qualifications;
9.1.3 For the period from the date thirty (30) days prior to the earliest
Commencement Date through the end of the first Agreement Year, and amount equal to sixty percent
(60%) of Operator's Minimum Annual Guarantee for the first Agreement Year,.
9.1.4 For the second Agreement Year and each Agreement Year thereafter, an
amount equal to sixty percent (60%) of Operator's Minimum Annual Guarantee for the previous
Agreement Year or the amount of the Security for the first Agreement Year, whichever is higher.
The form, provisions and nature of the Security, and the identity of the surety or other obligor there
under, shall at all times be subject to the Port's approval. The Security shall remain in place at all
times throughout the full Lease Term and throughout any holdover period. No interest shall be paid
on the Security and the Port shall not be required to keep the Security separate from its other
accounts. No trust relationship is created with respect to the Security.
9.2 Application of Security. The Port may apply all or part of the Security to unpaid rent
or any other unpaid sum due under this Lease Agreement or the Concession Agreement to cure other
defaults of Operator. If the Port uses any part of the Security, Operator shall restore the Security to
its then-currently required amount within thirty (30) days after the receipt of the Port's written
request to do so. The retention or application of such Security by the Port pursuant to this Section
does not constitute a limitation on or waiver of the Port's right to seek further remedy under law or
equity.
9.3 Compliance with Washington Law. It is further agreed that i n the event the laws of
the State of Washington applicable hereto shall hereafter be amended, the provisions of this
ARTICLE 9 shall be deemed likewise automatically amended upon the effective date of such
statutory amendments, to the extent and in a manner necessary to comply therewith.
ARTICLE 10: USE
10.1 Use of Premises.
10.1.1 Generally. Subject to Operator being awarded a Concession Agreement and
otherwise subject to and in accordance with all present and future Legal Requirements and Port
Standards, Operator covenants and agrees that it shall use the Premises solely for the purpose of
operating a Rental Car Concession and for no other purpose or use. Operator shall not, under any
circumstances, use the Premises for performing vehicle maintenance or repair, excepting only car
20
washing, cleaning, refueling and, with the Port's prior written consent (which will not be
unreasonably conditioned or withheld), Light Vehicle Maintenance. Any such activities must be
conducted within QTA Space (or such specific portion thereof as authorized in the any consent
related to Light Vehicle Maintenance) leased to Operator or such other area explicitly approved in
writing by the Port and as to all such locations in strict conformance with all of the requirements of
this Lease Agreement and any consent as to such activities. Operator also shall not, under any
circumstance, use the Premises for the retail sale of any vehicles, the storage of damaged vehicles or
any heavy vehicle maintenance. Each Operator may, however, provide to its customers any
telephone and communication services and other business services in the Customer Service Building
if done without charge. In addition, each Operator may, subject to the Port's reasonable consent,
provide (whether or not for additional charge) ancillary business services that are not in direct
competition with any concession operated by a Non-RAC Concessionaire in the Consolidated Rental
Car Facility as a convenience to the customers of Operator's Rental Car Concession.Any revenue
from such ancillary business services shall, however, be considered Gross Revenues.
10.1.2 Specific Areas. Notwithstanding anything to the contrary in Section 10.1.1,
Operator and the Operators shall, unless otherwise agreed by the Port in writing, use the following
portions of the Consolidated Rental Car Facility and Consolidated Rental Car Facility Site for only
the following purposes:
10.1.2.1 Public Parking. Operator and the Operators sha ll use those
portions of the fifth floor of the Consolidated Rental Car Facility (within the Common Use Area)
identified for public parking solely for public parking in connection with the completion of rental car
transactions by rental car customers not arriving at the Consolidated Rental Car Facility by the
Common Transportation System (e.g. local renters). The Operators, through the Facility Manager,
shall specifically police the public parking areas to ensure that the area is used solely for such
purposes. There shall be no charge for public parking unless the Port and a Majority-in-Interest
agree on such charge.
10.1.2.2 Employee Parking. Operator and the Operators shall use those
portions of the fifth floor of the Consolidated Rental Car Facility (within the Common Use Area)
identified for employee parking solely for employee parking in connection with the operation of a
Rental Car Concession at the Airport. The Operators, through the Facility Manager, shall
specifically police the employee parking areas to ensure that the area is used solely for such
purposes. The Facility Manager shall determine the method and manner by which access to the
employee parking area is granted and by which the employee parking area is apportioned between
the Operators. In the event Operators and/or their Facility Manager elect to charge for parking in the
employee parking area, the Port shall be provided a reasonable number of free parking passes to
permit the Port to exercise its rights and perform its obligations under this Lease Agreement.
10.1.2.3 North Parcel. Each Operator granted a lease to use the North
Parcel (and all Operators should not particular Operators be leased the North Parcel or any portion
thereof) shall use the North Parcel (as identified in Exhibit C-6) exclusively for the storage of rental
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vehicles for use in connection with a Rental Car Concession at the Airport or for such other use as
may specifically be authorized or directed by the Port.
10.2 General Standards Governing Use.
10.2.1 Operator shall not use or occupy or permit the Premises or any part thereof to
be used or occupied, nor do or permit anything to be done in or on the Premises, in whole or in part,
in a manner which would in any way (i) violate any then-applicable Legal Requirements, or (ii)
violate any of the covenants, agreements, provisions and conditions of this Lease Agreement, or (iii)
violate the certificate of occupancy then in force with respect thereto, or (iv) may make it difficult for
either the Port or Operator to obtain fire or other insurance required hereunder, or (v) as will
constitute a public or private nuisance. Operator specifically agrees to comply with all present or
future rules and regulations of the Port at the Airport that are promulgated for the general safety and
convenience of the Port, its various tenants, invitees, licensees and the general public and which do
not materially affect the use and enjoyment of the Premises for the purposes for which they are
intended under this Lease Agreement.
10.2.2 Operator shall not use or occupy or permit the Premises to be used or
occupied, in whole or in part, in a manner which, in the Port's reasonable judgment, may or tends to,
impair or interfere with (i) the character, reputation or appearance of the Premises or the Port; or (ii)
the use of any other Port property.
10.2.3 Operator shall not do or permit or suffer any waste, damages, disfigurement or
injury to or upon the Premises or any part thereof.
10.3 Signs. Operator's Rental Car Concession shall be clearly signed and designated at all
times during the Lease Term with the company's specific identification and sufficient operational
signage to ensure the safe and efficient operation of the Rental Car Concession. Except as
specifically permitted by the Rental Car Facility Tenant Design and Construction Standards,
Operator shall not attach to or paint on or within the Premises (including the walls, windows and
doors thereof) any signs or other advertising matter, symbols, canopies or awnings. At the
termination or sooner expiration of this Lease Agreement, all signs, advertising matter, symbols,
canopies or awnings attached to or painted by Operator shall be removed by Operator at its own
expense, and Operator shall repair any damage or injury to the Premises and correct any unsightly
condition caused by the maintenance and removal of said signs, etc. Operator shall not be permitted
to advertise any products and/or services other than those of Operator connected to the operation of
the Rental Car Concession.
10.4 Concession Agreement. Operator acknow ledges that, notwithstanding anything to the
contrary in this Lease Agreement, Operator will lose any right to occupy the Premises for the Lease
Term if Operator is not, as part of the Request for Qualifications process, awarded a Concession
Agreement for the operation of a Rental Car Concession for each Concession Term over the Lease
Term. For the initial Concession Term, the Port shall employ a Concession Agreement substantially
in the form attached as Exhibit O.
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ARTICLE 11: INITIAL ALLOCATION AND REALLOCATION
11.1 Initial Allocation. The Port shall, on or prior to the earliest Commencement Date,
allocate those portions of the Consolidated Rental Car Facility and Consolidated Rental Car Facility
Site designated as Exclusive Use Premises between those Operators having been awarded a
Concession Agreement as more specifically set forth on Exhibit J.
11.2 Subsequent Reallocation. The Port shall reallocate those portions of the Consolidated
Rental Car Facility and Consolidated Rental Car Facility Site designated as Exclusive Use Premises
on the time intervals, and in the manner, more specifically set forth on Exhibit K.
11.3 New Entrants. Other than (i) in the Small Operator Area, (ii) on the termination,
whether by default, in bankruptcy or otherwise, of a particular Operator's Lease Agreement and
Concession Agreement, or (iii) at the beginning of a Concession Term, the Port will not allow New
Entrants into the Consolidated Rental Car Facility. New Entrants in the Small Operator Area will,
subject to reallocation as provided in Section 11.2, initially be accommodated in those portions of the
Small Operator Area not assigned in the initial allocation (or latest reallocation) of the Small
Operator Area. New Entrants in any space vacated on termination a particular Operator's Lease
Agreement and Concession Agreement will, subject to reallocation as provided in Section 11.2,
initially be accommodated in the space vacated. New Entrants at the beginning of any Concession
Term will be allocated space as provided in Section 11.4.
11.4 Early Termination of Rental Car Concession. In the event that the Lease Agreement
and Concession Agreement for a particular Operator are terminated (whether by default, in
bankruptcy or otherwise), the Port will reallocate the vacated Exclusive Use Premises as follows:
11.4.1 During the first five (5) years of the initial Concession Term, the Port agrees
that it will not allow any New Entrant in the vacated space. Instead, the vacated space will be
allocated between the existing Operators in a manner elected by the Port in its sole discretion.
Portions of the vacated space, particularly within the Customer Service Building, may not be
reallocated. In determining how to reallocate the vacated space, the Port generally intends to first
determine which Operators would be interested in some or all of the vacated space. Depending on
the degree of interest, the Port will determine how best to reallocate the vacated space considering
the current Operators, their locations and market shares, and the efficiency and effective operation of
the Consolidated Rental Car Facility. The Port specifically reserves the right to completely relocate
one or more Operators that may be interested in the vacated space to the vacated space and, in turn,
reallocate their vacated space(s). For example, if a smaller Operator had grown its market share and
was interested in space vacated by a relatively larger Operator, the Port might completely relocate the
smaller Operator to the vacated space and, in turn, reallocate the space vacated by the smaller
Operator.
11.4.2 At any other time during the Lease Term, the Port will generally determine
whether there are any New Entrants potentially interested in the vacated space or any smaller space
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within the Consolidated Rental Car Facility. The Port will then determine which Operators would be
interested in some or all of the vacated space. Depending on the degree of interest by potential New
Entrants and current Operators, the Port will determine how to best to reallocate the vacated space
considering the current Operators, their locations and market shares, any potential New Entrants and
their likely market shares, and the efficiency and effective operation of the Consolidated Rental Car
Facility. The Port specifically reserves the right to completely relocate one or more Operators that
may be interested in the vacated space to the vacated space and, in turn, reallocate their vacated
space(s). For example, if a smaller Operator had grown its market share and was interested in space
vacated by a relatively larger Operator, the Port might completely relocate the smaller Operator to the
vacated space and, in turn, reallocate the space vacated by the smaller Operator. The Port agrees that
in the event that it brings in any New Entrant, it will establish a Minimum Annual Guarantee for
such New Entrant in a manner considering current market shares and current market size/value
consistent with methodology for determining the minimum Minimum Annual Guarantee for the
particular Allocation Block in which such vacated space falls.
11.4.3 The costs associated with reallocation following termination of particular
Operator's Lease Agreement and Concession Agreement shall generally be borne as provided in
Exhibit J; provided, however, the event that the Port elects, as part of any reallocation, to relocate
one or more Operators to improve the efficiency and effective operation of the Consolidated Rental
Car Facility, the costs of such relocation shall be paid by the Port and such costs may expressly be
paid from Customer Facility Charge proceeds.
ARTICLE 12: COMMON TRANSPORTATION SYSTEM
12.1 Common Transportation System. Rental car customers will be transported between
the Airport terminal and the Consolidated Rental Car Facility exclusively on a Common
Transportation System operated by the Port. Excepting only those customers who walk or drive
themselves to the Consolidated Rental Car Facility, all customers of all Operators operating at the
Airport will be required to use the Common Transportation System. No Operator will be permitted at
any time under any circumstances to use its own transportation system or to contract with a third
party transportation system, or use vouchers, or use its rental vehicles to pick up or drop off
customers at the Airport terminal.
12.2 Double-Busing; Transportation and Facility Charge.
12.2.1 The Port will require that customers of rental car companies that are not
tenants in the Consolidated Rental Car Facility will be "double-bused," meaning that those
customers will be transported between the Airport terminal and the Consolidated Rental Car Facility
via the Common Transportation System and may only be picked up at a curb position at the
Consolidated Rental Car Facility designated for non-tenant rental car companies. The customers will
then be transported to the non-tenant rental car companies' off-site location. Drop off of customers
of non-tenant rental car companies will occur in the same manner at the same Consolidated Rental
Car Facility curb.
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12.2.2 The Port will also collect a Transportation and Facility Charge from each
rental car company that is not a tenant in the Consolidated Rental Car Facility to compensate the Port
for the use of the Common Transportation System and those portions of the Consolidated Rental Car
Facility identified for access to the Consolidated Rental Car Facility and the transfer of customers for
such rental car companies. All such amounts shall be applied against the Bond Obligations,
Common Transportation Costs and/or Costs of CFC Administration, and on a quarterly basis, the
Port shall provide a written statement to each of the Operators describing the amount of such
Transportation and Facility Charges collected by it.
12.3 Operating Plan.
12.3.1 Initial Common Transportation System. The initial Common Transportation
System shall be provided by means of buses to and from the Airport terminal to the Consolidated
Rental Car Facility.
12.3.2 Port Develop Initial Plan. The Port shall, in consultation with subcommittee
focused on transportation issues and staffed by Port and Operator representatives, develop a
preliminary plan for Common Transportation System operations related to the transportation of
customers users between the Airport terminal and the Consolidated Rental Car Facility. The
Common Transportation System plan shall include, but not be limited to, specifications for the type,
size and number of buses, including but not limited to service levels, and loading/unloading locations
in the Airport terminal area, and shall address any other issues regarding movement of rental car
customers between the Consolidated Rental Car Facility and the Airport terminal.
12.3.3 Operator Comments. The Operators will be pr ovided with sixty (60) calendar
days to review the preliminary Common Transportation System plan and to submit written
comments regarding any proposed adjustments to the plan. The Port will review all comments that
are received within that period of time and will make a final determination on the Common
Transportation System plan, the results of which shall be distributed to the Operators.
12.3.4 Subsequent Revisions. Thereafter, the Port will meet periodically with the
Operators to review the performance of the Common Transportation System, and the Port may make
modifications to the Common Transportation System plan in its sole discretion.
12.3.5 Change from Busing. Notwithstanding anything to the contrary in this Lease
Agreement, in the event that the Port would elect to change the Common Transportation System
from buses to some other mode of transportation (including, but not limited to, an automated people
mover), any such change will require the approval of a Majority-in-Interest unless the Port can
clearly demonstrate that such alternative method both: (i) will provide equal or better performance
(in terms of, for example, capacity and headways) than buses, (ii) will not, over the remaining Lease
Term, result in an increase in the Customer Facility Charge above the levels projected at the time of
such demonstration for operation of the Common Transportation System through buses, and (iii) will
not result in a significant increase in costs otherwise payable by the Operators under this Lease
Agreement.
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12.4 Common Transportation Costs. Except as otherwise agreed between the parties, the
Operators and each of them shall have no obligation to pay for any Common Transportation Costs.
All Common Transportation Costs will be paid by the Port; provided, however, Operator
acknowledges and agrees that the Port expects to fund Common Transportation Costs exclusively
from a portion of the Customer Facility Charge proceeds.
ARTICLE 13: ALTERATIONS; OWNERSHIP OF CERTAIN INSTALLATIONS
13.1 Alterations. After completion of the Initial Ten ant Improvements pursuant to Section
2.2.2, Operator shall not make any changes, alterations, additions, substitutions or improvements
(collectively referred to as "Alterations") to or upon the Premises without first obtaining the Port's
prior written approval of such Alteration and subject to any and all conditions in such approval.
Operator shall otherwise comply with the design, construction and opening processes attached hereto
as Exhibit G in connection with Operator's design and construction of any such Alteration. Any
Alteration shall be performed (i) in a good and workmanlike manner, (ii) in compliance with all
Legal Requirements and the Port Standards, and (iii) in a manner that will not unreasonably interfere
with or disturb the Port or its tenants.
13.2 Port Review Does Not Relieve Operator. Operator agrees that nothing in the Port's
review or approval of Operator's plans shall create responsibility or liability on the part of the Port
for their completeness, design sufficiency, or compliance with all Legal Requirements or Port
Standards, all of which shall be Operator's sole responsibility. Nor shall such review or approval
constitute a waiver by the Port of the right to thereafter require Operator to correct any failure by
Operator to comply with any Legal Requirements or Port Standards later discovered by the Port.
13.3 As-Built Documents. Operator shall deliver to the Port, ninety (90) days after project
completion, full and complete "as built" drawingsof any Alterations in electronic format in full
conformance with the Port's CAD Standards Manual, and three (3) half-size hard copies. For any
equipment installed, Operator shall deliver to the Port, two (2) copies of the complete operations and
maintenance manuals.
13.4 Trade Fixtures. Except to the extent provided in repair or substitution of any
improvements provided by the Port, Operator shall retain ownership of: (i) all trade fixtures and
business equipment and furnishings from time to time installed by Operator at its expense, and (ii) all
Alterations and/or improvements that Operator is required to remove at the end of this Lease
Agreement pursuant to Section 21.1. Operator may remove any of such fixtures; e quipment or
furnishings at any time during the Lease Term and shall remove all thereof prior to the expiration of
the Lease Term. Any such property not removed at the expiration of the Lease Term shall, at the
election of the Port, become the property of the Port without payment to Operator, or be deemed
abandoned and removed by the Port, at Operator's expense. Upon any removal of such property,
Operator shall promptly repair any and all damage to the Premises caused thereby and reimburse the
Port for its costs and expenses in removing any such property not removed by Operator and repairing
26
any such damage not repaired by Operator; this covenant shall survive the termination of this Lease
Agreement.
ARTICLE 14: REAL AND PERSONAL PROPERTY TAXES
14.1 Payment of Taxes by Operator. Operator shall be liable for, and shall pay throughout
the Lease Term, all license fees and all taxes payable for, or on account of, the Rental Car
Concession and all taxes on the personal property of Operator on the Premises. Further, Operator
shall pay its proportionate share of all taxes, charges and assessments levied on the land, the
buildings, any improvements, fixtures and equipment and all other property real or personal
constituting or located within or upon the Premises, and any taxes levied in lieu of any such taxes,
charges, or assessments, and any taxes levied on the leasing of the Premises or any portion thereof, or
measured by, the rents or other charges collected hereunder, whether imposed on Operator or on the
Port. With respect to any taxes imposed upon the Port which are on or measured by the rent
collected hereunder, Operator shall pay to the Port with each rental installment an amount equal to
the tax on, or measured by, that particular installment. All other tax amounts for which the Port is or
will be entitled to reimbursement from Operator shall be payable by Operator to the Port at least
fifteen (15) days prior to the due dates of the respective tax amounts involved; provided, that
Operator shall be entitled to a minimum of thirty (30) days' written notice of the amounts payable by
it.
14.2 Operator's Personal Property Taxes. Subject to Operator's right to protest and contest
any taxes and assessments levied, Operator shall pay or cause to be paid, prior to delinquency, any
and all taxes and assessments levied upon all trade fixtures, inventories and other real or personal
property placed or installed in and upon the Premises by Operator. If any such taxes on Operator's
personal property or trade fixtures are levied against the Port or the Port's property, and if the Port
pays the taxes based upon such increased assessment, Operator shall, upon demand, repay to the Port
the taxes so levied.
ARTICLE 15: REPAIR AND MAINTENANCE
15.1 By Operator.
15.1.1 Generally. Beginning on the commencement of "burn-in" on the day
following the Deadline for Substantial Completion and continuing thereafter during the Lease Term,
the Operators shall at the Operators' sole cost and expense and subject only to the specific
obligations of the Port set forth in Section 15.2 put and keep the Consolidated Rental Car Facility
(other than those portions of the Reserved Area not utilized in the management and operation of the
Consolidated Rental Car Facility or Common Transportation System) and Consolidated Rental Car
Facility Site, both outside and inside, together with all Alterations, equipment and installations
therein and the appurtenances thereto, in good order, maintenance and repair, and the Operators shall
undertake all maintenance and make all repairs and replacements ordinary as well as extraordinary,
foreseen and unforeseen, structural or otherwise (but specifically excluding Major Maintenance,
which is the Port's responsibility under Section 15.2.2.5) which may be necessary or required so
27
that at all times the Consolidated Rental Car Facility, the Consolidated Rental Car Facility Site (other
than those portions of Reserved Area not utilized in the management and operation of the
Consolidated Rental Car Facility or Common Transportation System) and all Alterations, equipment,
installations and appurtenances shall be in thorough good order, condition and repair. Without
limiting the generality of the foregoing, Operator shall also: (i) keep the Premises at all times in a
neat, clean, safe and sanitary condition, (ii) keep the Premises free from infestation of pests and
conditions which might result in harborage for, or infestation of pests, (iii) provide complete and
adequate arrangements for the sanitary handling of all trash, garbage, and other refuse generated in
connection with the use of the Premises, and (iv) remove all snow and ice from any work areas,
parking areas, sidewalks, and all roofs within the Premises. As used in this Section, the word "pests"
shall include, without limitation, rodents, insects, and birds in numbers to the extent that a nuisance
is created.
15.1.2 Standards. The Operators and each Operator shall perform all maintenance,
repairs, or replacements: (i) in conformance with all Legal Requirements, Port Standards and the
Operations Manual, (ii) using quality materials at least equal to the original, and, if materially
changed from the original, shall be subject to the prior written approval of the Port, (iii) using only
qualified personnel, (iv) in a good and workmanlike manner, adhering to the highest standards of
quality, and (v) otherwise in conformance with the standards and operating requirements attached
hereto as Exhibit H.
15.1.3 Operators' Specific Obligations.
15.1.3.1 Exclusive Use Premises. Unless otherwise specifically agreed
between the Operators, each Operator shall, at its sole cost and expense, have the obligations set
forth in this Section 15.1 with respect to such Operator's Exclusive Use Premises; provided,
however, the Port shall (in addition to any rights granted under Section 15.2) have the right to require
an Operator that is a Small Operator to contract with the Facility Manager to perform the obligations
set forth in this Section 15.1 with respect to some or all of the Exclusive Use Premises falling within
the Small Operator Area.
15.1.3.2 Common Use Area.
15.1.3.2.1 The Operators and each Operator shall whether
through a joint venture agreement, participation agreement, limited liability company agreement or
any combination thereof through which all Operators are a party contract with a financially
responsible, experienced manager (the "Facility Manager") for the operation, maintenance and repair
of the Common Use Area (but specifically excluding the Fuel Facilities, the responsibility for which
shall fall to the Fuel Facility Manager), the Small Operator Shared Area and those portions of the
Reserved Area utilized in the management and operation of the Consolidated Rental Car Facility or
Common Transportation System. In addition, the Operator(s) may elect to utilize the Facility
Manager to satisfy any of Operator(s) obligations under Section 15.1.3.1. The identity of the Facility
Manager and the terms of the contract between the Operators and the Facility Manager shall
specifically be subject to the Port's approval, such approval not to be unreasonably withheld. In
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order to involve the Facility Manager in the commissioning of the Consolidated Rental Car Facility
and pre-final and final inspections, the Operators shall retain and have available the Facility Manager
no later than ninety (90) days before the earliest Commencement Date. The Operators and each
Operator shall, not less than one hundred twenty (120) days before the earliest Commencement Date
and ninety (90) days before any date on which Operators would intend to change the identity of, or
terms of any contract with, the Facility Manager, submit to the Port for its review and approval (not
to be unreasonably withheld) any such information as the Port may reasonably request regarding the
experience, financial strength and/or operational plan associated with any such Facility Manager and
a complete copy (including all exhibits or attachments) of any proposed contract(s) between the
Operators and the Facility Manager. The Port's consent to the terms of any such contract shall not be
withheld or delayed provided such agreement: (i) is consistent with the provisions of this Lease
Agreement and does not exceed the Lease Term; (ii) is otherwise consistent with operating
agreements customary in the facilities management industry; (iii) provides that the Common Use
Area be managed subject to and in accordance with the terms of this Lease Agreement; (iv) requires
the Facility Manager to defend and indemnify the Port from any damages, claims or the like resulting
from the Facility Manager's acts or omissions; (v) requires the Facility Manager to procure insurance
of like kind and amount required of the Operator as set forth in this Lease Agreement and to cause
the Port to be an additional insured under such policies; (vi) may not be cancelled or terminated
without prior written notice to the Port; and (vii) may be assumed by the Port at its option in the
event of a default by the Operators there under. The Port agrees to not withhold or delay its consent
to any proposed Facility Manager, provided such entity has: significant experience in the
management and operation of commercial facilities similar to the Consolidated Rental Car Facility,
in a competent and professional manner in accordance with operating standards and policies standard
in the industry; and financial strength and management competency, with personnel having
appropriate experience to operate, maintain and manage the Common Use Area (and, if relevant, the
QTA Equipment and any Operator Vehicle Maintenance Equipment). The contract between the
Operators and the Facility Manager shall specifically bind the Facility Manager to those obligations
to be performed by the Facility Manager or the Operator or Operators through the Facility Manager
under this Lease Agreement, and the Port shall specifically be a third-party beneficiary of any such
terms. The Operators and each Operator shall likewise submit to the Port a copy of any joint venture
agreement, participation agreement, or limited liability company agreement by which they have
joined together to contract with such Facility Manager.
15.1.3.2.2 The Operators shall, through the Facility Manager, have
the obligations set forth in this Section 15.1 with respect to the Common Use Areas and those
portions of the Reserved Area utilized in the management and operation of the Consolidated Rental
Car Facility or Common Transportation System. Each Operator shall pay to the Facility Manager an
amount, as determined by the Facility Manager according to the agreement between the Operators
and the Facility Manager, associated with the Facility Manager's maintenance and repair of the
Common Use Area.
15.1.3.2.3 Those Operators that are Small Operators shall, through
the Facility Manager, have the obligations set forth in Section 15.1 with respect to the Small
Operator Shared Area and, if elected by the Port pursuant to Section 15.1.3.1, those portions of the
29
Exclusive Use Area within the Small Operator Area. Each Operator that is a Small Operator shall
also pay to the Facility Manager an amount, as determined by the Facility Manager according to the
agreement between the Operators and the Facility Manager, associated with the Facility Manager's
maintenance and repair of the Small Operator Shared Area and, if required by the Port pursuant to
Section 15.1.3.1, the particular Operator's Exclusive Use Premises within the Small Operator Area.
15.1.3.2.4 In the event that the Port incurs or otherwise pays any
costs otherwise required to be performed by the Operators through the Facility Manager, the Port
shall have the right to bill the Facility Manager (rather than each Operator) for such costs, and the
Facility Manager shall (without regard to whether it has collected from the Operators or any of them)
pay the Port for any such costs directly on such payment terms as the Port otherwise generally
extends to the Operators or other tenants on or about the Airport.
15.1.3.2.5 Operator shall, in a timely fashion, pay all amounts due
by Operator under, and otherwise adhere to all covenants, conditions, or agreements to be observed
or performed by Operator in, the agreement between Operator and the Facility Manager. Operator
specifically agrees that any failure to pay such amounts or observe such covenants, conditions or
agreements whether or not a default has been declared by the Facility Manager shall be a default
under this Lease Agreement.
15.1.3.3 Operations and Maintenance Manual. The Operators and each
Operator shall, through the Facility Manager, prepare or have prepared an operations and
maintenance manual (the "Operations Manual") that addresses the operation, maintenance and repair
of the Consolidated Rental Car Facility and Rental Car Facility Site other than the Fuel Facilities
(which shall be the responsibility of the Fuel Facility Manager). Subject to the Port's reasonable
concurrence, either the Facility Manager or the Fuel Facility Manager shall be responsible for the
QTA Equipment and the Operator Vehicle Maintenance Equipment. The Operations Manual shall:
(i) be consistent with the standards and operating requirements attached hereto as Exhibit H, (ii) be
provided to the Port at least thirty (30) days before the Deadline for Substantial Completion or not
more than thirty (30) days after any update, (iii) be prepared in coordination with Port staff, (iv) with
respect to any equipment located in, on or about the Consolidated Rental Car Facility or
Consolidated Rental Car Facility Site, be consistent with warranty requirements, manufacturer's
recommendations and Best Management Practices approved by the Port, (v) be consistent with all
Legal Requirements, (vi) be consistent with the Pollution Prevention Plan and Spill Pollution
Control and Countermeasure Plan, (vii) be updated to address future changes in Consolidated Rental
Car Facility and/or Consolidated Rental Car Facility Site activities or facilities, and (viii) in the event
of any apparent overlap between the requirements of the Facility Manager and Fuel Facility Manager
under this Lease Agreement, identify (subject to the requirements of Section 19.1.2.2) the party
primarily responsible for satisfying any such requirement and shall (again, subject to the
requirements of Section 19.1.2.2) specifically provide the party primarily responsible for each
element of the Pollution Prevention Plan and the Spill Pollution Control and Countermeasure Plan.
If the Facility Manager is responsible for the QTA Equipment and Operator Vehicle Maintenance
Equipment, the Operations Manual shall further be consistent with Environmental Law, and without
limiting the generality of the foregoing, Washington State Department of Ecology's Underground
30
Storage Tank Regulations (WAC 176-360), and Puget Sound Clean Air Agency Regulations and
Order of Approval. The Operations Manual shall be subject to the Port's prior approval, not to be
unreasonably withheld, and shall be updated as needed, not less often than annually, to address the
Facility Managers', the Operators' and each Operator's operations and practices.
15.1.4 Insurance Proceeds. To the extent that the Port receives, or is eligible to
receive, any insurance proceeds under the policy of property insurance paid for as part of the
Reimbursable O&M Costs, for damage to any element(s) on or about the Consolidated Rental Car
Facility or Consolidated Rental Car Facility Site for which the obligation for the repair belongs to
Operator or the Operators under this Section 15.1, the Port agrees to make such insurance proceeds
available to Operator or Operators as the case may be. Provided, however, in the event that Operator
or Operators accept such funds, Operator or Operators shall then be required to adhere to any legal
requirements by which the Port otherwise would have been bound if it had undertaken the repairs.
15.2 Maintenance and Repair by Port.
15.2.1 Obligation of the Port. The Port shall have the obligation to repair and
maintain the Consolidated Rental Car Facility or the Consolidated Rental Car Facility Site, only as
described in this Section 15.2.
15.2.2 Specific Port Obligations.
15.2.2.1 Work Request by Operator. The Por t may perform, but shall
not be obligated to perform, any maintenance, repairs or restoration work that is the Operators' or
any particular Operator's, responsibility under Section 15.1 if requested to do so in writing by the
Operators or any specific Operator. In the event the Port performs such work, the Operator(s)
requesting the work shall pay for such work (specifically including a reasonable allocation for Port
overhead) within thirty (30) days of invoice by the Port. Interest shall accrue on all unpaid sums at
the Default Rate.
15.2.2.2 Reserved Area. The Port, or any Non -RAC Concessionaire
granted the right to use and occupy a particular Reserved Area, shall keep those portions of the
Reserved Area not utilized in the management and operation of the Consolidated Rental Car Facility,
Consolidated Rental Car Facility Site or Common Transportation System in good order, condition
and repair at all times and shall undertake all maintenance and make all repairs and replacements,
ordinary as well as extraordinary, foreseen and unforeseen; provided however, the Port shall have no
obligation to repair and maintain the roof (both structure and covering/membrane), exterior walls,
foundation and building structure associated with any portion of the Reserved Area, such
responsibility (unless specifically within the scope of this Section 15.2) shall fall within the
Operators' responsibility under Section 15.1.
15.2.2.3 Special Airport Systems. Throughout the Lease Term, the Port
shall put and keep the Special Airport Systems in good order, maintenance and repair, and shall
undertake all maintenance and make all repairs and replacements, ordinary as well as extraordinary,
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foreseen and unforeseen, which may be necessary or required so that at all times the Special Airport
Systems shall be in thorough good order, condition and repair.
15.2.2.4 Special Building Systems. Throughout the Lease Term, the
Port shall put and keep the Special Building Systems in good order, maintenance and repair, and
shall undertake all maintenance and make all repairs and replacements, ordinary as well as
extraordinary, foreseen and unforeseen, which may be necessary or required so that at all times the
Special Building Systems shall be in thorough good order, condition and repair. As provided in
Section 6.4, the costs associated with the repair and maintenance of the Special Building Systems
shall be a Reimbursable O&M Cost.
15.2.2.5 Major Maintenance. The Port shall have the oblig ation to
undertake all Major Maintenance that the Consolidated Rental Car Facility or Consolidated Rental
Car Facility Site may require. When the Port undertakes such work, it shall specifically notify the
Operators and Facility Manager of that fact, will proceed diligently to complete such work, and will
otherwise comply with the standards imposed upon the Operators set forth in Section 15.1.2.
15.2.2.6 Failure of the Operators to Comply.
15.2.2.6.1 Right to Repair. Notwithstan ding Section 15.1, in the
event the Operators, through the Facility Manager, or any individual Operator fail: (i) to commence
within thirty (30) days after written notice from the Port to do any maintenance or repair work to the
Consolidated Rental Car Facility or Consolidated Rental Car Facility Site required to be done under
the provisions of this Agreement, other than preventive maintenance; (ii) to commence such work
within a period of ninety (90) days if such notice specifies that the work to be accomplished involves
preventive maintenance only; or (iii) to diligently continue to completion any such work as required
under this Agreement; then the Port may, at its option, and in addition to any other remedies which
may be available to it, enter the Consolidated Rental Car Facility and/or Consolidated Rental Car
Facility Site (without such entering causing or constituting a cancellation of this Lease Agreement or
an interference with the possession of the Premises), and repair, maintain, replace, or rebuild all or
any part of the Consolidated Rental Car Facility and/or Consolidated Rental Car Facility Site and do
all things reasonably necessary to accomplish the work required, and the cost and expense
(specifically including an allocation of Port overhead in a reasonable amount) shall be payable to the
Port by the Operators, each in accordance with its respective Pro Rata Share, or the respective
Operator, if the responsibility of only one Operator, on written demand; provided, however, if in the
reasonable opinion of the Port, the failure to perform any such repair or maintenance endangers the
safety of the public, the employees or other tenants at the Airport, and the Port so states same in its
notice to the Operator(s), the Port may perform such maintenance at any time after the giving of such
notice.
15.2.2.6.2 No Obligation; No Responsibility. Furthermore, should
the Port, its officers, employees, agents, or contractors undertake any work hereunder, the Operators
hereby waive any claim for damages, consequential or otherwise, as a result there from, except for
such damages resulting from the gross negligence of the Port or any of its agents, employees or
32
contractors. The foregoing shall in no way affect or alter the primary obligations of Operators as set
forth in this Agreement, and shall not impose or be construed to impose upon the Port any obligation
to maintain the Consolidated Rental Car Facility or Consolidated Rental Car Facility Site, unless
otherwise specifically provided in this Lease Agreement.
15.2.2.6.3 Right to Assume Maintenance. Notwithstanding
Section 15.1, in the event that the Port issues three (3) or more notices under Section 15.2.2.6.1
within an eighteen (18) month period, the Port shall have the right (but not the obligation) to assume
responsibility for the repair and maintenance of the Consolidated Rental Car Facility and
Consolidated Rental Car Facility Site or so much of it, whether Common Area, Exclusive Use or
otherwise, by issuing notice to the affected Operator or Operators indicating its intent to, until further
notice, assume responsibility for such repair and maintenance. Such notice must be issued within
one hundred twenty (120) days of the issuance of the third (or any subsequent) notice under Section
15.2.2.6.1. In such event, all costs associated with the repair and maintenance shall be the
responsibility of the affected Operator(s) as more particularly set forth in Section 15.2.2.6.1. The
Port may also elect to address such costs, to the extent they pertain to the Common Use Area, as
Reimbursable O&M Costs under Section 6.3 of this Lease Agreement. The Port shall have the right,
on sixty (60) days notice to the affected Operator or Operators, to require the Operator(s) to resume
responsibility for repair and maintenance as set forth in Section 15.1.
15.2.2.7 Repair Required as Result of Neglect. To the extent that
repairs made by the Port pursuant to Sections 15.2.2.2, 15.2.2.4, or 15.2.2.5 are required by reason of
the neglect, carelessness or misuse of any particular Operator, its employees, agents, invitees,
licensees, or contractors, the Port shall perform such repairs at Operator's cost and expense.
Operator shall pay for such work (specifically including a reasonable allocation for Port overhead)
within thirty (30) days of invoice by the Port. Interest shall accrue on all unpaid sums at the Default
Rate.
15.2.2.8 No Responsibility to Facility Manager. In the event that the
Port exercises any right or performs an obligation under this Section 15.2.2, the Port shall have
absolutely no responsibility or liability to the Facility Manager. In the event that the Port elects to
assume responsibility for maintenance as allowed by Section 15.2.2.6.3, the Port shall,
notwithstanding any contrary term of the agreement between the Operators and the Facility Manager,
specifically have the right to direct the Facility Manager to vacate the Consolidated Rental Car
Facility.
15.2.2.9 Damage and Destruction. In addition to, and not in lieu of, any
requirement set forth in this Section 15.2, the Port shall also have the obligation of restoration and
repair as set forth more specifically in ARTICLE 20.
15.2.3 Notice; Not Responsible. If this Section 15.2 imposes upon the Port an
obligation, or otherwise provides to the Port a right, of repair and maintenance, the Port will perform
any such repair or maintenance work called to its attention by Operator(s) within a reasonable period
of time after receipt of such notice by the Port. There shall be no abatement or reduction of any
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financial or other obligation of Operator under this Lease Agreement or the Concession Agreement
by reason of the Port's making repairs, alterations and/or improvements to the Consolidated Rental
Car Facility, Consolidated Rental Car Facility Site or otherwise.
15.3 Quarterly Condition Surveys. The Port and Operators together with the Facility
Manager shall conduct an inspection of the Consolidated Rental Car Facility and Consolidated
Rental Car Facility Site quarterly to observe and note the condition of, cleanliness of and
existing damage to the Consolidated Rental Car Facility and Consolidated Rental Car Facility
Site and to determine repairs and maintenance required to be performed. Not less than fourteen
(14) days before a scheduled inspection, the Operators and each of them through the Facility
Manager prepare a report documenting the preventative and corrective maintenance actions
planned and performed during the prior quarter. Notwithstanding the foregoing, the Operators
shall not be required to participate in the quarterly inspections so long as each Operator who
elects not to participate vests the Facility Manager with authority to address the matters to be
reviewed during the scheduled inspection. The report shall be provided in both hardcopy and
electronic forms, with the electronic forms in Microsoft Excel or other format reasonably
specified or approved by the Port for import into the Port's maintenance management software.
In the event of any dispute regarding those repairs and maintenance required to be performed,
the Port's decision shall be final. Responsibility for repairing any problems or defects noted
shall be as provided in Sections 15.1 and 15.2.
ARTICLE 16: UTILITIES AND OTHER OPERATING COSTS
16.1 Generally. Beginning on the commencement of "burn-in" on the day following the
Deadline for Substantial Completion and continuing thereafter during the Lease Term, the Operators
shall pay the Utilities Costs, whether billed to the Port, the Facility Manager or the Operators (or any
of them) in the first instance.
16.2 Operators' Specific Obligations.
16.2.1 Exclusive Use Premises. Unless otherwise specifically agreed between the
Operators, each Operator shall, at its sole cost and expense, have the obligation to pay any Utilities
Costs with respect to such Operator's Exclusive Use Premises. With respect to any such Utilities
Costs incurred, billed to or paid by the Port in the first instance, each Operator shall be responsible to
the Port for such costs; provided, however, the Port shall have no obligation to separately bill each
Operator for such Utilities Costs, instead reserving the right to bill the Facility Manager for all
Utilities Costs associated with the Consolidated Rental Car Facility and Consolidated Rental Car
Facility Site and requiring the Facility Manager to bill the Operator for those portions related to the
Operator's Exclusive Use Premises. The Facility Manager shall (without regard to whether it has
collected from the Operators or any of them) pay any such amounts on such payment terms as the
Port otherwise generally extends to the Operators or other tenants on or about the Airport. Operator
agrees that in the event that any utilities or other services are furnished to the Exclusive Use
Premises on a consolidated or joint basis, Operator will pay a proportionate share of such utilities
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where Operator's proportionate share of any such services may be computed on any reasonable basis,
and separate metering or exact segregation of cost shall not be required.
16.2.2 Common Use Area. The Operators shall, through the Facility Manager, pay
any Utilities Costs with respect to the Common Use Areas and those portions of the Reserved Area
utilized in connection with the management and operation of the Consolidated Rental Car Facility,
Consolidated Rental Car Facility Site or Common Transportation System. This obligation
specifically includes the Special Building Systems but excludes the Special Airport Systems. With
respect to any amounts incurred, billed to or paid by the Port in the first instance, the Operators shall,
through the Facility Manager, be responsible to the Port for such costs. Operator shall pay a
proportionate share of such Utilities Costs where Operator's proportionate share of any such services
may be computed by the Facility Operator on any reasonable basis (specifically including by use of
Pro Rata Shares), and separate metering or other exact segregation of cost shall not be required.
16.2.3 Reserved Area. To the extent consistent with the nondiscriminatory terms of
any concession agreement the Port may enter into with any Non-RAC Concessionaire for the
operation of a concession in the Consolidated Rental Car Facility, the Facility Manager may bill the
Non-RAC Concessionaire for any Utilities Costs associated with the operations of such Non-RAC
Concessionaire. Any such billing shall be done in a manner consistent with the method utilized by
the Facility Operator for billing the Operators; provided, however, in no event shall the manager be
inconsistent with the nondiscriminatory terms of the concession agreement between the Port and the
Non-RAC Concessionaire.
16.3 Energy Conservation; Recycling. The Port shall have the right to institute such
reasonable policies, programs and measures as may be necessary or desirable, in the Port's
discretion, for the conservation and/or preservation of energy, energy related services or other
resources, to promote considerations of sustainability, or as may be required to comply with any
applicable codes, rules and regulations, whether mandatory or voluntary.
16.4 Port Not Responsible. The Port shall not be lia ble in any way to Operator for any
failure or defect in the supply or character of electrical energy, water, sewer or other utility service
furnished to the Premises by reason of any requirement, act or omission of the public utility
providing such service or for any other reason. The Port shall have the right to shut down electrical
or other utility services to the Premises when necessitated by safety, repairs, alterations, connections,
upgrades, relocations, reconnections, or for any other reason, with respect to any such utility system
(singularly or collectively, "Utility Work"), regardless of whether the need for such Utility Work
arises in respect of the Premises, any other part of the building or larger premises. Whenever
possible, the Port shall give Operator no less than two (2) days prior notice for such utility shutdown.
The Port shall not be liable to Operator for any losses, including loss of income or business
interruption, resulting from any interruptions or failure in the supply of any utility to the Premises,
except when such losses result from the Port's gross negligence.
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ARTICLE 17: INDEMNITY AND INSURANCE
17.1 Indemnity.
17.1.1 Except to the extent arising from (i) the sole negligence of the Port, its
Commissioners, officers, agents, contractors or employees, (ii) the Port's completion of the Project
after the Commencement Date and before the Opening Date, (iii) the Port's negligent act or omission
when present on or about the Premises pursuant to Sections 2.2.1.3, 15.2.2, 15.3, 18.6, 19.1.6.2, 24.2
or 31.10, or (iv) the Port's negligent act or omission in the operation of the Common Transportation
System, the Port, its officers, employees and agents shall not be liable for any injury (including
death) to any persons or for damage to any property regardless of how such injury or damage is
caused, sustained or alleged to have been sustained by Operator or by others, including but not
limited to all persons directly or indirectly employed by Operator, or any agents, contractors,
subcontractors, licensees or invitees of Operator, as a result of any condition (including existing or
future defects in the Premises) or occurrence (including failure or interruption of utility service)
whatsoever related in any way to Operator's use or occupancy of the Premises and of areas adjacent
thereto.
17.1.2 Operator shall defend (with counsel approved by the Port, such approval not to
be unreasonably withheld), fully indemnify, and hold entirely free and harmless the Port and its
Commissioners, officers, agents and employees from any and all loss, damages, expenses, attorneys'
fees, consultants' fees, court costs and other costs for or from: (a) anything arising from the condition
of the Premises or out of the occupancy by the Operator or subtenant, licensee, invitee or
concessionaire of Operator; and (b) any accident, injury, death or damage to any party however
caused in or about the Premises or upon the sidewalks adjacent to the Premises, whether or not
caused by the negligence of Operator or any third party; and (c) any fault or negligence by Operator
or any sublessee, licensee, invitee or concessionaire of the Operator or of any officer, agent,
employee, guest or invitee of any such person; and (d) any failure on Operator's part to comply with
any of the covenants, terms and conditions contained in this Lease Agreement; provided, however,
nothing herein shall require Operator to indemnify the Port from any accident, injury, death or
damage arising from (i) the sole negligence of the Port, its Commissioners, officers, agents,
contractors or employees, (ii) the Port's completion of the Project after the Commencement Date and
before the Opening Date, (iii) the Port's negligent act or omission when present on or about the
Premises pursuant to Sections 2.2.1.3, 15.2.2, 15.3, 18.6, 19.1.6.2, 24.2 or 31.10, or (iv) the Port's
negligent act or omission in the operation of the Common Transportation System. Operator agrees
that the foregoing indemnity specifically covers action brought by its own employees, and thus
Operator solely for the benefit of the Port and no other person expressly waives its immunity
under industrial insurance, Title 51 of the Revised Code of Washington, to the extent (but only to the
extent) necessary to effectuate this indemnity.
17.1.3 Notwithstanding the foregoing, in the event of the concurrent negligence of
Operator, its subtenants, licensees, assignees, concessionaires, agents, employees, or contractors on
the one hand and the negligence of the Port, its agents, employees or contractors on the other hand,
36
which concurrent negligence results in injury or damage to persons or property of any nature and
howsoever caused, and relates to the construction, alteration, repair, addition to, subtraction from,
improvement to or maintenance of the Premises such that RCW 4.24.115 is applicable, Operator's
obligation to indemnify the Port as set forth in this Section shall be limited to the extent of
Operator's negligence and that of Operator's officers, sublessees, licensees, assignees,
concessionaires, agents, employees, or contractors, including Operator's proportional share of costs,
court costs, attorneys' fees, consultants' fees and expenses incurred in connection with any claim,
action or proceeding brought with respect to such injury or damage.
17.1.4 TENANT AND PORT AGREE AND ACKNOWLEDGE THAT THIS
PROVISION IS THE PRODUCT OF MUTUAL NEGOTIATION. Operator's obligations under this
Section shall survive the expiration or earlier termination of this Lease Agreement.
17.2 Insurance. Operator shall obtain and keep in force, at its sole cost and expense,
during the Lease Term the following types of insurance, in the amounts specified and in the form
hereinafter provided for:
17.2.1 Liability Insurance. Operator shall obtain and keep in force during the Lease
Term a commercial general liability policy of insurance, written on ISO Form CG 00 01 10 01 (or
equivalent), protecting Operator and the Port, as an additional insured using ISO Form 20 26 (either
11 85 or 07 04 revision) or equivalent, against claims for bodily injury, personal injury and property
damage based upon, involving or arising out of the tenancy, use, occupancy or maintenance of the
Premises and all areas appurtenant thereto. Such insurance shall be on an occurrence basis providing
single limit coverage in an amount not less than five million dollars ($5,000,000.00) per occurrence.
The policy shall not contain any intra-insured exclusions as between insured persons or
organizations. The policy shall contain a minimum two hundred fifty thousand dollars ($250,000.00)
sub-limit that covers damage to premises rented or leased to Operator, including fire damage. Any
deductibles or self-insured retentions for this coverage that exceed $100,000 must be disclosed and
approved by the Port and shown on the Certificate of Insurance which shall also include the
Additional Insured Endorsement attached to it.
17.2.1.1 The Port agrees that the Operators may satisfy the requirement
for commercial general liability insurance required by this Section 17.2.1(but not other Section)
through a commercial general liability policy of insurance obtained by the Facility Manager subject
to the following additional requirements: (i) each Operator that would rely on the Facility Manager's
policy of insurance shall be listed a named insured (and not additional insured) on the policy, (ii) the
policy shall specifically include, whether by endorsement or otherwise, the Exclusive Use Premises
leased to the Operator, and (iii) the annual aggregate on such policy shall be not less than ten million
dollars ($10,000,000.00).
17.2.2 Automobile Liability Insurance. Operator shall obtain and keep in force
during the Lease Term an automobile liability policy of insurance, written on ISO Form CA 00 01 07
97 (or equivalent), protecting against claims for bodily injury and property damage based upon,
involving or arising out of the use of "Any Auto," including non-owned, rented, hired, leased, or
37
borrowed autos. Such insurance shall be on an occurrence basis providing single limit coverage in
an amount not less than three million dollars ($3,000,000.00) per occurrence. The policy shall not
contain any intra-insured exclusions as between insured persons or organizations and shall include by
way of specific endorsement a Waiver of Subrogation in favor of the Port. Any deductibles or selfinsured
retentions for this coverage that exceed $100,000 must be disclosed and approved by the Port
and shown on the Certificate of Insurance which shall also include the Waiver of Subrogation
attached to it.
17.2.3 Property Insurance. Operator shall obtain and keep in force "Special
Extended" or "all risk" property insurance insuring loss or damage to Operator'sInitial Tenant
Improvements, Alterations (including "betterments and improvements"), trade fixtures, business
equipment, furnishings, and other personal property on or about the Premises and any Alterations
(specifically including "betterments" and "improvements") made by or for Operator to the Premises.
Operator is not required to carry coverage for earthquake, flood or terrorism. The policy shall
include coverage for any additional costs resulting from debris removal and reasonable amounts of
coverage for the enforcement of any ordinance or law regulating the reconstruction or replacement of
the any property required to be covered including any undamaged sections of such property required
to be demolished or removed by reason of the enforcement of any Legal Requirement as the result of
a covered cause of loss. The amount of such insurance shall be equal to the full replacement cost of
the Operator's Initial Tenant Improvements, Alterations (including "betterments and
improvements"), trade fixtures business equipment, furnishings, and other personal property on or
about the Premises and any Alterations (or the commercially reasonable and available insurable
value thereof if, by reason of the unique nature or age of the improvements involved, such latter
amount is less than full replacement cost). The policy shall also contain an agreed valuation
provision in lieu of any coinsurance clause. The Port shall be included as an Additional Insured and
Loss Payee on Operator's property insurance policy with respect to the Port's interest in Alterations.
17.2.4 Insurance During Construction of Initial Tenant Improvements. During the
course of construction for the Initial Tenant Improvements, Operator and Operator's Contractor shall
be required to further provide and maintain liability insurance as follows. To the extent imposing
greater requirements, this section shall supersede the insurance requirements that may be set forth in
the design, construction and opening processes attached as Exhibit G. T his insurance shall extend to
all contractors and sub-contractors at any tier of the construction of the Initial Tenant Improvements
or subsequent Alterations. Contractor and Operator shall forward certificates of insurance and
additional insured endorsements to the Port prior to the commencement of any work. Insurance
required includes:
17.2.4.1 Commercial General Liability Insurance. Commercial general
liability insurance utilizing ISO Form CG 00 01 10 01 (occurrence basis) or manuscript equivalent
with equal coverage and terms, including contractual liability coverage and include:
17.2.4.1.1 A combined single limit of five million dollars
($5,000,000) per occurrence with the policy endorsed to add the Port of Seattle and, during
construction of the Initial Tenant Improvements, Turner as Additional Insureds for both "on-going"
38
work and "completed operations" using ISO 20 26 11 85 or a combination of ISO 20 10 11 85 and
ISO 20 37 10 01;
17.2.4.1.2 Insurance shall be primary and non-contributory;
17.2.4.1.3 Insurance shall contain a provision for separation of
insureds;
17.2.4.2 Automobile Liability Insurance. Automobile insurance shall be
procured in the amount of one million dollars ($1,000,000) per occurrence, combined single limit
which is to cover "any auto" including all non-owned, rented, hired, leased, or borrowed autos using
ISO CA 00 01 07 97 or equivalent.
17.2.4.3 Course of Construction Insurance. During the course of
construction of the Initial Tenant Improvements and any subsequent Alterations, Operator and
Operator's Contractor shall be required to provide property insurance on the improvements as they
are being constructed. Coverage may be on a property insurance policy or a separate builders risk
policy that covers the interests of the Contractor and the Operator. Coverage shall be "all risk"
property insurance in an amount equal to the value of the improvements under construction. The
policy shall include delay of opening coverage in the event a covered loss results in loss of rent
and/or revenues to the Port due to a delay in completion of the improvements. The policy shall
include coverage for debris removal following loss, loss to temporary structures, loss due to or
resulting from water damage or interior water intrusion. The Port shall be named as an insured on
the policy to the extent of the Port's insurable interest in the improvements. Operator and Contractor
shall waive subrogation rights against the Port and Turner during the construction of the
improvements. Coverage shall be kept in force until the improvements are completed. Once the
Project is completed, the Operator shall provide property insurance coverage on the improvements as
outlined in Section 17.2.3. Prior to commencement of work on the improvements, evidence of
property insurance shall be submitted to the Port and Turner.
17.2.4.4 Industrial Insurance (Workers Compensation). Operator and
any contractors working for Operator must comply with Washington State's RCW Title 51 Industrial
Insurance requirements and must be current in their payments to the state fund; or be listed as a
current approved self-insurer in the State of Washington. A current Employers Liability Certificate
showing RCW Title 51 compliance shall be provided to the Port annually through the Lease Term.
17.2.5 Insurance During Subsequent Alterations. During the course of construction
for of any subsequent Alterations, Operator and Operator's Contractor shall be required shall procure
and maintain insurance during the course of construction of the improvements as required by the
then-current Port Standards.
17.2.6 Other Insurance. Operator shall further obtain and keep in force such other
and further insurance as the Port may from time to time reasonably request for the protection by
insurance of its interest in the premises.
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17.3 Insurance Policies.
17.3.1 Insurance Companies. Insurance required hereunder shall be in companies
duly licensed to transact business in the State of Washington, and maintaining during the policy term
a General Policyholders Rating of 'A-' or better and a financial rating of 'IX' or better, as set forth in
the most current issue of "Best's Insurance Guide."
17.3.2 Policies Primary; Deductibles; Per Location Endorsement. All insurance to be
carried by Operator shall be primary to and not contributory with any similar insurance carried by the
Port, whose insurance shall be considered excess insurance only. Required insurance may be
provided through a combination of primary and excess limits provided that excess coverage will drop
down and respond on a primary basis should the primary limits be reduced or exhausted at the time
of loss. No insurance required herein shall contain a deductible or self-insured retention in excess of
one hundred thousand dollars ($100,000) without the prior written consent of the Port. If at any time
during the Lease Term, Operator shall have in full force and effect a blanket policy of commercial
general liability and excess liability insurance covering the Premises and other premises and/or
properties of Operator, such insurance shall satisfy the requirements hereof, provided said policy
contains a specific endorsement providing a minimum amount of coverage applicable to the
Premises equal to or greater than the amount required above (i.e. a "per location" endorsement).
17.3.3 Termination; Renewal. No policy of insurance required under this Lease
Agreement shall be cancelable or subject to non-renewal or modification except after forty five (45)
days prior written notice to the Port. Operator shall at least forty five (45) days prior to the
expiration of such policies, furnish the Port with evidence of renewals or "insurance binders"
evidencing renewal thereof, or the Port may order such insurance and charge the cost thereof to
Operator, which amount shall be payable by Operator to the Port upon demand.
17.3.4 Evidence of Insurance. Operator shall deliver, or cause to be delivered, to the
Port, certificates of insurance, additional insured endorsements, loss payee endorsements for property
insurance, waivers of subrogation and any other documentation or endorsement that provides
evidence of the existence and amounts of such insurance, the inclusion of the Port as an insured as
required by this Lease Agreement, and the amounts of all deductibles and/or self insured retentions.
Upon request by the Port, Operator shall make available to the Port, the policies of insurance that
Operator has purchased in order for the Port to verify insurance coverage, limits, and endorsements
or view any exclusions to the Operator's insurance policies; provided, however in the event the
policy is not made available for inspection locally, Operator shall pay in full any travel and related
expenses of Port representative(s) to travel to the location outside the Puget Sound region. If
Operator fails to maintain any insurance required by this Lease Agreement, the Port shall at any
time within ten (10) days before or after the expiration or termination of any particular policy of
insurance and with or without having issued a Notice of Default have the right to purchase such
insurance for the benefit of Operator, and Operator shall reimburse the Port for the full expense
thereof on demand.
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17.3.5 No Limitation of Liability. The limits of insurance required by this Lease
Agreement or as carried by Operator shall not limit the liability of Operator nor relieve Operator of
any obligation hereunder.
17.4 Self-Insurance. The Port agrees that it will reasonably consider any request by
Operator to self-insure deductibles or retentions which are in excess of the any amount in excess of
that allowed by Section 17.3 and/or some or all of the limits of insurance required by Section 17.2,
all subject to the following terms and conditions.
17.4.1 As used in this Section 17.4, "self-insure" shall mean that Operator is itself
acting as though it were the insurance company providing the insurance required under the provision
hereof, and Operator shall pay all amounts due in lieu of insurance proceeds which would have been
payable if the insurance policies had been carried, which amounts shall be treated as insurance
proceeds for all purposes under this Lease Agreement.
17.4.2 All amounts that Operator pays or is required to pay, and all loss or damage
resulting from risks for which Operator has elected to self-insure, shall be subject to the waiver of
subrogation set forth in Section 17.5 and shall not limit Operators indemnification obligations set
forth in Section 17.1 or elsewhere in this Lease Agreement.
17.4.3 The Port specifically conditions Operator's right to self-insure upon Operator:
17.4.3.1 Identifying to the Port the specific required policies,
deductibles or retentions, and/or limits that are to be self-insured.
17.4.3.2 Maintaining a sufficiently large tangible net worth to be able, in
the Port's reasonable discretion, to be able to absorb an annual loss in the amount Operator has
elected to self-insure;
17.4.3.3 Annually providing an audited financial statement, prepared in
accordance with generally accepted accounting principles, which establishes and confirms that
Operator has the required net worth;
17.4.3.4 Not having suffered an event or occurrence (such as the
bankruptcy of the Operator) that makes it apparent that such net worth has been diminished below
the required level; and/or
17.4.3.5 Maintaining a demonstrated self-insurance program through
which Operator demonstrates an ability to handle and administer claims within the amount subject to
self-insurance.
In the event that Operator fails to meet or demonstrate any such requirement imposed by the Port,
Operator shall immediately lose the right to self-insure and shall be required to provide the insurance
specified herein as issued by a qualifying insurance company.
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17.4.4 In the event that the Port permits Operator to self-insure and an event or claim
occurs for which a defense and/or coverage would have been available from the insurance company,
Operator shall specifically: (i) undertake the defense of any such claim, including a defense of the
Port, at Operator's sole cost and expense; and (ii) use its own funds to pay any claim or replace
property or otherwise provide the funding which would have been available from insurance proceeds
but for such election by Operator to self-insure.
17.5 Waiver of Subrogation. Without affecting any other rights or remedies, both the Port
and Operator (for itself and on behalf of anyone claiming through or under it by way of subrogation
or otherwise) hereby waive any rights either may have against the other, their officers, agents and
employees (whether in contract or in tort) on account of any loss or damage occasioned to the Port
and covered by any property policy of insurance included within the Reimbursable O&M Costs or
Operator and arising out of or incident to the perils required to be insured against under this Article.
Accordingly, the Port shall cause such property insurance policy and Operator shall cause each
insurance policy required by this Article to further contain a waiver of subrogation clause. The effect
of such release and waiver of the right to recover damages shall not be limited by the amount of
insurance carried or required or by any deductibles applicable thereto.
17.6 Miscellaneous Insurance Provisions. The amounts and types of insurance specified in
this Lease Agreement shall be subject to periodic adjustment to reflect changes in insuring practices
for similar properties in the same geographic area and changes in insurance products.
17.7 Operator Responsible for Deductibles and Retentions. Operator is solely responsible
for all deductibles or self-insured retentions under any required policy of insurance, including any
deductibles that are triggered by claims that the Port may submit to Operator's insurance carrier as an
additional insured on any policy. This deductible responsibility extends to deductibles that are owed
on any policy of insurance following termination of the Lease Agreement between the Port and
Operator if the event or cause of loss occurred during the Lease Term.
17.8 Increase in Cost of Port's Insurance. Operator shall not use the Premises in such a
manner as to increase the existing rates of insurance applicable to the buildings or structures of
which the Premises are a part. If it nevertheless does so, then, at the option of the Port, the full
amount of any resulting increase in premiums paid by the Port with respect to the buildings or
structures of which the Premises are a part, and to the extent allocable to the Lease Term, shall be
paid by Operator to the Port with the next rental installment due thereafter.
17.9 Abatement of Fire and Other Hazards. Operator agrees that it will cooperate in the
abatement of fire and other hazards in the Premises by observing the following requirements, or such
modified requirements as the Port may institute from time to time:
17.9.1 Operators shall cooperate and allow Port's property insurance carriers to
access all areas of the Premises upon request for the purposes of doing inspections for property loss
control and prevention;
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17.9.2 Operators shall comply with all insurance company loss prevention
recommendations and policy loss control requirements for the protection of property on the
Premises;
17.9.3 Operators, through the Fuel Facility Manager, shall inspect, repair and upgrade
the Fueling Facilities, the QTA Equipment and any Operator Vehicle Maintenance Equipment as
required to comply with the Uniform Fire Code;
17.9.4 Operator shall continually have in place a preventive maintenance and Best
Management Practices program to eliminate gasoline fuel spills;
17.9.5 Each Operator shall not store more than two hundred (200) gallons of motor
oil, whether new or used, on or about the Premises;
17.9.6 Operator shall not park or store disabled cars anywhere on or about the
Premises or Airport.
ARTICLE 18: COMPLIANCE WITH ENVIRONMENTAL LAWS
18.1 Pre-Lease Environmental Condition. The Port shall conduct a full and complete
Environmental Assessment (the "Pre-Lease Environmental Evaluation") of the Consolidated Rental
Car Facility Site prior to or during construction of the Project to identify, to extent practicable, the
nature and extent of Hazardous Substances, if any, present on the Consolidated Rental Car Facility
Site (the "Pre-Lease Environmental Condition"). Prior to conducting the Pre-Lease Environmental
Evaluation, the Port shall consult with the Operators in the preparation of the Environmental
Assessment plan or plans, and shall submit the plan to the Operators no less than forty five (45) days
prior to the initiation of the plan(s). The Operators shall have twenty one (21) days after submittal of
a plan to review and approve or disapprove the plan, which approval shall not be unreasonably
withheld. Unless a Majority-in-Interest of the Operators disapprove the plan in writing, the plan
shall be deemed approved. Notwithstanding the prior sentence, if any Operator has any comments
regarding the proposed assessment plan it may submit such comments to the Port within such
twenty-one (21) day period, and the Port shall consider such comments prior to adopting a final plan.
The results of the plan(s) will be compiled in the Pre-Lease Environmental Evaluation and shall set
forth the Pre-Lease Environmental Condition. The costs associated with the Pre-Lease
Environmental Evaluation and determination of the Pre-Lease Environmental Condition shall be
Costs of the Project.
18.2 Hazardous Substances. Operator shall not allow the release, spill, discharge, leak,
emission, injection, escape, migration, or dumping in, on, about, from or adjacent to the Premises
(including, but not limited to, storm drains, sanitary sewer system, surface waters, soils, underground
waters or air) of any Hazardous Substance or other deleterious substance in any manner that could be
a detriment to the Premises or in violation of thePollution and Prevention Plan, Spill Prevention
Control and Countermeasures Plan, any Airport rule or regulation, any Port Environmental Permit, or
43
any Environmental Law. To the extent applicable, Operator shall make available to the Port upon
request with copies of all Material Safety Data Sheets (MSDS) for all Hazardous Substances used or
stored on the Premises, Operator's USEPA Waste Generator Number, and with Generator Annual
Dangerous Waste Reports. To the extent applicable, Operator shall provide the Port with copies of
any environmentally related regulatory permits or approvals (including revisions or renewals) and
any material report or notice Operator receives from, or provides to, any governmental unit or agency
in connection with Operator's handling of Hazardous Substances or the presence, or possible
presence, of any Hazardous Substance in, on, about, from or adjacent to the Premises. Operator is
responsible to report any spills or emissions of Hazardous Substances to the Port and any spills or
emissions of Hazardous Substances that are above reportable quantities as defined by applicable
Environmental Laws to the appropriate regulatory Agency.
18.3 Pollution Prevention Plan. The Operators and ea ch Operator shall, through the Fuel
Facility Manager, prepare and implement a Pollution Prevention Plan that addresses measures in
effect by the Operators and each Operator to prevent pollution (specifically including storm water)
through appropriate pollution prevention and good housekeeping practices, control and perform
immediate removal, investigation, remediation and restoration action in the event of a release of a
Hazardous Substance or other deleterious material in connection with the operation of the
Consolidated Rental Car Facility Site (including, but not limited to, the Fuel Facilities) during the
Lease Term. The SWPPP shall be: (i) provided to the Port not more than thirty (30) days before the
Commencement Date, (ii) consistent with the Western Washington Phase II Municipal Stormwater
Permit, and (iii) updated to address future changes in Consolidated Rental Car Facility Site activities
or facilities. The Pollution Prevention Plan shall be updated as needed, to address the Operators' and
each Operator's operations and practices. To the extent of any overlap between the areas of the
responsibility between the Fuel Facility Manager and the Facility Manager, the Pollution Prevention
Plan shall (subject to the requirements of Section 19.1.2.2) specifically provide the party responsible
for each element of the Pollution Prevention Plan. The Pollution Prevention Plan shall specifically
provide for one or more dedicated persons having responsibility to oversee each UST refill, including
(i) arriving before the tank refill pipe is opened, (ii) watching the entire refill operation, and (iii)
observing the fuel provider closing the refill pipes and reloading their hoses onto their truck.
18.4 Spill Prevention Control and Countermeasure Plan. The Operators and each Operator
shall, through the Fuel Facility Manager, determine whether Section 112.7 of Title 40 of the Code of
Federal Regulations is applicable to the Consolidated Rental Car Facility Site, including (but not
limited to) the Fuel Facilities, the QTA Equipment and/or the Operator Vehicle Maintenance
Equipment and/or their operations and the Operators and each of them are required to prepare a Spill
Prevention Control and Countermeasure Plan (or "SPCC Plan"). This determinationmust be
submitted to the Port for approval. Preparation of an SPCC Plan shall be the responsibility of the
Operators through the Fuel Facility Manager. Any SPCC Plan must be certified by a licensed
Professional Engineer in accordance with all applicable Legal Requirements (specifically including
Environmental Laws). To the extent of any overlap between the areas of the responsibility between
the Fuel Facility Manager and the Facility Manager, the SPCC Plan shall (subject to the requirements
of Section 19.1.2.2) specifically provide the party responsible for each element of the Spill
Prevention Control and Countermeasures Plan.
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18.5 Violation of Environmental Law. If Operator, or the Premises (other than as a result
of the Pre-Lease Environmental Condition), is in violation of any Environmental Law concerning the
presence or use of Hazardous Substances or the handling or storing of hazardous wastes, Operator
shall promptly take such action as is necessary to mitigate and correct the violation. If Operator does
not act in such a manner, the Port reserves the right, but not the obligation, to come onto the
Premises, to act in place of the Operator (Operator hereby appoint the Port as its agent for such
purposes) and to take such action as the Port deems necessary to ensure compliance or to mitigate the
violation. If the Port has a reasonable belief that Operator is in violation of any Environmental Law,
or that Operator's actions or inactions present a threat of violation or athreat of damage to the
Premises, the Port reserves the right to enter onto the Premises and take such corrective or mitigating
action as the Port deems necessary. All reasonable and necessary costs and expenses incurred by the
Port in connection with any such actions shall become immediately due and payable by Operator
upon presentation of an invoice therefore. Interest shall accrue on all unpaid sums at the Default
Rate.
18.6 Inspection; Test Results. The Port shall have access to the Premises to condu ct (but
shall have no obligation to conduct) environmental inspections, including (but not limited to) an
Environmental Audit, and Operator shall permit the Port access to the Premises for the purpose of
conducting environmental testing, whether in connection with Port action taken pursuant to Section
18.4 or for other Port purposes, provided that except in the event of an emergency (i) such
environmental testing by the Port shall occur only during normal business hours, or at such other
times as the Operator shall reasonably approve, (ii) the Port provides written notice to the Operator
of its intention to conduct such tests, at least five business days prior to such date of testing, (iii) such
testing shall not unreasonably interfere with the Operator's normal business operations, and (iv) any
damages to the Premises caused by the environmental testing conducted by the Port shall be repaired
by the Port at its sole cost and expense. Operator shall not conduct or permit others to conduct
environmental media testing on the Premises without first obtaining the Port's written consent.
Operator shall promptly inform the Port of the existence of any environmental study, evaluation,
investigation or results of any environmental testing conducted on the Premises whenever the same
becomes known to Operator, and Operator shall provide copies to the Port.
18.7 Removal of Hazardous Substances. Prior to vacation of the Premises, in addition to
all other requirements under this Lease Agreement, Operator shall remove and clean up any
Hazardous Substances stored, released, spilled, discharged, leaked, emitted, injected, escaped or
dumped in, on or about, adjacent to or migrated from the Premises during the Lease Term or
Operator's possession of the Premises, and shall demonstrate that removal to the Port's reasonable
satisfaction. The Port shall specifically have the right to insist, without limitation, on appropriate
subsurface environmental investigations as part of any such demonstration. This removal and
demonstration shall be a condition precedent to the Port's payment of any Security to Operator upon
termination or expiration of this Lease Agreement. With respect to the removal and cleanup of any
Hazardous Substances on the Premises, the Port agrees that it will reasonably approve cleanup
criteria and investigation, monitoring, and remediation activities that comply with Environmental
Laws and are consistent with both current commercial/industrial uses at the site as well as the Port's
45
future development plans for the site. The Port further agrees that it will not unreasonably withhold
approval of any institutional control(s) consistent with the foregoing standard.
18.8 Remedies Not Exclusive. No remedy provided herein shall be deemed exclusiv e. In
addition to any remedy provided above, the Port shall be entitled to full reimbursement from
Operator whenever the Port incurs any costs resulting from Operator's use or management of
Hazardous Substances on the Premises, including but not limited to, costs of clean-up or other
remedial activities, fines or penalties assessed directly against the Port, injuries to third persons or
other properties, and loss of revenues resulting from an inability to re-lease or market the property
due to its environmental condition, even if such loss of revenue occurs after the expiration or earlier
termination of the Lease Term.
18.9 Environmental Indemnity. In addition to all other indemnities provided in this Lease
Agreement, Operator agrees to defend, indemnify and hold the Port free and harmless from any and
all claims, causes of action, regulatory demands, liabilities, fines, penalties, losses, and expenses,
including without limitation cleanup or other remedial costs (and including reasonable attorneys'
fees, costs and all other reasonable litigation expenses when incurred and whether incurred in
defense of actual litigation or in reasonable anticipation of litigation), arising from the existence or
discovery of any Hazardous Substance (other than Pre-Lease Environmental Condition) on the
Premises, or the migration of any Hazardous Substance from the Premises to other properties or into
the surrounding environment, caused by the Operator, whether (i) made, commenced or incurred
during the Lease Term, or (ii) made, commenced or incurred after the expiration or termination of
this Lease Agreement if arising out of events occurring during the Lease Term; provided, however,
Operator's obligation to indemnify the Port pursuant to this Section 18.9 shall not apply with respect
to either (a) Pre-Lease Environmental Condition, (ii) any Hazardous Substance released by another
Operator, or the Port, its commissioners, officers, agents and employees, (iii) any release of a
Hazardous Substance clearly arising from any construction defect in the Fuel Facilities, which defect
is discovered within six (6) years of the Commencement Date for the QTA Space and (iv) any
Hazardous Substance (for which Operator is not otherwise responsible) clearly migrating onto the
Consolidated Rental Car Facility Site from some other location through no fault of Operator.
Operator's obligations under this Section shall survive the expiration or earlier termination of this
Lease Agreement. With respect to cleanup of any Hazardous Substances on the Premises, the Port
agrees that it will reasonably approve cleanup criteria and investigation, monitoring, and remediation
activities that comply with Environmental Laws and are consistent with both current
commercial/industrial uses at the site as well as the Port's future development plans for the site. The
Port further agrees that it will not unreasonably withhold approval of any institutional control(s)
consistent with the foregoing standard.
[Remainder of Page Intentionally Left Blank]
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ARTICLE 19: ADDITIONAL ENVIRONMENTAL OBLIGATIONS
19.1 Fuel Facilities and QTA Equipment.
19.1.1 Operators Must Contract with Manager.
19.1.1.1 Fuel Facility Manager. In addition to, and not in lieu of, any
requirement related to the general maintenance, operations and repair of the Consolidated Rental Car
Facility set forth in Section 15.1, the Operators and each Operator shall whether through a joint
venture agreement, participation agreement, limited liability company agreement or any combination
thereof through which all Operators are a party contract with a financially responsible, experienced
manager (the "Fuel Facility Manager") for the operation, maintenance and repair of the Fuel
Facilities. Subject to the Port's reasonable concurrence, either the Facility Manager or the Fuel
Facility Manager shall be responsible for the QTA Equipment and any Operator Vehicle
Maintenance Equipment. The identity of the Fuel Facility Manager and the terms of the contract
between the Operators and the Fuel Facility Manager shall specifically be subject to the Port's
approval, such approval not to be unreasonably withheld. In order to involve the Fuel Facility
Manager in the commissioning of the Consolidated Rental Car Facility and pre-final and final
inspections, the Operators shall retain and have available the Fuel Facility Manager no later than
ninety (90) days before the earliest Commencement Date. The Operators and each Operator shall,
not less than one hundred twenty (120) days before the earliest Commencement Date and ninety (90)
days before any date on which Operators would intend to change the identity of, or terms of any
contract with, the Fuel Facility Manager, submit to the Port for its review and approval, such
approval not to be unreasonably withheld, any such information as the Port may reasonably request
regarding the experience, expertise, financial strength and/or operational plan associated with any
such Fuel Facility Manager and a complete copy (including all exhibits or attachments) of any
proposed contract(s) between the Operators and the Fuel Facility Manager. The Port's consent to the
terms of any such contract shall not be withheld or delayed provided such agreement: (i) is
consistent with the provisions of this Lease Agreement and does not exceed the Lease Term; (ii) is
otherwise consistent with operating agreements customary in the facilities management industry; (iii)
provides that the Common Use Area be managed subject to and in accordance with the terms of this
Lease Agreement; (iv) requires the Fuel Facility Manager to defend and indemnify the Port from any
damages, claims or the like resulting from the Fuel Facility Manager's acts or omissions; (v) requires
the Fuel Facility Manager to procure insurance of like kind and amount required of the Operator as
set forth in this Lease Agreement and to cause the Port to be an additional insured under such
policies; (vi) may not be cancelled or terminated without prior written notice to the Port; and (vii)
may be assumed by the Port at its option in the event of a default by the Operators there under. The
Port agrees to not withhold or delay its consent to any proposed Fuel Facility Manager, provided
such entity has: significant experience in the management and operation of large commercial
facilities similar to the Fuel Facilities (and, if relevant, the QTA Equipment and any Operator
Vehicle Maintenance Equipment), in a competent and professional manner in accordance with
operating standards and policies standard in the industry and with a proven track-record of
successful, environmentally compliant operations; and financial strength and management
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competency, with personnel having appropriate experience to operate, maintain and manage the Fuel
Facilities (and, if relevant, the QTA Equipment and any Operator Vehicle Maintenance Equipment).
The contract between the Operators and the Fuel Facility Manager shall specifically bind the Fuel
Facility Manager to those obligations to be performed by the Fuel Facility Manager or the Operator
or Operators through the Fuel Facility Manager under this Lease Agreement, and the Port shall
specifically be a third-party beneficiary of any such terms. The Operators and each Operator shall
likewise submit to the Port a copy of any joint venture agreement, participation agreement, or limited
liability company agreement by which they have joined together to contract with such Fuel Facility
Manager.
19.1.1.2 Prompt Payment. Operator shall, in a timely fashion, pay all
amounts due by Operator under, and otherwise adhere to all covenants, conditions, or agreements to
be observed or performed by Operator in, the agreement between Operator and the Fuel Facility
Manager. Operator specifically agrees that any failure to pay such amounts due and owing by it or
observe such covenants, conditions or agreements to be observed or performed by Operator
whether or not a default has been declared by the Fuel Facility Manager shall be a default under
this Lease Agreement.
19.1.1.3 Environmental Evaluation. Withi n ninety (90) days of any
change in the Fuel Facility Manager (and the Facility Manager, if the Facility Manager is responsible
for the QTA Equipment and Operator Vehicle Maintenance Equipment), the Operators shall, at their
sole cost and expense though the in-coming or out-going Fuel Facility Manager, conduct an
Environmental Assessment of the Consolidated Rental Car Facility Site and specifically the Fuel
Facilities, the QTA Equipment and the Operator Vehicle Maintenance Equipment to identify, to
extent practicable, the nature and extent of any Hazardous Substances, if any, present on the
Consolidated Rental Car Facility Site since the Pre-Lease Environmental Evaluation or any prior
Environmental Assessment pursuant to this Section 19.1.1.3. Prior to conducting the Environmental
Assessment, the Operators shall consult with the Port in the preparation of an assessment plan or
plans, and shall submit the plan to the Port no less than thirty (30) days prior to the initiation of the
plan(s). The Port shall have fourteen (14) days after submittal of a plan to review and approve or
disapprove the plan, which approval shall not be unreasonably withheld. The results of the plan(s)
will be compiled in a report and shall set forth any change in the environmental condition of the
Consolidated Rental Car Facility Site since the Pre-Lease Environmental Condition or any prior
evaluation pursuant to this Section 19.1.1.3. Any conta mination identified shall be subject to
remediation as more particularly set forth in ARTICLE 18 and this ARTICLE 19.
19.1.2 Operators Responsible.
19.1.2.1 The Operators, through the Fuel Facility Manager, shall be
entirely responsible for the proper operation, maintenance, repair and use of the Fuel Facilities. The
Operators, through either the Facility Manager or Fuel Facility Manager, shall be entirely responsible
for the proper operation, maintenance, repair and use of the QTA Equipment and Operator Vehicle
Maintenance Equipment. The Operators, through the Fuel Facility Manager shall be entirely
responsible for any spill response, the immediate or other removal, investigation, remediation,
48
restoration and other corrective actions or site closure associated with a release of any Hazardous
Substance from the Fuel Facilities, the QTA Equipment or the Operator Vehicle Maintenance
Equipment (all without regard to whether the general responsibility for the QTA Equipment and
Operator Vehicle Maintenance Equipment rests with the Facility Manager or Fuel Facility Manager).
19.1.2.2 Without regard to whether the Facility Manager or the Fuel
Facility Manager are responsible for the QTA Equipment, the Operator Vehicle Maintenance
Equipment or any other piece of equipment on or about the Consolidated Rental Car Facility or
Consolidated Rental Car Facility Site, the Fuel Facility Manager's obligations and responsibility
shall in all events be primary in the event of any release of Hazardous Substances. It is specifically
the Port's intention that in the event of any spill or release involving any Hazardous Substance and/or
any event or mishap that directly threatens the spill or release of any Hazardous Substance, the Fuel
Facility Manager's responsibility will be primary, that the Fuel Facility Manager will immediately
take all necessary action to address such event, spill, release or other mishap, and that any issues of
legal liability or financial responsibility will be addressed only after the event, spill, release or other
mishap is addressed. Notwithstanding the foregoing, once the responsible party or parties are
identified and the responsible party or parties have provided the Port with written notice that they
have accepted responsibility and an acceptable plan for remediation, the Fuel Facility Manager may
transfer responsibility for such event, spill, release or other mishap to the responsible party or parties.
19.1.2.3 The Operators and each Operator, through the Facility Manager
or Fuel Facility Manager (as appropriate), shall manage and conduct all of their activities on, or
relating to, the Fuel Facilities, the QTA Equipment and the Operator Vehicle Maintenance
Equipment: (i) in compliance with Environmental Law, Washington State Department of Ecology's
Underground Storage Tank Regulations (WAC 173-360), Puget Sound Clean Air Agency (PSCAA)
Order of Approval and regulations, the environmental provisions of this Lease Agreement, the
Airport's rules and regulations and the Port Standards, and any other applicable laws and regulations
relating to the Fuel Facilities, the QTA Equipment and/or the Operator Vehicle Maintenance
Equipment; (ii) in cooperation with the Port in the Port's efforts to comply withapplicable
Environmental Law; (iii) in adherence with Best Management Practices applicable to the Operators'
use of the Premises, and (iv) the Fuel Facilities Operations Manual. In the event of a conflict
between any provisions of this Lease Agreement or Environmental Law, the more stringent
provisions shall govern.
19.1.2.4 The Operators, through the Facility Manager and Fuel Facility
Manager (as appropriate), shall manage and, as appropriate, secure the Premises and its occupation
or use of the Premises so as to prevent any violation of Environmental Law by any person on or
relating to the Premises. The Operator understands that this Lease Agreement is not a substitute for,
but is in addition to, those requirements already imposed upon Operator by laws and regulations
applicable to the Fuel Facilities, the QTA Equipment and the Operator Vehicle Maintenance
Equipment.
19.1.3 Necessary Permits. The Operators and each Operator shall, through the
Facility Manager or Fuel Facility Manager (as appropriate), obtain and maintain all necessary permits
49
or consents required by Environmental Law throughout the operation of the Fuel Facilities, the QTA
Equipment and the Operator Vehicle Maintenance Equipment. Operator shall promptly furnish the
Port with copies of these permits and consents as they may be issued or renewed from time to time
and all material correspondence between the Operators, any particular Operator or the Facility
Manager or Fuel Facility Manager (as appropriate) and the permitting agency.
19.1.4 Compliance with Underground Storage Tank Regulations. As to all
operations on or about the Airport, the Operators and each Operator shall, through the Fuel Facility
Manager, specifically and diligently comply with all of the Washington State Department of
Ecology's UndergroundStorage Tank Regulations (WAC 176-360). The Operators and each
Operator shall, through the Fuel Facility Manager, further comply with all of the requirements set
forth in the Environmental Compliance Schedule attached as Exhibit L and the Fuel Facilities
Operations Manual. The requirements on the Environmental Compliance Schedule are in addition to
(and not in lieu of or in summary of) any requirements imposed under any applicable Environmental
Law, including but not limited to the Underground Storage Tank Regulations (WAC 176-360). The
Operators and each Operator shall, through the Facility Manager or Fuel Facility Manager (as
appropriate), maintain all records necessary to document that the Fuel Facilities, the QTA
Equipment, the Operator Vehicle Maintenance Equipment and the Premises are being operated in
compliance with the requirements of any applicable Environmental Law (including but not limited to
the Underground Storage Tank Regulations), the Operations Manual or Fuel Facilities Operations
Manual (as appropriate), the Pollution Prevention Plan and this Lease Agreement. Operator shall
provide the Port with copies of such records as set forth in the Environmental Compliance Schedule
attached as Exhibit L, the Operations Manual, Fuel Facilities Operations Manual and otherwise
upon promptly following the Port's request.
19.1.5 Operations and Maintenance Manual. The Operators and each Operator shall,
through the Fuel Facility Manager, prepare an operations and maintenance manual (the "Fuel
Facilities Operations Manual") that addresses the operation, maintenance, routine and required
inspections, and repair of the Fuel Facilities and, if appropriate, the QTA Equipment and the
Operator Vehicle Maintenance Equipment in order to prevent, control and perform immediate
removal, remediation and restoration action in the event of a release of a Hazardous Substance or
other deleterious material in connection with the operation of the Fuel Facilities and, if appropriate,
the QTA Equipment and the Operator Vehicle Maintenance Equipment. The Fuel Facilities
Operations Manual shall: (i) be provided to the Port not more than thirty (30) days before the
Commencement Date or not more than thirty (30) days after any update, (ii) be prepared in
coordination with Port staff, (iii) be consistent with warranty requirements, the manufacturer's
recommendations with respect to the Fuel Facilities and, if appropriate, the QTA Equipment and the
Operator Vehicle Maintenance Equipment, (iv) be consistent with Environmental Law, and without
limiting the generality of the foregoing, Washington State Department of Ecology's Underground
Storage Tank Regulations (WAC 176-360),and Puget Sound Clean Air Agency Regulations and
Order of Approval, (v) be consistent with Pollution Prevention Plan, Spill Pollution Control and
Countermeasure Plan, Best Management Practices and all other Legal Requirements, and (vi) be
updated to address future changes in Fuel Facility and, if appropriate, QTA Equipment and/or
Operator Vehicle Maintenance Equipment activities or facilities, and (vii) in the event of any
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apparent overlap between the requirements of the Facility Manager and Fuel Facility Manager under
this Lease Agreement, identify (subject to the requirements of Section 19.1.2.2) the party responsible
for satisfying any such requirement and shall (again, subject to the requirements of Section 19.1.2.2)
specifically provide the party responsible for all elements of the Pollution Prevention Plan, Spill
Pollution Control and Countermeasure Plan, and Order of Approval (i.e. air quality permit). The
Fuel Facilities Operations Manual shall be subject to the Port's prior approval and shall be updated
as needed, not less often than annually, to address the Fuel Facility Managers', the Operators' and
each Operator's operations and practices.
19.1.6 Environmental Audits.
19.1.6.1 Annual Environmental Audit. The Operators and each
Operator shall, through the Fuel Facility Manager, hire an independent third party to conduct an
annual Environmental Audit of the entire Premises (including, but not limited to, the Fuel Facilities,
QTA Equipment and Operator Vehicle Maintenance Equipment) and each Operator's and the Fuel
Facilities Manager's operations,equipment, facilities and fixtures on or about the Consolidated
Rental Car Facility Site. This Environmental Audit shall be conducted on or about the
commencement of each Agreement Year. The Operators and each Operator shall, through the Fuel
Facility Manager, review with the Port with the results of the Environmental Audit together with a
draft plan (including a performance schedule) to complete all reasonable repairs, replacements,
and/or upgrades of the Premises (including, but not limited to, the Fuel Facilities, QTA Equipment
and Operator Vehicle Maintenance Equipment) and associated structures and/or facilities , and all
modifications to the Fuel Facility Operations Manual or other operational plans and procedures
associated with the Fuel Facilities, QTA Equipment or Operator Vehicle Maintenance Equipment as
recommended in the Environmental Audit. These results shall be reviewed with the Port at meeting
to occur no later than thirty (30) days following the commencement of each Agreement Year. The
Port shall have ten (10) days within which to comment upon the draft plan. The Operators and each
Operator shall, through the Fuel Facility Manager, promptly incorporate any reasonable Port
comments into a final plan and complete all repairs, replacements, and/or upgrades according to the
final plan (and performance schedule). The Operators and each Operator shall, through the Fuel
Facility Manager, also modify the Fuel Facility Operations Manual or other operational plans and
procedures associated with the Fuel Facilities, QTA Equipment or Operator Vehicle Maintenance
Equipment consistent with the results of the Environmental Audit. Any Alteration on or about the
Premises shall be accomplished in accordance with ARTICLE 13.
19.1.6.2 Subsequent Port Environmental Audit. The Port shall, as
authorized by Section 18.6, have the right to conduct its own Environmental Audit of the Premises
(including, but not limited to, the Fuel Facilities, QTA Equipment and Operator Vehicle
Maintenance Equipment) and each Operator's and the Fuel Facilities Manager's operations,
equipment, facilities and fixtures on or about the Consolidated Rental Car Facility Site. The
Operators and each Operator shall, through the Fuel Facility Manager, provide the Port with a draft
plan (including with a performance schedule) to complete all reasonable repairs, replacements,
and/or upgrades of the Premises Fuel Facility, QTA Equipment, Operator Vehicle Maintenance
Equipment and associated structures and/or facilities located on or about the QTA Space and all
51
modifications to the Fuel Facility Operations Manual or other operational plans and procedures
associated with the Fuel Facilities, QTA Equipment or Operator Vehicle Maintenance Equipment as
recommended in the Environmental Audit no later than thirty (30) days following the receipt of the
results of such an Environmental Audit. The Port shall have ten (10) days within which to review
and comment upon the draft plan. The Operators and each Operator shall, through the Fuel Facility
Manager, promptly incorporate any reasonable Port comments into a final plan and complete all
repairs, replacements, and/or upgrades according to the final plan (and performance schedule). The
Operators and each Operator shall, through the Fuel Facility Manager, also modify the Fuel Facility
Operations Manual or other operational plans and procedures associated with the Fuel Facilities,
QTA Equipment or Operator Vehicle Maintenance Equipment consistent with the results of the
Environmental Audit. Any Alteration on or about the Premises shall be accomplished in accordance
with ARTICLE 13. In conducting any Environmental Audit, the Port shall not unreasonably
interfere with the business operations of Operator and if it shall damage or otherwise disturb the
Premises during such Environmental Audit, it shall restore the Premises to the condition in which
they existed prior to the damage.
19.1.6.3 General Standards. In determining those recommendations
incorporated into any Environmental Audit that are reasonable (and therefore to be implemented), all
recommendations shall be presumed reasonable unless Operator can demonstrate that the costs
significantly outweigh the benefits of the proposed change.
19.2 QTA Space Indemnity. The Operators, and each Operator and the Fuel Facility
Manager or Facility Manager (as appropriate) shall hold the Port harmless from any damages, claims,
or liability arising out of the use or occupancy of the Fuel Facilities, QTA Equipment and Operator
Vehicle Maintenance Equipment on or about the Consolidated Rental Car Facility Site including,
without limitation, liability for investigation and remedial action related to the following or similar
activities occurring during the use and operation of the Fuel Facilities, QTA Equipment and Operator
Vehicle Maintenance Equipment: (i) any releases, spills, discharges, leaks, emissions, injections,
escapes, dumping, generation, transportation, storage, treatment or disposal of Hazardous
Substances; (ii) any other discharge to surface or ground waters; (iii) any air emissions; and (iv) any
contamination of soil or ground waters beneath or adjacent to the Consolidated Rental Car Facility
Site, except for such damage, claims or liability (w) caused by the Port, its commissioners, officers,
agents and employees, (x) associated with the Pre-Lease Environmental Condition, (y) clearly arising
from any construction defect in the Fuel Facilities Except and discovered within six (6) years of the
Commencement Date for the QTA Space, or (z) associated with any Hazardous Substance (for which
Operator is not otherwise responsible) clearly migrating onto the Consolidated Rental Car Facility
Site from some other location through no fault of Operator. With respect to cleanup of any
Hazardous Substances on the Premises, the Port agrees that it will reasonably approve cleanup
criteria and investigation, monitoring, and remediation activities that comply with Environmental
Laws and are consistent with both current commercial/industrial uses at the site as well as the Port's
future development plans for the site. The Port further agrees that it will not unreasonably withhold
approval of any institutional control(s) consistent with the foregoing standard.
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19.3 Environmental Certification. The Operators and each Operator shall, through the Fuel
Facility Manager, provide to the Port at the commencement of each Agreement Year other than the
first: (i) a written statement, certified by the Fuel Facility Manager as true and complete that to the
best of the knowledge of Fuel Facility Manager and each of the Operators, that the Operators have,
and each Operator has, with respect to the Premises and the Operators' occupation and use of the
Premises, complied with (i) the Pollution Prevention Plan, the Spill Prevention and Countermeasure
Control Plan, Order of Approval (i.e. air quality permit), the Fuel Facilities Operations Manual and
applicable Environmental Laws during the preceding Agreement Year, and (ii) all directions and
recommendations set forth in any previous Environmental Audit. If the Fuel Facility Manager is
unable to provide such certification or documentation at such time, then the Operators and each
Operator shall, through the Fuel Facility Manager, provide the Port with a written statement of the
steps they are taking to enable them to provide the Port with a certification of compliance and all
required documentation.
19.4 Further Financial Assurance.
19.4.1 In addition to, and not in lieu of, any Security, the Operators and each
Operator shall, through the Fuel Facility Manager, provide to the Port, and must continually maintain
an irrevocable stand-by letter of credit in the form attached hereto as Exhibit M and drawn on a bank
acceptable to the Port in the amount equal to one million dollars ($1,000,000.00) (the "Financial
Assurance"). The Financial Assurance shall secure the Operators', and each Operator's, full and
faithful performance of all of the obligations under ARTICLE 18 and ARTICLE 19 of this Lease
Agreement ("the Environmental Covenants"). The Port may draw upon the Financial Assurance at
any time to satisfy any of the unfulfilled obligations under, to remedy any violation of, or to pay
damages for violation of the Environmental Covenants. Further, the Port may draw on the entire
Financial Assurance immediately, without notice to the Operators or the Fuel Facility Manager, upon
receipt of a notice of non-renewal of the Financial Assurance, upon the commencement of a
bankruptcy case or other insolvency proceeding in respect of the Fuel Facility Manager. If drawn
upon, the Financial Assurance must be replenished, in full, within ten (10) days by the Operators and
each of them, or the Operators and each of them will be deemed in violation of this Lease
Agreement. In such event, the Port will have available to it all remedies for default of this Lease
Agreement. If drawn upon, the proceeds of such draw shall not be considered held in trust by the
Port for the benefit of the Operators or the Fuel Facility Manager.
19.4.2 The Financial Assurance required by this Lease Agreement must, unless
replaced with like Financial Assurance under a new lease agreement, be maintained until ten (10)
years following the end of the Lease Term; provided, however, the Operators may, through the Fuel
Facility Manager, request a reduction in the amount of the Financial Assurance to a dollar amount
that would be sufficient to compensate the Port for any residual environmental costs and liabilities
resulting from Hazardous Substances that may remain on or about the Consolidated Rental Car
Facility Site following the termination of this Lease Agreement. The burden of showing what would
be sufficient to compensate the Port for any residual environmental costs and liabilities shall be on
the Operators. Any such reduction of the Financial Assurance shall be at the sole discretion of the
Port.
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ARTICLE 20: DAMAGE OR DESTRUCTION
20.1 Minor Damage. Should the Premises or the larger Consolidated Rental Car Facility of
which the Premises are a part be damaged by fire or other casualty, and if the damage is repairable
within four (4) weeks from the date of the occurrence (with repair work and the preparations
therefore to be done during regular working hours on regular work days), the Premises (other than
furniture, fixtures and equipment owned by Operator pursuant to Section 13.4) shall be repaired with
due diligence by the Port, and in the meantime, the Land Rent and Minimum Annual Guarantee shall
be abated in the same proportion that the untenantable portion of the Premise bears to the whole
thereof, for the period from the occurrence of the damage to the completion of the repairs. In
addition, the Port shall be responsible for a reasonable share of the Utilities Costs otherwise payable
for the Common Use Area to account for the amounts consumed in the completion of the repairs.
20.2 Major Damage or Destruction. Should the Premises or the larger Consolidated Rental
Car Facility of which said Premises are a part be completely destroyed by fire or other casualty, or
should they be damaged to such an extent that the damage cannot be repaired within four (4) weeks
of the occurrence, the Port shall have the option to terminate this Lease Agreement on thirty (30)
days notice, effective as of any date not more than sixty (60) days after the occurrence. In the event
that this Section 20.2 shall become applicable, the Port shall advise Operator within thirty (30) days
after the occurrence of any such damage whether the Port has elected to continue the Lease
Agreement in effect or to terminate it. If the Port shall elect to continue this Lease Agreement in
effect, it shall commence and prosecute with due diligence any work necessary to restore or repair
the Premises (other than furniture, fixtures and equipment owned by Operator pursuant to Section
13.4). If the Port fails to notify Operator of its election within said thirty (30) day period, the Port
shall be deemed to have elected to continue this Lease Agreement. For the period from the
occurrence of any damage to the Premises to the date of completion of the repairs to the Premises (or
to the date of termination of the Lease Agreement if the Port elects not to restore the Premises), the
Land Rent and Minimum Annual Guarantee shall be abated in the same proportion that the
untenantable portion of the Premise bears to the whole thereof. In addition, the Port shall be
responsible for a reasonable share of the Utilities Costs otherwise payable for the Common Use Area
to account for the amounts consumed in the completion of the repairs.
20.3 Operator's Improvements. Operator shall, at is sole cost and expense, be responsible,
without regard to the cause of loss, for any and all repair or restoration of any Initial Tenant
Improvements, subsequent Alterations, or furniture, fixtures and equipment owned by Operator,
which repair or restoration may be necessary as a result of any casualty. If any casualty event causes
damage or loss to Operator's Improvements, but has not otherwise affected the Premises or triggered
Section 20.1 or 20.2 of this Lease Agreement; and such damage or loss cannot be repaired within (4)
weeks, and the loss results in a stoppage or shutdown of fifty percent (50%) or more of the
Operator's use of the Premises, the Operator shall give written notice to the Port within four (4)
weeks of the day of the casualty of its plan to remove debris and begin restoration and repairs to the
Operator's Improvements on the Premises.If after three (3) months from the day of the casualty the
Operator has not begun repair or restoration efforts, or removed debris, the Port has the option to
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terminate the Lease Agreement with thirty (30) days notice given to Operator. If after six (6)
months, Operator's repairs or restoration efforts have not restored at least fifty percent (50%) of the
damage to Operator's Improvements to their original condition, the Port has the option to terminate
the Lease Agreement with thirty (30) days notice to the Operator. In the event a casualty event
causes loss or damage to Operator's Initial Tenant Improvements or subsequent Alterations that
forces Operator's operations to be shut down and this same event does not impact the Premises, the
Common Use Area, the Rental Car Facility, or the Consolidated Rental Car Facility Site, the
Operator shall continue to be responsible for Land Rent and the Minimum Annual Guarantee that is
owed to the Port.
20.4 Contingent Business Interruption. Should Operator's access to or use of the Premises
or the larger Consolidated Rental Car Facility of which the Premises are a part be materially impaired
for a period exceeding seven (7) days under circumstances not otherwise triggering Section 20.1 nor
20.2 of this Lease Agreement, the Port agrees that in that event the Land Rent and Minimum Annual
Guarantee shall be abated in the same proportion that Operator's access to or use of the Premises is
impaired, for the period from the occurrence of the damage to the substantial restoration of access
and use.
ARTICLE 21: SURRENDER AND HOLDING OVER
21.1 Surrender. Upon expiration or earlier termination of this Lease Agreement, Operator
shall promptly quit and surrender the Premises in good condition and repair, normal wear and tear
excepted and deliver to the Port all keys that it may have to any part of the Premises or Airport.
Operator shall, at its sole cost and expense, further remove the following from the Premises:
21.1.1 All of Operator's equipment and trade fixtures;
21.1.2 All of Operator's signs, including but not limited to company identifiers,
operational signs, illuminated directional signs, rental/return signs and stall numbers, and backwall
displays;
21.1.3 All control booths, kiosks and security devices for the benefit of Operator,
whether installed by Operator, other Operators or the predecessor-in-interest of either;
21.1.4 Operator's computer and other electrical equipment;
21.1.5 Operator's telephone/data communication lines and associated equipment;
21.1.6 Any Operator Vehicle Maintenance Equipment; together with all structure,
enclosure and piping associated with such systems;
21.1.7 All utilities (including, but not limited to, HVAC, electricity, water sewer,
conduit and lines) installed by Operator or Operator's predecessors in interest, back to point of
connection to the Port's utility systems; and
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21.1.8 Any improvements, whether installed at the commencement of the Lease
Term or subsequently for which the Port's consent was conditioned on Operator's removal of such
improvements at the expiration or earlier termination of this Lease Agreement.
Unless otherwise specifically agreed by the Port in writing, Operator shall diligently complete such
removal at or before the termination (including by expiration) of this Lease Agreement.
21.2 Holding Over. If the Premises are not surrendered as provided in this Article,
Operator shall indemnify and hold the Port harmless against loss or liability resulting from the delay
by Operator in so surrendering the Premises, including, without limitation, any claims made by any
succeeding occupant founded on such delay. Any holding over with the consent of the Port after
expiration or earlier termination of this Lease Agreement shall be construed to be a tenancy from
month-to-month upon the same terms and conditions provided in this Lease Agreement. Any
holding over without the consent of the Port after expiration or earlier termination of this Lease
Agreement shall be construed to be tenancy at sufferance upon the same terms and conditions
provided in this Lease Agreement, except that Minimum Annual Guarantee and Percentage Fees
shall each be one hundred twenty five percent (125%) of that which they were immediately prior to
expiration or earlier termination of this Lease Agreement.
21.3 Survival. Operator's obligations under this Article shall survive the expiration or
earlier termination of this Lease Agreement. No modification, termination or surrender to the Port of
this Lease Agreement or surrender of the Premises or any part thereof, or of any interest therein by
Operator, shall be valid or effective unless agreed to and accepted in writing by the Port, and no act
by any representative or agent of the Port, other than such written agreement and acceptance, shall
constitute an acceptance thereof.
ARTICLE 22: IMPAIRMENT OF TITLE
22.1 Liens. Operator will not directly or indirectly create or permit to be created and/or to
remain a Lien upon the Premises or any Alteration, the ownership of which is retained by the Port.
In the event any such Lien(s) have been created by or permitted by Operator in violation of this
provision, Operator shall immediately discharge as of record, by bond or as otherwise allowed by
law, any such Lien(s). Operator shall also defend (with counsel approved by the Port), fully
indemnify, and hold entirely free and harmless the Port from any action, suit or proceeding, which
may be brought on or for the enforcement of such lien(s). Nothing in this Section 22.1 shall,
however, be interpreted as a limitation on Operator's ability to lease and/or finance its vehicle fleet
and pledge, encumber or otherwise hypothecate title to its vehicles for such purpose; and the Port
expressly hereby subordinates, in a favor of any such vehicle lessor or lender, any interest it may
have in such vehicles, whether arising under this Lease Agreement or as a matter of law.
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ARTICLE 23: DEFAULT
23.1 Events of Default. The occurrence of any of the following eve nts shall constitute an
"Event of Default" on the part of the Operator with or without notice from the Port:
23.1.1 The vacating or abandonment of the Premises by Operator.
23.1.2 The failure by Operator to collect and remit the Customer Facility Charge as
required by the Lease Agreement when due.
23.1.3 The failure by Operator to make any payment of rent, fees or any other
payment required by this Lease Agreement or the Concession Agreement, when due.
23.1.4 The failure by Operator to make any payment to the Facility Manager or Fuel
Facility Manager required by this Lease Agreement or the agreement between the Operators and the
Facility Manager or Fuel Facility Manager (as the case may be) when due.
23.1.5 The failure by Operator to observe or perform any covenant, condition, or
agreement to be observed or performed by Operator in this Lease Agreement or the Concession
Agreement.
23.1.6 The failure by Operator to observe or perform any covenant, condition, or
agreement to be observed or performed by Operator in the agreement between the Operators and the
Facility Manager or Fuel Facility Manager (as the case may be).
23.1.7 The discovery by the Port that any financial or background statement provided
to the Port by Operator, any successor, grantee, or assign was materially false.
23.1.8 The filing by Operator of a petition in bankruptcy, Operator being adjudged
bankrupt or insolvent by any court, a receiver of the property of Operator being appointed in any
proceeding brought by or against Operator, Operator making an assignment for the benefit of
creditors, or any proceeding being commenced to foreclose any mortgage or other lien on Operator's
interest in the Premises or on any personal property kept or maintained on the Premises by Operator.
23.2 Remedies. In addition to, and not in lieu or to the ex clusion of, any other remedies
provided in this Lease Agreement or to any other remedies available to the Port at law or in equity,
and subject to the Port's obligation to mitigate as set forth in Section 23.2.3:
23.2.1 Whenever any default (other than a default under Section 23.1.8 above, upon
which termination of this Lease Agreement shall, at the Port's option, be effective immediately
without further notice) continues unremedied in whole or in part for 30 days after Notice of Default
is provided by the Port to Operator (or for 15 days after Notice of Default in the case of default for
failure to pay any rent, fees or other required payment under Sections 23.1.3 or 23.1.4 when due),
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this Lease Agreement and all of Operator's rights under it will automatically terminate if the Notice
of Default so provides. Upon termination, the Port may reenter the Premises using such force as may
be necessary and remove all persons and property from the Premises. The Port will be entitled to
recover from Operator all unpaid Land Rent, unremitted Customer Facility Charges, unpaid
Reimbursable O&M Costs and other sum or charge otherwise payable by Operator, or any other
payments and damages incurred because of Operator's default including, but not limited to, the
reasonable and necessary costs of re-letting, including any tenant improvements reasonably required,
renovations or repairs reasonably required, any advertising reasonably required, any leasing
commissions reasonably required, and attorney's fees and costs reasonably required ("Termination
Damages"), together with interest on all Termination Damages at the Default Rate, from the date
such Termination Damages are incurred by the Port until paid.
23.2.2 In addition to Termination Damages, and notwithstanding termination and
reentry, Operator's liability for all Space Rent, Concession Fees, other sum or chargeotherwise
payable by Operator, or other charges which, but for termination of this Lease Agreement, would
have become due over the remainder of the Lease Term ("Future Charges") will not be extinguished
and Operator agrees that the Port will be entitled, upon termination for default, to collect as
additional damages, a Rental Deficiency. "Rental Deficiency" means, at the Port's election, either:
(a) An amount equal to Future Charges, less the amount of actual rent and
fees, if any, which the Port receives during the remainder of the Lease Term from others to whom the
Premises may be rented, in which case such Rental Deficiency will be computed and payable at the
Port's option either:
(i) In an accelerated lump-sum payment discounted to present
worth, or
(ii) In monthly installments, in advance, on the first day of each
calendar month following termination of this Lease Agreement and continuing until
the date on which the Lease Term would have expired but for such termination, and
any suit or action brought to collect any portion of Rental Deficiency attributable to
any particular month or months, shall not in any manner prejudice the Port's right to
collect any portion of Rental Deficiency by a similar proceeding; or
(b) An amount equal to Future Charges less the aggregate fair rental value
of the Premises over the remaining Lease Term, reduced to present worth. In this case, the Rental
Deficiency must be paid to the Port in one lump sum, on demand, and will bear interest at the
Default Rate until paid. For purposes of this subsection, "present worth" is computed by applying a
discount rate equal to one percentage point above the discount rate then in effect at the Federal
Reserve Bank in, or closest to, Seattle, Washington.
23.2.3 If this Lease Agreement is terminated for default as provided in this Lease
Agreement, the Port shall use reasonable efforts to re-let the Premises in whole or in part, alone or
together with other premises, for such term or terms (which may be greater or less than the period
58
which otherwise would have constituted the balance of the Lease Term), for such use or uses and,
otherwise on such terms and conditions as the Port, subject to the terms of this Lease Agreement but
otherwise in its sole discretion, may determine, but the Port will not be liable for, nor will Operator's
obligations under this Lease Agreement be diminished by reason for any failure by the Port to re-let
the Premises or any failures by the Port to collect any rent due upon such re-letting. Notwithstanding
the foregoing, the Port and each of the Operators (including Operator) agree that in the event that this
Lease Agreement is terminated for default, the Port must prior to leasing the Premises subject to
this Lease Agreement to anyone other than a rental car company first make reasonable efforts to
relet the premises to one or more rental car companies. Allocation of the Premises shall generally
comply with Section 11.4. In the event that the Port is unable to relet the Prem ise to one or more
rental car companies, the Port may then lease the Premises to any other person; provided, however,
the Premises may not be use for purposes of providing shuttle, limousine or other ground
transportation service in competition with the rental car industry.
23.2.4 If upon any reentry permitted under this Lease Agreement, there remains any
personal property upon the Premises, the Port, in its sole discretion, may remove and store the
personal property for the account and at the expense of Operator. In the event the Port chooses to
remove and store such property, it shall take reasonable steps to notify Operator of the Port's action.
All risks associated with removal and storage shall be on Operator. Operator shall reimburse the
Port for all expenses incurred in connection with removal and storage as a condition to regaining
possession of the personal property. The Port has the right to sell any property, which has been
stored for a period of 30 days or more, unless Operator has tendered reimbursement to the Port for all
expenses incurred in removal and storage. The proceeds of sale will be applied first to the costs of
sale (including reasonable attorneys' fees), second to the payment of storage charges, and third to the
payment of any other amounts which may then be due and owing from Operator to the Port. The
balance of sale proceeds, if any, will then be paid to Operator.
23.3 Remedies Cumulative. All rights, options and remedies of the Port contained in this
Lease Agreement shall be construed and held to be distinct, separate and cumulative, and no one of
them shall be exclusive of the other, and the Port shall have the right to pursue any one or all of such
remedies or any other remedy or relief which may be provided by law or in equity, whether or not
stated in this Lease Agreement.
ARTICLE 24: TERMINATION; EASEMENTS
24.1 Termination. This Lease Agreement may be terminated by the Port or Operator in
advance of its scheduled expiration date on any of the following events:
24.1.1 By the Port.
24.1.1.1 Default. Subjec t to any right to cure set forth in this Lease
Agreement, in the event of Operator's default under this Lease Agreement pursuant to Section 23.2.
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24.1.1.2 Major Capital Improvement. In the event the Port, in its sole
discretion, requires the Premises for a major capital improvement of the Airport, or for safety and
security reasons, the Port may terminate this Lease Agreement by delivering to Operator notice of
termination not less than one (1) year before the termination date specified in the termination notice
and rental car facilities of at least comparable size, quality and scope to the Consolidated Rental Car
Facilities shall have been provided to the Operator at no additional cost to the Operator, on or prior
to such termination. In the event that the Port does not provide replacement premises as set forth in
the previous sentence, the Port shall provide Operator at least thirty (30) months notice and shall pay
Operator all amounts to which Operator would be entitled in the event of a condemnation under
applicable law.
24.1.1.3 Taking. In the event that any federal, state or local government
or agency or instrumentality thereof (including the Port) shall, by condemnation or otherwise, take
title, possession or the right to possession of the Premises or any part thereof, the Port may, at its
option, terminate this Lease Agreement as of the date of such taking, and if Operator is not in default
under any of the provisions of this Lease Agreement on said date, any rent or concession fees prepaid
by Operator shall, to the extent allocable to any period subsequent to the effective date of the
termination, be promptly refunded to Operator.
24.1.1.4 Court Decree. In the event that any court having jurisdiction in
the matter shall render a decision which has become final and which will prevent the performance by
the Port of any of its material obligations under this Lease Agreement, then either party hereto may
terminate this Lease Agreement by written notice, and all rights and obligations hereunder (with the
exception of any undischarged rights and obligations that accrued prior to the effective date of
termination) shall thereupon terminate. If Operator is not in default under any of the provisions of
this Lease Agreement on the effective date of such termination, any rent or concession fees prepaid
by Operator shall, to the extent allocable to any period subsequent to the effective date of the
termination, be promptly refunded to Operator.
24.1.2 By Operator. The Operator, at its option, may declare this Lease Agreement
terminated in its entirety, with no penalty to or further liability of Operator, upon the happening of
any one or more of the following events:
24.1.2.1 A court of competent jurisdiction issues an injunction or
restraining order against the Port preventing or retraining, in its entirety or substantial entirety, the
use of the Airport for airport purposes.
24.1.2.2 The Port abandons the Airport for a period of at least thirty (30)
consecutive days and fails to operate and maintain the Airport in such manner as to permit landings
and takeoffs of airplanes by scheduled air carriers.
24.1.2.3 The Airport or a material portion of the Airport or Airport
facilities is destroyed, resulting in material interference with Company's normal business operations
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or substantial diminution of Operator's Gross Revenues at the Airport for a period in excess of sixty
(60) consecutive days.
24.1.2.4 An agency or instrumentality of the United States government
or any state or local government occupies the Airport or a substantial part thereof for any reason,
resulting in material interference with Operator's normal business operations or substantial
diminution of Operator's Gross Revenues at the Airport for a period in excess of sixty (60)
consecutive days.
24.1.2.5 The Operator submits, in consideration of Operator's thenexisting
financial circumstances, a good faith bid for a Concession Agreement to operate a Rental
Car Concession at the Airport for the initial and each subsequent Concession Term but any such bid
is not accepted by the Port and the Operator is not granted or loses its right to operate a Rental Car
Concession at the Airport.
24.2 Easements.
24.2.1 The Parties recognize that the Port facilities are continuously being modified
to improve the utilities, services and premises used and provided by the Port. The Port, or its agents,
shall have the right to enter the Premises of Operator, and to cross over, construct, move, reconstruct,
rearrange, alter, maintain, repair and operate the sewer, water, and drainage lines, and the electrical
service, fiber and communication service and all other services and facilities, all as required by the
Port for its own use or benefit. The Port and its authorized utility service provider are hereby granted
a continuous easement or easements that the Port believes is necessary within the Premises, without
any additional cost to the Port for the purposes expressed hereinabove. Provided, however, that the
Port by virtue of such use, does not substantially deprive Operator from its beneficial use or
occupancy of the Premises for an unreasonable period of time, not to exceed ten (10) working days,
without consent of Operator.
24.2.2 In the event that the Port permanently deprives Operator from such beneficial
use or occupancy, then an equitable reimbursement of pre-paid rent or an adjustment in rent for any
extension, or in the cost required to modify its Premises to allow the Operator to operate its business,
will be negotiated and paid by the Port to Operator. In the event that such entry by the Port is
temporary in nature, then the Port shall reimburse Operator for the cost required to modify its
Premises for the temporary period that Operator is inconvenienced by such entry. The Port will not
be responsible to Operator for any reduced efficiency or loss of business occasioned by such entry.
ARTICLE 25: NO WAIVER; LANDLORD'S RIGHT TO PERFORM
25.1 Receipt of Monies Following Termination. No receipt of monies by the Port from
Operator after the termination or cancellation of this Lease Agreement in any lawful manner shall (a)
reinstate, continue or extend the Lease Term; (b) affect any notice theretofore given to Operator; (c)
operate as a waiver of the rights of the Port to enforce the payment of any Space Rent, Concession
Fees or other sum or charge otherwise payable by Operator then due or thereafter falling due; or (d)
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operate as a waiver of the right of the Port to recover possession of the Premises by proper suit,
action, proceeding or remedy; it being agreed that after the service of notice to terminate or cancel
this Lease Agreement, or after the commencement of suit, action or summary proceedings, or any
other remedy, or after a final order or judgment for the possession of the Premises, the Port may
demand, receive and collect any monies due, or thereafter falling due, without in any manner
affecting such notice, proceeding, suit, action, order or judgment; and any and all such monies
collected shall be deemed to be payments on account of the use and occupation and/or Operator's
liability hereunder.
25.2 No Waiver of Breach. The failure of the Port to insist in any one or more instances,
upon a strict performance of any of the covenants of this Lease Agreement, or to exercise any option
herein contained, shall not be construed as a waiver of or relinquishment for the future of the
performance of such covenant, or the right to exercise such option, but the same shall continue and
remain in full force and effect. The receipt by the Port of any sum (including Land Rent, Customer
Facility Charges, Reimbursable M&O Costs) or charge otherwise payable by Operator, with
knowledge of the breach of any covenant hereof, shall not be deemed a waiver of such breach, and
no waiver by the Port of any provision hereof shall be deemed to have been made unless expressed in
writing and signed by the Port. The consent or approval of the Port to or of any act by Operator
requiring the Port's consent or approval shall not be deemed to waive or render unnecessary the
Port's consent or approval to or of any subsequent similar acts by Operator.
25.3 No Waiver of Rent. The receipt by the Port of any installment of the Land Rent,
Reimbursable O&M Costs, Concession Fees or other sum or charge otherwise payable by Operator
shall not be a waiver of any Land Rent, Reimbursable O&M Costs, Concession Fees or other sum or
charge otherwise payable by Operator then due.
25.4 Application of Payments. The Port shall have the right to apply any payments made
by Operator to the satisfaction of any debt or obligation of Operator to the Port, in the Port's sole
discretion and regardless of the instructions of Operator as to application of any such sum, whether
such instructions be endorsed upon Operator's check or otherwise, unless otherwise agreed upon by
both parties in writing. The acceptance by the Port of a check or checks drawn by others than
Operator shall in no way affect Operator's liability hereunder nor shall it be deemed an approval of
any assignment of this Lease Agreement or subletting by Operator.
25.5 Port's Right to Perform. Upon Operator's failure to perform any obligation or make
any payment required of Operator hereunder, the Port shall have the right (but not the obligation) to
perform such obligation of Operator on behalf of Operator and/or to make payment on behalf of
Operator to such parties. Operator shall reimburse the Port the reasonable cost of the Port's
performing such obligation on Operator's behalf, including reimbursement of any amounts that may
be expended by the Port, plus interest at the Default Rate,
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ARTICLE 26: ASSIGNMENT OR SUBLEASE
26.1 Prohibition. Subject to Section 26.2, Operator shall not assign or transfer this Lease
Agreement or any interest therein nor sublet the whole or any portion of the Premises, nor shall this
Lease Agreement or any interest there under be assignable or transferable by operation of law or by
any process or proceeding of any court, or otherwise without the advance written consent of the Port.
If Operator is anything other than an individual, Operator further agrees that if at any time during the
Lease Term more than one-half (1/2) of the outstanding voting equity interests shall belong to any
persons other than those who own more than one-half (1/2) of those outstanding voting equity
interests at the time of the execution of this Lease Agreement or to members of their immediate
families, such change in the ownership of Operator shall be deemed an assignment of this Lease
Agreement within the meaning of this Section 26.1; provided, however, that this sentence shall not
apply if, and to the extent that Operator is a corporation, the outstanding voting stock of which is
listed on a recognized security exchange. Operator's entering into any operating agreement, license
or other agreement where under a third party is given rights or privileges to utilize a portion of the
Premises shall be an attempted assignment or subletting within the meaning of this Section.
26.1.1 If Operator shall, at any time during the Lease Term, desire to sell, assign or
otherwise permanently transfer the Lease Agreement in whole or in part, or any right or leasehold
interest granted to it by this Lease Agreement, Operator shall, at the time the Operator requests the
consent of the Port, deliver to the Port such information in writing as the Port may reasonably require
respecting the proposed assignee or subtenant including, without limitation, the name, address,
nature of business, ownership, financial responsibility and standing of such proposed assignee or
subtenant together with the proposed form of assignment or sublease. Within thirty (30) days from
receipt of the information specified above, the Port shall notify Operator of its election to: (a)
consent to the assignment or (b) disapprove the assignment, setting forth the grounds for doing so.
26.1.2 As a condition for the Port's consent to any transfer, the Port may require that
the assignee or subtenant remit directly to the Port on a monthly basis, all monies due to Operator by
said assignee or subtenant. In addition, a condition to the Port's consent to any assignment or
sublease of this Lease Agreement or the Premises shall be the delivery to the Port of a true copy of
the fully executed instrument of assignment or sublease and an agreement executed by the assignee
or subtenant in form and substance satisfactory to the Port and expressly enforceable by the Port,
whereby the assignee or subtenant assumes and agrees to be bound by the terms and provisions of
this Lease Agreement and perform all the obligations of Operator hereunder.
26.1.3 In the event of any assignment, Operator and each respective assignor, waive
notice of default by the Operator in possession in the payment of rent or fees and in the performance
of the covenants and conditions of this Lease Agreement and consents that the Port may in each and
every instance deal with the Operator in possession, grant extensions of time, waive performance of
any of the terms, covenants and conditions of this Lease Agreement and modify the same, and in
general deal with the Operator then in possession without notice to or consent of any assignor,
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including Operator; and any and all extensions of time, indulgences, dealings, modifications or
waivers shall be deemed to be made with the consent of Operator and of each respective assignor.
26.1.4 Operator agrees that any sublease will contain a provision in substance that if
there be any termination whatsoever of this Lease Agreement, then the subtenant, at the request of
the Port, will attorn to the Port and the subtenancy, if the Port so requests, shall continue in effect
with the Port, but the Port shall be bound to the subtenant in such circumstances only by privity of
estate. Nothing herein shall be deemed to require the Port to accept such attornment.
26.1.5 No assignment, subletting or license by Operator shall relieve Operator of any
obligation under this Lease Agreement, including Operator's obligation to pay any sums due
hereunder. Any purported assignment or subletting contrary to the provisions hereof without consent
shall be void. The consent by the Port to any assignment or subletting shall not constitute a waiver
of the necessity for such consent to any subsequent assignment or subletting.
26.1.6 Operator shall reimburse the Port any reasonable professionals' fees and
expenses incurred by the Port in connection with any request by Operator for consent to an
assignment or sublease.
26.2 Assignment to Successor or Affiliate. Notwithstanding anything to the contrary in
Section 26.1, the Port agrees that it will not unreasonably condition or withhold its consent to an
assignment and transfer this Lease Agreement and all rights, title, and interest hereunder by Operator
to: (i) any corporation or other legal entity which at the time of such assignment is a parent of,
subsidiary of or under common ownership and control with the Operator, (ii) to any corporation or
other legal entity with which the Operator may merge or into which it may consolidate, or (iii) to any
person, firm or corporation which may acquire all or substantially all of Operator's rental car
business or assets; provided in each instance the surviving, resulting or transferee corporation
expressly assumes in writing all the obligations of Operator contained in this Lease Agreement and
the surviving, resulting or transferee corporation or other legal entity, as the case may be, has a
consolidated net worth (after giving effect to such consolidation, merger or transfer) at least equal to
that of the Operator on: (x) the date on which Operator last submitted a bid for a Concession
Agreement, or (y) immediately prior to such consolidation, merger or transfer, whichever is greater.
The term "Net Worth" as used in this Section means the difference obtained by subtracting total
liabilities from total assets of the Operator and all of its subsidiaries in accordance with generally
accepted accounting principles.
26.3 Execution Prior to Request for Qualifications. The Port acknowledges that Operator
may execute this Lease Agreement prior to the time at which Operator has, for purposes of the
Request for Qualifications, identified the brands and/or trade names under which it would intend to
operate any Rental Car Concession awarded under the Request for Qualifications. The Port further
acknowledges the importance of having consistency between the Lease Agreement and the
Concession Agreement in this regard. Therefore, the Port agrees that so long as any Operator
executing this Lease Agreement prior to the Request for Qualification commits, as part of the
Request for Qualifications process, to operate one or more Rental Car Concessions utilizing those
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brands and/or trade names controlled and committed by Operator at the time Operator signed this
Lease Agreement, the Port will without penalty of any kind allow such Operator to either execute
such other and further Lease Agreements or combine two or more Lease Agreements into one Lease
Agreement, all as may be necessary to ensure one-to-one correspondence between the Lease
Agreements and Concession Agreements.
ARTICLE 27: AIRPORT CONCESSION DISADVANTAGED BUSINESS ENTERPRISES
27.1 Certification Required. It is the policy of the Port to support participation of Airport
Concession Disadvantaged Business Enterprises (or "ACDBEs"), as defined in 49 CFR, Part 23, in
concession activities at the Airport. To the extent Operator is required to operate the Premises as an
ACDBE, Operator agrees: (i) to submit to the Port, upon execution of this Lease Agreement,
certification from the State of Washington that Operator is a certified ACDBE, and (ii) at all times
during the Lease Term, to be and remain certified as an ACDBE in accordance with all applicable
federal, state and local laws, rules and regulations and to timely file any and all applications, together
with all supporting documentation, necessary to maintain such certification. In the event that
Operator is certified as an ACDBE and that certification is necessary to satisfy the requirements of
this Section, prior to any change in ownership, control or organization of Operator, Operator shall (in
addition to any requirements that may be imposed by Section 26.1) similarly obtain ACDBE
certification for Operator as so changed and provide the Port with proof of the same. If Operator
shall at any time cease to be so certified, the Port may, at its sole option, terminate this lease on not
less than ninety (90) days advance written notice to Operator.
27.2 Opportunities for Participation. It is the policy of the Port to ensure that Airport
Concession Disadvantaged Business Enterprises as defined in the Department of Transportation
(DOT), 49 CFR Part 23, and other small businesses have an equal opportunity to receive and
participate in DOT-assisted contracts. The Port encourages Operator to make every reasonable effort
to maximize the contracting opportunities for ACDBEs and other small businesses in the
architectural, engineering and construction of the Premises, and in the procurement of goods and
services necessary for the operation of the Rental Car Concession at this Airport.
27.3 Reports. Operator shall submit quarterly ACDBE participation reports to the Port on
or before the twentieth (20th) day of each month following the end of each Agreement Year quarter.
Operator shall submit such reports as may be required by the Port, for the purpose of demonstrating
compliance with 49 CFR Part 23.
ARTICLE 28: NON-DISCRIMINATION
28.1 Operator for itself, its heirs, personal representatives, successors in interest, and
assigns, as part of the consideration hereof, does hereby covenant and agree that in the event facilities
are constructed, maintained, or otherwise operated on the Airport for a purpose for which a DOT
program or activity is extended or for another purpose involving the provision of similar services or
benefits, Operator shall maintain and operate such facilities and services in compliance with all other
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requirements imposed pursuant to 49 CFR Part 21, Nondiscrimination in Federally Assisted
Programs of the Department of Transportation, and as said Regulation may be amended.
28.2 Operator for itself, its personal representatives, successors in interest, and assigns, as
a part of the consideration hereof, does hereby covenant and agree: (i) that no person on the grounds
of race, color, or national origin shall be excluded from participation in, denied the benefits of, or be
otherwise subjected to discrimination in the use of said facilities, (ii) that in the construction of any
improvements on, over, or under such land and the furnishing of services thereon, no person on the
grounds of race, color, or national origin shall be excluded from participation in, denied benefits of,
or otherwise be subjected to discrimination, (iii) that Operator shall use the Premises in compliance
with all other requirements imposed by or pursuant to 49 CFR Part 21, Nondiscrimination in
Federally Assisted Programs of the Department of Transportation, and as said Regulations may be
amended.
28.3 Operator assures that it will comply with pertinent statutes, Executive Orders and
such rules as are promulgated to assure that no person shall, on the grounds of race, creed, color,
national origin, sex, age, or handicap be excluded from participating in any activity conducted with
or benefiting from Federal assistance. This Provision obligates Operator or its transferee for the
period during which Federal assistance is extended to the airport program, except where Federal
assistance is to provide, or is in the form of personal property or real property or interest therein or
structures or improvements thereon. In these cases, the Provision obligates Operator or any
transferee for the longer of the following periods: (i) the period during which the property is used by
the Port or any transferee for a purpose for which Federal assistance is extended, or for another
purpose involving the provision of similar services or benefits; or (ii) the period during which the
Port or any transferee retains ownership or possession of the property. In the case of contractors, this
Provision binds the contractors from the bid solicitation period through the completion of the
contract.
28.4 In addition, Operator agrees that, whether or not this Lease Agreement is conducted
with, or benefits from, Federal assistance, it shall in all matters pertaining to the performance of this
Lease Agreement conduct its business in a manner which assures fair, equal and nondiscriminatory
treatment of all persons without respect to race, sex, age, color, creed, sexual preference, marital
status, national origin, or the presence of any sensory, mental or physical handicap.
28.5 Operator will maintain open hiring and employment practices and will welcome
applications for employment in all positions from all qualified individuals.
28.6 It is the policy of the Department of Transportation that disadvantaged business
enterprises as defined in the Airport and Airway Improvement Act, as amended, and as implemented
by Federal regulations shall have the maximum opportunity to participate in the performance of
services as defined in 49 CFR 23.5. Consequently, this Lease Agreement is subject to 49 CFR Part
23 as applicable.
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28.7 Operator will, at the timely request of the Port, provide any information needed in
preparation of necessary reports, forms, documents, and other data relative to equal employment.
28.8 Operator hereby assures that it will include the above clauses in any subcontract(s)
approved by the Port and cause subcontractor(s) to similarly include clauses in further subcontracts.
ARTICLE 29: NON DISCRIMINATION IN CONTRACTS
29.1 Non-Discrimination. Th e Port of Seattle encourages Operators and each of them to
create and maintain a diverse workforce, contractor, and supplier base. Operators shall not create
barriers to open and fair opportunities for minority businesses enterprises (MBEs), and women's
business enterprises (WBEs), small business enterprises (SBEs) and disadvantaged business
enterprises (DBEs) to participate in all rental car contracts at the Airport and to obtain or compete for
contracts and subcontracts as sources of supplies, equipment, construction and services. In
considering offers from and doing business with contractors and suppliers, the rental car operator
shall not discriminate on the basis of race, color, creed, religion, sex, age, nationality, marital status,
sexual orientation or the presence of any mental or physical disability in an otherwise qualified
disabled person.
29.2 Record Keeping. Operator is required to submit to the Port of Seattle on the twenty -
fifth (25) day of the month following the end of each quarter (based on the calendar year) a document
(to be supplied by the Port of Seattle) that will include the following information:
29.2.1 Type of product or service purchases and the dollar value of the total
purchases made for each during the previous quarter;
29.2.2 Identify those contractors or suppliers who are MBEs, WBEs, SBEs or DBEs
and their certification number or such other verification issued by the State of Washington Office of
Minority and Women Owned Business (OMWBE), the United States Small Business Administration
(SBA), the Port of Seattle Office of Social Responsibility, the Northwest Minority Business Council,
or the Women's Business Enterprise National Council in the report;
29.2.3 Report attendance at local trade fairs, meetings and activities that reach MBEs,
WBEs, SBEs and DBEs;
29.2.4 Place all MBEs, WBEs, SBEs and DBEs attempting to do business with you
on a solicitation list and provide written notice of opportunities in sufficient time to allow such
business to respond to the written solicitations. This information will be attached to the statistical
report and submitted quarterly.
29.3 Investigation. If the Port receives a report of discrimination an investigation will take
place. Operator will allow the Port of Seattle to review all documents and records as the Port feels is
necessary to determine if the complaint is valid. Those documents will include but will not be
limited to: advertisements, proof of attendance at community meetings where businesses interested
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in doing business with airport rental operators will be reached, establishing delivery schedules that
encourage participation by MBEs, WBEs, SBEs and DBEs, breaking down total requirements into
smaller tasks or quantities in order to permit maximum participation by small businesses.
29.4 No Goals. No specific goals for any person or groups have been established for this
Lease Agreement; however, the information you supply will be used to determine the level of
participation by each racial group.
29.5 Changes in Law. The above requirements may be changed or adjus ted during the life
of the Lease Agreement if local, state or federal laws impose requirements that are not included here
or are in conflict with those included here.
ARTICLE 30: NOTICES
30.1 Method for Notice. All notices required under this Lease Agreement shall be in
writing and shall be delivered either: (i) personally, (ii) by certified or registered mail, (iii) by
recognized overnight courier, or (iv) by facsimile. Notices shall be deemed delivered (i) when
personally delivered; (ii) on the third day after mailing when sent by certified or registered mail and
the postmark affixed by the United States Postal Service shall be conclusive evidence of the date of
mailing; (iii) on the first business day after deposit with a recognized overnight courier if deposited
in time to permit overnight delivery by such courier as determined by its posted cutoff times for
receipt of items for overnight delivery to the recipient, or (iv) on the date transmitted by facsimile, if
the facsimile is confirmed received and was received by prior to 4:30 p.m. (recipient's local time),
otherwise, it will be deemed received the next business day.
30.2 Address for Notice. All notices required under this Lease Agreement shall be
addressed as follows:
To the Port:
Mailing Address:
Port of Seattle
Seattle-Tacoma International Airport
P. O. Box 68727
Seattle, Washington 98168
Attn: General Manager, Aviation Business Development & Management
Street Address:
Port of Seattle
Seattle-Tacoma International Airport
Airport Office Building, 4th Floor
17801 Pacific Highway South
Seattle, WA 98158
Attn: General Manager, Aviation Business Development & Management
Facsimile:
General Manager, Aviation Business Development & Management
(206) 787-4985
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With a copy to:
Mailing Address:
Port of Seattle
P. O. Box 1209
Seattle, Washington 98111
Attn: General Counsel
Street Address:
Port of Seattle
2711 Alaskan Way
Seattle, WA 98121
Attn: General Counsel
Facsimile:
General Counsel
(206) 787-3205
To Operator:
Mailing and Street Address:
Sixt Rent a Car LLC.
1489 SE 17th Street, Unit 2A
Fort Lauderdale, FL 33304
Attn: Carmen Wirth, Director Business Development
Phone, Facsimile & Email:
Phone: (954) 707-5588_______
Fax: (954) 333-1932_______
Email: carmen.wirth@sixt.com
Financial Issues: Audit, Annual Report
Sixt Rent a Car LLC.
1489 SE 17th Street, Unit 2A
Fort Lauderdale, FL 33304
Attn:
Phone, Facsimile & Email:
Phone: (954) 707-5588_______
Fax: (954) 333-1932_______
Email: carmen.wirth@sixt.com
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or to such other respective addresses as either party hereto may hereafter from time to time designate
in the manner for notice required under this Lease Agreement.
ARTICLE 31: MISCELLANEOUS
31.1 Compliance with Laws. In addition to, and not in lieu of, any more specific directive
in this Lease Agreement, Operator shall comply with all applicable rules and regulations of the Port
pertaining to the Airport or other realty of which the Premises are a part now in existence or hereafter
promulgated for the general safety and convenience of the Port, its various tenants, invitees, licensees
and the general public. Operator shall further comply with all applicable federal, state, and
municipal laws, ordinances, and regulations, including without limitation those relating to
environmental matters.
31.2 Update of Terms. The Port sha ll without the necessity of an amendment to this
Lease Agreement have the right to periodically update those requirements set forth in Section 17.2
and Exhibit G, Exhibit H, and Exhibit L to reflect changes in practices for similar properties or
operations either at the Airport or at other airports nationwide. The Port likewise have the right
(again, without the necessity of an amendment) to make adjustments to ARTICLE 18, ARTICLE 19,
ARTICLE 27 and ARTICLE 28 to account for changes in Legal Requirements applicable to the
Consolidated Rental Car Facility or Consolidated Rental Car Facility Site or the operation of Rental
Car Concession. Without limiting the ability of the Port to do so at other times, it is expected that
the Port will make such updates every ten years at the commencement of each Concession Term.
31.3 Ongoing Improvements. It is understood that the Port may from time to time elect to
alter, improve or remodel portions of the Airport. Operator agrees that any temporary inconvenience
resulting from any such work by the Port or its contractors and agents shall not be grounds for
reduction of any sum or charge otherwise payable by Operator if the same shall not unreasonably
interfere with Operator's use of the Premises.
31.4 Electronic Funds Transfer; Automatic Debit.
31.4.1 At any time after the fifth (5th) Agreement Year, the Port specifically has the
right to require Operator to remit any amounts to be remitted or otherwise payable under this Lease
Agreement to be made by electronic funds transfer to an account designated by the Port from timeto-time.
The Port may further, at its sole option, upon not less than sixty (60) days prior notice to
Operator, require Operator to promptly execute and deliver to the Port any documents, instruments,
authorizations, or certificates required by the Port to give effect to an automated debiting system,
whereby any or all payments by Operator of whatsoever nature required or contemplated by this
Lease Agreement shall be debited monthly or from time to time, as provided in this Lease
Agreement, from Operator's account in a bank or financial institution designated by Operator and
credited to the Port's bank account as the Port shall designate from time to time. Operator's failure
to properly designate a bank or financial institution or to promptly provide appropriate information in
accordance with this Section 31.4.1 shall constitute a default of this Lease Agreement.
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31.4.2 Operator shall promptly pay all service fees and other charges connected with
its use of an automated debiting system, including, without limitation, any charges resulting from
insufficient funds in Operator's bank account or any charges imposed on the Port.
31.4.3 In the event that Operator elects to designate a different bank or financial
institution from which any fees or other charges under the Lease Agreement are automatically
debited, notification of such change and the required documents, instruments, authorizations, and
certificates specified in Section 31.4.1 must be received by the Port no later than thirty (30) days
prior to the date such change is to become effective.
31.4.4 Operator agrees that it shall remain responsible to the Port for all payments
and other charges pursuant to the Lease Agreement, even if Operator's bank account is incorrectly
debited in any given month. Such fees and other charges shall be immediately payable to the Port
upon written demand.
31.5 Brokers. Operator warrants that it knows of no real estate broker or agent who is or
may be entitled to any commission or finder's fee in connection with this Lease Agreement.
Operator shall indemnify and hold the Port harmless from and against any and all claims, demands,
losses, liabilities, lawsuits, judgments, costs and expenses (including without limitation, attorneys'
fees and costs) with respect to any leasing commission or equivalent compensation alleged to be
owing on account of Operator's discussions, negotiations and/or dealings with any real estate broker
or agent. This Section is not intended to benefit any third parties and shall not be deemed to give any
rights to brokers or finders.
31.6 Promotion of Port Commerce. Operator agrees that throughout the Lease Term it
will, insofar as practicable, promote and aid the movement of passengers and freight through
facilities within the territorial limits of the Port. Operator further agrees that all incoming shipments
of commodities that it may be able to control or direct shall be made through facilities within the
territorial limits of the Port if there will be no resulting cost or time disadvantage to Operator.
31.7 Labor Disputes. Operator agrees to use its best efforts to avoid disruption to the Port,
its tenants or members of the public, arising from labor disputes involving Operator, and in the event
of a strike, picketing, demonstration or other labor difficulty involving Operator, to use its good
offices, including the utilization of available legal remedies, to minimize and/or eliminate any
disruption to the Port, its tenants or members of the public, arising from such strike, picketing,
demonstration or other labor difficulty.
31.8 Mandatory Programs. Operator understands that, from time to time, the Port may
institute certain programs that the Port believes, in its sole judgment, will be in the best interests of
the Airport and its tenants. Such programs shall include, but not be limited to, trash recycling,
commuter trip reduction, luggage cart token program, and Aircraft Operations Area (AOA) Clean
Surface Program for FOD (Foreign Object Debris). Operator agrees to promptly comply with and
carry out any and all reasonable obligations issued by the Port under such programs, as the same may
exist from time to time.
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31.9 Successors Bound. This Lease Agreement and each of its cove nants and conditions
shall be binding upon and shall inure to the benefit of the parties hereto and their respective
assignees, subject to the provisions hereof. Any successor or assignee of the Operator who accepts
an assignment of the benefit of this Lease Agreement and enters into possession or enjoyment
hereunder shall thereby assume and agree to perform and be bound by the covenants and conditions
thereof. Nothing herein contained shall be deemed in any manner to give a right of assignment to
Operator without the prior written consent of the Port pursuant to ARTICLE 26 hereof.
31.10 Access to Premises. The Port shall have the right to show the Premises at all
reasonable times during business hours of Operator to any prospective purchasers, tenants or
mortgagees of the same, and may at any time enter upon the Premises, or any part thereof, for the
purpose of ascertaining the condition of the Premises or whether Operator is observing and
performing the obligations assumed by it under this Lease Agreement, all without hindrance or
molestation from the Operator. The Port shall also have the right to enter upon the Premises for the
purpose of making any necessary repairs and performing any work that may be necessary by reason
of Operator's failure to make any such repairs or perform any such work. The above-mentioned
rights of entry shall be exercisable upon request made on reasonable advance notice to Operator
(except that no notice shall be required in the event of an emergency) or an authorized employee of
Operator at the Premises, which notice may be given orally.
31.11 Subordination, Attornment; Nondisturbance. Unless otherwise designated by the
Port, this Lease Agreement shall be subordinate to all existing or future mortgages and deeds of trust
on the Premises or the Consolidated Rental Car Facility Site, and to all extensions, renewals or
replacements thereof. Within ten (10) business days of the Port's request, Operator shall execute and
deliver all instrument or certificates which may be necessary or appropriate to reflect such
subordination. Notwithstanding the foregoing, Operator shall not be required to subordinate to
future mortgages or deeds of trust unless the mortgagee or beneficiary under the deed of trust agrees
that if it becomes the owner of the property, it will recognize the Lease Agreement as long as
Operator is not in default. Within ten (10) business days of the Port's request, Operator shall also
execute and deliver to third parties designated by the Port an estoppel certificate or letter in the form
requested by the Port or any lender the correctly recites the facts with respect to the existence, terms
and status of this Lease Agreement. Operator agrees to attorn to any successor to the Port following
any foreclosure, sale or transfer in lieu thereof. So long as Operator is not in Default hereunder
beyond the applicable grace or cure period, its tenancy will not be disturbed, not its rights under this
Lease Agreement, be affected by any default under such ground lease or deed of trust or mortgage
nor will Operator, to the extent allowed by applicable law, be named as a defendant in any
foreclosure proceedings.
31.12 Time. Time is of the essence of each and every one of the Operator's obligations,
responsibilities and covenants under this Lease Agreement.
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31.13 Consent. Whenever the Port's prior consent or approval is required by this Lease
Agreement, the same shall not be unreasonably delayed but may, unless otherwise specifically
provided by this Lease Agreement, be granted or denied in the Port's sole and absolute discretion.
31.14 Attorneys' Fees. In the event either party requires the services of an attorney in
connection with enforcing the terms of this Lease Agreement or in the event suit is brought for the
recovery of any Space Rent, Concession Fees or other sum or charge otherwise payable by Operator
this Lease Agreement or the breach of any covenant or condition of this Lease Agreement, or for the
restitution of the Premises to the Port and/or eviction of Operator during the Lease Term, or after the
expiration thereof, the prevailing party will be entitled to reasonable attorneys' fees, consultants'
fees, witness fees and other costs, both at trial and on appeal. For purposes of calculating attorneys'
fees, legal services rendered on behalf of the Port by public attorneys shall be computed at hourly
rates charged by attorneys of comparable experience in private practice in Seattle, Washington.
31.15 Joint and Several Liability; Use of Term Operator. To the extent that more than one
Person executes this Lease Agreement other than in a representative capacity, under ARTICLE 32,
each such Person shall be jointly and severally liable hereunder. Nothing in this Section, however,
shall be understood to make any such Person liable for the obligations of any other Operator under
any separate Rental Car Concession agreement. It is understood and agreed that for convenience, the
word "Operator" and verbs and pronouns in the singular number and neuter gender are uniformly
used throughout the Lease Agreement, regardless of the number gender or fact of incorporation of
the party who is, or of the parties who are, the actual Operator or Operators under this Lease
Agreement.
31.16 Captions and Article Numbers. The captions, article and section numbers and table of
contents appearing in this Lease Agreement are inserted only as a matter of convenience and in no
way define, limit, construe or describe the scope or intent of such sections or articles of this Lease
Agreement or in any way affect this Lease Agreement.
31.17 Severability. If any term, covenant, condition or provision of this Lease Agreement,
or the application thereof to any person or circumstance, shall to any extent be held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants,
conditions or provisions of this Lease Agreement, or the application thereof to any person or
circumstance, shall remain in full force and effect and shall in no way be affected, impaired or
invalidated.
31.18 Survival of Indemnities. All indemnities provided in this Lease Agreement shall
survive the expiration or any earlier termination of this Lease Agreement. In any litigation or
proceeding within the scope of any indemnity provided in this Lease Agreement, Operator shall, at
the Port's option, defend the Port at Operator's expense by counsel satisfactory to the Port.
31.19 Applicable Law; Venue; Waiver of Trial by Jury. This Lease Agreement , and, the
rights and obligations of the parties hereto, shall be construed and enforced in accordance with the
laws of the State of Washington. Jurisdiction and venue for any action on or related to the terms of
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this Lease Agreement shall be exclusively in either the United States District Court for the Western
District of Washington at Seattle or the King County Superior Court for the State of Washington, and
the parties irrevocably consent to the personal jurisdiction of such courts over themselves for
purposes of determining such action and waive any right to assert a claim of inconvenient forum. In
any action on or related to the terms of this Lease Agreement, the parties (for themselves and their
successors and assigns) hereby waive any right to trial by jury and expressly consent to trial of any
such action before the court.
31.20 Submission of Agreement. The submission of this document for examination and
negotiation does not constitute an offer to lease, or a reservation of or option for leasing the
Premises. This document shall become effective and binding only upon execution and delivery
hereof by the Port and Operator. No act or omission of any officer, employee or agent of the Port or
Operator shall alter, change or modify any of the provisions hereof.
31.21 Entire Agreement; Modification. This Lease Agreement, together with the
Concession Agreement and the Operator's entire response to any Request for Qualifications or
Proposals issued by the Port and related to operations in the Consolidated Rental Car Facility, sets
forth all covenants, promises, agreements, conditions and understandings between the Port and
Operator concerning the Premises, and there are no covenants, promises, agreements, conditions or
understandings, either oral or written, between the Port and Operator other than as are herein set
forth. No subsequent alteration, amendment, change or addition to the Lease Agreement shall be
binding upon the Port or Operator unless reduced to writing and signed by the Port and Operator. To
the extent of any conflict between this Lease Agreement, the Concession Agreement and Operator's
response to any Request for Qualifications or Proposals, the terms of this Lease Agreement shall
prevail over the Concession Agreement and the Concession Agreement shall prevail over the
response to any Request for Qualifications or Proposals.
31.22 Relationship of the Port and Operator. Nothing contained herein shall be deemed or
construed as creating the relationship of principal and agent, partnership, or joint venture partners,
and no provision contained in this Lease Agreement nor any acts of Operator and the Port shall be
deemed to create any relationship other than that of Operator and the Port.
31.23 Exhibits. Attachment 1 and Exhibits A, B, C -1, C-2, C-3, C-4, C-5, D-1, D-2, D-3, E,
F, G, H, I, J, K, L, M, N, O and P are attached to this Lease Agreement after the signatures and by
this reference incorporated herein.
31.24 Port's Covenant Regarding More Favorable Terms. In the event that any lease or
other contract granted by the Port to any other Operator (other than a Small Operator) shall contain
any terms and conditions more favorable to such Operator than the terms and conditions herein
described (other than the number of allocated parking spaces and the location of the counter area,
service facility and vehicle parking areas), then, at the option of Operator, this Lease Agreement shall
be amended to include such more favorable terms and any offsetting burdens that may be imposed on
any such other Operator (other than a Small Operator). The intent of this provision is to ensure that
Operator will be able to compete on terms as equal as possible with all other Operators and to ensure
74
than no other Operator shall enjoy any rights or privileges more favorable to such Operator than
those enjoyed by the Operator herein.
31.25 Cost Advancement Agreement. For purposes of that certain Cost Advancement
Agreement dated March __. 2007, this Lease Agreement shall constitute the more definitive
agreement relating to, and committing the Operators to participation in, the Consolidated Rental Car
Facility. The Port and Operator to the extent one of the rental car concessionaires that was,
through signature of the Chairperson of the Participating RACs under that certain Participation
Agreement dated June 1, 2006, a party to the Cost Advancement Agreement reaffirm their
respective rights and responsibilities under that Cost Advancement Agreement.
[Remainder of Page Intentionally Left Blank]
[Signatures Appear on Next Page]
75
ARTICLE 32: SIGNATURES
IN WITNESS WHEREOF, the parties have executed this Lease Agreement as of the date
first above written.
PORT OF SEATTLE SIXT RENT A CAR LLC
By: By:
Its: Its: President
76
ARTICLE 33: ACKNOWLEDGMENTS
STATE OF WASHINGTON )
) ss
COUNTY OF KING )
On this _____ day of ____________, 2012 before me personally appeared ___________________________, to
me known to be the _________________________________________ of the PORT OF SEATTLE, the municipal
corporation that executed the within and foregoing instrument, and acknowledged said instrument to be the free and
voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that s/he was
authorized to execute said instrument.
In Witness Whereof I have hereunto set my hand and affixed my official seal the day and year first above
written.
(Signature)
Notary Public, in and for the State of Washington,
residing at
My Commission expires:
STATE OF FLORIDA )
) ss
COUNTY OF )
On this _____ day of ____________, 2012 before me personally appeared Johannes Boeinghoff, to me known
to be the President of SIXT RENT A CAR LLC., the corporation that executed the within and foregoing instrument at
Operator, and acknowledged said instrument to be the free and voluntary act and deed of said corporation, for the uses
and purposes therein mentioned, and on oath stated that s/he was authorized to execute said instrument.
In Witness Whereof I have hereunto set my hand and affixed my official seal the day and year first above
written.
(Signature)
Notary Public, in and for the State of Florida,
residing at
My Commission expires:
EXHIBIT O
-Concession Agreement-
RENTAL CAR CONCESSION AGREEMENT
FOR
SEATTLE-TACOMA INTERNATIONAL AIRPORT
CONSOLIDATED RENTAL CAR FACILITY
TABLE OF CONTENTS
Page
ARTICLE 1 : DEFINITIONS ......................................................................................................... 1
ARTICLE 2 : GRANT OF CONCESSION; PREMISES ............................................................... 1
ARTICLE 3 : TERM ....................................................................................................................... 1
ARTICLE 4 : CONCESSION FEES .............................................................................................. 1
ARTICLE 5 : REMITTANCE; LATE PAYMENT ....................................................................... 4
ARTICLE 6 : ACCOUNTING PROCEDURES; AUDIT .............................................................. 4
ARTICLE 7 : BOND OR OTHER SECURITY ............................................................................. 5
ARTICLE 8 : USE .......................................................................................................................... 5
ARTICLE 9 : STANDARDS OF OPERATION ............................................................................ 5
ARTICLE 10 : INDEMNITY AND INSURANCE ........................................................................ 9
ARTICLE 11 : DEFAULT .............................................................................................................. 9
ARTICLE 12 : TERMINATION .................................................................................................. 11
ARTICLE 13 : NO WAIVER; LANDLORD'S RIGHT TO PERFORM .................................... 11
ARTICLE 14 : ASSIGNMENT .................................................................................................... 12
ARTICLE 15 : DISADVANTAGED BUSINESS ENTERPRISES; NON-DISCRIMINATION 14
ARTICLE 16 : NOTICES ............................................................................................................. 14
ARTICLE 17 : MISCELLANEOUS ............................................................................................. 15
ARTICLE 18 : SIGNATURES ..................................................................................................... 19
ARTICLE 19 : ACKNOWLEDGMENTS .................................................................................... 20
i
RENTAL CAR CONCESSION AGREEMENT
THIS RENTAL CAR CONCESSION AGREEMENT is made as of this ____ day of
_____________, 2011 by and between the PORT OF SEATTLE, a Washington municipal
corporation, and SIXT RENT A CAR LLC., a Delaware corporation.
For and in consideration of the mutual promises, covenants and conditions hereinafter set
forth, the parties agree as follows:
ARTICLE 34: DEFINITIONS
34.1 Attachment. Definitions of terms utilized in this Concession Agreement are attached
hereto as Attachment 1. Other terms may be defined in other parts of the Concession Agreement.
ARTICLE 35: GRANT OF CONCESSION; PREMISES
35.1 Grant of Concession. The Port hereby awards and grants to Concessionaire, and
Concessionaire hereby accepts, the right to operate a Rental Car Concession at the Airport on a
nonexclusive basis for the purpose of arranging rental car and related services for Airport Customers
where such services are furnished by or on behalf of Concessionaire. The concession rights and
privileges granted and awarded to Concessionaire are expressly made subject to all of the terms,
covenants and conditions of this Concession Agreement and the Lease Agreement. Concessionaire
specifically acknowledges and understands that the Port intends to grant Rental Car Concessions to
all qualified companies on substantially the same terms and conditions as are contained herein. The
award of concession rights and privileges to such other rental car operators shall not constitute a
violation of this Concession Agreement, nor, in the event of the cessation or termination of such
other Rental Car Concessions during the term hereof, shall the award of concession rights and
privileges to a substitute or successor rental car operator constitute a violation hereof, provided, that
taking into account all of the then existing circumstances, the successor operator is not granted
concession rights and privileges which, taken as a whole, are on terms and conditions which are
substantially more favorable than the terms and conditions of this Concession Agreement.
ARTICLE 36: TERM
36.1 Term. The Term of this Concession Agreement shall commence on the Opening Date
and, unless earlier terminated pursuant to any provision, shall extend for a period of ten (10)
Agreement Years.
ARTICLE 37: CONCESSION FEES
37.1 Concession Fees. Concessionaire shall pay to the Port, for the concession rights and
privileges granted herein, the following:
1
37.1.1 Minimum Annual Guarantee.
37.1.1.1 First Agreement Year. For the first Agreement Year, the
Minimum Annual Guarantee shall be Fifty Nine Thousand and no cents ($59,000.00).
37.1.1.2 Second and Subsequent Agreement Years. For the second and
each subsequent Agreement Year, the Minimum Annual Guarantee shall be an amount equal to
eighty five percent (85%) of the total amount (whether by Minimum Annual Guarantee or Percentage
Fees) paid or payable by Concessionaire to the Port for the previous Agreement Year or the
Minimum Annual Guarantee for the first Agreement Year set forth in Section 37.1.1.1, whichever is
greater.
37.1.1.3 Payment. The Minimum Annual Guarantee amount shal l be
divided into equal monthly payments and shall be paid in advance on or before the first day of each
and every month during the Term without any prior demand therefore and without any abatement,
deduction or setoff whatsoever.
37.1.1.4 Relief for Exceptional Circumstances. In the event that the
total number of Enplaned Passengers for any month decreases by more than twenty percent (20%)
from the same month of the prior year, then: (a) the Minimum Annual Guarantee payment due for
the next month (or such later month immediately following the date on which the number of
Enplaned Passengers can reasonably be determined) shall automatically be adjusted downward by
the percentage decrease in the number of Enplaned Passengers for the month experiencing the
decrease, and (b) the Minimum Annual Guarantee for the Agreement Year in which the reduced
monthly payment amount falls shall also be reduced by a like dollar amount. For example, if the
number of Enplaned Passengers for the month of July 2015 declined by 25% over the number of
Enplaned Passengers for the month of July 2014, then the Port will: (a) reduce the Minimum Annual
Guarantee amount payable for the month of August 2015 by 25%, and (b) reduce the Minimum
Annual Guarantee for the Agreement Year in which August 2015 falls by a like dollar amount.
37.2 Percentage Fees. Concessionaire shall also pay the Port a percentage fee
("Percentage Fee") equal to ten percent (10%) of its Gross Revenues for each Agreement Year (or
for the first Agreement Year, from the Opening Date until the end of the first Agreement Year). The
Percentage Fee, subject to reconciliation as provided in Section 4.2.3, shall be paid monthly.
Concessionaire shall pay the Percentage Fee to the extent the Percentage Fee is higher than the
monthly payment of the Minimum Annual Guarantee paid to the Port pursuant to Section 37.1.1.
37.2.1 Revenue Reports; Remittance. On or before the twentieth (20th) day of each
month, Concessionaire shall submit to the Port a detailed statement showing the Gross Revenue
generated from the concession during the preceding month and shall simultaneously pay to the Port
the Percentage Fee (if any) due for that preceding month less the monthly payment of Minimum
Annual Guarantee already paid by the Concessionaire for that month. The reports shall show such
reasonable detail and breakdown as may be required by the Port. A copy of the current report form
required by the Port is attached hereto as Exhibit Q. Concessionaire may, subject to the Port's
2
reasonable consent, utilize its own form that clearly reflects all of the information required by the
Port.
37.2.2 Annual Report. Concessionaire shall submit, for the approval of the Port, an
"Annual Report" for each Agreement Year during the Term of this Concession Agreement. Such
Annual Report shall be submitted no later than ninety (90) calendar days following the last day of
each Agreement Year. The Annual Report shall be submitted without regard to whether the Port has
elected to exercise any of its rights under Section 39.1 of the Concession Agreement.
Concessionaire shall bear the entire cost of preparing and providing such reports. The Annual Report
shall be prepared by Concessionaire and signed by its chief financial officer, or their designee,
attesting to the amounts shown. The Annual Report shall also be audited by an independent certified
public accounting firm in accordance with generally accepted auditing standards ("GAAS"), with a
copy of the independent certified public accounting firm's audit report sent to the Port stating that in
its professional opinion, based on the audit, the Concession Fees paid by the Concessionaire during
the previous Agreement Year were properly calculated and paid in accordance with the terms and
conditions of the Concession Agreement. The Annual Report shall contain at a minimum and in
detail satisfactory to the Port a complete, itemized statement of Concessionaire's: (a) total Gross
Revenues broken out monthly, as shown on the books and records of Concessionaire, that were used
to compute the Concession Fee during the period covered by the Annual Report; (b) the total
Concession Fees paid; and (c) a statement whether or not the Concession Fees paid by
Concessionaire during the preceding Agreement Year was properly calculated and paid in
accordance with the terms and conditions of this Concession Agreement. In addition to this report,
the Port shall have the right to request a reasonable number of rental transaction agreements for the
preceding Agreement Year as it deems appropriate and Concessionaire shall provide such
agreements together with all backup to such agreements to demonstrate calculation and remittance of
funds to the satisfaction of the Port. This provision shall survive the expiration or early termination
of this Concession Agreement.
37.2.3 Annual Reconciliation. The Port shall, within sixty (60) days following
Concessionaire's delivery of the Annual Report, reconcile the Minimum Annual Guarantee and
Percentage Fees paid by Concessionaire for the previous Agreement Year. To the extent that
Concessionaire made any overpayment to the Port, the Port may apply such amount to any unpaid
Concession Fees, Lease Agreement obligations or any other sum due by Concessionaires or any
other default as if such sum were additional Security, or if there is no such unpaid amounts or other
default, shall issue Concessionaire a credit against future amounts of Concession Fees due to the
Port (or, following the expiration or earlier termination of this Concession Agreement, shall issue
Concessionaire a refund of the amount of such overpayment).
37.2.4 Recovery of Percentage Fee. Concessionaire acknowledges that Concession
Fee payments by Concessionaire to the Port under this Concession Agreement are for
Concessionaire's privilege to use the Airport facilities and access the Airport market and are not fees
imposed by the Port upon Concessionaire's customers. The Port does not require, but will not
prohibit, a separate statement of and charge for the Percentage Fee on customer invoices or rental
agreements ("Recovery Fee"), provided that such Recovery Fee meets all of the following
3
conditions: (a) such Recovery Fee must be titled "Concession Recovery Fee," "Concession
Recoupment Fee" or such other name first approved by the Port 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 eleven and eleven hundredths percent (11.11%) of Gross Revenues,
specifically excluding from Gross Revenues for purposes of this calculation the Recovery Fee; (d)
Concessionaire shall neither identify, treat, or refer to the Recovery Fee as a tax, nor imply that the
Port is requiring the pass through of such fee; (e) Concessionaire shall comply with all applicable
laws, including Federal Trade Commission requirements, the Washington State Consumer Protection
Act and any commitment to or contractual obligation by Concessionaire with the Attorney General
of Washington or any group of State Attorneys General.
ARTICLE 38: REMITTANCE; LATE PAYMENT
38.1 Remittance Address. Any and all payments due to the Port by Concessionaire shall
be remitted to the following address: Port of Seattle, P. O. Box 34249 -1249, Seattle, WA 98124-
1249, or at such other place as the Port may direct in writing.
38.2 Late Payment. If any payment of Concession Fees or other sum or charge otherwise
payable by Concessionaire is not received by the Port within ten (10) days of when due,
Concessionaire shall pay to the Port a late payment charge equal to five percent (5%) of the amount
of such delinquent payment in addition to the installment of Concession Fees or other sum or charge
otherwise payable by Concessionaire then owing, regardless of whether or not a Notice of Default
has been given by the Port. Notwithstanding the foregoing, in the event that the Operator has not,
within the prior twenty four months, been subject to any late payment charge (whether or not
assessed), the Port agrees it will waive any late payment charge provided Operator pays any amounts
due within three (3) business days of oral or written notification from the Port to Operator of the
delinquency. In addition, if such delinquent payment of Concession Fees or other sum or charge
otherwise payable by Concessionaire and late charge are not received within fifteen (15) days of
when such delinquent payment was originally due, Concessionaire shall further pay interest on such
delinquent payment and late charge thereafter at the Default Rate. The Port and Concessionaire
recognize that the damages which the Port will suffer as a result of Concessionaire's failure to timely
pay Concession Fees or other sum or charge otherwise payable by Concessionaire are difficult or
impracticable to ascertain, and agree that said interest and late charge are a reasonable
approximation of the damages that the Port will suffer in the event of Concessionaire's late payment.
This provision shall not relieve Concessionaire from payment of Concession Fees or other sum or
charge otherwise payable by Concessionaire at the time and in the manner herein specified.
ARTICLE 39: ACCOUNTING PROCEDURES; AUDIT
39.1 Same Rights and Obligations. Article 8 of the Lease Agreement is specifically
incorporated in this Concession Agreement by reference. The Port shall have the same rights, and
Concessionaire shall have the same obligations, with respect to Concessionaire's books and records
4
and the inspection/audit thereof under this Concession Agreement as the parties have under Article 8
of the Lease Agreement.
ARTICLE 40: BOND OR OTHER SECURITY
40.1 Security. Article 9 of the Lease Agreement is specifically incorporated in this
Concession Agreement by reference; provided, however, Concessionaire shall not be required to
provide additional Security under this Concession Agreement. The Security provided by
Concessionaire under the Lease Agreement shall secure Concessionaire's full performance of this
Concession Agreement, including the payment of all Concession Fees and other amounts now or
hereafter payable to the Port hereunder. The Port shall have the same rights, and Concessionaire
shall have the same obligations, with respect to the Security under this Concession Agreement as the
parties have under Article 9 of the Lease Agreement.
ARTICLE 41: USE
41.1 Use of Premises. Subject to and in accordance with all present and future Legal
Requirements and Port Standards as well as the Lease Agreement, Concessionaire covenants and
agrees that it shall use the Premises granted to it under the Lease Agreement solely for the purpose of
operating a Rental Car Concession and for no other purpose or use. In addition, each
Concessionaire may, subject to the Port's reasonable consent, provide (whether or not for additional
charge) ancillary business services that are not in direct competition with any concession operated
by a Non-RAC Concessionaire in the Consolidated Rental Car Facility as a convenience to the
customers of Concessionaire's Rental Car Concession.Any revenue from such ancillary business
services shall, however, be considered Gross Revenues.
ARTICLE 42: STANDARDS OF OPERATION
42.1 First Class Service. Concessionaire shall ensure that its Rental Car Concession is
operated, at the minimum, in conformance with the following standards:
42.1.1 General Standards.
42.1.1.1 Concessionaire shall provide the highest degree and standards
of quality of services to the patrons of the Airport. Concessionaire shall furnish prompt, efficient,
first-class rental car service that is adequate to meet all reasonable demands for its rental car service
by Airport Customers, and shall conduct its Rental Car Concession in a first-class manner.
42.1.1.2 Concession operations must be conducted in a safe, clean,
orderly and inviting condition at all times. Trash or debris shall not be allowed to accumulate or be
stored on any portion of the Premises. Similarly, no loud, boisterous or otherwise improper actions
or language shall be permitted within or about the Premises. No radio or television or other similar
device shall be installed without first obtaining the written approval of the Port. Also, no antenna or
5
aerial shall be erected on the roof, interior walls or exterior walls of the Premises without first
obtaining the written approval of the Port.
42.1.1.3 Traveler's checks and credit cards must be acceptable forms of
payment for rental transactions.
42.1.1.4 At all locations within three miles of the Airport, the
Concessionaire's motor vehicle rental agreements shall be printed or stamped in such form so as to
provide a separate space for its customers to indicate by their signature if they are not an "Airport
Customer" as defined in Attachment 1. Any rental agreement which does not have a customer
signature upon it designating that the customer is not an "Airport Customer" shall be treated
hereunder as though such customer is an "Airport Customer" for purposes of computing
compensation due to the Port under this Concession Agreement.
42.1.1.5 Concessionaire shall not engage in activities that will divert
Airport Customers from the Rental Car Concession for any purpose whatsoever including, but not
limited to, writing of sales agreements for an Airport Customer at any of Concessionaire's other
rental car operations that are not included within this Concession Agreement's definition of Rental
Car Concession. If the Port believes, in its opinion, that Concessionaire is engaging in such a
diversion of activity, it reserves the right to inspect any relevant Concessionaire records, including
records from operations other than the Rental Car Concession. The operation of off-airport public
parking by Concessionaire will not be considered a diversion activity under this Concession
Agreement.
42.1.1.6 Service must be provided promptly, efficiently, and on a fair,
equal and not unlawfully discriminatory basis to all patrons of the Airport.
42.1.1.7 If the Port receives and forwards to Concessionaire, any
complaint concerning Concessionaire's operation of the Rental Car Concession, Concessionaire shall
promptly respond to such complaint, in writing, within thirty (30) days of its receipt and shall make a
good-faith attempt to resolve the cause of such complaint
42.1.2 Personnel.
42.1.2.1 Concessionaire shall employ a sufficient number of trained
personnel to handle customer service, vehicle maintenance, car handling and office and
administration duties necessary for the efficient and effective operation of the Rental Car
Concession. Concessionaire shall train all its employees in the proper operation of its business, the
compliance with any applicable laws and regulations and the provisions of this Concession
Agreement, and the provision of good service to customers. Concessionaire shall ensure that all
employees, contractors and agents conduct themselves in a professional and courteous manner.
42.1.2.2 The Rental Car Concession shall be supervised at all times by
an active, qualified, competent manager or a qualified assistant manager, who shall have full
6
authority to make day-to-day business and operational decisions. The concession must be adequately
staffed with sufficient and well-trained personnel who shall be neat, clean and courteous at all times.
All employees must wear their nametag and Airport Identification badge at all times while
performing their duties if required in the area in which the employee is working.
42.1.2.3 When on duty, all of Concessionaire's employees having
dealings with Airport Customers shall maintain a clean, neat and well-groomed appearance and shall
wear a uniform established by Concessionaire.
42.1.2.4 Concessionaire's employees may accepttips but shall not
solicit tips. Tip jars are not allowed.
42.1.2.5 Concessionaire shall not permit its agents or employees to use
pressure sales tactics or to personally solicit customers of the Airport for car rentals or related
services offered by Concessionaire under this Concession Agreement. The Port shall be the sole
judge of whether conduct amounts to a violation of this Section. Upon written notice from the Port,
Concessionaire shall take all necessary steps to immediately eliminate conduct in violation of this
Section and to prevent its recurrence. Nothing in this Section shall, however, prohibit the proper use
of signage, advertising boards or other approved advertising within Operator's Exclusive Use
Premises.
42.1.2.6 Concessionaire shall provide the Port a list of representatives
and their telephone numbers, for emergency purposes.
42.1.3 Hours of Operation. Concessionaire's Rental Car Concession shall remain
open and staffed seven (7) days a week, twenty-four (24) hours a day, including all holidays, with
the exception of temporary closure during such periods as may be reasonably necessary for repair or
redecorating or for reasons beyond Concessionaire's control.
42.1.4 Rental Vehicles.
42.1.4.1 Concessionaire shall maintain, at Concessionaire's sole
expense, all vehicles used in its Rental Car Concession in good, safe and operative order, free from
known mechanical defects, and in clean, neat and attractive condition, inside and outside.
42.1.4.2 Rental vehicles must not be more than three (3) model years
old. Notwithstanding the foregoing, Concessionaire may offer for rental antique, vintage, classic or
other luxury or prestige vehicle or handicapped operated vehicles. The Port shall have the right to
prohibit Concessionaire from offering for rental any such vehicle which the Port determines not to
meet the mechanical or appearance standards described in Section 42.1.4.1.
42.1.4.3 Concessionaire shall have available a sufficient number of
vehicles to meet all reasonably foreseeable demands of the traveling public.
7
42.1.4.4 Concessionaire shall operate all of its vehicles in a safe manner
and in accordance with all applicable Legal Requirements and Port rules and regulations.
Concessionaire shall ensure that its employees strictly observe all posted speed limits and other
traffic and safety signs.
42.1.4.5 Concessionaire shall undertake to consider the feasibility of
incorporating alternative fuel vehicles into its rental car fleet using such alternative fuels as
compressed natural gas, electricity, or hybrid fuel systems, and to report to the Port in writing upon
the Port's request and/or at the beginning of the second Agreement Year and every two Agreement
Years thereafter regarding its determination of the feasibility of providing such vehicles to the
public.
42.2 "Multi Branding."
42.2.1 Subject to the provisions regarding assignment in ARTICLE 14,
Concessionaire shall be prohibited from operating at the Airport under any brand name or trade
name other than the brand name(s) or trade name(s) identified on Exhibit R. During the Term of
this Concession Agreement, Concessionaire shall operate and maintain all signage only under the
brand or trade name(s) originally designated in its response to the Request for Qualifications. No
other brand name shall be used or displayed by Concessionaire at the Airport or upon the Premises
during the Term of this Concession Agreement. Except as provided herein, the operation of two or
more brand or trade names under a single Concession Agreement ("Multi Branding") is prohibited.
42.2.2 If Concessionaire utilizes any particular brand or trade name under a license
or franchise agreement, Concessionaire represents and warrants to the Port that Concessionaire has
been granted the right to use any such brand or trade name that may be used at the Premises for the
entire term of this Concession Agreement, pursuant to a franchise or license agreement (the
"Franchise Agreement") with the trade name owner (a "Franchisor"). At the Port's request,
Concessionaire agrees to provide the Port with a copy of the Franchise Agreement and reasonable
evidence that such agreement remains in full force and effect. Concessionaire agrees that the
termination of Concessionaire's right to use Concessionaire's brand or trade name at the Premises or
to conduct a Rental Car Concession at the Premises of the type then conducted by or under license
from Franchisor under the brand or trade name, shall constitute a material breach of
Concessionaire's obligations under this Concession Agreement.
42.3 Concessionaire Otherwise Responsible. Concessionaire shall otherwise obtain all
licenses/permissions necessary for, and pay all costs and expenses incurred with respect to, the
operation of the Rental Car Concession, it being understood and agreed that the Port shall not,
except as specifically set forth in this Concession Agreement, be required to furnish services of any
nature with respect to the operation of the Rental Car Concession, Concessionaire hereby assuming
full and sole responsibility for the supply and payment for all licenses, services, and operational
costs. This includes, without limitation, all taxes, permit fees, license fees and assessments lawfully
levied or assessed upon the Concessionaire.
8
ARTICLE 43: INDEMNITY AND INSURANCE
43.1 Indemnity and Insurance. Article 17 of the Lease Agre ement is specifically
incorporated in this Concession Agreement by reference. The Port shall have the same rights, and
Concessionaire shall have the same obligations, with respect to indemnity and insurance under this
Concession Agreement as the parties have under Article 17 of the Lease Agreement.
ARTICLE 44: DEFAULT
44.1 Events of Default. The occurrence of any of the following events shall constitute an
"Event of Default" on the part of the Concessionaire with or without notice from the Port:
44.1.1 The vacating or abandonment of the Premises by Concessionaire.
44.1.2 The failure by Concessionaire to collect and remit the Customer Facility
Charge as required by the Lease Agreement when due.
44.1.3 The failure by Concessionaire to make any payment of rent, fees or any other
payment required by the Lease Agreement or this Concession Agreement, when due.
44.1.4 The failure by Concessionaire to observe or perform any covenant, condition,
or agreement to be observed or performed by Concessionaire in the Lease Agreement or this
Concession Agreement.
44.1.5 The discovery by the Port that any financial or background statement provided
to the Port by Concessionaire, any successor, grantee, or assign was materially false.
44.1.6 The filing by Concessionaire of a petition in bankruptcy, Concessionaire
being adjudged bankrupt or insolvent by any court, a receiver of the property of Concessionaire
being appointed in any proceeding brought by or against Concessionaire, Concessionaire making an
assignment for the benefit of creditors, or any proceeding being commenced to foreclose any
mortgage or other lien on Concessionaire's interest in the Premises or on any personal property kept
or maintained on the Premises by Concessionaire.
44.2 Remedies. In addition to, and not in lieu or to the exclusion of, any other r emedies
provided in this Concession Agreement or to any other remedies available to the Port at law or in
equity, and subject to the Port's obligation to mitigate as set forth in Section 11.2.3:
44.2.1 Whenever any default (other than a default under Section 44.1.6 above, upon
which termination of this Concession Agreement shall, at the Port's option, be effective immediately
without further notice) continues unremedied in whole or in part for 30 days after Notice of Default
is provided by the Port to Concessionaire (or for 15 days after Notice of Default in the case of
default for failure to pay any rent, fees or other required payment when due), this Concession
Agreement and all of Concessionaire's rights under it will automatically terminate if the Notice of
9
Default so provides. Upon termination, the Port may reenter the Premises using such force as may
be necessary and remove all persons and property from the Premises. The Port will be entitled to
recover from Concessionaire all unpaid Concession Fees, other sum or charge otherwise payable by
Concessionaire, or any other payments and damages incurred because of Concessionaire's default
including but not limited to, the reasonable and necessary costs of granting a replacement
concession, any advertising reasonably required, any commissions reasonably required, and
attorney's fees and costs reasonably required ("Termination Damages"), together with interest on all
Termination Damages at the Default Rate, from the date such Termination Damages are incurred by
the Port until paid.
44.2.2 In addition to Termination Damages, and notwithstanding termination and
reentry, Concessionaire's liability for all Concession Fees, other sum or charge otherwise payable by
Concessionaire, or other charges which, but for termination of this Concession Agreement, would
have become due over the remainder of the Concession Term (the "Future Charges") will not be
extinguished and Concessionaire agrees that the Port will be entitled, upon termination for default, to
collect as additional damages, a Concession Deficiency. "Concession Deficiency" means, at the
Port's election, either:
(a) An amount equal to Future Charges, less the amount of actual fees, if
any, which the Port receives during the remainder of the Concession Agreement term from others to
whom the Concession may be granted, in which case such Rental Deficiency will be computed and
payable at the Port's option either:
(i) In an accelerated lump-sum payment discounted to present
worth, or
(ii) In monthly installments, in advance, on the first day of each
calendar month following termination of this Concession Agreement and continuing
until the date on which the Concession Agreement term would have expired but for
such termination, and any suit or action brought to collect any portion of Concession
Deficiency attributable to any particular month or months, shall not in any manner
prejudice the Port's right to collect any portion of Concession Deficiency by a
similar proceeding; or
(b) An amount equal to Future Charges less the aggregate fair value of the
Concession over the remaining Concession Agreement term, reduced to present worth. In this case,
the Concession Deficiency must be paid to the Port in one lump sum, on demand, and will bear
interest at the Default Rate until paid. For purposes of this subsection, "present worth" is computed
by applying a discount rate equal to one percentage point above the discount rate then in effect at the
Federal Reserve Bank in, or closest to, Seattle, Washington.
44.2.3 If this Concession Agreement is terminated for default as provided in this
Concession Agreement, the Port shall use reasonable efforts to grant a replacement Rental Car
Concession for such term or terms (which may be greater or less than the period which otherwise
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would have constituted the balance of the Concession Agreement term), for such use or uses and,
otherwise on such terms and conditions as the Port, in its sole discretion, may determine, but the Port
will not be liable for, nor will Concessionaire's obligations under this Concession Agreement be
diminished by reason for any failure by the Port to grant such concession or any failures by the Port
to collect any sums due once granted.
44.3 Remedies Cumulative. All rights, options and remedies of the Port contained in this
Concession Agreement shall be construed and held to be distinct, separate and cumulative, and no
one of them shall be exclusive of the other, and the Port shall have the right to pursue any one or all
of such remedies or any other remedy or relief which may be provided by law or in equity, whether
or not stated in this Concession Agreement.
ARTICLE 45: TERMINATION
45.1 Termination. This Concession Agreement may be terminated in advance of its
scheduled expiration date on any of the following events:
45.1.1 Default. In the event of Concessionaire's default under the Concession
Agreement pursuant to Section 23.2.
45.1.2 Termination of Lease Agreement. In the event that the Lease Agreement is
terminated for any reason set forth in Sections 24.1 or 24.2 of the Lease Agreement.
45.1.3 Court Decree. In the event that any court having jurisdiction in the matter
shall render a decision which has become final and which will prevent the performance by the Port
of any of its material obligations under this Concession Agreement, then either party hereto may
terminate this Concession Agreement by written notice, and all rights and obligations hereunder
(with the exception of any undischarged rights and obligations that accrued prior to the effective
date of termination) shall thereupon terminate. If Concessionaire is not in default under any of the
provisions of this Concession Agreement on the effective date of such termination, any rent or
concession fees prepaid by Concessionaire shall, to the extent allocable to any period subsequent to
the effective date of the termination, be promptly refunded to Concessionaire.
ARTICLE 46: NO WAIVER; LANDLORD'S RIGHT TO PERFORM
46.1 Receipt of Monies Following Termination. No receipt of monies by the Port from
Concessionaire after the termination or cancellation of this Concession Agreement in any lawful
manner shall (a) reinstate, continue or extend the Term of this Concession Agreement; (b) affect any
notice theretofore given to Concessionaire; (c) operate as a waiver of the rights of the Port to enforce
the payment of any Concession Fees, or other sum or charge otherwise payable by Concessionaire
then due or thereafter falling due; or (d) operate as a waiver of the right of the Port to recover
possession of the Premises by proper suit, action, proceeding or remedy; it being agreed that after
the service of notice to terminate or cancel this Concession Agreement, or after the commencement
of suit, action or summary proceedings, or any other remedy, or after a final order or judgment for
11
the possession of the Premises, the Port may demand, receive and collect any monies due, or
thereafter falling due, without in any manner affecting such notice, proceeding, suit, action, order or
judgment; and any and all such monies collected shall be deemed to be payments on account of the
use and occupation and/or Concessionaire's liability hereunder.
46.2 No Waiver of Breach. The failure of the Port to insist in any one or more instances,
upon a strict performance of any of the covenants of this Concession Agreement, or to exercise any
option herein contained, shall not be construed as a waiver of or relinquishment for the future of the
performance of such covenant, or the right to exercise such option, but the same shall continue and
remain in full force and effect. The receipt by the Port of the Concession Fees, or other sum or
charge otherwise payable by Concessionaire, with knowledge of the breach of any covenant hereof,
shall not be deemed a waiver of such breach, and no waiver by the Port of any provision hereof shall
be deemed to have been made unless expressed in writing and signed by the Port. The consent or
approval of the Port to or of any act by Concessionaire requiring the Port's consent or approval shall
not be deemed to waive or render unnecessary the Port's consent or approval to or of any subsequent
similar acts by Concessionaire.
46.3 No Waiver of Rent. The receipt by the Port of any installment of the Concession
Fees, or other sum or charge otherwise payable by Concessionaire shall not be a waiver of any
Concession Fees, or other sum or charge otherwise payable by Concessionaire then due.
46.4 Application of Payments. The Port shall have the right to apply any payments made
by Concessionaire to the satisfaction of any debt or obligation of Concessionaire to the Port, in the
Port's sole discretion and regardless of the instructions of Concessionaire as to application of any
such sum, whether such instructions be endorsed upon Concessionaire's check or otherwise, unless
otherwise agreed upon by both parties in writing. The acceptance by the Port of a check or checks
drawn by others than Concessionaire shall in no way affect Concessionaire's liability hereunder nor
shall it be deemed an approval of any assignment of this Concession Agreement or subletting by
Concessionaire.
46.5 Port's Right to Perform. Upon Concessionaire's failure to perform any obligation or
make any payment required of Concessionaire hereunder, the Port shall have the right (but not the
obligation) to perform such obligation of Concessionaire on behalf of Concessionaire and/or to make
payment on behalf of Concessionaire to such parties. Concessionaire shall reimburse the Port the
reasonable cost of the Port's performing such obligation on Concessionaire's behalf, including
reimbursement of any amounts that may be expended by the Port, plus interest at the Default Rate,
ARTICLE 47: ASSIGNMENT
47.1 Prohibition. Concessionaire shall not assign or transfer this Concession Agreement
or any interest therein, nor shall this Concession Agreement or any interest thereunder be assignable
or transferable by operation of law or by any process or proceeding of any court, or otherwise
without the advance written consent of the Port. If Concessionaire is anything other than an
individual, Concessionaire further agrees that if at any time during the term of this Concession
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Agreement more than one-half (1/2) of the outstanding voting equity interests shall belong to any
persons other than those who own more than one-half (1/2) of those outstanding voting equity
interests at the time of the execution of this Concession Agreement or to members of their immediate
families, such change in the ownership of Concessionaire shall be deemed an assignment of this
Concession Agreement within the meaning of this Section 26.1; provided, however, that this
sentence shall not apply if, and to the extent that Concessionaire is a corporation, the outstanding
voting stock of which is listed on a recognized security exchange. Concessionaire's entering into
any operating agreement, license or other agreement whereunder a third party is given rights or
privileges to enjoy a portion of the Concession shall be an attempted assignment or subletting within
the meaning of this Section.
47.1.1 If Concessionaire shall, at any time during the term of this Concession
Agreement, desire to sell, assign or otherwise permanently transfer the Concession Agreement in
whole or in part, Concessionaire shall, at the time the Concessionaire requests the consent of the
Port, deliver to the Port such information in writing as the Port may reasonably require respecting
the proposed assignee without limitation, the name, address, nature of business, ownership, financial
responsibility and standing of such proposed assignee or subtenant together with the proposed form
of assignment or sublease. Within thirty (30) days from receipt of the information specified above,
the Port shall notify Concessionaire of its election to: (a) consent to the assignment or (b)
disapprove the assignment, setting forth the grounds for doing so.
47.1.2 As a condition for the Port's consent to any transfer, the Port may require that
the assignee remit directly to the Port on a monthly basis, all monies due to Concessionaire by said
assignee. In addition, a condition to the Port's consent to any assignment of this Concession
Agreement or the Premises shall be the delivery to the Port of a true copy of the fully executed
instrument of assignment and an agreement executed by the assignee in form and substance
satisfactory to the Port and expressly enforceable by the Port, whereby the assignee assumes and
agrees to be bound by the terms and provisions of this Concession Agreement and perform all the
obligations of Concessionaire hereunder.
47.1.3 In the event of any assignment, Concessionaire and each respective assignor,
waive notice of default by the then-current Concessionaire in the payment of Concession Fees or any
other amount due hereunder and in the performance of the covenants and conditions of this
Concession Agreement and consents that the Port may in each and every instance deal with the thencurrent
Concessionaire, grant extensions of time, waive performance of any of the terms, covenants
and conditions of this Concession Agreement and modify the same, and in general deal with the
then-current Concessionaire without notice to or consent of any assignor, including Concessionaire;
and any and all extensions of time, indulgences, dealings, modifications or waivers shall be deemed
to be made with the consent of Concessionaire and of each respective assignor.
47.1.4 No assignment or license by Concessionaire shall relieve Concessionaire of
any obligation under this Concession Agreement, including Concessionaire's obligation to pay any
sums due hereunder. Any purported assignment contrary to the provisions hereof without consent
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shall be void. The consent by the Port to any assignment shall not constitute a waiver of the
necessity for such consent to any subsequent assignment.
47.1.5 Concessionaire shall reimburse the Port any reasonable professionals' fees
and expenses incurred by the Port in connection with any request by Concessionaire for consent to
an assignment.
47.2 Assignment to Successor or Affiliate. Notwithstanding anything to the contrary in
Section 26.1, the Port agrees that it will not unreasonably condition or withhold its consent to an
assignment and transfer this Concession Agreement and all rights, title, and interest hereunder by
Concessionaire to: (i) any corporation or other legal entity which at the time of such assignment is a
parent of, subsidiary of or under common ownership and control with the Concessionaire, (ii) to any
corporation or other legal entity with which the Concessionaire may merge or into which it may
consolidate, or (iii) to any person, firm or corporation which may acquire all or substantially all of
Concessionaire's rental car business or assets; provided in each instance the surviving, resulting or
transferee corporation expressly assumes in writing all the obligations of Concessionaire contained
in this Concession Agreement and the surviving, resulting or transferee corporation or other legal
entity, as the case may be, has a consolidated net worth (after giving effect to such consolidation,
merger or transfer) at least equal to that of the Concessionaire on: (x) the date on which
Concessionaire last submitted a bid for a Concession Agreement, or (y) immediately prior to such
consolidation, merger or transfer, whichever is greater. The term "Net Worth" as used in this
Section means the difference obtained by subtracting total liabilities from total assets of the
Concessionaire and all of its subsidiaries in accordance with generally accepted accounting
principles.
ARTICLE 48: DISADVANTAGED BUSINESS ENTERPRISES; NON-DISCRIMINATION
48.1 ACDBEs; Non-Discrimination. Articles 27, 28, and 29 of the Lease Agreement are
specifically incorporated in this Concession Agreement by reference. The Port shall have the same
rights, and Concessionaire shall have the same obligations, with respect to Airport Concession
Disadvantaged Business Enterprises and non-discrimination as the parties have under Articles 27, 28
and 29 of the Lease Agreement.
ARTICLE 49: NOTICES
49.1 Method for Notice. All notices required under this Concession Agreement shall be in
writing and shall be delivered either: (i) personally, (ii) by certified or registered mail, (iii) by
recognized overnight courier, or (iv) by facsimile. Notices shall be deemed delivered (i) when
personally delivered; (ii) on the third day after mailing when sent by certified or registered mail and
the postmark affixed by the United States Postal Service shall be conclusive evidence of the date of
mailing; (iii) on the first business day after deposit with a recognized overnight courier if deposited
in time to permit overnight delivery by such courier as determined by its posted cutoff times for
receipt of items for overnight delivery to the recipient, or (iv) on the date transmitted by facsimile, if
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the facsimile is confirmed received and was received by prior to 4:30 p.m. (recipient's local time),
otherwise, it will be deemed received the next business day.
49.2 Address for Notice. The address for notice under this Concession Agreement, unless
one party specifically provided notice otherwise, shall be identical to the address for notice under the
Lease Agreement.
ARTICLE 50: MISCELLANEOUS
50.1 Compliance with Laws. In addition to, and not in lieu of, any more specific directive
in this Concession Agreement, Concessionaire shall comply with all applicable rules and regulations
of the Port pertaining to the Airport or other realty of which the Premises are a part now in existence
or hereafter promulgated for the general safety and convenience of the Port, its various tenants,
invitees, licensees and the general public. Concessionaire shall further comply with all applicable
federal, state, and municipal laws, ordinances, and regulations, including without limitation those
relating to environmental matters.
50.2 Ongoing Improvements. It is u nderstood that the Port may from time to time elect to
alter, improve or remodel portions of the Airport. Concessionaire agrees that any temporary
inconvenience resulting from any such work by the Port or its contractors and agents shall not be
grounds for reduction of any sum or charge otherwise payable by Concessionaire if the same shall
not unreasonably interfere with Concessionaire's operation of the Rental Car Concession.
50.3 Electronic Funds Transfer; Automatic Debit.
50.3.1 At any time after the fifth (5th) Agreement Year, the Port specifically has the
right to require Concessionaire to remit any amounts to be remitted or otherwise payable under this
Concession Agreement to be made by electronic funds transfer to an account designated by the Port
from time-to-time. The Port may further, at its sole option, upon not less than sixty (60) days prior
notice to Concessionaire, require Concessionaire to promptly execute and deliver to the Port any
documents, instruments, authorizations, or certificates required by the Port to give effect to an
automated debiting system, whereby any or all payments by Concessionaire of whatsoever nature
required or contemplated by this Concession Agreement shall be debited monthly or from time to
time, as provided in this Concession Agreement, from Concessionaire's account in a bank or
financial institution designated by Concessionaire and credited to the Port's bank account as the Port
shall designate from time to time. Concessionaire's failure to properly designate a bank or financial
institution or to promptly provide appropriate information in accordance with this Section 31.4.1
shall constitute a default of this Concession Agreement.
50.3.2 Concessionaire shall promptly pay all service fees and other charges
connected with its use of an automated debiting system, including, without limitation, any charges
resulting from insufficient funds in Concessionaire's bank account or any charges imposed on the
Port.
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50.3.3 In the event that Concessionaire elects to designate a different bank or
financial institution from which any fees or other charges under the Concession Agreement are
automatically debited, notification of such change and the required documents, instruments,
authorizations, and certificates specified in Section 31.4.1 must be received by the Port no later than
thirty (30) days prior to the date such change is to become effective.
50.3.4 Concessionaire agrees that it shall remain responsible to the Port for all
payments and other charges pursuant to the Concession Agreement, even if Concessionaire's bank
account is incorrectly debited in any given month. Such fees and other charges shall be immediately
payable to the Port upon written demand.
50.4 Brokers. Concessionaire warrants t hat it knows of no broker or agent who is or may
be entitled to any commission or finder's fee in connection with this Concession Agreement.
Concessionaire shall indemnify and hold the Port harmless from and against any and all claims,
demands, losses, liabilities, lawsuits, judgments, costs and expenses (including without limitation,
attorneys' fees and costs) with respect to any leasing commission or equivalent compensation
alleged to be owing on account of Concessionaire's discussions, negotiations and/or dealings with
any broker or agent. This Section is not intended to benefit any third parties and shall not be deemed
to give any rights to brokers or finders.
50.5 Promotion of Port Commerce. Concessionaire agrees that throughout the term of this
Concession Agreement it will, insofar as practicable, promote and aid the movement of passengers
and freight through facilities within the territorial limits of the Port. Concessionaire further agrees
that all incoming shipments of commodities that it may be able to control or direct shall be made
through facilities within the territorial limits of the Port if there will be no resulting cost or time
disadvantage to Concessionaire.
50.6 Labor Disputes. Concessionaire agrees to use its best efforts to avoid disrupti on to
the Port, its tenants or members of the public, arising from labor disputes involving Concessionaire,
and in the event of a strike, picketing, demonstration or other labor difficulty involving
Concessionaire, to use its good offices, including the utilization of available legal remedies, to
minimize and/or eliminate any disruption to the Port, its tenants or members of the public, arising
from such strike, picketing, demonstration or other labor difficulty.
50.7 Mandatory Programs. Concessionaire understands that, from time to time, the Port
may institute certain programs that the Port believes, in its sole judgment, will be in the best interests
of the Airport and its tenants. Such programs shall include, but not be limited to, trash recycling,
commuter trip reduction, luggage cart token program, and Aircraft Operations Area (AOA) Clean
Surface Program for FOD (Foreign Object Debris). Concessionaire agrees to promptly comply with
and carry out any and all reasonable obligations issued by the Port under such programs, as the same
may exist from time to time.
50.8 Successors Bound. This Concession Agreement and each of its covenants and
conditions shall be binding upon and shall inure to the benefit of the parties hereto and their
16
respective assignees, subject to the provisions hereof. Any successor or assignee of the
Concessionaire who accepts an assignment of the benefit of this Concession Agreement and enters
into possession or enjoyment hereunder shall thereby assume and agree to perform and be bound by
the covenants and conditions thereof. Nothing herein contained shall be deemed in any manner to
give a right of assignment to Concessionaire without the prior written consent of the Port pursuant to
ARTICLE 47 hereof.
50.9 Time. Time is of the essence of each and every one of the Concessionaire's
obligations, responsibilities and covenants under this Concession Agreement.
50.10 Consent. Whenever the Port's prior consent or approval is required by this
Concession Agreement, the same shall not be unreasonably delayed but may, unless otherwise
specifically provided by this Concession Agreement, be granted or denied in the Port's sole and
absolute discretion.
50.11 Attorneys' Fees. In the event either party requires the services of an att orney in
connection with enforcing the terms of this Concession Agreement or in the event suit is brought for
the recovery of any Concession Fees or other sum or charge otherwise payable by Concessionaire
this Concession Agreement or the breach of any covenant or condition of this Concession
Agreement, or after the expiration thereof, the prevailing party will be entitled to reasonable
attorneys' fees, consultants' fees, witness fees and other costs, both at trial and on appeal. For
purposes of calculating attorneys' fees, legal services rendered on behalf of the Port by public
attorneys shall be computed at hourly rates charged by attorneys of comparable experience in private
practice in Seattle, Washington.
50.12 Joint and Several Liability; Use of Term Concessionaire. To the extent that more than
one Person executes this Concession Agreement other than in a representative capacity, under
ARTICLE 51, each such Person shall be jointly and severally liable hereunder. Nothing in this
Section, however, shall be understood to make any such Person liable for the obligations of any
other Concessionaire under any separate Rental Car Concession agreement. It is understood and
agreed that for convenience, the word "Concessionaire" and verbsand pronouns in the singular
number and neuter gender are uniformly used throughout the Concession Agreement, regardless of
the number gender or fact of incorporation of the party who is, or of the parties who are, the actual
Concessionaire or Concessionaires under this Concession Agreement.
50.13 Captions and Article Numbers. The captions, article and section numbers and table
of contents appearing in this Concession Agreement are inserted only as a matter of convenience and
in no way define, limit, construe or describe the scope or intent of such sections or articles of this
Concession Agreement nor in any way affect this Concession Agreement.
50.14 Severability. If any term, covenant, condition or provision of this Concession
Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
covenants, conditions or provisions of this Concession Agreement, or the application thereof to any
17
person or circumstance, shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
50.15 Survival of Indemnities. All indemnities provided in this Concession Agreement
shall survive the expiration or any earlier termination of this Concession Agreement. In any
litigation or proceeding within the scope of any indemnity provided in this Concession Agreement,
Concessionaire shall, at the Port's option, defend the Port at Concessionaire's expense by counsel
satisfactory to the Port.
50.16 Applicable Law; Venue; Waiver of Trial by Jury. This Concession Agreement, and,
the rights and obligations of the parties hereto, shall be construed and enforced in accordance with
the laws of the State of Washington. Jurisdiction and venue for any action on or related to the terms
of this Concession Agreement shall be exclusively in either the United States District Court for the
Western District of Washington at Seattle or the King County Superior Court for the State of
Washington, and the parties irrevocably consent to the personal jurisdiction of such courts over
themselves for purposes of determining such action and waive any right to assert a claim of
inconvenient forum. In any action on or related to the terms of this Concession Agreement, the
parties (for themselves and their successors and assigns) hereby waive any right to trial by jury and
expressly consent to trial of any such action before the court.
50.17 Submission of Agreement. The submission of this document for examina tion and
negotiation does not constitute an offer to grant a concession, or a reservation of or option for a
concession at the Airport. This document shall become effective and binding only upon execution
and delivery hereof by the Port and Concessionaire. No act or omission of any officer, employee or
agent of the Port or Concessionaire shall alter, change or modify any of the provisions hereof.
50.18 Entire Agreement; Modification. This Concession Agreement, together with the
Lease Agreement and the Concessionaire's entire response to any Request for Qualifications or
Proposals issued by the Port and related to operations in the Consolidated Rental Car Facility, sets
forth all covenants, promises, agreements, conditions and understandings between the Port and
Concessionaire concerning the Premises, and there are no covenants, promises, agreements,
conditions or understandings, either oral or written, between the Port and Concessionaire other than
as are herein set forth. No subsequent alteration, amendment, change or addition to the Concession
Agreement shall be binding upon the Port or Concessionaire unless reduced to writing and signed by
the Port and Concessionaire. To the extent of any conflict between this Concession Agreement, the
Lease Agreement and Concessionaire's response to any Request for Qualifications or Proposals, the
terms of this Lease Agreement shall prevail over the Concession Agreement and the Concession
Agreement shall prevail over the response to any Request for Qualifications or Proposals.
50.19 Relationship of the Port and Concessionaire. Nothing contained herein shall be
deemed or construed as creating the relationship of principal and agent, partnership, or joint venture
partners, and no provision contained in this Concession Agreement nor any acts of Concessionaire
and the Port shall be deemed to create any relationship other than that of Concessionaire and the
Port.
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50.20 Exhibits. Attachment 1 and Exhibits Q and R are attached to this Concession
Agreement after the signatures and by this reference incorporated herein.
ARTICLE 51: SIGNATURES
IN WITNESS WHEREOF, the parties have executed this Concession Agreement as of the
date first above written.
PORT OF SEATTLE SIXT RENT A CAR LLC.
By: By:
Its: Its:
19
ARTICLE 52: ACKNOWLEDGMENTS
STATE OF WASHINGTON )
) ss
COUNTY OF KING )
On this _____ day of ____________, 2012 before me personally appeared , to me
known to be the of the PORT OF SEATTLE, the municipal corporation that executed the
within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said
corporation, for the uses and purposes therein mentioned, and on oath stated that s/he was authorized to execute said
instrument.
In Witness Whereof I have hereunto set my hand and affixed my official seal the day and year first above
written.
___________________________________________
(Signature)
(Print Name)
Notary Public, in and for the State of Washington,
residing at
My Commission expires:
STATE OF FLORIDA )
) ss
COUNTY OF )
On this _____ day of ___________, 2012, before me personally appeared Johannes Boeinghoff, to me known to
be the President of SIXT RENT A CAR LLC., the corporation that executed the within and foregoing instrument at
Concessionaire, and acknowledged said instrument to be the free and voluntary act and deed of said corporation, for the
uses and purposes therein mentioned, and on oath stated that s/he was authorized to execute said instrument.
In Witness Whereof I have hereunto set my hand and affixed my official seal the day and year first above
written.
___________________________________________
(Signature)
___________________________________________
(Print Name)
Notary Public, in and for the State of Florida,
residing at __________________________________
My Commission expires: _______________________
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