Car Sharing Program Agreement /o f /9 /0 Q0 /l- 0 776 7
AGREEMENT TO ESTABLISH A CAR - SHARING
PROGRAM IN THE CITY OF MIAMI BEACH
This Agreement to Establish a Car- Sharing Program between the City of Miami Beach,
Florida (the "City "), and The Hertz Corporation ( "Hertz "), is made this / Ct day of Jor?cM6 1L
2011 (Commencement Date). The term "Agreement" shall refer, collectively, to this agreement
and the exhibits attached hereto.
Pursuant to the terms and conditions set forth in this Agreement, Hertz will launch a car -
sharing program in the City (the "Program ") through its car- sharing business, Hertz on Demand,
for the use and enjoyment of Hertz on Demand members. The Program is generally described in
Exhibit A, attached hereto and made a part hereof.
RECITALS
WHEREAS, car-sharing programs are revolutiomzmg the way people commute within cities
throughout the country, and a shared car service with pubhc access has been determined by the City to be
a desirable and valuable mode of alternative pubhc transportation for the community; and
WHEREAS, a shared car service program will alleviate parking demand, vehicular traffic
congestion; reduce vehicle emissions and reliance on fossil fuels; and serve as a vital and integral part of
the community; and
WHEREAS, on September 10, 2008, the Mayor and City Commission authorized the issuance
of Request for Proposals No. 42 -07/08 to Solicit Proposals for the Implementation, Management and
Operation of a Shared Car Service Available to the Pubhc (the RFP); and
WHEREAS, at its December 10, 2008 meeting, the Mayor and City Commission adopted
Resolution No. 2008 - 26957, which accepted the recommendation of the City Manager pursuant to the
RFP, and authorized the Administration to enter into negotiations with Hertz, as the top - ranked
responsive proposer; and
WHEREAS, the City owns and operates (or causes to be operated) certain municipal
garages within the City of Miami Beach; and
WHEREAS, the City seeks to educate the public about, and encourage participation in,
car- sharing by designating certain parking spaces (the "Spaces ", as further defined in Section II
(a) hereof) in the eight (8) municipal garages set forth in Exhibit B (the "Garages ", as further
defined in Section II (a) hereof), attached hereto and hereby made a part hereof, in accordance
with the terms hereof, for the exclusive use of Program vehicles.
WHEREAS, accordingly, the City and Hertz have negotiated this Agreement for the
implementation, management, and operation of the Program in the City by Hertz.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants herein contained, and for other good and valuable consideration, the receipt and
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sufficiency of which is hereby acknowledged, the Parties hereto, intending to be legally bound
hereby agree as follows:
I. THE PROGRAM /HERTZ'S OBLIGATIONS
(a) Hertz will, on or before the ninetieth (90 day following the Commencement Date
referenced on page 1 of this Agreement (the "Effective Date "), provide dedicated new,
telematics- equipped car - sharing vehicles for the Program (the "vehicles "), in accordance
with the terms and conditions set forth in this Agreement. Hertz may deploy vehicles and
commence the Program prior to the Effective Date but, in such event, and for all other
purposes of this Agreement, the Effective Date will remain the 90 day following the
Commencement Date.
(b) Each vehicle will, as of the Effective Date, be in good condition and repair, have less
than 3,000 miles, and shall thereafter be replaced throughout the Term before the earlier
of: the passage of three (3) Program Years (as hereinafter defined); or the accumulation
of 36,000 miles; or as vehicle safety dictates. The quality and mix of vehicles allocated to
the Program will be comparable to, or better than, the quality (and mix) of vehicles
provided in other car - sharing programs, including not only those operated by Hertz in
other cities, but also those operated by other major car sharing program operators.
The condition and quality of the vehicles shall at all times be maintained in a manner that
is consistent with good business practices and the standards for condition and quality of
other comparable car sharing programs. Notwithstanding the preceding, Hertz shall, at a
minimum, ensure that all vehicles are well- maintained, safe, and fully operable, in
accordance with the highest standards in the car sharing industry and shall provide the
following:
• vehicle maintenance and repair (including, without limitation, all preventive
maintenance, as well as emergency maintenance such as dead batteries, flat tires,
etc);
• interior and exterior cleaning at least twice a month;
• fuel, by way of a Program- supplied debit or credit card for fuel purchases by the
Program member;
• 24/7 emergency roadside assistance (including towing, if needed); and
• insurance coverage for drivers eighteen (18) years of age and older in accordance
with the Terms and Conditions (as hereinafter defined).
As of the Effective Date, Hertz will provide the vehicles to City of the classes set forth in
Exhibit C, attached hereto and made a part hereof. Hertz may substitute vehicle makes
and models, without City approval; provided Hertz agrees to use only makes and models,
from a list of mutually agreed upon vehicle makes and models; which list will be
provided by Hertz on or before the Effective Date and attached as Exhibit C - hereto.
Hertz agrees to provide a diversified vehicle mix from among the vehicle classes set forth
in Exhibit C for each Program Year for each Garage and for the Program as a whole,
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provided that the goal of vehicle diversification shall be subordinate to the goal of
maximizing member and vehicle usage.
City will not remove or authorize the removal of a vehicle allocated to the Program from
a Garage without Hertz's prior consent.
Hertz shall maintain at least the following number of vehicles for each Program Year:
Period No. of Vehicles
First Program Year 20;
Second Program Year 23;
Third Program Year 35;
Fourth Program Year 50;
Fifth Program Year
and
Renewal Period (minimum) 63 — (maximum) 100.
The Program vehicles (and the Spaces for same) shall be located within the Garages
identified in Exhibit B hereto. Exhibit B also identifies the number and location of
Program vehicles for the First Program Year. For each Program Year after the first
Program Year, Hertz will notify the City, in writing, at least thirty (30) days in advance,
regarding which vehicles and how many vehicles it will place in each Garage, with the
purpose of maximizing member and vehicle usage. Notwithstanding the preceding, the
City Manager shall make the final determination with regard to the placement of any and
all additional Program vehicles to be added in subsequent Program Years. The
Manager's discretion shall extend both as to the designation of the particular Garage, and
the location of the Spaces therein, for such additional Program vehicles; provided,
however, that the overall number of Spaces shall at all times be equal to the then -
applicable number of Program vehicles allocated for that Program Year (as set forth in
the chart above, as such numbers may be increased or decreased in accordance with the
terms of this Agreement).
Hertz may not increase or decrease the number of vehicles at any time during any given
Program Year without the City Manager's prior written approval, which approval shall
not be unreasonably withheld. Notwithstanding the preceding, at no time during the
Term, shall Hertz decrease the number of Program vehicles below 20, nor shall the
number of vehicles exceed 100. If Hertz reduces the number of vehicles below the
minimum number of 20, the City may terminate this Agreement for cause, as provided in
Section I (d) (1) hereof.
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(c) Term. The initial term of this Agreement will be for five (5) years from the Effective
Date (the "initial term "). This Agreement may be renewed, at the sole discretion of the
City, and upon written notice to Hertz at least sixty (60) days prior to the expiration of the
initial term. If so approved and exercised by the City, the renewal term shall be for an
additional five (5) year term (the "renewal term "), commencing immediately after the
expiration of the initial term. The initial term and the renewal term shall collectively be
referred to as the "Term."
A "Program Year" shall mean the annual period commencing on the Effective Date, and
ending on the date immediately preceding the first anniversary of the Effective Date, and
each successive annual period commencing on an anniversary of the Effective Date.
(d) (1) Termination for Cause. Either party may terminate this Agreement for cause if
the other party is in material breach of this Agreement, upon thirty (30) days' written
notice; provided that the breaching party fails to cure the breach within thirty (30) days
following receipt of written notice of such breach. No termination for cause will be
deemed a waiver of any claim for damages by the defaulting party. If it should be
determined that this Agreement was improperly terminated for cause, then such
termination shall be deemed a termination for convenience.
(2) Termination for Convenience. Notwithstanding subsection (d) (1) above, or any
other term or condition of this Agreement, either party may also terminate this
Agreement for convenience (i.e. for any reason and without any liability therefor) upon
ninety (90) days' written notice to the other party.
(3) Surrender of Spaces. At the expiration of this Agreement, or in the event of
termination of the Agreement, Hertz shall surrender the Spaces in the same condition as
the Spaces were prior to the Commencement Date of this Agreement, reasonable wear
and tear excepted. The Spaces shall be returned in good order and repair and free from
any hazardous substances which arrived thereon through the acts or omissions of Hertz,
its employees, agents or contractors during the Term. Hertz shall remove all its vehicles
(and any and all other equipment, fixtures, personal property, etc.) within thirty (30)
days from the expiration or termination date of the Agreement, unless a longer time
period is agreed to, in writing, by the City Manager or his/her authorized designee, who
shall be the City's Parking Director. Hertz's obligation to observe or perform this
covenant shall survive the expiration or other termination of this Agreement. Continued
occupancy of the Spaces (or of all or any portion of the Garages) after such thirty -day or
longer agreed -to period following expiration or termination of the Agreement shall
constitute trespass by Hertz, and may be prosecuted by the City as such. In addition,
Hertz shall pay to the City five hundred dollars ($500) per day as liquidated damages for
such trespass and holding over.
(e) Program usage rates are set forth in Exhibit D, attached hereto and made a part hereof.
The Program rates in Exhibit D hereto shall not be increased during the first Program
Year. Thereafter, at the beginning of each Program Year (starting with the second year),
Hertz may increase the Program usage rates by up to 10% (over the Program usage rates
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for the prior Program Year) without the City's consent or approval. If Hertz proposes to
change the Program usage rates by more than 10% (over the Program usage rates for the
prior Program Year), then Hertz must obtain the prior written approval of the City
Manager, which approval shall not be unreasonably withheld.
(f) Vehicles allocated to the Program will be available to Hertz on Demand members,
whether or not such members are residents of the City, or otherwise affiliated with the
City. City will permit Hertz on Demand members to come onto the Garages referenced
in Exhibit B for the sole and limited purpose of accessing and returning the vehicles in
conjunction with Program usage.
(g) Each applicant will be required to satisfy Hertz's membership criteria for Hertz on
Demand. The applicable terms and conditions for membership in Hertz on Demand and
use of Hertz on Demand vehicles are available on the Hertz on Demand website (the
"Terms and Conditions "), and are incorporated herein by reference. This Agreement
shall not be construed to modify said Terms and Conditions, which Hertz reserves the
right, in its sole discretion, to amend from time to time.
The Program membership agreement entered into by a successful applicant is an
agreement between Hertz and the member only; it is understood that the City is not a
party to such agreement and, as such, the City shall not be entitled to the rights or subject
to the obligations thereof. Accordingly, the City have no liability, whether to Hertz,
successful applicants, Program members, and /or to any other third parties, as to any
membership agreement and /or the Terms and Conditions.
(h) Hertz's Member Care Center will be the point of contact for calls for assistance from
Hertz on Demand members associated with the Program.
Ongoing administration of the Program shall be the sole responsibility of Hertz.
Accordingly, on or before the Commencement Date, Hertz shall designate, and provide
notice of same in writing to the City, a supervisory /management level employee, similar
to an Area Manager, who would serve as the primary contact for the City with the
authority to represent, correspond, and act on behalf of Hertz with regard to Hertz's
obligations, and the day -to -day administration of the Program.
Except as may be otherwise expressly provided herein, the City's Parking Director shall
be the primary contact for Hertz with the authority to represent, correspond, and act on
behalf of the City with regard to the City's obligations, and the day -to -day administration
of this Agreement.
(i) The City and Hertz will mutually agree upon the best methods for advertising and
marketing the Program. On or before the Commencement Date, Hertz shall designate,
and provide notice of same in writing to the City, a manager/ team/department to act as a
marketing liaison between Hertz and the City. City shall designate an individual within
the City Administration to coordinate the marketing and promotion of the Program in the
City.
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The City will market and promote the Program in its sole discretion and determination
(except that City shall obtain any approvals required by Hertz herein with regard to
Program marketing). Hertz and City will discuss the best methods of advertising and
marketing the Program. Hertz will design marketing collaterals (e.g., flyer) and provide
City with soft copy files (pdf's, jpeg's, tiff's, etc.) for such collaterals. All marketing
collaterals shall be subject to the City Manager, or his/her authorized designee's (who
shall be the individual designated in subsection (i) above) prior written approval, not to
be unreasonably withheld. Program marketing efforts may include, but shall not be
required, at City's sole discretion and determination: news stories in the local media; City
advertising; advertisements in City's newsletters, newspapers, etc.; posters; internet links
from the City's website; brochures; and postcards sent to persons related to City. Should
City elect to produce marketing materials for distribution through all or any of the
aforestated channels, such materials will be subject to Hertz's approval, not to be
unreasonably withheld. Notwithstanding the preceding, the City shall be solely
responsible for determining the means, manner, and methods for marketing and
promoting the Program; provided, however, that the City's marketing and promotion
plan(s) shall be subject to Hertz's review and approval, which will not be unreasonably
withheld.
Hertz will make the Program available on the Hertz on Demand website. Individuals
may use the Hertz on Demand website to become Hertz on Demand members and to
reserve and use Program vehicles.
Neither party may use the other's name, trademark(s), or logo(s) without the prior written
consent of the other, which shall not be unreasonably withheld. Notwithstanding the
preceding, City gives Hertz permission to identify City as a Hertz on Demand client in
Hertz marketing material(s), whether or not such material is connected to the Program,
and to use the City's name, trademark(s), and /or logo(s) in connection therewith.
(j) (1) In consideration for the right to use the Spaces during the Term, from and after
the Effective Date, Hertz shall pay to the City the following Base Payment (as hereinafter
defined), plus Commission (as hereinafter defined), for each Program Year; provided that
no Base Payment or Commission shall be payable for the first one hundred eighty (180)
days [six (6) months if monthly periods are calendar months] of the initial five -year term:
(A) Definitions
(i) "Base Payment" shall mean a monthly payment equal to Seventy -Five
Dollars and 00 /100 ($75.00) per Space.
(ii) "Commission" shall mean an annual payment equal to a percentage of
Gross Revenues (as hereinafter defined) for the applicable Program Year,
as set forth in subsections (B) and (C) below.
(iii) "Gross Revenues" shall mean the total revenue from rental of the
Program vehicles by Hertz on Demand members (that is, the aggregate of
the then - applicable Program usage rates times the period of time rented)
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actually paid to Hertz for a given Program Year, provided that Gross
Revenues specifically excludes applicable taxes, surcharges, or penalties.
(B) Initial Five -Year Term
Period Commission
First Program Year 0%
Second Program Year 0%
Third Program Year .5%
Fourth Program Year .75%
Fifth Program Year 1%
(C) Five -Year Renewal Term
Period Commission
Sixth Program Year 1%
Seventh Program Year 1%,
Eighth Program Year 1%1
Ninth Program Year 1
Tenth Program Year 1%!
(2) Hertz shall provide to City monthly written reports, in such form as shall be agreed
upon between Hertz and the City's Parking Director (with the first report due one (1)
month following the Effective Date) and will include metric such as vehicle usage, the
number of Program members enrolled, and members' usage of vehicles. From and after
the commencement of the third Program Year, Hertz will provide City with monthly
reports summarizing the Gross Revenues and Commissions.
II. CITY'S OBLIGATIONS
(a) City shall provide Hertz with a limited license to use dedicated and reserved parking
spaces commensurate with the number of Program vehicles actually provided pursuant to
Section I(b) and Exhibit C hereof (as that n umber may be increased or decreased in
accordance with the terms of this Agreement), and shall designate the same for the
exclusive use of the Program (collectively, the "Spaces" and each, individually, a
"Space ") in the City owned garages listed in Exhibit B (collectively, the "Garages" and
each, individually, a "Garage "). The location of the Spaces shall be determined by the
City Manager, or his authorized designee (who shall be the City's Parking Director), in
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his/her sole and absolute discretion. Upon thirty (30) days' prior written notice to Hertz,
the City Manager may relocate the Spaces within each Garage, with City only responsible
for the cost associated with relocation of stall signage; provided the overall number of
Spaces shall at all times be equal to the then applicable number of Program vehicles
allocated for that Program Year (as set forth in Article I(b) hereof, as such numbers may
be increased or decreased in accordance with the terms of this Agreement). If the City
desires to reallocate the Spaces among the Garages, it shall notify Hertz of its desire,
identifying its proposed reallocation, and Hertz shall, within thirty (30) days of receipt of
such notice, establish a new vehicle allocation among the Garages in an effort to
accommodate the City's desire without compromising member or vehicle usage.
Hertz understands and acknowledges that the Spaces and the Garages are the property of
the City and not of Hertz and, as such, Hertz will not assert the City's property as its own
or otherwise offer the City's property as collatera1 to any third party. Hertz shall keep the
Spaces (and the Garages) free from any liens arising out of any work performed,
materials, furnished, or any other obligation incurred by Hertz.
(b) City shall use reasonable commercial efforts to ensure that the Spaces are available and
accessible twenty -four (24) hours, seven (7) days per week (e.g. including towing, or
having towed, vehicles parked in such Spaces that are not allocated to the Program).
Notwithstanding the preceding sentence, or any other term or condition of this
Agreement, Hertz accepts the Spaces and the Garages in their respective "AS IS"
"WHERE IS" condition. City agrees to maintain the Spaces consistent with Citywide
practices; provided, however, that Hertz shall assume sole responsibility and expense for
day to day housekeeping of the Spaces and for maintaining a neat and orderly operation
which, at a minimum and without limitation, shall include daily removal of litter,
garbage, and debris during all days/hours of operation. Hertz shall not permit the
accumulation of refuse, or dispose of liquid or other waste, in or about the Spaces, nor
cause or permit any nuisance or other condition or act that may interfere with the
authorized use of the Spaces for the Program.
City shall be entitled to enter onto the Spaces at any time and for any purpose including,
but not limited to, maintenance and inspection of the Spaces and /or the Garages. If the
City requires Hertz to temporarily relocate a vehicle within a Garage to perform such
maintenance or inspection, the City shall provide Hertz with at least five (5) days prior
notice specifying where the vehicle(s) are to be relocated and for how long. Hertz shall
be responsible for moving vehicles that interfere with the regular maintenance of the
Spaces and /or the Garages.
(c) City shall be responsible for installing signage, designating each Space for Hertz's
exclusive use for the Program (which signage may also include Tow Away Notices,
corporate signage, directional signage, and informational . signage). All such signage shall
be provided by Hertz, at its expense. The City Manager shall have the right to approve
the size, placement, and form of any signage prior to its installation, which approval shall
not be unreasonably withheld. The City Manager shall be the final authority with regard
to the placement and location of any approved signage within a particular Garage;
provided, however, that he /she shall make reasonable, good faith efforts to ensure that
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such signage shall be placed in, on or about the exterior of the Garages in high visibility
locations. Hertz will own the signs and maintain the signs after installation by the City.
Hertz will promptly replace any damaged or missing signage, at its sole cost and expense.
Hertz shall have the right to use its usual trademarks and logos in its signage.
(d) If the number of vehicles allocated to the Program is increased as provided in Section I
(b), then City will provide additional Spaces for such vehicle(s) in accordance with this
Section II.
(e) During the Term, City shall not enter into any agreement, discussions, or negotiations
preparatory to entering into any agreement with any other entity to make a car- sharing
service available on City property.
(f) Notwithstanding anything to the contrary contained herein, the City, and/or its
officers, employees, or contractors, shall not be liable for any damage to Hertz's
vehicles, provided that any such damage was not directly caused by the gross
negligence or willful misconduct of the City, or of its officers, employees, or
contractors.
III. INSURANCE and INDEMNITY
(a) Hertz shall maintain, at its sole cost and expense, the following types of insurance
coverage at all times throughout the Term:
1. Comprehensive General Liability, in the minimum amount of One Million
Dollars ($1,000,000) per occurrence for bodily injury (including death),
property damage, and personal injury. This policy must also contain
coverage for premises operations, products and contractual liability.
2. Workers Compensation Insurance shall be provided as required under the
laws of the State of Florida.
3. Automobile Insurance for any vehicles operated by Hertz in connection
with this Agreement and /or the Program, shall be provided covering all
owned, leased, and hired vehicles and non - ownership liability for not less
than the following limits:
Bodily Injury (including death) $1,000,000 per person
Bodily Injury (including death) $1,000,000 per accident
Property Damage $1,000,000 per accident
Subject to subsection III (c) below, failure to procure or maintain the required
insurance coverage(s) shall, at the City Manager's discretion, either (i) constitute an
automatic default of the Agreement under which the City may, upon written notice
to Hertz, immediately terminate the Agreement for cause; or (ii) in its sole
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discretion, the City may obtain the insurance itself, in which case said insurance
shall be charged back to the Hertz as provided in the following paragraph.
The policies of insurance referred to above shall not be subject to cancellation or
changing coverage except upon at least thirty (30) days prior written notice to the City,
and then only subject to the prior written approval of the City Manager or his/her
designee, who shall be the City's Risk Manger. Prior to the Commencement Date, Hertz
shall provide City with a Certificate of Insurance for each such policy. ALL POLICIES
SHALL NAME THE CITY OF MIAMI BEACH FLORIDA AS AN ADDITIONAL
INSURED. Subject to subsection III (c) below, all such policies shall be obtained from
companies authorized to do business in the State of Florida with an A.M. Best's Insurance
Guide (latest edition) rating reasonably acceptable to the City's Risk Manager, and any
replacement or substitute company shall also be subject to the approval of the City's Risk
Manager. Should Hertz fail to obtain, maintain or renew the policies of insurance referred
to above, in the required amounts, the City may, at its sole discretion, automatically
terminate this Agreement for Cause or, in the alternative, after at least ten (10) business
days' prior written notice to Hertz and without Hertz obtaining, maintaining or renewing
such insurance, obtain such insurance, and any sums expended by City in obtaining said
insurance, shall be repaid by Hertz to City, plus ten percent (10 %) of the amount of
premiums paid to compensate City for its administrative costs. If Hertz fails to repay
City's expenditures within fifteen (15) days of demand, the total sum owed shall accrue
interest at the rate of twelve percent (12 %) until paid, or, at its option, the City may
declare the Agreement in default pursuant to Section I(d)(1) hereof.
The terms of insurance policies referred to in this subsection shall preclude subrogation
claims against Hertz, the City and their respective officers, employees, contractors, and
agents.
(b) Hertz shall indemnify, defend, and hold harmless the City, and its officers, employees,
agents, contractors and assigns ( "City Indemnitees"), from and against all liabilities,
obligations, losses, damages, penalties, claims, actions, suits, costs, charges,
subrogations, and expenses including reasonable legal and other professional fees and
expenses and expert witnesses, which may be imposed upon or incurred by or asserted
against the City Indemnitees (collectively "Damages "), or any of them, by reason of
actual or alleged (1) injury or death to persons (including, without limitation, one or more
of the City Indemnitees, or of Hertz and /or its officers, directors, employees, contractors,
agents, or assigns); or (2) damage to the property of any person or legal entity (including,
without limitation, the property of one or more of the City Indemnitees, and the property
of Hertz and /or its officers, directors, employees, contractors, agents, or assigns), in either
case resulting from or arising out of (i) the operation by Hertz, its officers, directors,
employees, contractors, or agents of any vehicles used for or associated with Hertz's
operations under the Program and/or this Agreement; (ii) the use of the Spaces and /or the
Garages by Hertz, its officers, directors, employees, contractors, or agents; or (iii) any or
all work, services, and /or obligations performed and /or provided under the Program or
this Agreement by Hertz, and/or its officers, directors, employees, contractors or agents.
The foregoing agreement to indemnify, defend and hold the City Indemnitees harmless
shall not be applicable to the extent that such Damages are caused by the willful
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misconduct or gross negligence of the City Indemnitees or are caused by Hertz on
Demand members. The provisions of this subsection (b) shall survive the termination or
expiration of this Agreement.
(c) Hertz's insurance coverage shall be primary as respects City Indemnitees. Any insurance
or self insurance maintained by the City, and /or by any City Indemnitee, shall be in
excess of Hertz's insurance and shall not contribute with it. Except for Worker's
Compensation insurance, Hertz shall have the right to self insure the coverages required
by this Agreement, provided that Hertz has and maintains a net worth of at least $50
million. Hertz shall provide a certificate of insurance to evidence the coverages required
by this Agreement, and failure to provide such certificate of insurance shall be deemed a
material breach of this Agreement.
(d) It is understood and agreed by Hertz that its liability to City, and /or to the City
Indemnitees, shall not in any way be limited to or affected by the amount of insurance
coverage required or carried by Hertz under this Agreement.
IV. GENERAL TERMS and CONDITIONS
(a) Hurricane Evacuation Plan.
Hertz agrees that upon the issuance of a Hurricane Warning by the Miami -Dade County
Office of Emergency Management, it shall ensure that all vehicles and any and all other
items used in connection with the Program or this Agreement shall be secured.
Additionally, and notwithstanding the foregoing, Hertz agrees that upon receipt of
notification from the City, whether in writing or verbally, which may be communicated
to Hertz via telephone, fax and /or email, all vehicles and any and all other items used in
connection with the Program or this Agreement shall be removed from the Spaces and the
Garages and stored at a private, off -site location, within 24 hours of said notification.
Hertz's failure to remove vehicles and any and all other items used in connection
with the Program or this Agreement upon notice from the City, and within the time
period provided in this subsection, may, at the City Manager's sole discretion,
constitute an automatic default of the Agreement under which the City may, upon
written notice to Hertz, immediately terminate this Agreement for cause.
(b) City Business Tax Receipt.
Hertz shall obtain, and maintain current and in good standing throughout the Term, at its
sole cost and expense, a Business Tax Receipt (BTR) required by City law, as amended
from time to time, for the proposed uses contemplated under this Agreement.
(c) Late Payment.
Any payment which Hertz is required to make to City which is not paid on or before the
respective date provided for in this Agreement shall be subject to be a penalty of $50.00
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per day assessed for late or delinquent payments, along with simple interest accruing to
the City at the rate of ten (10 %) percent per annum, from the due date of payment until
such time as payment is actually received by the City. Payments shall be considered late
when paid five (5) days after the due date. Interest shall accrue beginning with the tenth
(10th) day following due date.
(d) Sales and Use Tax.
It is also understood that, if applicable, the required Florida State Sales and Use Tax
shall be added to Hertz's payments and forwarded to the City as part of said payments. It
is the City's intent that it is to receive all payments due from Hertz as net of such Florida
State Sales and Use Tax. The City represents that, as of the Commencement Date, it does
not assess or impose any City tax or surcharge on payments for use of parking spaces.
(e) Maintenance and Examination of Records.
Hertz shall maintain current, accurate, and complete financial records on an accrual basis
of accounting related to the Program and its operations pursuant to this Agreement.
Systems and procedures used to maintain these records shall include a system of internal
controls and all accounting records shall be maintained in accordance with generally
accepted accounting principles and shall be open to inspection and audit, by the City
Manager or his/her designee upon reasonable prior notice and during normal business
hours. Such records and accounts shall include a breakdown of gross revenues, expenses,
and profit and loss statements, and such records shall be maintained as would be required
by an independent CPA in order to audit a statement of annual gross revenues and profit
and loss statement pursuant to generally accepted accounting principles.
(f) Inspection and Audit.
Hertz shall maintain its financial records pertaining to its operations for a period of three
(3) years after the conclusion of the initial term, or (if approved) the renewal term, and
such records shall be open and available to the City Manager or his/her designee, as
deemed necessary by the City Manager or his/her designee. Hertz shall maintain all such
records at its principal office, currently located at 225 Brae Boulevard, Park Ridge, New
Jersey, 07656; provided, however, that all such records shall be relocated, at Hertz's
expense, to a location within the City of Miami Beach, within ten (10) days' written
notice from the City Manager or his/her designee that the City desires to review said
records.
Subject to V.(n), The City Manager or his/her designee shall be entitled to audit Hertz's
records pertaining to its operation as often as it deems reasonably necessary throughout
the Term, and three (3) times within the three (3) year period following termination of the
Agreement, regardless of whether such termination results from the natural expiration of
the Term or for any other reason. The City shall be responsible for paying all costs
associated with such audits, unless the audit(s) reveals a deficiency of five percent (5 %)
or more in Hertz's statement of gross receipts for any year or years audited, in which case
Page 12 of 26
the firm shall pay to the City, within thirty (30) days of the audit being deemed final (as
specified below), the cost of the audit and a sum equal to the amount of the deficiency
revealed by the audit, plus interest; provided, however, the audit shall not be deemed
final until Hertz has received the audit and has had a reasonable opportunity to review the
audit and discuss the audit with the City. Nothing contained within this subsection shall
preclude the City's audit rights for resort tax collection purposes.
From and after the commencement of the third Program Year, Hertz shall submit at the
end of each remaining Program Year of the initial term (and, if approved, the renewal
term), a certified audited annual statement of Gross Revenues from the Program, in a
form consistent with generally accepted accounting principles. These statements will be
provided by Hertz's internal accounting or operating departments.
It is Hertz's intent to stay informed of comments and suggestions by the City regarding
Hertz's performance under the Agreement. Within thirty (30) days after the end of such
Program Year, Hertz and City may meet to review Hertz's performance under the
Agreement. At the meeting, Hertz and City may discuss quality, operational, maintenance
and any other issues regarding Hertz's performance under the Agreement.
(g) Taxes, Assessments, and Utilities.
Hertz agrees to and shall pay before delinquency all taxes (including but not limited to ad
valorem resort taxes) and assessments of any kind assessed or levied upon Hertz by
reason of this Agreement or by reason of the business or other activities and operations of
Hertz upon or in connection with the Program and /or its use of the Spaces and /or the
Garages in connection therewith. Hertz will have the right, at its own expense, to contest
the amount or validity, in whole or in part, of any tax and/or assessment by appropriate
proceedings diligently conducted in good faith. Hertz may refrain from paying a tax or
assessment to the extent it is contesting the assessment or imposition of same in a manner
that is in accordance with law; provided, however, if, as a result of such contest,
additional delinquency charges become due, Hertz shall be responsible for such
delinquency charges, in addition to payment of the contested tax and/or assessment if so
ordered. Hertz shall also pay for any fees imposed by law for licenses or permits for any
business, activities, or operations of Hertz upon the City's property including, without
limitation, the Spaces and /or the Garages. The City represents that, as of the
Commencement Date, it does not assess or impose any City tax or surcharge on payments
for use of parking spaces.
Utilities.
No utilities will be provided by the City in connection with Hertz's operations under this
Agreement.
(h) No Dangerous Materials.
Hertz agrees not to use or permit in the Spaces and /or the Garages the storage and /or use
of gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible powered electricity
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producing generators, turpentine, benzene, naphtha, propane, natural gas, or other similar
substances, combustible materials, or explosives of any kind, or any substance or thing
prohibited in the standard policies of fire insurance companies in the State of Florida.
Any such substances or materials found being used within or in the vicinity of the Spaces,
or otherwise in the Garages, shall be immediately removed and shall be considered cause
for default and /or termination.
Notwithstanding any contrary provisions of this Agreement, Hertz, after the Effective
Date, shall indemnify and hold the City harmless from any loss, damage, cost, or expense
of the City, including, without limitation, reasonable attorney's fees, incurred as a result
of, arising from, or connected with the placement by Hertz, and /or its officers, directors,
employees, contractors, agents, or assigns after the Effective Date, but during the Term,
of any hazardous substance or petroleum products on, under, in, upon, or in the vicinity
of the Spaces, or on, under, in, or upon the Garages, as those terms are defined by
applicable Federal and State Statute, or any environmental rules and environmental
regulations promulgated thereunder; provided, however, Hertz shall have no liability in
the event of the willful misconduct or gross negligence of the City, its agents, servants or
employees.
The provisions of this subsection (h) shall survive the termination or earlier expiration of
this Agreement.
(i) Security.
Hertz shall be responsible for and provide reasonable security measures which may be
required to protect the vehicles. Under no circumstances shall the City be responsible for
any stolen or damaged goods, facilities, materials and /or other equipment including, but
not limited to, the vehicles, nor shall City be responsible for any stolen or damaged
personal property of Hertz's employees, contractors, agents, vendors, patrons, guests,
invitees, and/or any other third parties.
(j) Maintenance of Vehicles.
Hertz shall not permit the use of any vehicle, in a state of repair that violates any
Municipal, County, State or Federal Laws. Vehicles may only be driven and /or parked in
areas designated for such purposes and as provided for by applicable law.
(k) Inspection.
Hertz agrees that the vehicles and/or the Spaces, and /or the Garages may be inspected at
any time during days and hours of operation by the City Manager or his/her designees, or
by any other municipal, County, State officer, or agency having responsibilities for
inspections of such operations. Hertz hereby waives all claims against the City for
compensation for loss or damage sustained by reason of any interference (which
interference, if by the City, must be reasonable) with its operations by any public agency
or official in enforcing their duties or any laws or ordinances. Any such interference
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(which interference, if by the City, must be reasonable) shall not relieve Hertz from any
obligation hereunder.
(1) Force Majeure.
Neither party shall be obligated to perform hereunder and neither party shall be deemed
to be in default if performance is prevented by:
a. earthquake; hurricane; flood; act of God; civil commotion occurring at the
Garages during or in connection with any event or other matter or
condition of like nature; or
b. any law, ordinance, rule, regulation or order of any public or military
authority stemming from the existence of economic or energy controls,
hostilities, or war.
(m)Waiver of Loss from Hazards.
Hertz hereby expressly waives all claims against the City for loss or damage sustained by
Hertz resulting from fire, water, natural disasters /acts of God (e.g. hurricane,
tornado, etc.), civil commotion, riot, or any other Force Majeure contemplated in
subsection (1) above, and Hertz hereby expressly waives all rights, claims, and demands
against the City and forever releases and discharges the City of Miami Beach, Florida,
from all demands, claims, actions and causes of action arising from any of the aforesaid
causes.
(n) Notices.
All notices from the City to Hertz shall be deemed duly served upon receipt, if mailed by
registered or certified mail, return receipt requested, or by nationally recognized
overnight courier to Hertz at the following address:
The Hertz Corporation
Attn: Mr. Jordan Reber
Carsharing Senior Director
225 Brae Boulevard
Park Ridge, New Jersey 07656
With copies to: The Hertz Corporation
Attn: Hertz on Demand
225 Brae Boulevard
Park Ridge, New Jersey 07656
All notices from Hertz to the City shall be deemed duly served upon receipt, if mailed by
registered or certified mail, return receipt requested, or by nationally recognized
overnight courier to the City of Miami Beach at the following addresses:
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City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Attn: City Manager
With copies to:
City of Miami Beach Parking Department
309 -23 Street, Suite 200
Miami Beach, FL 33139
Attn: Parking Director
Hertz and the City may change the above mailing address at any time upon giving the
other party written notification. All notices under this Agreement must be in writing.
(o) Compliance.
Hertz shall comply with all applicable City, Miami -Dade County, State, and Federal
ordinances, statutes, rules and regulations, including but not limited to all applicable
environmental City, County, State, and Federal ordinances, statutes, rules and regulations
relating to its obligations under this Agreement.
(p) Equal Employment Opportunity.
Neither Hertz nor any affiliate of Hertz performing services hereunder, or pursuant
hereto, will discriminate against any employee or applicant for employment because of
race, creed, sex, color, national origin, sexual orientation, and disability, as defined in
Title I of ADA. Hertz will take affirmative steps to utilize minorities and females in the
work force and in correlative business enterprises.
(q) No Discrimination.
Hertz agrees that there shall be no discrimination as to race, sex, sexual orientation,
gender identity, color, national origin, marital familial status, religion, disability, or age,
in its employment practice or in the operations referred to by this Agreement. All
operations and services offered shall be made available to the public, subject to the right
of Hertz and the City to establish and enforce rules and regulations to provide for the
safety, orderly operation and security of the operations and the facilities.
Pursuant to the City's Human Rights Ordinance (as same may be amended from time to
time), Hertz, by executing this Agreement, certifies that it does not discriminate in its
membership or policies based on race, color, national origin, religion, sex, sexual
orientation, gender identity, marital or familial status, disability, or age.
Page 16 of 26
Hertz agrees and acknowledges that, as applicable, it shall comply with American with
Disabilities Act (ADA) standards, Florida Accessibility Code standards, and any other
applicable accessibility standards required by law.
(r) Not a Lease.
It is expressly understood and agreed that no part, parcel, building, facility, equipment or
space including, without limitation, all or any portion of the Spaces and/or the Garages,
is /are leased to Hertz; that Hertz is not a lessee; and that Hertz's right to operate under
this Agreement shall continue only so long as this Agreement remains in effect.
(s) No Third Party Beneficiary.
Nothing in this Agreement shall confer upon any person or entity, other than the parties
hereto and their respective successors and permitted assigns, any rights or remedies by
reason of this Agreement.
(t) Limitation of Liability.
The City desires to enter into this Agreement only if in so doing the City can place a limit
on its liability for any cause of action for breach of this Agreement, so that its liability for
any such breach never exceeds the sum of $10,000.00. Hertz hereby expresses its
willingness to enter into this Agreement with a $10,000.00 limitation on recovery for any
action for breach of contract. Accordingly, and in consideration of the separate
consideration of $10.00, the receipt of which is hereby acknowledged, the City shall not
be liable to Hertz for damages to Hertz in an amount in excess of $10,000.00, for any
action for breach of contract arising out of the performance or non - performance of any
obligations imposed upon the City by this ' Agreement. Nothing contained in this
paragraph or elsewhere in this Agreement is in any way intended to be a waiver of
limitation placed upon the City's liability as set forth in Florida Statutes, Section 68.28.
V. MISCELLANEOUS TERMS AND CONDITIONS
(a) Other than warranting that it has the right to enter into this Agreement and its
performance of this Agreement, NEITHER PARTY MAKES ANY WARRANTIES
OR CONDITIONS, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING
THOSE WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. NO WARRANTY IS MADE THAT
THE PROGRAM AND THE SERVICES PROVIDED HEREUNDER WILL
MEET CITY'S REQUIREMENTS.
(b) This Agreement is intended for the exclusive benefit of the parties executing it and their
permitted successors and assigns, and, to the fullest extent permitted by applicable law,
no other person or entity shall have rights hereunder whether as a third -party beneficiary
or otherwise.
Page 17 of 26
(c) Neither party shall have the right to assign this Agreement without the prior written
consent of the other party.
(d) This Agreement shall be governed by, and construed in accordance with, the laws of the
State of Florida, both substantive and remedial, without regard to principles of conflict of
laws. The exclusive venue for any litigation arising out of this Agreement shall be
Miami -Dade County, Florida, if in state court, and the U.S. District Court, Southern
District of Florida, if in federal court. BY ENTERING INTO THIS AGREEMENT,
HERTZ AND CITY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY
HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR
ARISING OUT OF, THIS AGREEMENT.
(e) This Agreement shall be construed without the aid of any rule of law requiring or
permitting construction against the drafter of the Agreement or the portion(s) of the
Agreement in question, it being agreed that all parties hereto have expressly and freely
agreed to the content of this Agreement.
(f) This Agreement constitutes the entire agreement and understanding between and among
the parties with respect to the subject matter hereof and supersedes all other prior or
contemporaneous oral agreements, understandings, undertakings and negotiations of the
Parties.
(h) If any term in this Agreement is found by competent judicial authority to be
unenforceable in any respect, the validity of the remainder of this Agreement will be
unaffected, provided that such unenforceability does not materially affect the parties'
rights under this Agreement.
(i) The provisions set forth in the following Sections and subsections of this Agreement will
survive after termination or expiration of this Agreement and will remain in effect until
fulfilled: the indemnities in Section III (b) and Section IV (h); and the provisions in
Section V.
(j) Neither Hertz nor any personnel of Hertz will for any purpose be considered employees
or agents of City. Hertz assumes full responsibility for the actions of Hertz's personnel,
and is solely responsible for their supervision, daily direction and control, payment of
salary (including withholding income taxes and social security), worker's compensation
and disability benefits.
(k) Neither City nor any personnel of City will for any purpose be considered employees or
agents of Hertz. City assumes full responsibility for the actions of City's personnel, and
is solely responsible for their supervision, daily direction and control, payment of salary
(including withholding income taxes and social security), worker's compensation and
disability benefits.
(1) The relationship of Hertz and City is solely that of independent contractors.
(m)Neither party shall be liable to the other for any indirect, incidental, special or
consequential damages, including lost profits or interruption of business.
Page 18 of 26
(n) Neither City nor any of its employees, agents or representatives shall disclose to any third
party or use any trade secret, business, commercial, technical, financial, strategic or other
proprietary and confidential information furnished by or on behalf of Hertz to City
relating to Hertz's operation of the car sharing program at City ( "Confidential
Information ") for any purpose except in furtherance of assessing the performance and
expected performance of the car sharing program at City. City shall take all steps
reasonably required to maintain the confidentiality of Confidential Information in its
possession, and will use the same standard of care to protect the Confidential Information
as City uses to protect its own similar confidential information, but not less than a
reasonable standard of care. For purposes of this subsection (n), any information,
records, documents or any and all other materials /information that is subject to
inspection, copying, and /or disclosure pursuant to (i) the requirements of Florida Public
Records law (including, without limitation Chapter 119, Florida Statutes), as same may
be amended from time to time; or (ii) court order or the order of any administrative body
having jurisdiction over the subject matter under this Agreement.
(o) Failure of either party to enforce any provision of this Agreement shall not constitute a
waiver of the right to enforce such provision, unless such waiver is in writing and signed
by the waiving party.
(p) City Request for Proposals No. 42 -07/08 to Solicit Proposals for the Implementation,
Management, and Operation of a Shared Car Service Available to the Public (the "RFP "),
and Hertz's response thereto (the "Proposal "), are attached and incorporated as Exhibit E
hereto; provided, however, that in the event of an express conflict among the RFP,
Hertz's Proposal, and this Agreement, the precedence will be given to this Agreement.
(q) NO ADVERTISING ON VEHICLES. Other than the placement of the Hertz
and/orHertz on Demand trademark(s) and /or logo(s), no additional trademarks, logos, or
advertising will be permitted on Program vehicles.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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The parties have executed this Agreement as of the date first set forth above. The individuals
signing below on behalf of the respective parties hereby represent and warrant that they are duly
authorized to execute and deliver this Agreement on behalf of the party indicated and that this
Agreement is binding upon the parties in accordance with its terms.
CITY OF MIAMI BEACH THE HERTZ CORPORATION
By / / / /� /. �. !I�i; B - , /A
Title �'t�1'��i�► Title 1
Dated Digcir t gra 1 / at, i / Dated v �. �I RI T
ICE PRESIDENT
SALES aTRATEgy & OPERATIONS
Att t I Attest
P dkit APPROVED AS TO
FORM & LANGUAGE
& FfA EXECUTION
OF'
orn i �,Oj� ate
Page 20 of 26
EXHIBIT A
Program Summary/Description
Hertz on Demand is a car sharing service where vehicles are placed in the proximity of the
expected users and the rental term varies from an hour up to a few days. Members will have
self - service access to a fleet of vehicles. Members will be able to reserve the vehicles on the
web or via a touchtone phone for as little as an hour up to a few days. A simple hourly fee
includes, gas, insurance, maintenance, cleaning, a reserved parking spot as well as 24/7
roadside assistance. Hertz on Demand is comprised of the following components:
• Membership - To join, drivers must register and be approved to drive a vehicle. To be
approved, drivers must be at least 18 years of age, meet our driving record criteria, and
possess a valid driver's license and a valid credit or debit card. Signing up is as easy as
going online and filling out a quick application.
• Self - service vehicle accessing — Hertz on Demand allows members to reserve a car on the
web or via telephone. Approved members are assigned a member number, a PIN and a
card or key fob that utilizes RFID technology, all of which are required for the self -
service reservation and rental. With the card or key fob, members will have unrestricted
access to all vehicles.
• Hourly Rates — Connect by Hertz vehicles are available by the hour, making short trips
cost effective.
• Priced Incrementally - members will only be charged for their reservation time (provided
the vehicle is returned on time). They can choose to use the vehicles for as little as an
hour up to a few days.
• All - inclusive — Hertz on Demand simple hourly fee includes gas, insurance, a reserved
parking spot, maintenance, cleaning, and 24/7 roadside assistance.
• Member Care Center - The MCC will provide round - the -clock service to members
leveraging Hertz's existing infrastructure, answering incoming calls via a 'toll free
number (1- 877 - 654 -4400) and responding to e-mail inquiries directed to the Connect by
Hertz Member Care Center mailbox so members will be supported at any time in case of
questions or need of assistance.
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EXHIBIT B
Garages
Number of Program Vehicles
Parking Spaces for the First
Location Program Year*
1 7 Street Garage/Municipal Garage No. 1 5
2 12 Street Garage/Municipal Garage No. 2 2
3 13 Street Garage/Mumcipal Garage No. 3 0
4 16 Street Garage/Municipal Garage No.4 3
5 17` Street Garage/Municipal Garage No. 5 5
6 42 °d Street Garage/Mumcipal Garage No. 6 0
7 City Hall Garage/Mumcipal Garage No. 7 5
8 5 and Alton Garage/Municipal Garage No. 8 0
*NOTE: Number of Program Vehicle (Parking) Spaces for subsequent Program Years shall
be in accordance with (and shall not exceed) the number of vehicles set forth in Article I (b) of
the Agreement, which may be increased, decreased, and /or relocated as provides in the
Agreement.
Page 22 of 26
EXHIBIT C
Program Vehicles
Hertz On Demand Miami Beach Vehicle Models
Vehicle Category Example
Economy Car Toyota Yaris
Smart Cars Smart Car
Premium Compact Car BMW Mini
Intermediate Chevy Cruze
Hybrid Toyota Pnus
Fullsize Chevy Impala
Large SUV or Luxury Sedan Mercedes GLK
5 Pass SUV or PickUp Trk Buick Enclave
Luxury SUV Cadillac Escalade
Midsize SUV Ford Escape
Convertible Volvo C70
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EXHIBIT (C -1)
Program Vehicle Makes and Models to be Provided by Hertz on Effective D tte
Page 24 of 26
EXHIBIT D
Program Usage Rates
Hertz On Demand Miami Beach WeekDay WeekEnd
WeekDay WeekEnd Hourly Daily Daily
Hourl M -Tr (Fri-Sun) (M -Tr) (Fri-Sun)
Rate Rate Rate Rate
Economy Car $9.00 $11.00 $63 00 $108.00
Smart Cars $7 00 $7.00 $60.00 $66.00
Premium Compact Car $12.50 $14.50 $87.50 $139.50 '
Intermediate $1175 $13.50 $82.25 $130.50
Hybrid $10.50 $12.00 $73.50 $117.00
Fullsize $13 00 $15.00 $91 00 $144.00
Luxury Sedan/Large SUV $15 00 $17.00 $135 00 $170.00
5 Pass SUV or Pickup Trk $14.25 $15 75 $114 00 $157.50
Luxury SUV $22.50 $24.50 $209 00 $235.00
Midsize SUV $14 00 $15.50 $98.00 $155.00
Convertible $14.25 $15 75 $99 75 $170.00
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EXHIBIT E
Proposal Documents
Page 26 of 26