ITEM #1 INVITATION TO BID ON-AIRPORT AUTOMOBILE RENTAL CONCESSION DES MOINES INTERNATIONAL AIRPORT DES MOINES, IOWA

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1 ITEM #1 INVITATION TO BID ON-AIRPORT AUTOMOBILE RENTAL CONCESSION DES MOINES INTERNATIONAL AIRPORT DES MOINES, IOWA Sealed bids will be received at the office of the Des Moines Airport Authority, ATTN: Contracts Manager, 5800 Fleur Drive, Suite 207, Des Moines, IA, until 10:30 A.M. CDT, on May 29, 2015, for the operation of nonexclusive automobile rental concessions at the Des Moines International Airport. These bids will be opened by the Contracts Manager at the above specified time and location and will be subsequently presented to the Airport Board at their next regular meeting. 1. On Monday, May 11, 2015, at 10:00 A.M. CDT, a MANDATORY pre-bid meeting will be held in the Cloud Room of the Airport Terminal Building to receive inquiries concerning this bid request. Those unable to attend in person may participate in the prebid meeting via conference call. If interested in the conference call option, please contact Steve Dawson, Contracts Manager, prior to May 11, 2015, at (515) or scdawson@dsmairport.com. The deadline for receiving additional written inquiries is 5:00 PM CDT on May 14, The Authority is not responsible for delayed or lost inquiries. 2. A written response to all inquiries as well as other information needed to correct or clarify the bid documents will be forwarded to all participating vendors no later than the end of the business day on May 19, In all cases, bidders may not rely on oral communications and only written responses to inquiries are binding. Copies of the Bid Specification Summary, Bid Form, and Sample Concession Agreement relating to the automobile rental concessions are on file in the offices of the Des Moines Airport Authority and will be available online at The Authority reserves its right to reject any and all bids and to waive any informality in proposals received. Bids shall be submitted on the forms furnished by the Authority. P:\WORKING\2015\PROP MGMT\RFP\Rental Cars\2015 rental car RFB part 1.docx Public Notice Page 1 of 1

2 ITEM #2 BID SPECIFICATION SUMMARY ON-AIRPORT AUTOMOBILE RENTAL CONCESSION DES MOINES INTERNATIONAL AIRPORT DES MOINES, IOWA The Des Moines Airport Authority is soliciting bids for the On-Airport Automobile Rental Concession at the Des Moines International Airport. A. Attached as a part of this Request for Bids is a sample of a proposed ON-AIRPORT AUTOMOBILE RENTAL CONCESSION AGREEMENT ( Concession Agreement ). If there are any differences between this bid specification summary and the Concession Agreement, the language in the executed agreement between the parties will prevail. B. The bidding process and proposed Concession Agreements are based on the following specifications: 1. The successful bidders shall: a. observe and obey all laws, ordinances, rules, and regulations applicable to the Authority and Airport, b. conduct an active rental automobile operation including, but not limited to: maintaining, in accordance with highest standards of safety and appearance, a fleet of late model automobiles for rent adequate in number to satisfy the demand for such services; c. staff an automobile rental counter at least 14 hours per day, seven days a week; d. make payments promptly when due; e. perform all other actions necessary to provide a first-class automobile rental service. 2. The term of the Concession Agreement will be five years beginning August 1, The successful bidders (the Concessionaires ) will be required to pay to the Authority, on a monthly basis, the rents and fees defined in Article 4 of the Concession Agreement, consisting of building space rentals, ready and return space rentals, and a Privilege Fee of 10% of Concessionable Gross Receipts, as well as to collect and remit a Customer Facility Charge (CFC). Bid Specification Summary Page 1

3 a. Each Concessionaire shall on or before the first day of each calendar month pay in advance the rentals set forth in Paragraph 3 above. b. On or before the 15th day of the second and each succeeding month of the term, each Concessionaire shall submit an accurate statement of its Gross Concessionable Receipts for the preceding month. Simultaneously therewith, each Concessionaire shall pay the Authority a Privilege Fee of 10% of the Gross Concessionable Receipts of the preceding month. c. At the end of each Agreement year, if during the Agreement year the Concessionaire has paid less than the Minimum Annual Guarantee (MAG), then Concessionaire will pay the shortfall each contract year. If the Concessionaire has met or exceeded the MAG as originally bid, then no action will be required. 4. The Authority will approve and award a maximum of six rental car Concession Agreements. The successful bidders will be determined based on the greatest value MAG bids. Any bid with an annual MAG of less than $50,000 will not be considered for contract award. 5. Brand is hereby defined as a recognized rental car brand name (e.g., Alamo, Avis, Budget, Dollar, etc.). If a bidder intends to operate two brands from a combined counter position, ready/return area, and Facility area, it must declare its intention in this bid and no accommodation will be made during the term of the Concession Agreement to allow additional brands to operate from an operating area. 6. A bidder who operates multiple brands may submit a bid in any of the following options: a. A single bid which specifies the brands and MAG covered by the single bid. Under this option, the bidder will execute one agreement with the Authority, the MAG will be ranked against all other MAGs in the same manner as an individual bid, and the MAG will remain intact for the term of the agreement even if any of the brands is no longer operated at the Airport. No more than two brands may operate under a single Agreement. b. An individual bid with an individual MAG for each brand with each operating from separate operating locations for the term of the agreement. Under this option, the MAG will be ranked against all other MAGs, the MAG will be fixed for the term of the agreement, each brand will execute an agreement with the Authority, and the individual brands will not share operating areas. In the event that any of the brands terminates its agreement with the Airport, its MAG will terminate and its allocated areas will be re-allocated to the remaining operators. Parking spaces and leased space which have been assigned at the Facility and are surrendered by a brand in this fashion will not automatically be retained by the Bidder for its other brand(s). Reallocation of the space will be at the sole discretion of the Executive Director. Bid Specification Summary Page 2

4 7. If a bidder intends to operate multiple brands from a combined counter position, ready/return area, and Facility area, it must provide evidence that the operation of multiple brands is acceptable to the respective owners of the individual brands. 8. Should the Authority award fewer than six concessions: a. The Authority will reserve the right to bid and award additional On-Airport Automobile Rental Concessions during the term of the agreement (under the same terms and conditions). b. The parking spaces normally allocated pursuant to a minimum bid will be determined, reserved and then temporarily reallocated to the successful bidders until the recruitment of additional concessionaires, if any. c. If the number of concessions awarded is less than the number of available offices and maintenance bays in the Facility, or the number of available counter locations, the Authority reserves the right to block out from assignment certain spaces at Authority's sole discretion for other Airport use and to assign areas in the Facility and counter area in such a manner to ensure contiguous assignment. 9. The rental rate for the counter and attached office spaces in the Terminal will be $34.54 per square foot per year for the assigned space. The estimated size of the available counter/office spaces ranges from to 400 square feet (Refer to Exhibit A of the Sample Agreement which is presumed to list accurate square footages). 10. The rental rate for the Service Facility will be $3.22 per square foot of parking storage space per year. 11. Following its review of the bids, the Authority will report the bid ranking, the ready return space allocations based on such bids, and the preliminary locations of allocated spaces. 12. It is anticipated that incumbent concessionaires will continue to occupy the counters and leaseholds in the service facility they presently occupy. On the commencement date of the Concession Agreement, an incumbent or new Concessionaire having a higher MAG bid may displace a current concessionaire with a lower MAG bid from its rental counters, maintenance bays in the Service Facility, and its attached office spaces. Any Concessionaire who displaces another in the manner described will be responsible for its own relocation costs as well as the relocation costs of the displaced Concessionaire. All relocations are subject to the discretion of the Authority, and if there are multiple relocations the Authority will determine an equitable method of allocating relocation costs. 13. All return cars will be directed to the parking garage. Lot #1, Lot #2, and the garage may be used for ready car spaces. Bid Specification Summary Page 3

5 14. Lease rates for parking spaces in the garage, Lot #1, Lot #2, and the storage lot are set by the Des Moines Airport Authority Board as part of the Authority s Rates and Charges and are subject to change during the term of this Agreement. 15. Assigned rental car ready and return parking spaces will be allocated as specified in Section 2.04 of the Sample Agreement. Final space assignment locations will be at the sole discretion of the Executive Director. 16. Due to construction or security requirements, the Authority may reallocate spaces, reduce or expand the total number of rental car spaces, relocate, or change the use of all or part of the rental car ready and return lots. These changes may be made at the discretion of the Executive Director upon giving notice to the rental car companies. The Authority will bear only those expenses directly related to the surfacing, fencing, lighting, signage, and access road construction and maintenance, not including snow and ice removal, of any newly created temporary or permanent rental car ready or return lots. 17. If a successful bidder has not previously contracted with the Authority for the operation of an automobile rental concession at the Airport, the bidder shall furnish a payment and performance bond or letter of credit conditioned on the full, faithful, and satisfactory performance by the Concessionaire of the covenants and obligations under the Concession Agreement. The bond or letter must be in a form acceptable to the Authority and in an amount equal to one-third of the MAG, and must remain in full force and effect for the full original amount during the term of the Agreement. 18. During the term of the Agreement, the Authority reserves the right to assess privilege fees on rental car companies that have not entered into a rental car airport Concession Agreement but that conduct rental car business on the Airport. If such an airport privilege fee is assessed, the basis and amount of the fee will be established by the Authority in its sole discretion and will be subject to change during the term of the Agreement. This statement is for information only and is not a promise or covenant for the benefit of any bidder or bidders. 19. Concessionaire shall furnish an annual audited Statement of Revenue to the Authority within ninety days after the end of each agreement year. This Statement of Revenue must be audited by an independent, external Certified Public Accountant and must contain, at a minimum, the disclosures required under Section 4.03 of the Sample Agreement. 20. The Authority will have the right, during normal business hours and upon reasonable notice, to audit Concessionaire's records that may pertain to business operations at the Airport. 21. A Customer Facility Charge (CFC) has been enacted by the Authority Board and is required to be collected by Concessionaire and remitted to the Airport throughout the Bid Specification Summary Page 4

6 term of the Agreement or until terminated by the Airport Board. The collection level for the CFC is set as part of the Authority s Rates and Charges by the Board. The Authority Board reserves the right to adjust the amount of the CFC as it deems necessary. 22. Included in the Bid Packet is a detail of the combined rental car unaudited gross receipts and passenger statistics at the Airport for the period of August 2010 through March Disadvantaged Business Enterprises (DBE). Successful bidders shall comply at all times during this agreement with the Airport s DBE program and all federal, state and local DBE laws, regulations, ordinances and requirements. 24. In addition to the above, by submitting a bid, the successful bidders agree to the terms, conditions and provisions set forth in the attached Sample Concession Agreement. C. Copies of the Bid Specification Summary, Bid Form, and draft Sample Concession Agreement and supporting data relating to the automobile rental concessions are on file at the Des Moines Airport Authority offices. Copies of these documents may be obtained from the Contracts Manager, Des Moines Airport Authority, 5800 Fleur Dr., Des Moines, IA 50321, or from the Airport website at No deposit shall be required for these documents. D. The Authority reserves the right to reject any and all bids and to waive minor irregularities in proposals received. P:\WORKING\2015\PROP MGMT\RFP\Rental Cars\2015 rntl car RFB part 2.docx Bid Specification Summary Page 5

7 ITEM # BID FORM ON-AIRPORT AUTOMOBILE RENTAL CONCESSION DES MOINES INTERNATIONAL AIRPORT DES MOINES, IOWA The Authority Board Chairperson and Members of the Des Moines Airport Authority Board: A. The undersigned, having examined the Bid Specification Summary, Bid Form, the Sample Concession Agreement, and any and all related documents for the granting of Automobile Rental Concessions at the Des Moines International Airport, and having become familiar with all features and aspects of this proposed concession, hereby proposes to pay to the Des Moines Airport Authority, during the term of the Concession Agreement, rentals and fees as set forth below: 1. Monthly rental for assigned spaces as determined in the Authority s Rates and Charges, currently: a. Parking Garage = $80.00 per vehicle space per month b. Lot No. 1 = $50.00 per vehicle space per month c. Lot No.2 = $35.00 per vehicle space per month d. Storage Lot = $17.00 per vehicle space per month. 2. Monthly rental for counter and office space on the main floor of the Airport Terminal Building at $34.54 per square foot per year. 3. Service Facility occupancy fee for office, parking, and garage space in the Rental Car Service Facility as determined in the Authority s Rates and Charges, currently $3.22 per square foot of parking space per year. 4. Declaration is hereby made regarding status of bid as it relates to multi-branding as defined in the Request for Bids and the Sample Agreement (please indicate status by placing a check mark in the appropriate blank): Submitting bid as a: Single-brand Concessionaire Multi-brand Concessionaire where all brands will have a combined operating area and will be operated under a combined Concession Agreement (maximum two brands per Agreement) Bid Form Page 1 of 4

8 Declaration is hereby made regarding Privilege Fee consisting of a Minimum Annual Guarantee (MAG) for the first agreement year in the sum of: For single-brand Concessionaire Brand MAG (dollars) or For Multi-brand Concessionaire where all brands will have a combined operating area and will be operated under a combined Concession Agreement (use additional sheets to list all brands if necessary) All brands MAG (dollars) B. Following its review of the bids, the Authority will report the bid ranking, the ready return space allocations based on such bids, and the preliminary location of such allocated spaces. C. Within 15 days after receipt of the Authority s request to do so, the undersigned will execute the formal agreement. In the event of failure of the undersigned to execute the formal agreement and otherwise to comply with the requirements of this bid, the Authority may, at its option, negotiate with another bidder for award of the concession. D. The undersigned hereby acknowledges receipt of a copy of the proposed form of agreement for the above-mentioned concession, and that it has reviewed the agreement prior to the execution of this bid. The premises at the Airport proposed to be devoted to this operation, and plans showing layout of such premises have been inspected by the undersigned, who has become thoroughly familiar therewith. The undersigned further acknowledges the right of the Authority, acting by and through its Board, to reject any or all bids submitted; acknowledges and agrees that the discretion of the Authority Board in selecting the successful operators will be final, not subject to review or attack; and warrants that this bid is made with full knowledge of and in full agreement with the foregoing. Bid Form Page 2 of 4

9 Dated at this day of, Name of Company BY Name and Title CORPORATE ACKNOWLEDGMENT State of ) ) SS County ) On this day of,, before me the undersigned, Notary Public in and for the State of, personally appeared and, to me known, who, being by me duly sworn, did say that they are the, and, respectively, of the corporation executing the foregoing instrument; that (no seal has been procured by) (the seal affixed thereto is the seal of) the corporation; that said instrument was signed (and sealed) on behalf of the corporation by authority of this Board of Directors; that and acknowledged the execution of the instrument to be the voluntary act and deed of the corporation, by it and by them voluntarily executed. Notary Public in and for the State of My commission expires LIMITED LIABILITY COMPANY ACKNOWLEDGMENT State of ) ) SS County ) On this day of,, before me, a in and for said county, personally appeared, to me personally known, who being by me duly sworn did say that that person is of the limited liability company and that said instrument was signed on behalf of the limited liability company by authority of its managers and that acknowledged the execution of said instrument to be the voluntary act and deed of the limited liability company by it and by them voluntarily executed. Notary Public in and for the State of My commission expires Bid Form Page 3 of 4

10 PARTNERSHIP ACKNOWLEDGMENT State of ) ) SS County ) On this day of,, before me the undersigned, Notary Public in and for the State of, personally appeared, to me personally known, who being by me duly sworn did say that the person is one of the partners, a partnership, and that the instrument was signed on behalf of the partnership by authority of the partners and the partner acknowledged the execution of the instrument to be the voluntary act and deed of the partnership by it and by the partner voluntarily executed. Notary Public in and for the State of My commission expires INDIVIDUAL ACKNOWLEDGMENT State of ) ) SS County ) On this day of,, before me the undersigned, Notary Public in and for the State of, personally appeared and, to me known to be that person(s) named in and who executed the foregoing instrument, and acknowledged that (he) (she) (they) executed the instrument and (his) (her) (their) voluntary act and deed. Notary Public in and for the State of My commission expires Bid Form Page 4 of 4

11 XYZ Car Rental, Inc. ON-AIRPORT AUTOMOBILE RENTAL CONCESSION AND LEASE AGREEMENT DES MOINES AIRPORT AUTHORITY -1-

12 TABLE OF CONTENTS PREAMBLE Page 1 ARTICLE 1 DEFINITIONS Page 2 Section 1.01 Section 1.02 Section 1.03 Agreement Definitions of Terms Cross References and Paragraph Headings ARTICLE 2 LEASED PREMISES Page 7 Section 2.01 Section 2.02 Section 2.03 Section 2.04 Section 2.05 Leased Premises Terminal Space Consolidated Service Facility Parking Spaces Relocation of Leased Premises Due to Construction ARTICLE 3 TERM OF LEASE AGREEMENT Page 11 Section 3.01 Section 3.02 Term Termination ARTICLE 4 RENTALS, FEES, AND TIME Page 12 OF PAYMENT Section 4.01 Section 4.02 Section 4.03 Section 4.04 Section 4.05 Section 4.06 Section 4.07 Section 4.08 Section 4.09 Section 4.10 Lease Rates Schedules of Privilege Fees Payment Provisions Accounting Records and Audits Privilege Fees Assessed on Other Rental Car Companies Pass-Through of Concession Fee Limitation on Pass-Through of Concession Fee Customer Facility Charge (CFC) Supplemental Facilities Fee in Lieu of or in Addition to the CFC Mandated Security Measures and Related Fees ARTICLE 5 CONSOLIDATED SERVICE FACILITY Page 19 Section 5.01 Section 5.02 Section 5.03 Facility Description Facility Use Fuel Type ARTICLE 6 OBLIGATIONS OF THE PARTIES Page 20 Section 6.01 Section 6.02 Obligations of the Authority Obligations of the Concessionaire ARTICLE 7 RIGHTS, USES, AND PRIVILEGES Page 23 Section 7.01 Rights, Uses and Privileges of the Authority -2-

13 Section 7.02 Rights, Uses and Privileges of the Authority Concessionaire ARTICLE 8 INSURANCE AND INDEMNIFICATION Page 26 Section 8.01 Section 8.02 Section 8.03 Section 8.04 Section 8.05 General Insurance Requirements Indemnification (Hold Harmless) Provision Non-Liability of Authority Waiver of Subrogation Provision ARTICLE 9 DISADVANTAGED BUSINESS Page 30 ENTERPRISES (DBE) Section 9.01 Section 9.02 Section 9.03 Section 9.04 Section 9.05 Section 9.06 Policy DBE Goal Assurance Inclusion of DBE Discrimination Provision in Sub-Agreements Compliance with DBE Requirements Maximum Opportunity to Participate ARTICLE 10 DEFAULT AND TERMINATION Page 32 OF AGREEMENT Section Section Section Section Termination by Authority Exercising Authority's Right of Termination Termination by Concessionaire Exercising Concessionaire's Right of Termination ARTICLE 11 ENVIRONMENTAL MATTERS Page 34 Section Section Section Section Section Section Section Section Definitions Compliance with Environmental Laws Environmental Responsibility Obligation to Investigate and Remediate Indemnity for Environmental Conditions Release of Hazardous Substances Claims Against the Authority Vacation of Leased Premises Survival of Provisions ARTICLE 12 FAA PROVISIONS Page 39 Section Section Section Section Section Non-Discrimination Civil Rights Just Services Exclusive Rights Subordination to Agreements ARTICLE 13 GENERAL PROVISIONS Page 41 Section Section Rules, Regulations, and Ordinances Compliance with Law -3-

14 Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Reservation of Rights Successors and Assigns Bound by Covenant Governing Law Quiet Enjoyment Nonwaiver of Rights Severability Entire Agreement Copartnership Disclaimer Development and Protection of Airport Assignments and Subletting Alterations Amendments Attorney's Fees Licenses, Fees and Taxes Compliance with Federal Aviation / Transportation Security Regulations Inspection War or National Emergency Modification Due to Unusual Circumstance Subordination to Bond Ordinance Americans with Disabilities Act Agreement Construction Notices Right to Amend No Third Party Beneficiaries Waiver of Visual Artists Rights Representations of Concessionaire EXHIBITS The following are exhibits to this Agreement and are hereby incorporated as part of this agreement. Exhibit A Leased Premises Page 54 Exhibit B Summary of Maintenance Responsibilities Page 55 Exhibit C Required Insurance Endorsements Page 60 Exhibit D Bond Form Page 61 Exhibit E On-Airport Car Rental Agency Monthly Page 62 Statement of Gross Concessionable Receipts Exhibit F NPDES Certification Statement Page 66-4-

15 ON-AIRPORT AUTOMOBILE RENTAL CONCESSION AGREEMENT XYZ CAR RENTAL, INC. DES MOINES AIRPORT AUTHORITY This On-Airport Automobile Rental Concession Agreement ( Agreement ), made and entered into this day of, 2015, by and between the Des Moines Airport Authority ( Authority ), and XYZ Car Rental, Inc., ( Concessionaire ) incorporated in the State of Delaware and having its principal offices in CITY, STATE. RECITALS: The Authority currently owns and operates an airport known as the Des Moines International Airport ( Airport ), located in Des Moines, Polk County, Iowa. The Authority, under the laws of the State of Iowa, has exclusive jurisdiction and control over the Airport and has the power to fix, alter, charge, establish, and collect rates, fees, rentals and other charges for the services and facilities of the Airport. The Authority deems it advantageous to the operation of the Airport to lease to Concessionaire certain premises and to grant to Concessionaire certain rights, privileges, and uses therein, as necessary to conduct its automobile rental business at the Airport. The Authority has determined that it can accommodate a limited number of rental car companies to provide such services. On April 27, 2015, the Authority issued bid documents for rental car concessions and received bids until May 29, Concessionaire is one of the successful bidders who were determined by ranking all the bidders by their bid of the Minimum Annual Guarantee (MAG) from highest to lowest. Concessionaire desires to receive a nonexclusive privilege to conduct an on-airport rental car operation by entering into this agreement. As a condition of the privilege granted in this agreement, Concessionaire will equip, operate and maintain counters and associated space in the Terminal Building to support Concessionaire's car rental concession operation at the Airport. Now, therefore, the parties agree as follows: -5-

16 ARTICLE 1 DEFINITIONS Section 1.01 AGREEMENT This Agreement between the parties includes: (1) this document, including the Recitals; (2) Addenda to the invitation to bid dated ; (3) the Invitation to Bid, including its attachments and exhibits; (4) the Concessionaire s bid dated. The listed documents are to be interpreted so as to give effect to all terms of each and to harmonize their provisions. To the extent there are provisions in the listed documents that are irreconcilable, the order of precedence is as listed in this section. Section 1.02 DEFINITIONS OF TERMS Unless specifically defined otherwise in this agreement, or unless a different meaning is apparent from the context, the terms used in this Agreement have the following definitions: Agreement Year means the twelve month period ending on July 31 of each year. "Airport" means the Des Moines International Airport, as it now exists or as it may change from time to time. Authority means the Des Moines Airport Authority. "Authority Board" means the Des Moines Airport Authority Board. "Authority Board Regulations" means the Rules and Regulations, including the Rates and Charges and policies, adopted by the Authority Board. "Concessionaire" means XYZ Car Rental, Inc., signatory to this Agreement, and owner/operator of a rental vehicle concession at the Airport. "Customer" means the actual individual listed on the signed Rental Agreement as the lessee of the vehicle delivered at, rented at, or picked up at the Airport regardless of who pays a portion or all of the rental charges. "Customer Facility Charge" or "CFC" means the charge imposed on each rental vehicle transaction, which shall be a fixed uniform amount applied to each contract day (as defined in Authority Rates and Charges), or fraction thereof, to each rental car contract and shall be added to the amount collected from the Customer by each rental car company having a concession agreement with the Authority. "Executive Director" means the Executive Director of the Airport, or his or her duly authorized representative, who is designated by Authority Board to exercise functions with respect to the rights and obligations of Authority under this Agreement. -6-

17 "FAA" means the Federal Aviation Administration of the United States Government or any federal agencies succeeding its jurisdiction. "Gross Concessionable Receipts" means Gross Revenue less those exclusions explicitly set forth below. Any divisions of such total sums of money into categories upon an invoice, statement, billing or credit card charge to a Customer, as for instance into basic charges and surcharges, for any purpose whatsoever, shall not of itself operate to exclude either or any of such categories from Gross Concessionable Receipts. Gross Concessionable Receipts include any and all receipts from vehicles rented at an Airport Fixed Based Operator (FBO). Any and all amounts charged or collected from the Customer to recover an Airport fee, (including the "Concession Recovery Fee" as defined in Section 4.06) are to be included in Gross Concessionable Receipts. Exclusions from Gross Concessionable Receipts are limited to the following items: 1. Inter-city fees paid or payable, if agreed to by Customer and separately stated on the Rental Agreement. Inter-city fees are defined as a premium charge authorizing the vehicle rental to originate in one location and terminate in a different location. 2. Charges for refueling a vehicle returned by a Customer whose contract required him or her to return the vehicle with a specified amount of fuel corresponding to the quantity in the tank at the time of delivery, whether the charge was imposed at the time of return or by pre-payment at the rental contract's commencement. Such charges must be agreed to by Customer and separately stated on the Rental Agreement. However, related to this exclusion, it is understood by Concessionaire that all charges made to a Customer for fuel under a Rental Agreement where Concessionaire normally furnishes the fuel to the Customer are to be included in Gross Concessionable Receipts. 3. Discounts to which the Customer was entitled at the time the rental transaction commences, if agreed to by Customer and separately stated on the Rental Agreement. No exclusion shall be allowed for the portion of retroactive rebates, dividends, or refunds to any Customer upon attainment of a specified volume of rentals or as part of any other marketing plan that does not list the discount on the Rental Agreement at the commencement of the rental transaction. All excludable and non-excludable discounts should be recorded and reported in separate and distinct general ledger accounts. Concessionaire shall forfeit exclusion of all discounts in the event that otherwise allowable discounts are co-mingled with any non-excludable amounts within the accounting system. 4. Refunds applicable to those revenues which were originally includable in Gross Concessionable Receipts. However, no exclusion shall be made for refunds that apply to amounts already excludable from Gross Concessionable Receipts (example: rental charges for sales taxes) since this would result in a duplicate deduction from Gross Concessionable Receipts. All such excludable and nonexcludable refunds are to be recorded and reported separately in general ledger accounts. Concessionaire shall forfeit exclusion of all such refunds in the event that otherwise allowable refunds are co-mingled with non-excludable amounts. -7-

18 5. Sales taxes collected by Concessionaire on behalf on any taxing authority if separately stated on the Rental Agreement. 6. Sums received for damage to automobiles or to Concessionaire's property, or for loss, conversion, or abandonment of automobiles, if agreed to by Customer and separately stated in the Rental Agreement. This includes charges to a customer for: towing of a damaged vehicle; payment of transporters to drive a damaged vehicle to the car rental lot; replacement of lost or damaged keys; citations, fees, and tolls issued by law enforcement or other governmental or quasi-governmental authority; fees for release of a vehicle from impound storage; costs for repair and/or extensive cleaning of a vehicle; and other expenses incurred by Concessionaire and reimbursed by the customer to return a vehicle back to service, to the extent that such charges do not exceed the actual documented cost of the costs incurred by Concessionaire. 7. Sums received as insurance proceeds, or otherwise, for damage to autos or other property of the Concessionaire. 8. Sums received from Customers in payment of CFC's if separately stated on the Rental Agreement. 9. All Customer charges for purchasing a waiver of Concessionaire's rights to recover damages for theft or loss of a vehicle rented by the Customer, if agreed to by Customer and separately stated on the Rental Agreement. 10. Any amounts received by Concessionaire by reason of its disposal of capital assets and trade fixtures, if separately stated in the Rental Agreement or through another agreement. "Gross Revenue" means the total sum of money paid or payable to Concessionaire for or in connection with the use of any vehicle which was contracted for, delivered to, or rented by Customer, regardless of where or by whom the payment was made or where the vehicle was returned, regardless of whether the Concessionaire actually collected the amounts payable by Customer, and regardless of whether the vehicle was regularly assigned to the Airport. Gross Revenue includes the total sum of money paid or payable to Concessionaire prior to the exclusions defined under Gross Concessionable Receipts above. "Hazardous Substances" means any substance: 1. The presence of which requires or may later require notification, investigation or remediation under any environmental law; or that is or becomes defined as a "hazardous waste", "hazardous material", "hazardous substance", "pollutant" or "contaminant" under any environmental law, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C 9601 et seq.), the Resources Conservation and Recovery Act (42 U.S.C. -8-

19 6901 et seq.) Iowa Code 455B.411(2 & 3), Iowa Code 455B.381(5), Iowa Code 455B.464, Iowa Code 455B.171(27) and their associated regulations; or 2. That is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous, as these terms are defined under federal, state and local environmental statutes, regulations, rules and ordinances, and is or becomes regulated by any governmental authority, agency, department, commission, board, agency or instrumentality of the United States, any state of the United States, or any political subdivision within any state; or 3. The presence of which on the Airport causes or threatens to cause a nuisance on the Airport or to adjacent properties or poses or threatens to pose a hazard to the Airport or to the health or safety of persons on or about the Airport; or 4. That contains gasoline, diesel fuel or other petroleum hydrocarbons or volatile organic compounds; or 5. That contains polychlorinated biphenyls (PCBs), asbestos or urea formaldehyde foam insulation; or 6. That contains or emits radioactive particles, waves or materials. "Leased Premises" means the counter space and office areas in the Terminal Building, office and maintenance areas in the Service Facility, and rental car parking spaces in rental car parking lots leased to Concessionaire for the conduct of rental car operations under this Agreement and as described in Article 2 and Exhibits A and B attached to this agreement. "Market Share" means a rental car concessionaire's Gross Concessionable Receipts for a given Agreement Year divided by the total Gross Concessionable Receipts for all rental car concessionaires for the same Agreement Year. "Minimum Annual Guarantee" or "MAG" means the dollar amount bid by the Concessionaire. "Off-Airport Rental Agreement" means an agreement with a company that has not executed an On-Airport Automobile Rental Concession and Lease Agreement Parking Facilities means the Parking Garage, Rental Car Lot Number 1, Rental Car Lot Number 2 and the Rental Car Storage Lot. Parking Garage means the section of the public parking garages designated for rental car use. "Privilege Fees" means those fees paid by Concessionaire on Gross Concessionable Receipts or the MAG in accordance with Article 4 of this Agreement. "Rental Agreement" means the contract between Concessionaire and Customer, to consist of a uniquely numbered document. The Rental Agreement is typically opened at the initiation of a rental -9-

20 transaction and is to include the total amount actually charged by Concessionaire as noted on the document when the Customer returns the vehicle. Rental Car Lot Number 1 means the parking lot shown on Exhibit A designated as Rental Car Lot Number 1. Rental Car Lot Number 2 means the parking lot shown on Exhibit A designated as Rental Car Lot Number 1. Rental Car Storage Lot means the parking lot shown on Exhibit A designated as Rental Car Storage Lot. "Rules and Regulations" means those rules, regulations and policies promulgated by the Authority Board or the Executive Director for the orderly use of the Airport by air transportation companies and other tenants and users of the Airport, as the same may be amended, modified, or supplemented from time to time. Service Facility means the rental car service facility and vehicle storage area shown in Exhibit A. "Surcharge" means an extra fee or an extra graduated fee charged for the use of a vehicle. "Terminal Building" means the building commonly referred to as the passenger terminal building used primarily for enplaning and deplaning passengers and their associated services. Section 1.03 CROSS-REFERENCES AND PARAGRAPH HEADINGS References in this Agreement to articles, sections, or exhibits of this Agreement, unless otherwise specified, are for convenience in reference and are not intended to define or limit the scope of any provision of this Agreement. -10-

21 ARTICLE 2 LEASED PREMISES Section 2.01 LEASED PREMISES The Authority hereby leases to Concessionaire certain Leased Premises described in this Article together with certain attendant rights and privileges as specifically set forth in this agreement. Changes to the Leased Premises do not require an amendment to this Agreement. Revisions to the Leased Premises will be reflected by revised exhibit(s) which will replace the corresponding current exhibit(s). Section 2.02 TERMINAL SPACE Counter space and office areas provided for Concessionaire adjacent to the baggage claim area of the Terminal Building are more particularly set forth in Exhibit A. There will be no changes to counter space and office area assignments during the term of the Agreement unless agreed to by all affected parties and approved by the Executive Director. Section 2.03 CONSOLIDATED SERVICE FACILITY Office space and maintenance bays in the Service Facility Leased Premises are more particularly set forth in Exhibit A. Concessionaire will have access to the common use wash bay and vehicle fueling areas of the Service Facility, subject to preferential assignment as defined by operating policies and procedures adopted by the Executive Director. Section 2.04 PARKING SPACES A. General 1. Assigned parking spaces in the Parking Garage, Rental Car Lot Number 1, Rental Car Lot Number 2 and Rental Car Storage Lot, are particularly set forth in Exhibit A. 2. All Customers will be directed to return automobiles to the Parking Garage only. 3. Concessionaire will be responsible for purchasing and installing parking space signage for its assigned parking spaces in the Parking Facilities at its sole expense and all signs must comply with standards set by the Authority. -11-

22 4. The Authority will be responsible for the installation and maintenance of appropriate way-finding signage directing customers to the Parking Garage and directing all customers from the Parking Garage and Lots #1 and #2. 5. Specific locations of Concessionaire's ready and return spaces in the parking facilities will be at the sole discretion of the Executive Director. If there are fewer than six Concessionaires, the parking spaces normally allocated pursuant to a minimum bid will be determined, reserved, and then temporarily reallocated to the existing Concessionaires until the selection of additional Concessionaires, if any. 6. Beginning in the second year of this Agreement, the Authority will annually evaluate all concessionaires' Market Shares. The Authority will reallocate spaces if any rental car concessionaire's Market Share cumulatively changes by at least five percent (5%) from its Market Share at the time of the previous allocation. In this event, all spaces above the minimum will be reallocated in proportion to each Concessionaire's Market Share for the past Agreement Year. During any reallocation, the number of spaces allocated to Concessionaire shall not fall below the minimum. 7. The Authority reserves the right to close or reduce the number of available spaces in any of the ready and return areas. The Authority will consult with all Concessionaires to determine vehicle storage needs prior to closing any ready and return area. B. Distribution of Spaces 1. Parking Garage a. All Concessionaires will be allotted a minimum of ten parking spaces in the Parking Garage. The remaining spaces will be allotted based on each Concessionaire's MAG as a percentage of the total MAGs submitted by all rental car concessionaires. b. Concessionaire will be allowed to install a booth for customer service in the Parking Garage if it chooses. All customer service booths must meet design standards defined by the Authority (similar to recent industry installations at other commercial airports) and all installations must be coordinated through the Authority with prior approval of the Executive Director or his or her designee. Any spaces used for a booth will be counted against Concessionaire's space allocation and Concessionaire will be responsible for rent associated with those spaces. 2. Lot 1 and Lot 2-12-

23 All Concessionaires will be assigned a minimum of twenty spaces in either Lot 1 or Lot 2. All remaining spaces will be allocated based on Concessionaire's MAG as a percentage of the total of all MAGs submitted by all Concessionaires. 3. Service Facility a. Concessionaire will be assigned parking at the Service Facility. Lanes will initially be assigned based on each Concessionaire's MAG as a percentage of the total MAGs submitted by all rental car concessionaires. Authority will determine the location of Concessionaire's lanes, but will make reasonable efforts to locate assigned lanes near Concessionaire's office area. b. Concessionaire may install barricades of a type approved by the Authority to segregate its parking areas at the Service Facility so long as the barriers do not impede the flow of traffic within the Facility's roadways. Concessionaire will be responsible for purchasing and installing the barricades within its assigned parking areas, but the Authority will provide reasonable assistance in physically positioning barricades as requested. 4. Storage Lot Concessionaire will be assigned space in the Storage Lot adjacent to the Service Facility. Spaces will be allotted based on each Concessionaire's MAG as a percentage of the total MAGs submitted by all rental car concessionaires. 5. Relinquished Spaces Concessionaire may choose to relinquish unwanted spaces in any lot. Relinquished spaces will be re-assigned to other concessionaires on the basis of Market Share. Concessionaire will not be able to reclaim relinquished spaces until the next reallocation of space, as described in Section 2.04(A)(6) above. 6. High Public Parking Demand During periods of high public parking demand as determined by the Executive Director, the Executive Director will have the right to use rental car Parking Facilities for public parking upon providing 24 hours notice to Concessionaire. Concessionaire will relocate its cars to an area on Authority property designated by the Executive Director. -13-

24 Section 2.05 RELOCATION OF LEASED PREMISES DUE TO CONSTRUCTION Concessionaire acknowledges that during the term of this Agreement, due to construction, the Authority may reallocate rental car spaces, reduce or expand the total number of spaces, relocate, or change the usage of all or part of the Parking Facilities. These changes may be made at the discretion of the Executive Director upon prior written notice to Concessionaire. Authority will bear only those expenses directly related to the surfacing, fencing, lighting, and access road construction, and maintenance, not including snow and ice removal, of any newly created temporary or permanent Rental Car Ready /Return Lots. Concessionaire shall be solely responsible for all other expenses associated with the relocation. Concessionaire acknowledges that during the term of this Agreement, construction related inconvenience might occur due to construction of Airport facilities. Concessionaire agrees it will not make or file any claim, lawsuit, or action against the Authority for any disruption and damages the construction or related activities may cause Concessionaire or Concessionaire's business. -14-

25 ARTICLE 3 TERM OF LEASE AGREEMENT Section 3.01 TERM Subject to earlier termination as hereinafter provided, the term of this Agreement is for a period of five (5) years, commencing on August 1, 2015, and ending on July 31, Section 3.02 TERMINATION This Agreement shall terminate at the end of the full term and Concessionaire shall have no further right or interest in any of the Leased Premises or any rights, privileges or uses set forth in this Agreement. Upon the termination of this Agreement Concessionaire shall surrender the Leased Premises in good condition. -15-

26 Section 4.01 LEASE RATES ARTICLE 4 RENTALS, FEES, AND TIME OF PAYMENT During the term of this Agreement Concessionaire shall pay to Authority, in advance without demand, the rental fees set forth below. A. Terminal Space Monthly rental for the counter space and attached office as set forth in Section 2.02 and designated in Exhibit A is set at an annual rate of $34.54 per square foot. The monthly rental payments will be the annual rental rate times the square footage in Exhibit A divided by twelve. B. Parking Spaces Monthly rental for assigned parking spaces in the Parking Facilities is set as part of the Authority s Rates and Charges. Concessionaire shall pay the rates as established in the Authority Rates and Charges. C. Service Facility Occupancy Fee Concessionaire will be assigned office space, a maintenance garage, and space for overflow parking and storage of vehicles at the Service Facility. The Service Facility occupancy fee is set as part of the Authority s Rates and Charges. Concessionaire shall pay the rates as established in the Authority Rates and Charges. The Authority will sell fuel at the Service Facility at cost plus a 3% administration fee. Section 4.02 SCHEDULES OF PRIVILEGE FEES During the first year of this Agreement, Concessionaire shall pay to Authority, without demand, a Privilege Fee computed as the greater of: A. The MAG in the sum of: (BID AMOUNT) OR B. Ten percent (10%) of the Gross Concessionable Receipts of Concessionaire. For each of the remaining four years of this Agreement, the MAG will be set at 75% of the Privilege Fee from the previous Agreement Year, or at an amount equal to the first year MAG, whichever is greater. Section 4.03 PAYMENT PROVISIONS A. Concessionaire shall, on or before the first business day of each calendar month, pay the Authority in advance the rent set forth in Section

27 B. On or before the 15 th day of each month, Concessionaire shall submit to the Authority, in the form shown on attached Exhibit E, and with detail satisfactory to the Authority, a "Monthly Statement of Gross Concessionable Receipts" which includes: 1. Gross Revenue of the Concessionaire's Airport location(s) for the prior calendar month; 2. All exclusions to Gross Revenue (the total of each category of exclusion shall be separately identified) which allow Concessionaire to calculate Gross Concessionable Receipts and the Privilege Fee; 3. The signature of an authorized official of Concessionaire. C. The Authority reserves the right to require Concessionaire to submit the Monthly Statement of Gross Concessionable Receipts electronically. D. Concessionaire shall furnish an annual audited Statement of Revenue to the Authority within 90 days after the end of each Agreement Year. This Statement of Revenue must be audited by an independent, external Certified Public Accountant and must contain, at a minimum, the following: 1. The audit opinion of the Certified Public Accountant, and 2. Monthly totals of Concessionaire's Gross Revenue and Gross Concessionable Receipts related to its Airport location(s) during the Agreement Year, including all separately stated fees, surcharges and other charges, in connection with: (a) Concessionaire's rental car business at the Airport ; and (b) any activities related directly or indirectly to that business; and (c) any other business of Concessionaire elsewhere on the Airport, and 3. Monthly totals of Gross Concessionable Receipts, and 4. The related monthly Privilege Fee owed to the Authority pursuant to Section Should this Agreement be assigned, assumed, terminate or be terminated at any other time other than at the end of an Agreement Year, Concessionaire shall provide the audited statement as described in Section 4.03(D) for the portion of the Agreement Year in which this Agreement was in effect. E. If, at the end of an Agreement Year, Concessionaire s concession fee payments during the Agreement Year are less than the MAG, Concessionaire will remit the balance of the MAG due to the Authority with its last monthly payment of the Agreement Year. If this Agreement is terminated prior to its expiration, then any shortfall of the MAG by the Concessionaire will be due and payable to the Authority within 30 days of the termination. -17-

28 F. The Authority reserves the right to require Concessionaire to provide a computer text file recorded on a compact disc that will detail monthly sales information by contract number. The monthly sales details presented in the text file should agree with the total amounts reported on the Monthly Statement of Gross Concessionable Receipts. G. In the event Concessionaire fails to make full, timely payment of any rentals, fees, charges, and payments when due, then 10 days after the due date, interest at the maximum rate allowed by law or 1.5% per month, whichever is the lesser, will accrue against the delinquent payment from the due date until the date payment is received by the Authority. When, in this Agreement, a Concessionaire's payment is not required until invoiced by the Authority, all payments will be considered timely if received by the Authority within 30 days from the date of invoice. The foregoing shall in no way be construed as a waiver of any right granted the Authority under the terms of this Agreement or by law. In addition, this provision shall not be construed to prevent the Authority from terminating this Agreement for cause or from exercising any other right or from enforcing any other provision of this Agreement or of law. H. Concessionaire shall not divert, through direct or indirect means, any of Concessionaire's rental car or related business with Airport passengers to off-airport locations of Concessionaire or affiliates of Concessionaire without including the Gross Concessionable Receipts of such transactions in Concessionaire's reported Gross Concessionable Receipts. Any such diversion of Gross Concessionable Receipts will constitute a breach of this Agreement and the Authority will have the right to immediately terminate this Agreement upon determination by the Authority or its auditors that an intentional diversion exists or has occurred. I. Concessionaire shall pay the Authority $10 every calendar day for any report specified in this Agreement for which Concessionaire is delinquent. The charge will continue until specific performance is accomplished. J. All required reports, rentals and privilege fee payments set forth under this Agreement shall be made to the Des Moines Airport Authority, 5800 Fleur Drive, Suite 207, Des Moines, Iowa Section 4.04 ACCOUNTING RECORDS AND AUDITS A. Concessionaire shall maintain all books of account and records customarily used in this type of business operation, in conformity with generally accepted accounting principles, and for such period of time as provided in this section, unless otherwise approved by the Authority. At any time during normal business hours, the Authority or its authorized representative has the right to audit and examine all such books of account and records, including federal and state tax returns relating to Concessionaire's operations and including franchisee and licensee records and audits of all business transactions and records of sale at any business location of Concessionaire within a one mile radius of Airport property. -18-

29 Concessionaire agrees that records and instruments will be available to the Authority for at least three years after the termination of this Agreement. B. Concessionaire shall maintain a record of each Rental Agreement written at the Airport. The Rental Agreement must indicate that the Airport is the originating location. Concessionaire shall maintain accountability for the numerical sequence of contracts, whether issued or not. Accounting records of Concessionaire must be stored sequentially, or in such other manner approved by the Authority, to provide reasonable and expeditious access for audit purposes. C. Concessionaire shall keep true and accurate accounts, records, books and data of all transactions related to the business conducted at each of the Concessionaire's Airport facilities. The accounts, records, books and data must show, at minimum, in a standard acceptable form, the income, taxes, surcharges, and Gross Concessionable Receipts as separate line items of the business operated at and upon the Airport. These books and records must be open for inspection by authorized representatives of the Authority at all reasonable times during normal business hours. Concessionaire shall maintain all original books and records as would be normally examined by an independent certified public accountant pursuant to generally accepted auditing standards in performing an audit or examination of the Concessionaire's Gross Concessionable Receipts, including a general ledger that will be regularly updated and maintained. This general ledger must contain, at a minimum, detail sufficient to allow Concessionaire and the Authority to properly separate and categorize all accounting transactions related to Concessionaire's Airport location. Daily business reports or summaries are not a substitute for records of agreements and receipts, which are to be properly recorded in the Concessionaire's general ledger, revenue journals and summaries. D. In the event that Concessionaire fails to comply with all reasonable audit requests of Authority or its authorized representative within 10 business days, the Authority may impose, at its discretion a fee of $500 for each day the requested material is late, in order to offset the costs of the audit including the Authority staff s time. E. If Concessionaire opts to keep books and records at locations other than within Polk County, Iowa, Concessionaire shall either arrange for the records to be brought to a location convenient to the Authority's auditors within 30 business days of an audit request, or, at Airport's option, transport the Authority's audit team to the location of the records within 45 days. When any portion or the entire audit is performed at a location outside Polk County, Concessionaire shall pay all costs incurred by the Authority during that portion of the audit, including transportation, meals, and lodging. F. In accordance with Section 10.01, failure to comply with these provisions may be grounds for termination of the Agreement. -19-

30 Section 4.05 PRIVILEGE FEES ASSESSED ON OTHER RENTAL CAR COMPANIES During the term of this Agreement, the Authority reserves the right to assess Privilege Fees on rental car companies that have not executed an On-Airport Automobile Rental Concession Agreement but that conduct rental car business by transporting persons from the Airport to locations off the Airport. If such an off-airport Privilege Fee is assessed, the basis and amount will be established by the Authority in its sole discretion and will be subject to change during the term of this Agreement. Section 4.06 PASS-THROUGH OF CONCESSION FEE Nothing in this Agreement is intended to relieve Concessionaire from the requirement and obligation of paying the fees required in Section Concessionaire acknowledges that the payments by Concessionaire to Authority under this Agreement are for Concessionaire's use of the facilities and access to the Airport market, and that those payments must not reflect a fee being imposed by the Authority upon Customers renting vehicles from Concessionaire. Concessionaire may separately charge a privilege fee on Rental Agreements provided all the following conditions are met: A. The privilege fee must be entitled "Concession Recovery Fee" and must be charged as a percentage of all items leased or sold to the Customer that fall within the definition of items composing Gross Concessionable Receipts. No deviation from this phrase is allowed without written approval of the Executive Director. B. The Concession Recovery Fee, when separately charged, must not exceed 11.11%. C. If Concessionaire elects to designate the Concession Recovery Fee on all Rental Agreements, Concessionaire will comply with all applicable laws. D. The Concession Recovery Fee must not be identified, implied, or referred to as a tax or an Authority-imposed charge by anyone employed by or associated with Concessionaire, including counter personnel and reservation agents. E. The Concession Recovery Fee must not be identified, implied, or referred to as a tax or an Authority-imposed charge on any Concessionaire operated websites or printed materials. F. The Concession Recovery Fee must be included in Gross Concessionable Receipts. Concessionaire understands that the Authority does not advocate the practice of directly transferring Concessionaire's obligation for payment of any of the Privilege Fees to its Customers. G. Failure to comply at all times with the rules of Section 4.06 will result in Concessionaire losing its right to separately list or state the Concession Recovery Fee on any Rental Agreements during the term of this Agreement. -20-

31 Section 4.07 LIMITATION ON PASS-THROUGH OF CONCESSION FEE Other than the Concession Recovery Fee described in Section 4.06, the Customer Facility Charge described in Section 4.08, and the Supplemental Facilities Fee in Section 4.09, Concessionaire shall not pass-through or list any fees payable to the Authority as a separate item on the Customer Rental Agreement. Section 4.08 CUSTOMER FACILITY CHARGE A Customer Facility Charge ( CFC ) has been imposed by the Authority Board and is required to be collected by Concessionaire and remitted to the Authority throughout the term of this Agreement or until the CFC is terminated by the Authority Board. Concessionaire shall collect the CFC on behalf of the Authority from each rental car Customer. Concessionaire shall charge, collect, account for, and remit the CFC pursuant to procedures developed by the Executive Director in accordance with Authority Board Regulations. A. Concessionaire may list the CFC as a separate line item on Rental Agreements provided Concessionaire meets all of the following conditions: 1. This fee or charge must be entitled "Customer Facility Charge". 2. The fee may be listed either immediately below all concession items or listed adjacent to sales tax items on all Rental Agreements. If Concessionaire elects to designate the CFC on Rental Agreements, Concessionaire shall comply with all applicable laws. E. The Concessionaire shall maintain records and controls that are sufficient to meet the requirements of this Agreement, Authority Board Regulations and the resolution imposing the CFC, to demonstrate the correctness of the CFC revenue collected by the Concessionaire, and to show the amount of CFC revenue paid to the Airport. Upon written notice, Concessionaire shall make available to the Authority or its authorized representative all accounting records for inspection and examination. F. The Authority Board reserves the right to adjust the amount of the CFC at any time it deems necessary. Section 4.09 SUPPLEMENTAL FACILITIES FEE IN LIEU OF OR IN ADDITION TO THE CFC Although the Airport does not anticipate any legal challenge to the CFC, the Airport will vigorously defend any such challenge. If all or any part of the CFC fails to survive a challenge in a court of competent jurisdiction, then the stricken or invalidated portion(s) of the -21-

32 CFC will be replaced as appropriate with a supplemental Airport rental car facility fee. Effective upon the date the CFC is held invalid, modified, replaced or in any way supplemented, Concessionaire shall pay the Airport the supplemental Airport rental car facility fee in an amount based on Concessionaire's Market Share sufficient to replace the CFC collections. The supplemental Airport fee will continue in effect until such time as a mutual agreement or an alternate to the CFC is agreed upon between the Airport and all rental car concessionaires. Section 4.10 MANDATED SECURITY MEASURES AND RELATED FEES A. Security fees that are mandated by recognized federal, state or local elected or appointed officials and are specifically related to parking areas occupied by Concessionaire will be apportioned and charged to Concessionaire and all other rental car concessionaires occupying spaces in the affected area(s). B. Concessionaire may, due to the imposition of security fees, decide to reduce the number of assigned parking spaces. However, in that event the Concessionaire will have no right to reclaim the spaces until the next Agreement Year, at which time the allocation formula in this Agreement will determine the number of spaces assigned. -22-

33 Section 5.01 FACILITY DESCRIPTION ARTICLE 5 CONSOLIDATED SERVICE FACILITY Concessionaire is required to use the Service Facility, including exclusive-use space, for an operations office, maintenance bay(s), and fuel facilities for its operations as part of this Agreement. The Service Facility has common use wash bays and fueling islands, as shown in Exhibit A. Section 5.02 FACILITY USE A. Concessionaire will be responsible for all improvements specific to its exclusive-use space, as well as all janitorial costs related to maintaining its exclusive-use space. B. Concessionaire will be responsible for day-to-day cleaning and upkeep of the following areas: fueling system and islands, overhead doors, building exterior, parking areas and internal roadways, equipment storage rooms, access gates, perimeter fence and gates (general cleaning and litter removal), and lawn and landscaping. The Authority will be responsible for day-to-day upkeep on the wash bays, wash bay equipment room, and wash bay equipment. C. Concessionaire will be responsible for snow removal from all parking areas and internal roadways around the Service Facility. The Authority will be responsible for hauling away snow from designated snow dump areas. D. No special equipment (for purposes of security, internal control, operations etc.) may be installed by Concessionaire on or around the Service Facility's exterior without prior written approval of the Authority. E. The Authority will be responsible for the overall maintenance of the fueling system, overhead doors, wash bays, wash bay equipment, building exterior (including roofs and exterior walls), parking areas and internal roadways (i.e. paving, repair, markings, etc.), interior common areas, equipment storage rooms, phone system, central IT room and cabling, perimeter fence, access gates and access system, exterior lighting, lawn, and landscaping. F. Refer to Exhibit B for a complete explanation of all costs and responsibilities related to the construction and ongoing maintenance of the Service Facility. Section 5.03 FUEL TYPE The Authority intends to provide standard unleaded fuel at the Service Facility. No special accommodation will be made for premium fuel, diesel, or bio-fuel such as an E85 blend. -23-

34 ARTICLE 6 OBLIGATIONS OF THE PARTIES Section 6.01 OBLIGATIONS OF THE AUTHORITY The Authority agrees to provide the following services: A. Maintenance. The Authority shall maintain and operate the Airport facilities in such a manner as to render them useable by Concessionaire. B. Utilities. The Authority, without additional or further expense to Concessionaire, agrees to furnish air conditioning, heat, and electricity to the Leased Premises within the Airport Terminal Building. C. Parking. The Authority agrees to provide Concessionaire's employees, in common with other employees of tenants and users of the Terminal Building, with vehicular parking space. The Authority retains the right to charge Concessionaire's employees the Authority Board approved rate for such space. Section 6.02 OBLIGATIONS OF THE CONCESSIONAIRE In addition to the obligations set forth elsewhere in this Agreement, Concessionaire agrees to meet and fulfill the following duties and obligations: A. Hours of Operation. Concessionaire agrees to provide automobile rental service a minimum of 14 hours per day, seven days per week, including Sundays and holidays. Such service shall include provision of an attendant at Concessionaire's Terminal Building facility. Changes in hours of operation may, with the written approval of the Executive Director, be changed if the demands of air travelers and the public for car rental services changes. B. Maintenance of Leased Premises. Concessionaire agrees to maintain its Leased Premises and the Service Facility (as outlined in Exhibit A) in a safe, clean, and orderly condition at all times. Concessionaire shall remove from all Leased Premises all rubbish and waste materials at frequent intervals, and shall comply with the Authority's recycling program. At the Authority's discretion, responsible representatives of the Authority and Concessionaire will confer for the purpose of, and participation in, making a complete inspection of the operations and review the condition of the Leased Premises, including furnishings and equipment and such other items as the Authority may wish to review. C. Snow Removal. Snow removal in all areas leased, occupied or operated by Concessionaire will be the responsibility of the Concessionaire. These areas include the ready and return -24-

35 parking areas and all areas of the Service Facility, including, but not limited to, vehicle ingress and egress lanes, parking lanes, and interior roads. All snow in the Parking Facilities must be moved to certain parking spaces within each lot, as designated by the Executive Director. Those parking spaces identified for snow storage will be unavailable for vehicle parking from November 1 through March 31 of each year. Concessionaire will not be charged monthly space rent for the months of November 1 through March 31 for any parking spaces used for snow storage. The Authority will be responsible for loading and hauling snow from areas designated as snow storage areas, in accordance with the Airport Snow and Ice Control Plan. D. Operating Standards. The Concessionaire shall provide the following services for its customers at the Airport: (1) accept at least three nationally recognized credit cards for payment of automobile rental; and (2) provide for a toll-free telephone reservation system. Concessionaire shall maintain a fleet of rental cars consisting of late model vehicles equipped with air conditioning and maintained at Concessionaire's sole expense, in good operative order, free from known mechanical defects, and in clean, neat, and attractive condition, inside and outside. Concessionaire shall make available an adequate number of vehicles to meet reasonable public demands for rental car service at the Airport. Concessionaire shall provide the Authority with emergency telephone numbers at which Concessionaire's manager may be reached on a 24-hour basis. Concessionaire shall report to the Authority any malfunction of the drainage and sewage systems, fire protection system, sprinkler system, alarm system, fire hydrants and hoses, heat and air-conditioning systems, electrical systems, and plumbing installed or located on or within its assigned areas. E. Payment and Performance Bond. Concessionaire, at the time of execution of this Agreement, shall furnish the Authority a Payment and Performance Bond using the form included as Exhibit E in an amount equal to one-third of the first year's MAG and issued by a company qualified to do business in the State of Iowa and acceptable and satisfactory to the Authority. Concessionaire shall keep and maintain the bond full force and effect during the entire term of this Agreement. The bond shall be conditioned to insure the faithful and full performance by Concessionaire of all covenants, terms, and conditions of the Agreement and to stand as security for the payment by Concessionaire of any valid claim by the Authority against Concessionaire. The requirement for a Payment and Performance Bond may be waived if Concessionaire has previously been a concessionaire in good standing in an agreement for automobile rental services at the Airport. F. Vehicle Operation. Concessionaire shall not permit its agents, servants, employees, or visitors to operate any motor vehicle in excess of the posted speed limit or in a reckless manner and shall require them to observe and obey all Rules and Regulations. -25-

36 Concessionaire shall conduct its operations in a manner that will ensure that its customers and employees will not block public traffic lanes in the area of the Terminal Building and the shared or common circulation aisles within the rental car Parking Facilities. G. Vehicle Maintenance. All vehicle maintenance must be performed at the Service Facility and no maintenance of any kind may be performed in any rental car Parking Facilities. H. Conduct of Employees. Concessionaire agrees to take appropriate action against any of Concessionaire's agents, servants, employees, or visitors whose conduct is, in the judgment of the Authority, detrimental to the best interests of the Authority. I. Soliciting. Concessionaire shall not permit its agents, servants, employees, or visitors to solicit business on the Airport, except in the Leased Premises. J. Employee Appearance. Concessionaire's personnel on the Airport shall be neat, clean, courteous, and provided with either uniforms or appropriate identifying badges; and Concessionaire shall not permit its agents, servants, or employees to conduct business in a loud, noisy, boisterous, offensive, or objectionable manner. K. Mechanic s Lien. The Authority's interest in this Agreement and its property are not liable for, or subject to, any mechanic s, material-men or laborer s lien. Concessionaire shall save and hold harmless the Authority, its property, and its interest in this Agreement from any such lien or purported lien. Within 15 days of the filing of any lien, Concessionaire shall cause it to be satisfied or released. Concessionaire shall provide the Authority with a copy of the satisfaction or release filed with the Polk County Recorder. -26-

37 ARTICLE 7 RIGHTS, USES AND PRIVILEGES Section 7.01 RIGHTS, USES, AND PRIVILEGES OF THE AUTHORITY A. Agreements with Other Rental Car Companies. The Authority reserves the right to enter into separate agreements with rental car agencies other than the Concessionaire for service to Fixed Base Operators and other commercial tenants on the Airport. In addition, the Authority reserves the right to enter into Off-Airport Rental Car Agreements. B. Bidding for Additional On-Airport Rental Car Companies. If the Authority executes fewer than the six Agreements, then the Authority reserves the right to accept additional bids and award additional On-Airport Automobile Rental Concession Agreements up to a maximum of six during the term of this Agreement (under the same terms and conditions). In no event will the Authority reallocate any of the assigned parking spaces of Concessionaires in place at the time of the acceptance of additional bids beyond the spaces that would have been allocated to a minimum allowable bid had the additional bid been submitted during the bidding process. Section 7.02 RIGHTS, USES AND PRIVILEGES OF THE CONCESSIONAIRE A. Operation of the Automobile Concession 1. Concessionaire has the right to operate a non-exclusive automobile rental concession at the Airport and the right of ingress to and egress from the Leased Premises. 2. Concessionaire has the non-exclusive right to offer additional services to complement the basic vehicle rental. Such additional services or accessories may be offered only after receipt of written authorization from the Authority to provide them. 3. Concessionaire shall not engage in passenger shuttle operations of any kind to or from the Airport without the prior written approval of the Executive Director. 4. Concessionaire shall not offer vehicles for sale anywhere on the Airport without the prior written approval of the Executive Director. B. Use of Terminal Building 1. Concessionaire will have the exclusive use of the Leased Premises and the right of use, in common with others authorized to do so, of the common areas in the Terminal Building, provided that such use is subject to and consistent with the Rules and Regulations. -27-

38 2. Concessionaire is prohibited from using any unleased portion of public space in the Terminal Building lobby areas or any unleased portion of public space outside the Terminal Building for an operations area, storage area, or area for placing any items, materials, or supplies of any kind. 3. Concessionaire is prohibited from constructing any demising walls within its assigned counter space(s). C. Use of Service Facility 1. Concessionaire will have the exclusive use of the Leased Premises and the right of use, in common with others authorized to use, the common areas in the Service Facility, provided that such use is subject to and consistent with the Rules and Regulations. 2. Concessionaire is prohibited from using any unleased portion of the Service Facility as an operations area, storage area, or area for placing any items, materials, or supplies of any kind. 3. Concessionaire is prohibited from constructing any demising walls within its assigned spaces in the Service Facility. D. Advertising Signs. Concessionaire will have the right to install, operate, and maintain, advertising signs, solely at the Concessionaire's expense, on the Leased Premises in order to make known its name and car rental service, but not pricing. All signs installed by Concessionaire are subject to the written approval of the Executive Director. E. Other Signs. Aside from those signs allowed under Section 2.04(A)(3) and Section 7.02(D), additional signage requested by Concessionaire will be at Concessionaire's sole expense and subject to the approval of the Executive Director. F. Public Address System. Concessionaire will have the right to install in its Airport Terminal Building space a public address system (limited to one microphone) as a part of the Airport public address system and may use the equipment for making its own announcements over that system, provided that use of the system must be in accordance with the rules of operation applicable to all users of the system. G. Temporary Use of Property. The Authority and Concessionaire recognize that from time to time Concessionaire may need to use additional property for parking rental vehicles in order to meet demands. At such times, Concessionaire may have the opportunity to lease vacant areas which Airport may have available. Concessionaire understands and agrees that any such property Airport may be able to offer will not necessarily be in the most convenient location to Concessionaire's operations. Land for temporary leasing is limited and will be made available to all Concessionaires on a first-come, first-served basis and the Authority makes no guarantee sufficient land will be available to all Concessionaires. All terms and conditions of this Agreement including insurance and indemnification will apply -28-

39 to temporary leases. A temporary leasing of land will be by a separate written agreement between the Authority and Concessionaire without need for formal amendment to this Agreement. H. New Concessionaire Agreements. In the event that any Agreement entered into between the Authority and any other rental car company contains terms and conditions more favorable to such concessionaire than the terms and conditions in this Agreement (other than number of allocated parking spaces and the location of the concession area), then the Authority may, at its discretion, amend this Agreement to include terms that are comparable to that of the other rental car company. -29-

40 ARTICLE 8 INSURANCE AND INDEMNIFICATION Section 8.01 GENERAL Concessionaire shall purchase and maintain insurance to protect Concessionaire and Authority throughout the duration of this Agreement. Said insurance shall be provided by insurance companies, "admitted" and "non-admitted" to do business in the State of Iowa that have no less than an A.M. Best rating of "B+", or have a recognized reputation satisfactory to Authority. All policies shall be written on a per occurrence basis, unless otherwise approved by the Authority, and in form and amounts and with companies satisfactory to Authority. Certificates of Insurance confirming adequate insurance coverage shall be submitted to Authority prior to agreement execution or commencement of work and/or services. Section 8.02 INSURANCE REQUIREMENTS A. Workers Compensation Insurance: Concessionaire shall procure and maintain during the life of this Agreement, Worker's Compensation Insurance, including Employer s Liability Coverage, in accordance with all applicable statutes of the State of Iowa. The coverage limits shall include $500,000 each accident for Bodily Injury by Accident, $500,000 each accident for Bodily Injury by Disease, and $500,000 policy limit for Bodily Injury by Disease. With regard to activities conducted within the Leased Premises, Concessionaire shall provide Authority a Waiver of Subrogation favoring the Des Moines Airport Authority. This requirement is waived if, under the law as stated in Chapter 85 of the Code of Iowa, the Concessionaire is not required to carry such coverage. B. Commercial General Liability Insurance: Concessionaire shall procure and maintain during the life of this Agreement, Commercial General Liability coverage written on a per occurrence basis with limits of liability not less than $1,000,000 per occurrence and $2,000,000 aggregate combined single limit, Personal Injury, Bodily Injury and Property Damage. Coverage shall include the following extensions: (1) Contractual Liability, (2) Premises and Operations, (3) Products and Completed Operations, (4) Independent Contractors Coverage, (5) Personal and Advertising Injury and (6) deletion of Explosion, Collapse and Underground (XCU), where applicable. Coverage shall be no less comprehensive and no more restrictive than the coverage provided by a standard form Commercial General Liability Policy (ISO CG 0001with standard exclusions or a non-iso equivalent form). Any additional exclusions shall be submitted with the Certificate of Insurance and shall be subject to the review and approval of Authority. The policy shall be endorsed to provide an Aggregate Per Location Endorsement. C. Automobile Liability Insurance: Concessionaire shall procure and maintain during the life of this Agreement, Automobile Liability Insurance with limits of liability of not less than $1,000,000 per occurrence combined single limit including Bodily Injury and Property Damage. Coverage shall include all owned vehicles, all non-owned vehicles, and all hired vehicles. If Concessionaire does not own any vehicles, coverage is required on non-owned and hired vehicles. -30-

41 D. Umbrella/Excess Insurance: The General Liability and Automobile Liability Insurance requirements above may be satisfied with a combination of primary and Umbrella/Excess Insurance. The Umbrella/Excess Insurance shall also be written on a per occurrence basis and, if policy does not follow the form of the primary policies, shall include the same endorsements as required of the primary policy(-ies). E. Property Insurance: Concessionaire shall procure and maintain during the life of the Agreement, Property Insurance in a form at least as broad as the standard Insurance Services Office special cause of loss form covering all temporary betterments and improvements installed by Concessionaire and approved by Authority on the Leased Premises, and all fixtures, furnishings, equipment and decoration kept, furnished or installed by Concessionaire. The insurance policy shall provide coverage on replacement cost basis. Authority shall be responsible for providing property insurance on the permanent structural shell of the Lease Premises. Any structural betterment or improvement and any structural repairs estimated to cost $25,000 or more shall require the review and approval of the Authority's Engineering Department. A building permit obtained for this purpose shall be deemed to meet this requirement. F. Subcontractors: Concessionaire shall require that any of its agents and subcontractors who perform work and/or services pursuant to the provisions of this Agreement meet the same insurance requirements as are required of Concessionaire. G. Additional Insured And Governmental Immunity: Except for Workers Compensation, the insurance policies providing the coverages specified in Section 8.02, Paragraphs B, C, and D above shall include Authority's Additional Insured and Governmental Immunities Endorsements attached as part of Exhibit C. Authority shall have no liability for any premiums charged for such coverage, and the inclusion of Authority as an Additional Insured is not intended to, and shall not make, Authority a partner or joint venturer with Concessionaire in its operations at the Airport. H. Cancellation or Material Change Notice: The insurance policies providing the coverages specified in A through E above shall include Authority's Cancellation Notice Endorsement. A copy of the required endorsement is attached as part of Exhibit C. I. Proof of Insurance: Concessionaire shall provide to Authority a Certificate(s) of Insurance evidencing all required insurance coverage as provided in A through E and G and H above utilizing the latest version of the ACORD form or other such form that is acceptable to Authority. The Certificate(s) of Insurance shall specify under "Description of Operations/ Locations/ Vehicle/Special Items": (1) the title of the contract or permit or license, etc. and (2) the following statement, Where required, Additional Insured, Governmental Immunities, and Cancellation and Material Change endorsements have been included as per attached. These endorsements shall be attached to the Certificate(s) of Insurance so as to evidence their inclusion in the coverages required. Concessionaire may not operate under the terms of the resulting contract or agreement until all required certificates and endorsements have been submitted and approved by Authority. All certificates and -31-

42 endorsements shall be submitted to: Des Moines Airport Authority, 5800 Fleur Drive, Room 207, Des Moines, Iowa 50321, at least fourteen (14) days prior to the effective date of the contract or agreement. J. Changes in Coverage Limits: If during the term of this Lease, the Authority determines that the limits of coverage are insufficient; the Authority shall provide Concessionaire with sixty (60) days written notice of any required changes. Concessionaire shall submit to the Authority new Certificate(s) of Insurance indicating that the required changes have been effected. Said certificates shall be submitted to the Authority prior to the expiration of the sixty (60) day notification period. Section 8.03 INDEMNIFICATION (HOLD HARMLESS) PROVISION A. For purposes of this section and Sections 8.04 and 8.05, Authority means the Des Moines Airport Authority, its elected and appointed officials, employees, volunteers and others working on behalf of the Des Moines Airport Authority, as well as the City of Des Moines, Iowa, its elected and appointed officials, employees, volunteers and others working on behalf of the City of Des Moines. To the fullest extent permitted by law, Concessionaire agrees to defend, pay on behalf of, indemnify, and hold harmless the Authority against any and all claims, demands, suits, damages or losses, together with any and all outlay and expense connected therewith, including but not limited to attorneys' fees and court costs, that may be asserted or claimed against, recovered from or suffered by the Authority by reason of any injury or loss, including, but not limited to, personal injury, including bodily injury or death, property damage, including loss of use thereof, and economic damages arising out of or in any way connected or associated with Concessionaire's work or services. B. Concessionaire's obligation to indemnify the Authority contained in this Agreement is not limited by the amount or type of damages, compensation or benefits payable under any workers' compensation acts, disability benefit acts, or other employee benefit acts. C. The Authority shall not be liable or in any way responsible for any injury, damage, liability, claim, loss or expense incurred by Concessionaire, its officers, employees, subcontractors, and others affiliated with Concessionaire, arising out of or in any way connected or associated with Concessionaire's work or services, except for and only to the extent caused by the sole negligence of the Authority. D. Concessionaire expressly assumes full responsibility for any and all damages to Authority property arising out of or in any way connected or associated with Concessionaire's work or services including, but not limited to, the activities of Concessionaire, its officers, employees, subcontractors, and others affiliated with Concessionaire. E. Concessionaire shall ensure that its activities on Authority property will be performed and supervised by adequately trained and qualified personnel and Concessionaire will observe, and cause its officers, employees, subcontractors and others affiliated with Concessionaire to observe all applicable safety rules. -32-

43 Section 8.04 NON-LIABILITY OF AUTHORITY The Authority shall not be liable for Concessionaire's failure to perform any of the obligations under this Agreement or for any delay in the performance thereof, nor shall any such delay or failure be deemed a default by the Authority. Section 8.05 WAIVER OF SUBROGATION PROVISION To the extent permitted by law, Concessionaire hereby releases the Authority from and against any and all liability or responsibility to the Concessionaire or anyone claiming through or under the Concessionaire by way of subrogation or otherwise, for any loss without regard to the fault of the Authority or the type of loss involved, including loss due to occupational injury. This provision shall be applicable and in full for and effect only with respect to loss or damage occurring during the time of this Contract. The Concessionaire's policies of insurance shall contain a clause or endorsement to the effect that such releases shall not adversely affect or impair such policies or prejudice the right of the Concessionaire to recover thereunder. -33-

44 Section 9.01 POLICY ARTICLE 9 DISADVANTAGED BUSINESS ENTERPRISES (DBE) It is the policy of the Authority to promote the objectives of the United States Department of Transportation with respect to the participation of DBEs in DOT assisted contracts. This policy has been formulated to comply with 49 CFR Parts 23 and 26. Section 9.02 DBE GOAL In accordance with Regulations of the U.S. Department of Transportation, 49 CFR Part 23, the Airport has adopted an Airport Concession Disadvantaged Business Enterprise (ACDBE) Plan under which qualified firms may have the opportunity to operate an airport business. An ACDBE goal has not been set for this Agreement, however Concessionaires are encouraged to seek ACDBE participants for opportunities available in conjunction with the performance of this Agreement (i.e. the purchase of goods and services). Section 9.03 ASSURANCE This agreement is subject to the requirements of the U.S. Department of Transportation's regulations, 49 CFR Part 23. The concessionaire or contractor agrees that it will not discriminate against any business owner because of the owner's race, color, national origin, or sex in connection with the award or performance of any concession agreement, management contract, or subcontract, purchase or lease agreement, or other agreement covered by 49 CFR Part 23. Section 9.04 INCLUSION OF DBE DISCRIMINATION PROVISION IN SUB-AGREEMENTS Concessionaire agrees to include the statements in Section 9.03 in any subsequent agreements that it enters into and cause those businesses to similarly include the statements in further agreements. Section 9.05 COMPLIANCE WITH DBE REQUIREMENTS In the event that a national ACDBE goal, applicable to this Agreement, is set by the Federal Aviation Administration or the United States Department of Transportation during the term of the Agreement, Concessionaire shall make good faith efforts as defined by the applicable regulation, to meet the goal. Such efforts shall be documented and submitted to the Authority as required by the FAA or DOT regulations. Concessionaire shall submit, in the format prescribed by the Authority, a quarterly report of ACDBE participation, including the ACDBE participant's name, address, contact information, type and dollar amount of participation and percentage of participation. Concessionaire shall assist the Authority in identifying participants in the business opportunities covered by this Agreement who may be eligible for certification as an ACDBE. -34-

45 Non-compliance with this requirement may result in termination of this Agreement in accordance with Article 10, Section 10.01, Paragraph A(6). Section 9.06 MAXIMUM OPPORTUNITY TO PARTICIPATE A. It is the requirement of the Federal Department of Transportation ("DOT") that Disadvantaged Business Enterprises as defined in 49 CFR Part 23 shall have the maximum opportunity to participate in the performance of concession agreements at the Airport. Consequently, the DBE requirements of 49 CFR Part 23 are hereby included in this Agreement. Concessionaire agrees to comply with the requirements of any such regulations as applicable to this Agreement. Furthermore, Concessionaire agrees to submit information at the request of the Airport concerning the DBE(s) that may participate in this Agreement. This information will include the name and address of each DBE, a description of the work to be performed by each named DBE and the dollar value of the DBE's contracted participation. The Concessionaire will also provide information as requested by the Airport describing the purchase or lease of goods or services from DBE(s) including, but not limited to, the purchase or lease of automobiles, fuel, tires, maintenance and janitorial services and other services. B. In the event of breach of any of Concessionaire's duties contained in this Article 9, the Airport shall have the right to terminate this Agreement and to re-enter and repossess the facilities and hold the same as if this Agreement had never been made or issued, provided, however, that the Concessionaire shall have the right to contest an alleged breach under applicable procedures, and any sanctions under or termination of this Agreement shall be withheld pending completion of such procedures; and provided, however, that the Concessionaire will pursue these applicable procedures with diligence and dispatch. -35-

46 ARTICLE 10 DEFAULT AND TERMINATION OF AGREEMENT Section TERMINATION BY THE AUTHORITY A. Termination. This Agreement is subject to termination by the Authority after the happening of one or more of the following events: 1. Failure by Concessionaire to pay in whole or in part the amounts of rent or fees provided herein for a period of 15 days after written notice of non-payment. 2. Filing by Concessionaire of a voluntary petition in bankruptcy. 3. Making by Concessionaire of a general assignment for the benefit of creditors. 4. The permanent abandonment of the Airport as a commercial air passenger terminal. 5. The abandonment of the Leased Premises by Concessionaire for a period of 30 consecutive days. 6. Default in the performance of any of the covenants, conditions, or agreements contained in this Agreement to be kept and performed by Concessionaire when a default continues for a period of 10 days after receipt of written notice to Concessionaire from Authority to correct the default. B. Acceptance of Rental. The acceptance of rental by the Authority for any period or periods after a default by Concessionaire will not be deemed a waiver of any right on the part of the Authority to terminate this Agreement for the default. No waiver of default by the Authority of any of the terms, covenants, or conditions of this Agreement to be performed, kept, and observed by Concessionaire will be construed to be or act as a waiver of any subsequent default of any of the terms, covenants, and conditions herein contained to be performed, kept, and observed by Concessionaire. The rights and remedies set forth herein are in addition to any other rights or remedies accruing to the Authority either at law or in equity. Section EXERCISING AUTHORITY'S RIGHT OF TERMINATION The Authority may exercise a right of termination by written notice to Concessionaire after passage of the applicable period provided for herein. If the Authority under Section above terminates this Agreement, Concessionaire shall remain responsible for the payment of all rentals, fees, MAGs, and other charges, until the end of the term set forth in Article 3. All improvements made by Concessionaire upon the Leased Premises shall remain the property of Concessionaire, provided the improvements can be removed without damage to Authority property, otherwise the improvements will, at the Authority's option, remain in or upon the Leased Premises and become the property of Authority. The failure of Authority to declare this Agreement terminated upon the -36-

47 default of Concessionaire will not operate to bar or estop Authority from declaring this Agreement null and void by reason of any subsequent violation of the terms of this Agreement. Section TERMINATION BY CONCESSIONAIRE Concessionaire may terminate this Agreement after the happening of one or more of the following events: A. The permanent abandonment of the Airport as a commercial service airport. B. The closing of the Airport for flight operations for a period of 90 consecutive days. C. The assumption by any governmental agency, excluding Authority, of the operation, control, or use of the Airport, or any substantial part of the Airport, in such a manner as to substantially restrict Concessionaire's operations for a period of a least 90 consecutive days. D. Issuance by a court of competent jurisdiction of an injunction prohibiting the Authority's use of the Airport, and the remaining in force of such injunction for a period of at least 90 consecutive days. E. A major breach by the Authority in the performance of any covenant or condition in this Agreement that substantially impairs Concessionaire's operations at the Airport and the failure of the Authority to remedy such breach for a period of 60 days after receipt of written notice from Concessionaire to remedy the breach. Section EXERCISING CONCESSIONAIRE'S RIGHT OF TERMINATION Concessionaire may exercise its rights of termination by giving written notice to the Authority at any time after the passage of the applicable period provided herein and the rentals and fees due under this Agreement will be payable only to the date of termination and thereafter all of Concessionaire's rights and privileges and Authority's obligations will cease. All improvements made by Concessionaire upon the Leased Premises will remain the property of Concessionaire, provided the improvements can be removed without damage to Authority property, otherwise the improvements will, at the Authority's option, remain in or upon the Leased Premises and become the property of the Authority. The failure of Concessionaire to declare this Agreement terminated upon the default of the Authority for any of the reasons set forth herein will not operate to bar or estop Concessionaire from declaring this Agreement null and void by reason of any subsequent violation of the terms of this Agreement by the Authority. -37-

48 ARTICLE 11 ENVIRONMENTAL MATTERS Section DEFINITIONS In this Article 11, the following terms have the following meanings: A. Environmental Condition means any condition that exists or has existed with respect to soil, storm waters, surface or ground waters, stream sediments, or air, and every other environmental media, which condition requires investigation, clean up, remediation or response action pursuant to applicable Environmental Laws or which condition could result in claims, demands, orders, penalties, fines or liabilities under applicable Environmental Laws by or to third parties, including without limitation all applicable governmental entities. B. Environmental Laws means all applicable federal, state, and local laws, statutes, ordinances, regulations, decrees, orders, permits and rules currently in effect or which may come into effect during the Term, and as they may be amended from time to time, and all implementing regulations, orders, and applicable federal or applicable state court decisions interpreting, relating to, regulating or imposing liability (including, but not limited to, response, removal, remediation and damage costs) or standards of conduct or performance relating to industrial hygiene, occupational health and safety conditions, environmental conditions, or exposure to, contamination by, or clean-up of, any and all Hazardous Substances, including without limitation, all applicable federal or state superlien or environmental clean-up statutes. C. Hazardous Substance means any material regulated by any Environmental Law, and includes a hazardous substance as defined under Iowa Code sections 455B.381(5) and 455B.411(2) and a hazardous waste as defined in Iowa Code section 455B.411(3). D. Nuisance means a nuisance as defined in Iowa Code section 657.1(1). Section COMPLIANCE WITH ENVIRONMENTAL LAWS A. For purposes of this Article 11, Concessionaire shall be responsible for not only its activities on Airport property but also the activities of its officers, employees, contractors, subcontractors, Affiliates, those it brings onto the Airport, and any person subject to the Concessionaire s control. B. Concessionaire shall at all times during its use of the Airport comply with all Environmental Laws. In furtherance of this provision, at a minimum, and without limitation, Concessionaire shall at all times relevant to this Agreement and during Concessionaire's activities on the Airport: 1. Apply for, obtain and maintain any and all necessary permits, licenses, identification numbers and notices as required by applicable Environmental Law, making timely and full payment of any fees. -38-

49 2. Maintain, implement and update a Storm Water Pollution Prevention Plan (SWPPP) compatible with the Airport's SWPPP and sufficient to comply as a co-permittee with the Iowa Department of Natural Resources National Pollutant Discharge Elimination System Permit No for "Storm Water Discharge Associated with Industrial Activity from Airport or Aircraft Vehicle Maintenance Areas, Equipment Cleaning Areas, or Deicing Areas located at Des Moines International Airport," as it may be amended or reissued. Concessionaire shall fully cooperate with the Authority in co-permittee inspections. Concessionaire shall ensure compliance with the terms and conditions of the NPDES permit and the terms of the storm water pollution prevention plan(s) developed under the NPDES permit. 3. Undertake responsibility for all of its actions or operations occurring on the Airport that result in environmental contamination, whether on or off the Airport. C. Concessionaire shall not cause or permit any Hazardous Substance to be generated, manufactured, refined, treated, disposed of, produced or released on the Airport except in the ordinary course of Concessionaire's business and in compliance with applicable law. This restriction does not preclude the use or storage of a Hazardous Substance by Concessionaire on Concessionaire s Exclusive Use Space in the ordinary course of Concessionaire's business provided such activities are done in accordance with the appropriate Environmental Laws, and provided any Hazardous Substance that is used, disposed of or stored is done so in accordance with the applicable Environmental Laws. If requested by the Authority, Concessionaire shall provide a written list of Hazardous Substances used or stored, or intended to be used or stored, at the Exclusive Use Space, and the approximate quantities used or stored; provided that the list need not include cargo stored temporarily while in transit. The Authority may require Concessionaire to discontinue the use of certain Hazardous Substances to the extent that Authority determines after consultation with Concessionaire that suitable replacement substances can be utilized. D. Concessionaire shall not cause or allow any person subject to the Concessionaire s control to cause, any use of any part of the Airport that would create or constitute a Nuisance. E. If Concessionaire makes any written disclosure, or provides any report, to any governmental agency concerning a release of Hazardous Substances at the Airport, Concessionaire shall concurrently also provide a copy of such disclosure or report to the Authority. F. Concessionaire shall promptly deliver a copy to the Authority of all notices that Concessionaire receives from any governmental agency or third party concerning a claim or a notice of violation regarding Hazardous Substances at the Airport. Section ENVIRONMENTAL RESPONSIBILITY Without waiving any rights of the Authority or Concessionaire either expressed or implied with respect to third parties: -39-

50 A. Concessionaire shall be responsible for any Environmental Condition on the Airport caused or contributed to by Concessionaire's activities on or use of the Airport. B. In the event that Concessionaire s activities cause or contribute to an Environmental Condition, Concessionaire shall immediately notify the Authority, other parties required to be notified, and the governmental agency having jurisdiction over the Environmental Condition. All parties causing or contributing to an Environmental Condition shall take immediate action to report, as required by law, investigate, cleanup and remediate the Environmental Condition. Notwithstanding the previous sentence, the Authority reserves the right to require that Concessionaire conduct remedial activities that place the property in the condition required for the Authority s anticipated future commercial use of the Airport property. C. In the event the Authority must undertake investigation or remediation of an Environmental Condition, Concessionaire hereby grants the Authority and its employees, consultants, contractors, and representatives access to Concessionaire s assigned space for those purposes. Section OBLIGATION TO INVESTIGATE AND REMEDIATE Concessionaire, at Concessionaire's sole cost and expense, shall promptly investigate and remediate, in accordance with the requirements of all applicable Environmental Laws, any release or discharge, or threat of release or discharge, of Hazardous Substances on the Exclusive Use Space or elsewhere on the Airport caused or contributed to by Concessionaire s activities. If Concessionaire does not promptly commence investigation of any release or discharge or threat of release or discharge or does not diligently pursue appropriate remedial activities as required by applicable Environmental Laws, the Authority, in its discretion, may pay to have the release or discharge or threat of release or discharge investigated and remediated as required by applicable Environmental Laws, and Concessionaire shall reimburse the Authority for the documented costs plus 15% administrative fee within 15 days of the Authority's demand for payment. Section INDEMNITY FOR ENVIRONMENTAL CONDITIONS Concessionaire shall indemnify, defend (with counsel acceptable to the Authority) and hold the Authority harmless against and with respect to any and all damages (including all consequential damages), claims, losses, liabilities, fines and penalties, and expenses, including without limitation, legal and consulting expenses (including attorney fees, litigation and expert witness costs, and the costs of any cleanup and remediation of Hazardous Substances as required by applicable Environmental Laws or which may be necessary to redevelop the Airport property for the Authority s anticipated future commercial use), incurred by the Authority or which are asserted against or imposed upon the Authority by any other party (including without limitation any governmental entity) for -40-

51 any Environmental Condition caused or contributed to by Concessionaire's activities or use of the Airport. Concessionaire s obligation contained in this Section will not apply if the applicable claims, losses, liabilities, fines, penalties, expenses and costs are caused solely by the negligence or the willful misconduct of the Authority. Except for personal injury and property damage covered by Section 8.03, this section is the sole and exclusive indemnity provided by the Concessionaire in this Agreement related to claims, losses, liabilities, fines, penalties, expenses and costs involving Environmental Conditions. Section RELEASE OF HAZARDOUS SUBSTANCES CLAIMS AGAINST THE AUTHORITY Concessionaire releases, acquits, and forever discharges the Authority from any and all claims, actions, causes of action, demands, rights, damages, costs, including but not limited to loss of use, lost profits, or expenses, which Concessionaire may now have, or which may hereafter accrue on account of or in any way growing out of all known and unknown, foreseen and unforeseen bodily and personal injuries and property damage, and the consequences thereof resulting or arising out of the presence or cleanup of any Hazardous Substance on the Airport. Section VACATION OF LEASED PREMISES In addition to its other obligations under this Article 11, prior to the end of the Term or earlier termination of this Agreement, Concessionaire shall remove, all Concessionaire s Hazardous Substances stored at the Airport. Unless instructed otherwise by the Authority, Concessionaire shall also prior to vacating the Airport remove all tanks, piping, and other equipment that stored Hazardous Substances, or that are contaminated by Hazardous Substances. Concessionaire shall give the Authority at least ten (10) days written notice prior to removing tanks, piping, or other equipment. Should Concessionaire fail to comply with this subdivision, in addition to all other damages and remedies which may be available to the Authority, Concessionaire shall be liable to the Authority for the fair rental value of the Leased Premises as if uncontaminated (which shall not be less than the rent set forth in this Agreement), or to the extent the Leased Premises can be partially occupied by others, the reduction in the fair rental value, until the required removal or remediation has occurred. Nothing in this subdivision shall operate to extend the Term or give Concessionaire a right of occupancy beyond the Term, or earlier termination of this Agreement, without the express written consent of the Authority. Section SURVIVAL OF PROVISIONS A. Concessionaire's liability under this Article for any violation of its provisions will survive the termination of this Agreement. -41-

52 B. For Environmental Conditions that become known after the expiration or termination of this Agreement, Concessionaire's liability will be based on whatever federal, state or local laws apply at the time of any required investigation, response action, clean up or remediation. -42-

53 Section NON-DISCRIMINATION ARTICLE 12 FAA PROVISIONS During the term of this Agreement, Concessionaire shall comply with the following: A. Concessionaire, for itself, its heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that in the event facilities are constructed, maintained, or otherwise operated on the said property described in this Agreement, for a purpose for which a Department of Transportation program or activity is extended or for another purpose involving the provision of similar services or benefits, Concessionaire shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to 49 CFR, Part 21, Non-Discrimination in Federally Assisted Programs of the Department of Transportation, and as said Regulations may be amended. B. Concessionaire, for itself, its heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that: (1) 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; (2) 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 the benefits of, or otherwise be subjected to discrimination; and (3) Concessionaire shall use the premises in compliance with all other requirements imposed by or pursuant to 49 CFR, Part 21, Non-discrimination in Federally Assisted Programs or the Department of Transportation, and as said Regulations may be amended. Section CIVIL RIGHTS Concessionaire 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 Concessionaire or its transferee for the period for 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 the party or any transferee for the longer of the following periods: (a) the period during which the property is used by the sponsor 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 (b) the period during which the airport sponsor 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. -43-

54 Section JUST SERVICES Concessionaire agrees to furnish service on a fair, equal, and not unjustly discriminatory basis to all users thereof, and to charge fair, reasonable, and not unjustly discriminatory prices for each unit of service, provided that Concessionaire may make reasonable and non-discriminatory discounts, rebates, or other similar types of price reductions to volume purchasers. Section EXCLUSIVE RIGHTS It is understood and agreed that nothing herein contained shall be construed to grant or authorize the granting of an exclusive right within the meaning of Section 308 of the Federal Aviation Act of 1958, and as said act may be amended from time to time. Section SUBORDINATION TO AGREEMENTS This Agreement is subject and subordinate to the provisions of any agreements heretofore or hereafter made between the Authority and the United States or the State of Iowa relative to the operation, maintenance, development, or administration of the Airport, the execution of which has been required as a condition precedent to the transfer of Federal rights or property to the Authority for Airport purposes, or to the expenditure of Federal or State of Iowa funds for the improvement or development of the Airport, including the expenditure of Federal funds for the development of the Airport in accordance with the provisions of the Federal Aviation Act of 1958, and as said act may be amended from time to time. -44-

55 ARTICLE 13 GENERAL PROVISIONS Section RULES, REGULATIONS, AND ORDINANCES Authority has the right to adopt and enforce Rules and Regulations, which Concessionaire agrees to observe and obey, with respect to the use of the Airport. Concessionaire shall not violate, or knowingly permit its agents, contractors, or employees acting on Concessionaire's behalf to violate any Rules and Regulations. Section COMPLIANCE WITH LAW A. Concessionaire shall comply, at all times, at its own cost and expense, with all applicable present and future ordinances and laws of city, county, or state government or of the United States Government, and of any political division or subdivision or agency, authority or commission thereof which may have jurisdiction to pass laws or ordinances with respect to the uses hereunder or to the Leased Premises. In addition, Concessionaire shall not allow any illegal activity to be conducted, to be operated, or to occur on any Airport area. Concessionaire shall comply with the provisions of the Iowa Smokefree Air Act, Iowa Code chapter 142D, and the administrative rules promulgated to implement the Act. B. Overtime parking or illegal parking tickets issued to a car operated by Concessionaire or Concessionaire's Customer that remains unpaid will be the ultimate responsibility of Concessionaire for the payment of the ticket. Section RESERVATION OF RIGHTS Any and all rights and privileges not granted to Concessionaire by this Agreement are hereby reserved for and to Authority. Section SUCCESSORS AND ASSIGNS BOUND BY COVENANT All the terms, covenants, and agreements herein contained will be binding upon and inure to the benefit of successors, assigns, and legal representatives of the parties. Section GOVERNING LAW This agreement and all claims or disputes arising out of or relating to this agreement or its subject matter are governed by the laws of the State of Iowa, without regard to its conflict of laws provisions, and any action, claim or proceeding arising out of or relating to this agreement must be brought only in Polk County, Iowa. Each party hereby waives any objection, including any objection based upon -45-

56 improper venue or forum non conveniens, that it may have, now or in the future, to the bringing of any action, claim or proceeding in Polk County, Iowa. Each of the parties hereby irrevocably and unconditionally waives all right to trial by jury in any action, claim, or proceeding arising out of or relating to this agreement. Section QUIET ENJOYMENT The Authority agrees that, on payment of the fees and charges and performance of the covenants and agreements on the part of Concessionaire to be performed under this Agreement, Concessionaire shall peaceably have and enjoy the Leased Premises and all the rights and privileges granted in this Agreement. Section SEVERABILITY If one or more clauses, sections, or provisions of this Agreement, or the application thereof, are held to be unlawful, invalid, or unenforceable, the remainder of this Agreement will not be affected thereby and will continue with full force and effect. Section ENTIRE AGREEMENT This Agreement, together with all exhibits attached hereto, constitutes the entire agreement between the parties, and all prior representations or statements, verbal or written, are merged in this Agreement. Concessionaire acknowledges that this Agreement supersedes and terminates any and all previous agreements on this matter between the Concessionaire and the Authority. Section COPARTNERSHIP DISCLAIMER Nothing in this Agreement is intended or to be construed as in any way creating or establishing the relationship of copartners between the parties, or as constituting Concessionaire as an agent or representative of the Authority for any purpose or in any manner whatsoever. Section DEVELOPMENT AND PROTECTION OF AIRPORT A. The Authority reserves the right to further develop or improve the Airport as it sees fit, regardless of the desires or views of Concessionaire and without its interference or hindrance. B. The Authority hereby reserves for the use and benefit of the public, the right of aircraft to fly in the airspace overlying the Airport, together with the right of said aircraft to cause such noise as may be inherent in the operation of aircraft landing at or taking off from the -46-

57 airport or operating in the vicinity of the Airport. The Authority reserves the right to take any action it considers necessary to protect the aerial approaches of the Airport against obstructions, together with the right to prevent Concessionaire from erecting, or permitting to be erected, any building or other structure or any equipment or service, which, in the opinion of Authority, would limit the usefulness of the Airport, or constitute a hazard to aircraft. Section ASSIGNMENT AND SUBLETTING Concessionaire shall not, at any time, assign or sublet this Agreement or any part of this Agreement, without the prior written consent of Authority. Section ALTERATIONS Concessionaire shall make no changes, alterations, additions or improvements, in, on, or about the Leased Premises without the prior written consent of the Authority. Section AMENDMENTS All amendments to this Agreement must be in writing and duly executed by all parties. Section ATTORNEY'S FEES In any action brought by the Authority to cure a breach of this Agreement by Concessionaire, the Authority shall be entitled to recover its attorney's fees from Concessionaire. Section LICENSES, FEES, AND TAXES A. Concessionaire shall obtain all licenses and permits required by applicable federal, state, or local law. Concessionaire shall pay any and all taxes and assessments which during the term of this Agreement may become a lien upon or which may be levied by the state, county, city, or any other tax levying body upon the Leased Premises, as well as all taxes on taxable property, real or personal, owned, used, or leased by Concessionaire in or about the Leased Premises, but deferment of payment of any tax by Concessionaire will not constitute a default or breach of this Agreement during the time Concessionaire is contesting in good faith the payment of the tax or the assessed value before any duly constituted authority, and pending the final determination of the contest. B. Concessionaire may in good faith at any time, at Concessionaire's expense, in Concessionaire's name, endeavor to contest by any proceedings the validity of any assessment, or to obtain a lowering of the assessed valuation upon the Leased Premises for -47-

58 the purpose of reducing any tax or assessment. Any refund will be the property of Concessionaire to the extent to which it is based on payment of a tax or assessment made by Concessionaire. C. If the Leased Premises, or any part thereof, is not separately assessed for real estate taxes at any time during the term of this Agreement, Authority may promptly apply to the taxing authorities to obtain such separate assessment. Section COMPLIANCE WITH FEDERAL AVIATION REGULATION (FAR) PART 139 AND TRANSPORTATION SECURITY REGULATIONS (TSR) PARTS 1500, 1520, 1540 AND 1542 A. Concessionaire agrees to comply at all times with FAR Part 139, and TSR Parts 1500, and 1542, Authority's policies, regulations and ordinances, Authority's Transportation Security Administration approved Airport Security Program, and any other applicable laws, regulations and rules as such currently exist and are amended from time to time. Concessionaire further agrees that any fines levied upon Authority, its officers, employees, agents, and members of Authority's boards and commissions and employees, agents or officers of Authority's boards and commissions pursuant to enforcement of FAR Part 139 and TSR Parts 1500, 1520, 1540, and 1542 due to acts or omissions by Concessionaire, Concessionaire's agents, servants, employees, independent contractors, or patrons shall be borne by Concessionaire. Concessionaire further agrees to indemnify and hold harmless Authority, its officers, employees, agents, and others working on its behalf from any and all fines so levied and from any and all claims, demands, liabilities, or expenses of every kind or nature related to such levy or defense to such levy (including, but not limited to, salary of attorneys employed by Authority) which Authority or any of its officers, employees, or other persons set out above shall or may at any time sustain or incur by reason of or in consequence of such acts or omissions. Concessionaire further agrees to indemnify and hold harmless Authority, its officers, employees, agents, and others working on its behalf from any and all claims, demands and lawsuits arising out of Concessionaire's or Concessionaire's employees' failure to comply with FAR Part 139 and TSR Parts 1500, 1520, 1540 and 1542, the Airport Security Program or any other applicable law, regulation or rule. B. Concessionaire agrees to control all persons and vehicles entering any airport restricted area (including aircraft movement area) through its leased space in accordance with the Des Moines International Airport Security Program and in compliance with TSR Parts 1500, 1520, 1540, and 1542 as they currently exist and are amended from time to time. Section INSPECTION Concessionaire shall allow Authority free access at all reasonable times to Leased Premises for the purpose of inspecting, or making repairs to, or making additions or alterations to the Leased -48-

59 Premises, or for any other purposes necessary, incidental to, or connected with the performance of Authority's obligations under this Agreement or the exercise of its governmental functions. Section WAR OR NATIONAL EMERGENCY During the time of war or national emergency, Authority will have the right to lease the landing area or any part of the landing area to the United States Government for military or naval use, and, if such a lease is executed, the provisions of this instrument, insofar as they are inconsistent with the provisions of the lease to the Government, will be suspended. Section MODIFICATION DUE TO UNUSUAL CIRCUMSTANCE If either party is prevented from performing any affirmative obligation imposed by this Agreement by reason of (a) act of God or the public enemy, fire, explosion, storm, flood, war, riot, sabotage, civil commotion, accident or any circumstance beyond the reasonable control of the party so prevented; or (b) compliance with any order, action, or direction of any court, governmental officer, department, agency, authority, or committee thereof: A. Upon giving prompt written notice to the other party, the party so prevented, will be excused from performing the obligation to the extent so prevented, except nothing will excuse Concessionaire from payment of rentals and Privilege Fees to Authority for the duration of the event. B. If by reason of any cause or circumstance set forth in this Section 13.21, the number of deplaning passengers at the Airport is diminished by 15% or more during any Agreement Year compared to the period between August 2014 July 2015, then the MAG for that Agreement Year will be reduced by a corresponding percentage amount. Section SUBORDINATION TO BOND ORDINANCE A. This Agreement is made subject and subordinate to any Airport Bond Resolution enacted by Authority. B. In the event of conflicts between this Agreement and the Bond Resolution, the Bond Resolution will govern. C. So long as any bonds secured by a Bond Resolution are outstanding, the deposit and application of Airport revenues will be governed by the Bond Resolution. D. If Authority adopts a Bond Resolution or an amendment to a Bond Resolution, either of which materially affects the method of calculating Concessionaire rentals and fees or materially affects the rights of Concessionaire under this Agreement, then Concessionaire -49-

60 may, in writing, terminate this Agreement within 30 days after the adoption date of the Bond Resolution or amendment. Section AMERICANS WITH DISABILITIES ACT Concessionaire agrees to comply with the Americans with Disabilities Act and any like enactment, and any amendments and regulations thereto with regards to Concessionaire's operations and the Leased Premises on the Airport. Section AGREEMENT CONSTRUCTION Words and phrases used in this Agreement will be construed as in the singular or plural number, and as masculine, feminine, or neuter gender, and as disjunctive or conjunctive, according to the context. Any rule to the effect that ambiguities are to be resolved against the drafting party will not apply to the interpretation of this Agreement or any of its amendments or exhibits. Where prior approval of a party is required, such approval will not be unreasonably withheld, delayed or conditioned. Section NOTICES Notices required in this Agreement must be given by certified mail by depositing the same in the United States mail in the continental United States, postage prepaid. Any such notice so mailed will be presumed to have been received by the addressee 96 hours after deposit in the mail. Either party has the right, by giving written notice to the other, to change the address at which its notices are to be received. Until any such change is made, notices will be delivered as follows: A. Authority: Executive Director Des Moines Airport Authority 5800 Fleur Drive, Room 207 Des Moines, IA Telephone: B. Concessionaire: XYZ Car Rental, Inc. 123 Main Street Anytown, IA Telephone: If notice is given in any other manner or at any other place, it will also be given at the place and in the manner specified above. -50-

61 Section RIGHT TO AMEND In the event that the Federal Aviation Administration or its successors require modifications or changes in this Concession Agreement as a condition precedent to the granting of funds for the improvement of the Airport, or otherwise, Concessionaire agrees to consent to such amendments, modifications, revisions, supplements or deletions of any of the terms, conditions, or requirements of this Agreement as may be reasonably required. Section NO THIRD PARTY BENEFICIARIES It is not the intention of the parties by entering into this Agreement to create any rights in any person not a party to this Agreement except as necessary to protect the rights of other Concessionaires granted under On-Airport Automobile Rental Concession Agreements. Section WAIVER OF VISUAL ARTISTS RIGHTS Concessionaire shall not install any object in or on the Leased Premises or commence construction of any improvement that constitutes a work of visual art under the Visual Artists Rights Act of 1990 and any corresponding provision of state or local law now in effect or hereafter enacted ("VARA"), unless and until Concessionaire has provided to the Authority either (a) a written opinion in a form and from a law firm reasonably acceptable to the Authority that VARA does not apply; or (b) a written waiver from the author of a work of visual art, in form and substance satisfactory to the Authority, that identifies specifically the work of visual art and the uses of that work to which the waiver applies in accordance with 17 U.S.C. 106A(e)(1) and any similar applicable provision of state or local law. Section REPRESENTATIONS OF CONCESSIONAIRE Concessionaire represents that it has the full power and proper authority to make and execute this agreement, to exercise its rights, powers and privileges as described in this Agreement, and to perform its agreements and covenants set forth in this Agreement. (SIGNATURES ON FOLLOWING PAGE) -51-

62 IN WITNESS WHEREOF, the parties are executing this Agreement as of the date first above written. DES MOINES AIRPORT AUTHORITY XYZ CAR RENTAL, INC. By: Edgar F. Hansell, Chairperson Des Moines Airport Authority Board By: (name) (title) APPROVED AS TO FORM: REPRESENTATIVE ACKNOWLEDGMENT David A. Ferree Assistant City Attorney STATE OF IOWA ) ) SS: COUNTY OF POLK ) This instrument was acknowledged before me on, 2015, by Edgar F. Hansell and Tara A. Ely, as the Chairperson and Board Clerk, respectively, of the Des Moines Airport Authority Board by authority of a Resolution adopted by the Authority Board on (date). Notary Public in the State of Iowa My commission expires (Stamp or Seal) STATE OF ) ) SS: COUNTY OF ) This instrument was acknowledged before me on, 2010, by (name) as (title) of (airline or company). Notary Public in the State of My commission expires (Stamp or Seal) By: (name) (title) REPRESENTATIVE ACKNOWLEDGMENT STATE OF ) ) SS: COUNTY OF ) This instrument was acknowledged before me on, 2010, by (name) as (title) of (airline or company). Notary Public in the State of My commission expires (Stamp or Seal) -52-

63 EXHIBIT A LEASED PREMISES Page 1 of 1 This space left blank. All leased space including rental counter and terminal office, service facility operational space, and assigned parking spaces will be included here in the final Concession Agreement. -54-

64 EXHIBIT B Rental Car Concession Page 1 of 1 Summary of Maintenance Responsibilities A = AUTHORITY C = CONCESSIONAIRE MAINTENANCE DAILY CLEANING / UPKEEP Terminal Building Rental Counter C C Office C C Signs C C Utilities (to the leasehold) A -- Utilities (inside leasehold) C -- Interior Doors A C Interior Surfaces (paint, carpet, ceilings, etc.) C C Parking Facilities Pavements A A Pavement Markings A A Snow Removal C C Signs (directional) A A Signs (stalls and branding) C C Access Gates, Perimeter Fence, & Overhead Lights A C Service Facility Building Exterior Walls A C Roof A -- Pavements A C Pavement Markings A A Building Interior Walls C C Utilities (to the leasehold) A -- Utilities (inside leasehold) C -- Interior Surfaces (paint, carpet, ceilings, etc.) C C Exterior Doors (incl overhead doors, card access) A C Interior Doors C C Fueling System A C Car Wash System Equipment & Equipment Room A A Wash Bays A A Equipment Storage Rooms A A IT Systems Authority Systems & Cables A A IT Systems Exclusive Devices C C Access Gates, Perimeter Fence, & Overhead Lights A C Lawn & Landscaping A C -55-

65 EXHIBIT C Required Insurance Endorsements Page 1 of 1 ADDITIONAL INSURED ENDORSEMENT The Des Moines Airport Authority, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees, and volunteers, and the City of Des Moines, Iowa, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees, and volunteers, is included as an Additional Insured. This coverage shall be primary to the Additional Insureds, and not contributing with any other insurance or similar protection available to the Additional Insureds, whether other available coverage be primary, contributing or excess. GOVERNMENTAL IMMUNITIES ENDORSEMENT (For use when including the Authority as an Additional Insured) 1. Nonwaiver of Government Immunity. The insurance carrier expressly agrees and states that the purchase of this policy and the including of the Des Moines Airport Authority as an Additional Insured does not waive any of the defenses of governmental immunity available to the Des Moines Airport Authority under Code of Iowa Section 670.4, as it now exists and as it may be amended from time to time. 2. Claims Coverage. The insurance carrier further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of Iowa Section 670.4, as it now exists and as it may be amended from time to time. 3. Assertion of Government Immunity. The Des Moines Airport Authority shall be responsible for asserting any defense of governmental immunity, and may do so at any time and shall do so upon the timely written request of the insurance carrier. Nothing contained in this endorsement shall prevent the carrier from asserting the defense of governmental immunity on behalf of the Des Moines Airport Authority. 4. Non-Denial of Coverage. The insurance carrier shall not deny coverage under this policy and the insurance carrier shall not deny any of the rights and benefits accruing to the Des Moines Airport Authority under this policy for reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the Des Moines Airport Authority. 5. No Other Change in Policy. The insurance carrier and the Des Moines Airport Authority agree that the above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. CANCELLATION AND NONRENEWAL ENDORSEMENT Thirty (30) days Advance Written Notice of Cancellation, ten (10) days Written Notification of Cancellation due to non-payment of premium and forty-five (45) days Advance Written Notification of Non-Renewal shall be sent to: Des Moines Airport Authority, Attn: Contracts Manager, 5800 Fleur Drive, Suite 207, Des Moines, Iowa This endorsement supersedes the standard cancellation statement on the Certificate of Insurance to which this endorsement is attached. -56-

66 EXHIBIT D Bond Form Page 1 of 4 DES MOINES AIRPORT AUTHORITY SURETY BOND NO. KNOW ALL BY THESE PRESENTS: PERFORMANCE BOND That we,, as Principal (the Concessionaire or Principal ), and, as Surety, are held and firmly bound unto the Des Moines Airport Authority, as Obligee (the Authority ), and to all persons who may be injured by any breach of any of the conditions of this bond in the penal sum of (1/3 of the first year s MAG), lawful money of the United States, for the payment of which sum, well and truly to be made, we bind ourselves, our heirs, legal representatives and assigns, jointly and severally, firmly by these presents. The conditions of the above obligations are such that whereas the Concessionaire entered in a contract with the Authority, bearing the date of (the Contract ) wherein the Concessionaire undertakes and agrees to perform the following services: On-Airport Automobile Concession at the Des Moines International Airport and to faithfully perform all the terms and requirements of the Contract within the time specified, in a professional, good and workmanlike manner, and in accordance with the Contract. The following provisions are a part of this bond and are binding upon the Concessionaire and Surety: 1. PERFORMANCE: The Concessionaire shall well and faithfully observe, perform, fulfill and abide by each and every covenant, condition and part of the Contract for the above referenced services, and shall indemnify and save harmless the Authority from all outlay and expense incurred by the Authority by reason of the Concessionaire s default or failure to perform as required. The Concessionaire shall also be responsible for the default or failure to perform as required under the Contract and Contract Documents by all its subcontractors, suppliers, agents, or employees furnishing materials or providing labor or services in the performance of the Contract. 2. GENERAL: Every Surety on this bond is deemed and held bound, any contract to the contrary notwithstanding, to the following provisions: A. To consent without notice to any extension of the Contract; B. To consent without notice to any change in the Contract that increases the total contract price and the penal sum of this bond, provided that all such changes do not, in the aggregate, involve an increase of more than twenty percent of the total -57-

67 contract price, and that this bond shall then be released as to such excess increase; and C. To consent without notice that this bond will remain in full force and effect until the Contract is completed, whether completed within the specified contract period, within an extension thereof, or within a period of time after the contract period has elapsed. The Concessionaire and every Surety on this bond are held bound, any contract to the contrary notwithstanding, to the following provisions: A. That no provision of this bond or of any other contract is valid which limits to less than one year after the expiration of the Contract the right to sue on this bond. B. That, as used herein, the phrase all outlay and expense is not limited in any way, but includes the actual and reasonable costs and expenses incurred by the Authority including interest, benefits and overhead as applicable. Accordingly, all outlay and expense will include but not be limited to all contract or employee expense, all equipment usage or rental, materials, testing, outside experts, attorneys fees (including overhead expenses of the Authority s staff attorneys), and all costs and expenses of litigation as they are incurred by the Authority. It is intended the Concessionaire and Surety will defend and indemnify the Authority on all claims made against the Authority on account of Concessionaire s failure to perform as required in the Contract, that all agreements and promises set forth in the Contract, in approved change orders, and in this bond will be fulfilled, and that the Authority will be fully indemnified so that it will be put in the position it would have been in had the Contract been performed in the first instance as required. C. In the event the Authority incurs any outlay and expense in defending itself with respect to any claim as to which the Concessionaire or Surety should have provided the defense, or in the enforcement of the promises given by the Concessionaire in the Contract, or approved amendments, or in the enforcement of the promises given by the Concessionaire and Surety in this bond, the Concessionaire and Surety agree that they will make the Authority whole for all such outlay and expense, provided that the Surety s obligation under this bond will not exceed 125% of the penal sum. In the event that any actions or proceedings are initiated with respect to this bond, the parties agree that the sole venue will be in Polk County, State of Iowa. Each of the parties hereby irrevocably and unconditionally waives all rights to trial by jury in any action, proceeding or counterclaim arising out of or relating to this bond. If legal action is required by the Authority to enforce the provisions of this bond or to collect the monetary obligation accruing to the benefit of the Authority, the Concessionaire and Surety agree, jointly and severally, to pay the Authority all outlay and expense incurred by the Authority. All rights, powers, and remedies of the Authority are cumulative and not alternative and are in addition to all rights, powers and remedies given to the Authority by law. The Authority may proceed -58-

68 against Surety for any amount guaranteed under this bond whether action is brought against the Concessionaire or whether the Concessionaire is joined in any such action. NOW THEREFORE, the condition of this obligation is such that if the Principal faithfully performs all of the promises of the Principal in the Contract and in this bond, then this obligation will be null and void, otherwise it will remain in full force and effect. Failure to specify or particularize will not exclude terms or provisions not mentioned and will not limit liability hereunder. The Contract is hereby made a part of this bond. Witness our hands, in triplicate, this day of, Principal: SURETY: (Company Name) Contractor By Signature Name Title FORM APPROVED BY: David A. Ferree Assistant City Attorney Surety Company By: Signature Attorney-in-Fact/Officer Name of Attorney-in-Fact/Officer Company Name Company Address City, State, Zip Code Company Telephone Number NOTE: 1. All signatures on this bond must be original signatures in ink; copies or facsimile of any signature will not be accepted. 2. This bond must be sealed with the Surety s raised, embossing seal. 3. The Certificate or Power of Attorney accompanying this bond must be valid on its face and sealed with the Surety s raised, embossing seal. The name and signature of the Surety s Attorney-in-Fact/Officer entered on this bond must be exactly as listed on the Certificate or Power of Attorney accompanying this bond. -59-

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70 EXHIBIT F Page 1 of 2 NPDES CERTIFICATION STATEMENT "I certify under penalty of law that I understand the terms and conditions of the Individual Des Moines International Airport National Pollutant Discharge Elimination System (NPDES) permit that authorizes the storm water discharges associated with industrial activity from my Des Moines International Airport leasehold or assigned site as part of this certification. Further, by my signature, I understand that I am becoming a co-permittee, along with the Des Moines Airport Authority, (hereinafter called "Authority"), other SIC code 45 tenants, subtenants, or operators signing such certifications, to the Iowa Department of Natural Resources NPDES Individual Permit No for "Storm Water Discharge Associated with Industrial Activity from Airport or Aircraft Vehicle Maintenance Areas, Equipment Cleaning Areas, or Deicing Areas Located at the Des Moines International Airport". As a copermittee, I understand that I, and my company, are legally required under the Clean Water Act and the Code of Iowa, to ensure compliance with the terms and conditions of the storm water pollution prevention plan(s) developed under this NPDES permit and the terms of this NPDES permit and by this authorized signature I am stating that my company will comply with the terms and conditions of the storm water pollution prevention plan developed under this NPDES permit and the terms of this NPDES permit. I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gathered and evaluated the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations." Name of Tenant(s), Sub-Tenant(s) or Operator(s) Local Representative SIC Code Title of Tenant(s), Sub-Tenant(s) or Operator(s) Local Representative Tenant, Sub-Tenant Operator Local Address Tenant, Sub-Tenant or Operator Local Telephone Proposed Initial Date of Operations TENANT, SUBTENANT OR OPERATOR S CORPORATE IDENTITY The Tenant shall indicate whether (Tenant) the company is a/an: Individual, Sole Proprietorship Partnership Corporation Joint-venture: all parties must join-in and execute all documents Other Signature By Name (Print/Type) Title Street Address City, State, Zip Code Telephone Number NOTE: The signature on this document must be an original signature in ink; copies or facsimile of any signature will not be accepted. -61-

71 EXHIBIT F Page 2 of 2 CORPORATE ACKNOWLEDGMENT STATE OF ) ) SS COUNTY ) On this day of,, before me, the undersigned, a Notary Public in and for the State of Iowa, personally appeared and, to me known, who, being by me duly sworn, did say that they are the, and, respectfully of the corporation executing the foregoing instrument; that (no seal has been procured by) (the seal affixed thereto is the seal of) the corporation; that said instrument was signed (and sealed) on behalf of the corporation by authority of this Board of Directors; that and acknowledged the execution of the instrument to be the voluntary act and deed of the corporation, by it and by them voluntarily executed. Notary Public in and for the State of My Commission expires -62-

72 DES MOINES INTERNATIONAL AIRPORT RATES AND CHARGES January 1, 2015